Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BENNETT, District Judge. TABLE OF CONTENTS 942 I. INTRODUCTION. 942 A. Factual Background. 943 B. Procedural Background. II. LEGAL ANALYSIS. A. Standards For Summary Judgment. B. Kirt’s § 1981 Race Discrimination Claim. 1. Arguments of the parties. a. Bug’s argument. response. c. . a. . b. Requirements for proof of a claim. 3. Analysis. a. Membership in a racial minority. b. Intentional discrimination. c. Interference with a right to contract. C. Kirt’s Iowa Civil Rights Claim. parties. a. argument. b. Kirt’s response . c. Fashion Bug’s reply. 2. Applicable law . a. . a i. Possible formulations of the prima facie case ii. The proper formulation. 3. Analysis. a. Kirt’s prima facie case. i. Membership in a protected class. ii. Attempt to enjoy accommodations. Hi. Refusal or denial of accommodations or other discrimination. ^ CD CS b. Fashion Bug’s legitimate reasons. CD CD Ci c. Kill’s showing of pretext and discrimination. CD III. CONCLUSION. .967 An African-American customer has sued a retail store for race discrimination pursuant to the “right-to-contract” provisions of 42 U.S.C. § 1981 and the “public accommodations” provisions of the Iowa Civil Rights Act (ICRA), Iowa Code § 216.7. The viability of the customer’s federal claim turns on whether there was actually any “interference” with the her “right to contract” because of her race. Similarly, the viability of the customer’s state-law claim turns on whether there was actually any “refusal” or “denial” of her right to “accommodations, advantages, facilities, services, and privileges” or proof that she was “otherwise discriminated against” in the furnishing of such accommodations because of her race. In a motion for summary judgment, the store contends that the customer cannot establish a prima fa-cie case of race discrimination under either federal or state law, because after a store employee allegedly made racially charged accusations of shoplifting, the store manager invited the customer to continue shopping. The customer, however, contends that there are sufficient genuine issues of material fact concerning racial animus and interference with her rights for her claims to go to a jury. I. INTRODUCTION A. Factual Background The court will not attempt here an exhaustive dissertation on the undisputed and disputed facts in this case. Rather, the court will set forth sufficient of the facts, both undisputed and disputed, to put in context the parties’ arguments concerning the defendant’s motion for summary judgment. The court will then discuss specific factual disputes, and the extent to which they may be material, in the context of pertinent portions of its legal analysis. Plaintiff Karen M. Kirt is an African-American woman. Defendant Fashion Bug # 3253, Inc., (Fashion Bug) is a retail women’s clothing store in Sioux City, Iowa. The parties agree that, on October 19, 2004, Kirt, accompanied by her young daughter, made one of only a handful of visits that she had ever made to Fashion Bug. Kirt does not remember being greeted by any store employee as she entered the store. Kirt contends that she did not stay in the store very long, probably only about fifteen minutes, because her daughter was running around. Kirt decided to leave the store without making any purchases and to return the next day without her daughter. Fashion Bug contends that a store employee, Melissa (“Missy”) Anderson, recalls that Kirt was carrying a large, unzipped purse that looked empty and that, after Kirt left, Anderson found an empty hanger and a broken security sensor. Fashion Bug contends that Anderson then called the store manager, Margaret (“Maggie”) Beaudette, to report the incident. Kirt denies Anderson’s version of events as “self-serving.” The parties agree that Kirt returned to Fashion Bug the next evening, October 20, 2004, accompanied by her boyfriend, now husband, Israel. Kirt contends that she returned to the store to purchase pink jeans, which she had been led to believe by a friend could be found at Fashion Bug. Kirt contends that, when she entered the store, Beaudette approached her and said, “Hi,” to which Kirt and Israel responded, “Hi.” Anderson stated in her deposition that she was leaving for lunch as Kirt came in, but recognized Kirt as the person who had been acting suspiciously the day before, so Anderson remained in the store and notified Beaudette that she had recognized Kirt. Fashion Bug admits, for purposes of this motion, Kirt’s version of what then occurred. Kirt contends that Anderson approached Kirt and asked if