§ 1981 Requires But-For Causation Tied to the Decisionmaker: Ambiguous Remarks and Nondecisionmaker Animus Are Insufficient

Precedents Cited

1) The scope of § 1981 and who may sue

• Domino's Pizza, Inc. v. McDonald: The court relied on Domino’s for the proposition that § 1981 safeguards the right to make and enforce contracts free from racial discrimination, including protection for “would-be contractor[s].” That framing mattered because Clark’s claim arose in a retail transaction context (attempting to buy a money order), not an employment relationship.
• Jackson v. BellSouth Telecomms.: The opinion used Jackson to restate the familiar three elements of a § 1981 claim and to narrow the dispute to the second element—intent.

2) Causation: § 1981 requires but-for causation

• Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media: This was the controlling rule. The court treated Comcast’s but-for standard as dispositive: Clark had to show that, absent race, the money order would have been sold.
• Bostock v. Clayton Cnty. and Ismael v. Roundtree: Bostock provided a clear articulation of but-for causation, and Ismael confirmed the Eleventh Circuit’s willingness to apply Bostock’s causation explanation in § 1981 analysis. The opinion used these authorities to underscore that the presence of other reasons for denial does not automatically defeat liability—yet the plaintiff must still show race was determinative.

3) Summary judgment framework and evidentiary burdens

• Jarrard v. Sheriff of Polk Cnty.: Cited for de novo review and drawing inferences for the nonmovant.
• Hornsby-Culpepper v. Ware: Used for the burden structure at summary judgment—once the movant shows an evidentiary failure on an essential element, the nonmovant must identify a genuine dispute of material fact.
• Rice v. Branigar Org., Inc.: Supported the rejection of Clark’s attempt to “dispute” declarations with accusations rather than record evidence; allegations alone do not create a genuine issue.

4) Direct evidence: only “blatant remarks” qualify

• Merritt v. Dillard Paper Co. and Rollins v. TechSouth, Inc.: The court applied Merritt/Rollins to define direct evidence as proof requiring no inference.
• Damon v. Fleming Supermarkets of Fla., Inc.: The “blatant remarks” formulation set a high bar; ambiguous language typically falls short.
• Anderson v. Wachovia Mortg. Corp.: Though a Third Circuit case, it reinforced the court’s conclusion that “you people,” standing alone, is commonly deemed too ambiguous to be direct evidence.

5) Circumstantial evidence: McDonnell Douglas, comparators, and the “convincing mosaic”

• Ziyadat v. Diamondrock Hosp. Co.: Confirmed that § 1981 discrimination may be proven by direct or circumstantial evidence and referenced use of Title VII’s McDonnell Douglas framework.
• McDonnell Douglas Corp. v. Green: Provided the comparator-based prima facie pathway. Clark failed because he did not identify similarly situated customers of a different race who were allowed to purchase similar high-value money orders under materially similar circumstances.
• Lewis v. City of Union City: The “similarly situated in all material respects” comparator standard (quoted through Ziyadat) made Clark’s lack of comparator evidence fatal to the prima facie case.
• Smith v. Lockheed-Martin Corp., Tynes v. Fla. Dep't of Juv. Just., and McCreight v. AuburnBank: These cases framed the “convincing mosaic” not as a separate test but as the ordinary summary judgment question—whether all the evidence allows a reasonable inference of intentional discrimination.
• Jenkins v. Nell: Listed common “mosaic” categories (suspicious timing, ambiguous statements, systematically better treatment, pretext), which the court used to show Clark’s proof did not meet the inference threshold.

6) Nondecisionmaker bias and causation (“cat’s paw” principles)

• Ross v. Rhodes Furniture, Inc.: Supported the idea that remarks falling short of direct evidence may still be circumstantial evidence.
• Ziyadat v. Diamondrock Hosp. Co. (again) and Sims v. MVM, Inc.: The key rule applied: where the allegedly biased actor is not the decisionmaker, § 1981 but-for causation requires evidence that the nondecisionmaker’s animus was intended to cause and did cause the contractual injury—i.e., it had a “determinative influence.”
• Poer v. Jefferson Cnty. Comm'n: Reinforced that racist comments by a nondecisionmaker do not establish discrimination absent a link to the ultimate decisionmakers.

7) Procedural and recusal principles

• Access Now, Inc. v. Sw. Airlines Co.: Barred Clark’s new appellate theories (breach of contract, negligence) because they were not raised below.
• Hamm v. Members of Bd. of Regents of State of Fla., United States v. Cerceda, and Jenkins v. Anton: Controlled the recusal discussion—adverse rulings and comments about the evidentiary posture are not enough, and speculative claims do not show bias or abuse of discretion.

Legal Reasoning

1. Direct evidence rejected as ambiguous. Even assuming the employee said “we don’t feel comfortable helping you people,” the court held the phrase required inference to connect it to race and was “subject to more than one interpretation.” Under Merritt/Damon, that ambiguity precludes direct-evidence treatment.
2. McDonnell Douglas failed for lack of comparators. Clark identified no similarly situated non-minority customers who were permitted to buy comparable high-value money orders under similar “red flag” conditions. Without that, he could not establish a prima facie case under the comparator-centered method.
3. The “convincing mosaic” (i.e., ordinary summary judgment) also failed. The court focused on undisputed facts showing the decisionmaker, assistant store manager Travis Hutchinson: (a) was not present, (b) was the same race as Clark, (c) was not informed of Clark’s race, and (d) denied the request based on neutral factors (large amount, customer reported no income, unusual stated purpose) consistent with anti-fraud/suspicious-transaction training. With no evidence that race entered the decision calculus, a jury could not find race was a but-for cause.
4. No causal bridge from the employee’s remark to the denial. Treating the “you people” remark as potentially suggestive of bias still did not satisfy Comcast/Ziyadat because the speaker was not the decisionmaker, and the record showed the decision flowed through other employees and was grounded in policy-based factors. There was no evidence the remark had a determinative influence on Hutchinson.
5. Comparator-by-location argument rejected by record context. The court addressed that Clark later purchased the money order at another Publix store, but found it non-probative: that store also flagged the transaction, and the key difference was that Clark provided supporting documents there, which he did not provide at Store No. 1477.

Impact

Although “NOT FOR PUBLICATION,” the decision illustrates several practical points likely to influence how § 1981 retail-transaction cases are litigated in the Eleventh Circuit:

• But-for causation is not rhetorical—courts will demand a concrete causal link. If the decisionmaker is unaware of the plaintiff’s race, proving race as a but-for cause becomes exceptionally difficult absent evidence of information flow, proxy criteria, manipulation, or a “cat’s paw” mechanism.
• Ambiguous comments rarely carry a case past summary judgment without linkage. Remarks like “you people” may support an inference in some contexts, but standing alone they may be too indeterminate to serve as direct evidence, and may be insufficient circumstantially unless tied to the actual decisionmaking process.
• Neutral “suspicious transaction” policies can be powerful nondiscriminatory explanations. When a retailer shows objective red flags and consistent application (including initial flagging at another store), plaintiffs will need evidence of pretext: inconsistent enforcement, shifting explanations, comparator proof, or evidence that policy was selectively invoked.
• Nondecisionmaker-bias theories require proof of determinative influence. The opinion reinforces that plaintiffs must develop evidence about who decided, what they knew, and whether any biased subordinate steered the outcome.