PATRICIA C. FLOURNOY, Plaintiff-Appellant,
CML-GA WB, LLC, Defendant-Cross Claimant-Cross Defendant-Appellee, RIALTO CAPITAL ADVISORS, LLC, PAUL GREGORY KING, Defendant-Cross Claimant-Appellees, REX PROPERTY AND LAND, LLC, Defendant-Cross Defendant-Cross Claimant-Appellee.
from the United States District Court for the Southern
District of Georgia D.C. No. 1:14-cv-00161-JRH-BKE
ED CARNES, Chief Judge, ANDERSON, Circuit Judge, and
ROSENBERG, District Judge
Patricia Flournoy is an African-American woman who owns and
operates a hair salon. Seeking to expand her business, Ms.
Flournoy applied to lease space in the JB Whites Building.
After her lease application was denied Ms. Flournoy brought
suit, alleging that the denial infringed her right to freedom
from racial discrimination in the making of a contract.
See 42 U.S.C. § 1981. The district court
granted summary judgment for Defendants, ruling that Ms.
Flournoy had not established a prima facie case and,
alternatively, that she had not rebutted the legitimate,
nondiscriminatory reasons Defendants proffered for denying
her lease application. Ms. Flournoy appealed. We now affirm
on the second of these two grounds.
STANDARD OF REVIEW
review a district court's grant of summary judgment
de novo and apply the same standards that governed
the district court. Summary judgment is appropriate "if
the movant shows that there is no genuine dispute as to any
material fact." Fed.R.Civ.P. 56(a). In determining
whether this standard is met, the Court must view the facts
in the light most favorable to the non-moving party and draw
all reasonable inferences in that party's favor. See
Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006).
Only a genuine and material factual dispute will defeat
summary judgment. Miccosukee Tribe of Indians of Fla. v.
United States, 516 F.3d 1235, 1243 (11th Cir. 2008)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986)). A dispute is genuine if "a
reasonable trier of fact could return judgment for the
non-moving party." Id. (citing
Anderson, 477 U.S. at 247-48). A fact is material if
"it would affect the outcome of the suit under the
governing law." Id. (citing Anderson,
477 U.S. at 247-48).
Patricia Flournoy has, since about 2007, owned and operated
Karisma Hair Studio in Augusta, Georgia. In 2012, desiring to
grow her business, Ms. Flournoy began looking for a new
location. During an online search, she came across an
advertisement by Defendant Rex Property and Land, LLC
("Rex"). Rex is the real estate management company
for Defendant CML-GA WB, LLC ("CML"). CML, a
special purpose entity managed by Defendant Rialto Capital
Advisors ("Rialto"), owns the JB Whites building in
Flournoy called the telephone number included in Rex's
advertisement and spoke with Ms. Andrea Carr, a property
manager at Rex. The pair viewed several available properties.
But only one-the JB Whites building-piqued Ms. Flournoy's
interest. The first floor of JB Whites is commercial space.
Fifty-one condominiums occupy the floors above. Ms. Flournoy
expressed interest in one of the rear commercial units. Ms.
Carr gave Ms. Flournoy a lease application and told her that
she would be subjected to a background and credit check.
meeting with Ms. Carr, Ms. Flournoy received a call from
Defendant Paul King. Mr. King, Rex's general manager, is
the property manager and sales broker for the JB Whites
building. Mr. King expressed interest in visiting the Karisma
Hair Studio and asked a number of questions about Ms.
Flournoy's business. After the call, he visited the
salon's existing location. Either shortly before or after
his visit to Karisma, Mr. King asked whether Ms.
Flournoy's salon could service all races and genders. Ms.
Flournoy assured him that it could.
King also discussed Ms. Flournoy's interest in the space
with Bradley Kentor, the Vice President of Commercial Real
Estate at Rialto. Mr. Kentor told Mr. King early in the
application process that a salon was not a preferred tenant
because the cost of ventilation to mitigate fumes and odors
was potentially prohibitive. It is unclear whether this
conversation occurred before or after Mr. King called Ms.
Flournoy and visited her salon. Mr. Kentor also had concerns
about the historically high failure rate of salons, and the
fact that salon visitors were not likely to patronize other
commercial spaces during visits to the JB Whites Building.
and background checks on Ms. Flournoy were run on August 24,
2012. Ms. Flournoy's credit score was less than 700.
According to Ms. Flournoy, Ms. Carr, who had run the checks,
told Ms. Flournoy that "everything looked good" and
gave her a diagram of the suite so that Ms. Flournoy could
indicate where she wanted sinks and other fixtures placed.
The rear units were not built out; no plumbing, HVAC, or
electrical work was (or is) in place.
Flournoy later received a call from Ms. Carr. First, Ms. Carr
told Ms. Flournoy that Mr. King had indicated a desire for
commercial tenants to be able to service "the people
upstairs." Ms. Flournoy assured Ms. Carr that she could
cut and style all hair types. Ms. Carr also told Ms. Flournoy
that Mr. King had requested the submission of a business
plan. Ms. Flournoy hired Ms. Catherine Maness to prepare that
Maness called Ms. Carr to get an address needed to complete
the business plan. Ms. Maness testified that Ms. Carr told
Ms. Maness during that phone call that Ms. Flournoy's
credit score posed a problem. Ms. Maness relayed her
conversation with Ms. Carr to Ms. Flournoy, who then called
Ms. Carr. Ms. Carr said that she could ...