she could help her, what she needed, and if she and her companion were looking for something in particular, but Kirt told Anderson that the other woman (Beaudette) had already greeted her and that she did not need any help. Kirt contends that, thereafter, Anderson followed wherever Kirt and Israel walked in the store. At some point — ■ neither party’s statement of facts makes clear what was the catalyst — Anderson purportedly said, “I get sick and tired of you people,” “I just get tired of them coming in and messing up things and ... every time you people come we find hangers and beeper tags,” screamed at Kirt, and told her that if she did not leave the store, Anderson would call the police. Beaudette approached at some point in the course of this incident to try to get Anderson to stop, apologized for Anderson’s behavior, and asked Kirt to “finish [her] shopping.” Kirt admits that Beaudette was very pleasant (in cited portions of her deposition, Kirt described Beaudette as “really nice”), that Beaudette provided Kirt with a contact telephone number to advise Fashion Bug representatives of her complaints, and that Beaudette gave her Anderson’s name. Kirt nevertheless left the store, went home, and started crying. Kirt later contacted a representative of Fashion Bug, provided information about what had happened on October 20, 2004, and was assured that the representative would look into it. Kirt has never returned to the Fashion Bug store. Fashion Bug contends that it is store policy to greet customers promptly and to watch them as they move about the store to avoid or minimize theft, which is a large problem in the retail industry. Kirt denies the existence of such a policy, because Kirt contends that no such policy has been produced in this litigation, and the court notes that no such policy appears in either party’s appendix. B. Procedural Background Kirt filed her Complaint And Jury Demand (docket no. 1) in this action on November 29, 2005, naming Fashion Bug as the sole defendant on a theory of respon-deat superior liability for the conduct of the store clerk, Missy Anderson, and asserting that such conduct constituted race discrimination in violation of both 42 U.S.C. § 1981 (Count I) and Iowa Code § 216.7 (Count II). Kirt seeks declaratory relief, compensatory damages including damages for emotional distress, punitive damages, costs, attorneys fees, and such other relief as she may be entitled to obtain. Fashion Bug filed its Answer And Jury Demand (docket no. 4) on January 11, 2006, denying Kirt’s claims and alleging, as an affirmative defense, that Kirt’s Complaint fails to state claims upon which relief can be granted. Trial in this matter was originally set for May 21, 2007, but was subsequently rescheduled to begin on October 9, 2007, on Kirt’s unresisted motion for a continuance. On December 21, 2006, Fashion Bug filed the Motion For Summary Judgment (docket no. 10) now before the court. Kirt filed her Resistance (docket no. 11) on January 16, 2007, and Fashion Bug filed its Reply (docket no. 13) in further support of its motion on January 23, 2007. By order dated February 6, 2007 (docket no. 15), the court set oral arguments on Fashion Bug’s Motion For Summary Judgment for February 28, 2007. Owing to a conflict in the court’s schedule, however, the oral arguments were rescheduled for March 15, 2007. At the oral arguments, plaintiff Karen Kirt was represented by Stanley E. Mun-ger of Munger, Reinschmidt & Denne, L.L.P., in Sioux City, Iowa. Defendant Fashion Bug was represented by Margaret M. Prahl of Heidman, Redmond, Fredre-gill, Patterson, Plaza, Dykstra, Prahl, L.L.P., in Sioux City, Iowa. The court was impressed with the quality of the briefs in this matter and found the spirited, well-prepared oral arguments to be very enlightening. This matter is now fully submitted. II. LEGAL ANALYSIS A. Standards For Summary Judgment Rule 56 of the Federal Rules of Civil Procedure provides that a defending party may move, at any time, for summary judgment in that party’s favor “as to all or any part” of the claims against that party. Fed.R.Civ.P. 56(b). “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Id. As this court has explained on a number of occasions, applying the standards of Rule 56, the judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial. Bunda v. Potter, 369 F.Supp.2d 1039, 1046 (N.D.Iowa 2005); Steck v. Francis, 365 F.Supp.2d 951, 959-60 (N.D.Iowa 2005); Lorenzen v. GKN Armstrong Wheels, Inc., 345 F.Supp.2d 977, 984 (N.D.Iowa 2004); Nelson v. Long Lines Ltd., 335 F.Supp.2d 944, 954 (N.D.Iowa 2004); Soto v. John Morrell & Co., 315 F.Supp.2d 981, 988 (N.D.Iowa 2004); see also Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996); Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). In reviewing the record, the court must view all the facts in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences that can be drawn from the facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Quick, 90 F.3d at 1377. Furthermore, “where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate.” Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1315 (8th Cir.1996) (quoting Crain v. Bd. of Police Comm’rs, 920 F.2d 1402, 1405-06 (8th Cir.1990)). Proeedurally, the moving party bears “the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue.” Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1107 (8th Cir.1998); Reed v. Woodruff County, Ark., 1 F.3d 808, 810 (8th Cir.1993). When a moving party has carried its burden under Rule 56(c), the party opposing summary judgment is required under Rule 56(e) to go beyond the pleadings, and by affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designate “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Rabushka ex. rel. United, States v. Crane Co., 122 F.3d 559, 562 (8th Cir.1997); McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 511 (8th Cir.1995); Beyerbach v. Sears, 49 F.3d 1324, 1325 (8th Cir.1995). An issue of material fact is “genuine” if it has a real basis in the record. Hartnagel, 953 F.2d at 394 (citing Matsushita Elec. Indus., 475 U.S. at 586-87, 106 S.Ct. 1348). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment,” i.e., are “material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Beyerbach, 49 F.3d at 1326; Hartnagel, 953 F.2d at 394. If a party fails to make a sufficient showing of an essential element of a claim with respect to which that party has the burden of proof, then the opposing party is “entitled to a judgment as a matter of law.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548; In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 113 F.3d 1484, 1492 (8th Cir.1997). Ultimately, the necessary proof that the non-moving party must produce is not precisely measurable, but the evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir.1994). The Eighth Circuit Court of Appeals has cautioned that “summary judgment should seldom be used in employment discrimination cases.” See Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994). This exceptional deference shown the nonmoving party in such cases is warranted, according to the Eighth Circuit Court of Appeals, “[bjecause discrimination cases often turn on inferences rather than on direct evidence..." E.E.O.C. v. Woodbridge Corp., 263 F.3d 812, 814 (8th Cir.2001) (en banc) (citing Crawford, 37 F.3d at 1341; Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir.1999)), and because “intent” is generally a central issue in employment discrimination cases. Christopher v. Adam’s Mark Hotels, 137 F.3d 1069, 1071 (8th Cir.1998) (citing Gill v. Reorganized Sch. Dist. R-6, Festus, Mo., 32 F.3d 376, 378 (8th Cir.1994)). Although the Eighth Circuit Court of Appeals has not given the same caution about summary judgment on § 1981 right-to-contract discrimination cases, such cases — and “public accommodation” claims pursuant to Iowa Code § 216.7 — likewise depend upon inferences of discrimination and, when based on circumstantial evidence, also employ a similar burden-shifting analysis to sift the inferences. See, e.g., Williams v. Lindenwood Univ., 288 F.3d 349, 355 (8th Cir.2002) (a § 1981 right-to-contract discrimination claim is based on inferences to be drawn from circumstantial evidence and is, therefore, governed by the familiar burden-shifting analysis); see also Kiray v. Hy-Vee, Inc., 716 N.W.2d at 193, 202 (Iowa Ct.App.2006) (a claim pursuant to Iowa Code § 216.7 based on circumstantial evidence is also analyzed pursuant to the burden-shifting analysis). Therefore, this court believes that it should be equally cautious about granting summary judgment in a right-to-contract race discrimination case under § 1981 or a “public accommodation” claim pursuant to Iowa Codes 216.7. The court will apply these standards to Fashion Bug’s Motion for Summary Judgment on each of Kirt’s race discrimination claims. B. Kirt’s § 1981 Race Discrimination Claim Fashion Bug first seeks summary judgment on Kirt’s § 1981 race discrimination claim in Count I of her Complaint. Kirt resists summary judgment on this claim. The court’s analysis of whether or not summary judgment is appropriate on this claim begins with a summary of the parties’ arguments. 