A federal judge has granted Nike’s motion for summary judgment in a case where the corporate giant was sued by a prospective partner for race discrimination.
Plaintiffs, Foot Soldiers Sports Apparel, Inc. and its president and manager Nelson Tavares, had alleged the discrimination when Nike refused to enter into a contractual relationship, which would have allowed the plaintiffs to sell Nike products.
The complaint presented three legal theories: discrimination under 42 U.S.C. § 1981, interference with prospective advantage, and negligence.
The court began its analysis by reciting the facts: “Tavares, who is Hispanic, sent Nike a letter requesting a business account that would allow him to sell Nike products in his retail store, Foot Soldiers. Nike employees researched the proposal and decided to reject it for the following reasons: because the applicant apparently had very little athletic shoe retail experience, the proposed location for Nike shoe sales was not advantageous to Nike, the proposed retail location was not an athletic shoe store (i.e. a running shoe store or sporting goods store), other established Nike shoe accounts were in close proximity to the Foot Soldiers’ store and other market conditions important to Nike.”
The court further noted that at the time of Nike’s decision, “none of the employees involved knew the race of Tavares or any Foot Soldiers employees.”
Nike ultimately moved for summary judgment.
“The statute at issue, 42 U.S.C. § 1981, prohibits racial discrimination in the forming and enforcement of contracts,” wrote the court citing “Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476, 126 S. Ct. 1246, 163 L. Ed. 2d 1069 (2006) (‘Section 1981 offers relief when racial discrimination blocks the creation of a contractual relationship, as well as when racial discrimination impairs an existing contractual relationship, so long as the plaintiff has or would have rights under the existing or proposed contractual relationship.’). The framework of proof developed by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981), applies to claims made pursuant to § 1981. See Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989), partially superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1074; Lizardo v. Denny’s, Inc., 270 F.3d 94, 103-05 (2d Cir. 2001).
“Under the McDonnell Douglas framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. If the plaintiff does so, the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for its action. If such a reason is provided, plaintiff may no longer rely on the presumption raised by the prima facie case, but may still prevail by showing, without the benefit of the presumption, that the employer’s determination was in fact the result of racial discrimination. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008) (citing McDonnell Douglas, 411 U.S. at 802, and Burdine, 450 U.S. at 253) (internal citations and quotation marks omitted).
“In the refusal to contract context, a plaintiff can establish a prima facie case by establishing that (1) she was a member of a protected class; (2) she sought to enter into a contractual relationship with [the defendant]; (3) she met [the defendant]’s ordinary requirements to pay for and to receive goods or services ordinarily provided by [the defendant]; and (4) she was denied the opportunity to contract for goods or services otherwise afforded to white customers. Stucky v. Wal-Mart Stores, Inc., No. 02-CV-6613 CJS(P), 2005 U.S. Dist. LEXIS 20845, 2005 WL 2008493, at (W.D.N.Y. Aug. 19, 2005); cf. Holcomb, 521 F.3d at 137 (describing prima facie showing in employment context). The plaintiff’s burden in establishing a prima facie case ‘is not onerous.] Burdine, 450 U.S. at 253.”
The court next turned to Nike’s argument “that Tavares has not established a prima facie case because he has not shown that he met Nike’s ordinary requirements for acquiring a Nike account. The Court need not decide the issue, however, because even assuming that Tavares has met the ‘de minimis’ burden of establishing a prima facie case, see Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir. 2008), and benefits from the burden-shifting framework, summary judgment in Nike’s favor is appropriate.
“Assuming, arguendo, that Tavares has established a prima facie case, ‘the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the adverse . . . action . . . .’ Farias v. Instructional Systems, Inc., 259 F.3d 91, 98 (2d Cir. 2001). Nike has submitted evidence to the effect that Tavares’s request for an account was denied for legitimate, nondiscriminatory reasons. Given this evidence, Nike has discharged its burden of production under McDonnell Douglas, and the presumption of discrimination created by the prima facie case disappears. The question is, then, whether Tavares has ‘raised sufficient evidence upon which a reasonable jury could conclude by a preponderance of the evidence that the decision’ to decline his application was based on his race. Holcomb, 521 F.3d at 141.
“The evidence in the record is far from voluminous. Tavares has submitted only the Amended Complaint. In addition to its answer, Nike has submitted declarations from two of its employees, made under penalty of perjury pursuant to 28 U.S.C. § 1746. The Amended Complaint alleges that Nike denied Tavares’s application on account of his race and approved the application of a white-owned store thereafter. Nike has denied both of these allegations and has submitted evidence showing that the employees who made the relevant decision were not even aware of Tavares’s race. In an evidentiary contest between unsupported allegations from Tavares and contrary evidence in the form of declarations made under penalty of perjury from Nike, no reasonable jury could credit Tavares’s account and conclude that Nike intentionally discriminated against Tavares based on his race.”
Turning to the remaining claims, the court wrote “the gravamen of Tavares’s negligence and interference with prospective advantage claims is the same as that of his § 1981 claim: that Nike’s denial of his application was motivated by racial discrimination. Although the McDonnell Douglas burden-shifting framework does not apply to these claims, the result is the same as that reached in the previous section: because Tavares has submitted only unsupported allegations of discrimination, and Nike has submitted evidence that its decision was not based on Tavares’s race, no reasonable jury could conclude that Nike is liable for negligence or interference with prospective advantage.”
Nelson Tavares and Foot Soldiers Sports Apparel, INC. v. Nike, INC. and William Compton in his individual and official capacity; E.D.N.Y.; Case No. 05-CV-4107 (FB) (AKT); 2008 U.S. Dist. LEXIS 91201; 11/11/08
Attorneys of Record: (for plaintiffs) Nelson Tavares, Pro se, Freeport, NY. (for defendant) Gregory Evans, ESQ. of Milbank, Tweed, Hadley & McCloy LLP, Los Angeles, CA.