1. Arguments of the parties a.Fashion Bug’s initial argument In support of its motion for summary judgment on Kirt’s § 1981 claim, Fashion Bug argues that § 1981 was not intended to be a general civility code; instead, a claimant under § 1981 must prove a violation of her right to make and enforce contracts because of her race. Fashion Bug argues that actual loss of a contract interest, not just the mere possibility of loss of future contract opportunities, is required. Thus, Fashion Bug argues that Kirt must offer evidence of some tangible attempt to contract that was thwarted by the defendant, but she cannot do so. Here, even assuming that discriminatory conduct occurred, which Fashion Bug denies, Fashion Bug argues that Kirt was not prevented from enjoying the benefits of shopping and possibly making a purchase at the store, because she was invited to continue shopping by the manager, Kirt knew that she could ask the manager for help if she wanted it, and Kirt admits that the manager gave her every indication that she would gladly sell her anything that she wanted to buy. In support of its argument, Fashion Bug relies primarily on Bagley v. Ameritech Corp., 220 F.3d 518, 521-22 (7th Cir.2000). b. Kirt’s response In her resistance, however, Kirt contends that she can establish each element of her prima facie case of race discrimination under § 1981 or can, at least, generate genuine issues of material fact as to each element. Kirt contends that Fashion Bug has conceded the first element of her pri-ma facie case, that she is a member of a protected racial minority, African-American. She contends that the second element, intent to discriminate, is shown by Anderson’s comments, which reasonably suggest that the “you people” disparaged in those comments were African-Americans. On the final element, which is the focus of Fashion Bug’s motion, Kirt contends that she has shown that she had more than a “general interest” in the merchandise of the store, because the only reason that she entered the store was to purchase pink jeans or slacks, and she was shopping for that particular item. She contends, further, that the record shows that she was deterred from making such a purchase by Anderson’s discriminatory conduct. She argues that it is contrary to the language and purpose of § 1981 to require a claimant to endure whatever discrimination she is being subjected to long enough to attempt to make a purchase. Here, she contends that she was too upset to continue shopping and was forced to leave the store without making a purchase because of the racially discriminatory conduct by Anderson, notwithstanding Beau-dette’s invitation to continue shopping. She contends that it is inconceivable that the law would leave her with no recourse in these circumstances. c. Fashion Bug’s reply In reply, Fashion Bug reiterates that § 1981 is not a general civility code and does not provide a general cause of action for race discrimination, but instead requires a showing that a contractual relationship was actually thwarted. Fashion Bug argues that, in this case, Kirt cannot generate a genuine issue of material fact on that requirement. Fashion Bug points out that Kirt never told anyone at the store that she was looking for pink jeans or any other specific item and that Kirt has admitted that, even after Anderson’s tirade, she knew that she could ask Beau-dette for help in finding the item she was supposedly seeking. Changing gears, Fashion Bug also argues that any discriminatory comments were made by a subordinate, not by the manager of the store, and, thus, Kirt has failed to generate a fact issue on any discriminatory intent by Fashion Bug, let alone on any attempt to complete a contractual relationship. 2. Applicable law a. The statute Section 1981 of Title 42 of the United States Code, upon which Kirt’s federal claim is based, provides for equal rights under the law, as follows: (a) Statement of equal rights All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. (b) “Make and enforce contracts” defined For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. (c)Protection against impairment The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law. 42 U.S.C. § 1981 (emphasis added). “Section 1981 does not provide a general cause of action for race discrimination if in fact it occurred.” Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851, 855 (8th Cir.2001), cert. denied, 535 U.S. 1017, 122 S.Ct. 1606, 152 L.Ed.2d 621 (2002). Rather, the plaintiff must point to violation of some specific right protected by § 1981. See Williams v. Lindenwood Univ., 288 F.3d 349, 355 (8th Cir.2002) (an element of the plaintiffs prima facie case is a showing that “the discrimination concerned an area enumerated by the statute”); Youngblood, 266 F.3d at 855 (the plaintiff was required to point to interference with some contractual relationship to bring a claim under the right-to-contract provisions of § 1981). In pertinent part, “[t]he purpose of 42 U.S.C. § 1981 is to prohibit discrimination in the ‘performance, modification and termination of contracts’ and to protect ‘the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.’ ” Williams, 288 F.3d at 355; Youngblood, 266 F.3d at 854 (“Section 1981 provides that all persons shall have the same right to ‘make and enforce contracts.’ See 42 U.S.C. § 1981(a). In 1991, Congress expanded the scope of Section 1981 to include the right to ‘the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.’ See 42 U.S.C. § 1981(b).”). A claim based on these provisions of § 1981 is a “right-to-contract” claim. See, e.g., See, e.g., Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir.2004); Youngblood, 266 F.3d at 854 (describing such a claim as a “right to contract” claim). b. Requirements for proof of a claim The Eighth Circuit Court of Appeals explained the applicable analysis for such a “right-to-contract” claim under § 1981, as follows: Because plaintiffs discrimination claim is “based on inferences to be drawn from circumstantial evidence, it is governed by the familiar burden-shifting analysis.” Carter v. St. Louis Univ., 167 F.3d 398, 401 (8th Cir.1999) (Carter ). To establish a prima facie claim of racial discrimination under 42 U.S.C. § 1981, the plaintiff must show that (1) he is a member of a racial minority, (2) the defendant intended to discriminate against him on the basis of race, and (3) the discrimination concerned an area enumerated by the statute. See Mian v. Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085, 1087 (2d Cir.1993). Once the plaintiff establishes a prima facie case of racial discrimination, the burden shifts to the defendant to offer a legitimate, nondiscriminatory reason for its actions to rebut the presumption of discrimination. See Carter, 167 F.3d at 401. Then, the plaintiff must demonstrate that the defendant’s proffered reason was a pretext for unlawful discrimination. See id. The “ultimate question of law [is] whether the evidence is sufficient to create a genuine issue of fact as to whether the defendant intentionally discriminated against the plaintiff.” Id., citing Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1336-37 (8th Cir.1996). Williams, 288 F.3d at 355; accord Daniels v. Dillard’s, Inc., 373 F.3d 885, 887 (8th Cir.2004) (stating essentially the same elements of a prima facie case, but framing the third element as “discrimination interfering with a protected activity (i.e., the making and enforcement of contracts)”); Bediako, 354 F.3d at 839 (stating essentially the same elements of the prima facie case). The court will assess the sufficiency of Kirt’s prima facie case on her § 1981 claim, which is all that Fashion Bug properly challenged concerning that claim in the summary judgment motion now before the court. 3. Analysis Because Fashion Bug bases its summary judgment motion only on the sufficiency of Kirt’s prima facie case, the court will focus its analysis on this first part of the burden-shifting analysis of Kirt’s § 1981 claim. See Williams, 288 F.3d at 355 (noting that the plaintiffs prima facie case is the first step in the burden-shifting analysis of a § 1981 claim). The court will consider the elements of Kirt’s prima facie case in turn. a. Membership in a racial minority For the sake of completeness, there is no dispute that Kirt satisfies the first element of her prima facie case, because she is an African-American female. Id. (the first element of a prima facie case under § 1981 is that the plaintiff was a member of a racial minority). Thus, the court will pass quickly on to disputed elements. b. Intentional discrimination The second element of Kirt’s prima fa-cie case, discriminatory intent, see id., is in dispute, because Fashion Bug contends that Anderson’s comments, on which Kirt’s claim is based, do not give rise to an inference of race discrimination, because the “you people” to whom Anderson referred were Kirt and Israel, not African-Americans generally. Fashion Bug also contends that Anderson’s comments referred specifically to Kirt’s prior visit to the store after which Anderson had found what she thought was evidence of shoplifting. Indeed, at the oral arguments, Fashion Bug contended that no reasonable person could find otherwise and that Anderson’s explanation of her comments is unrebutted, so that there is no evidence to generate a genuine issue of material fact as to any other meaning. Fashion Bug suggests that Kirt relies only on speculation for different inferences. Fashion Bug is correct that a plaintiff must satisfy the second element with evidence, not merely the plaintiffs own speculation. Daniels, 373 F.3d at 887-88 (a black customer’s prima facie case under § 1981 failed, because she relied only on her own speculation that the defendant store had declined her check in the morning because of her race rather than because of a computer malfunction, where the store had accepted her check in the afternoon, and also relied only on speculation that she was not given a discount offered to white customers where she had not shown that the items that she was purchasing were subject to a discounted sales price). In this case, however, the court finds that there is considerably more than mere speculation on Kirt’s part to support her contention that Anderson’s comments suggest a racially discriminatory animus. First, as Kirt points out, a reasonable jury could conclude that the “you people” to whom Anderson referred could not have been Kirt and Israel, because Israel had never been in Fashion Bug before and Kirt’s prior visit to the store had been in the company of her young daughter. Second, Anderson’s comments-including “I get sick and tired of you people,” and “I just get tired of them coming in and messing up things and ... every time you people come we find hangers and beeper tags” — reasonably suggest that the “you people” in question are members of some group of people who came in with sufficient frequency for Anderson to be “tired” of their behavior and for Anderson to find evidence of shoplifting “every time” such people came in. One class of people to whom Kirt and Israel belong is African-Americans. Thus, in the light most favorable to Kirt, and giving Kirt all reasonable inferences from the record, see Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348 (the court must view all the facts in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences that can be drawn from the facts), a reasonable jury could find that Anderson’s comments, as recounted by Kirt and not disputed by Fashion Bug for present purposes, directed at two African-Americans, suggest a discriminatory intent to accuse African-Americans generally of tending to engage in or invariably engaging in shoplifting and tending to make or invariably making messes in the store. A reasonable jury would certainly be under no obligation to accept as true Anderson’s explanation of her comments, in light of other evidence in the record of the circumstances in which those comments were made. Indeed, a reasonable jury could find that Fashion Bug’s strained interpretation of the comments as innocuous results from disingenuousness or sophistry and, as such, is a pretext for discriminatory comments. Thus, Fashion Bug is not entitled to summary judgment on this claim on the insufficiency of evidence of the second element of Kirt’s prima facie case. c. Interference with a right to contract As to the third element of Kirt’s prima facie case of a § 1981 violation, interference with the right to make and enforce contracts protected by § 1981, see Daniels, 373 F.3d at 887 (so characterizing the third element); cf. Williams, 288 F.3d at 355 (stating the third element as evidence that the discrimination concerned an area enumerated by the statute), it is clear that the right to make and enforce contracts under § 1981 includes the right to purchase goods. Id. (“Sections 1981 and 1982 protect citizens’ rights to make and enforce contracts and purchase both personal and real property without any impairment due to private or public racial discrimination.”). The Eighth Circuit Court of Appeals has addressed § 1981 claims by customers of retail establishments on various occasions and has, for example, recognized that “no contractual relationship remains” once a purchase is completed, so that there can be no interference with a contractual relationship where the challenged conduct occurred after a purchase. See Youngblood, 266 F.3d at 854. The Eighth Circuit Court of Appeals has not, however, addressed whether there has been any interference with a contractual relationship where a purchase of goods was never attempted, notwithstanding an invitation to continue shopping after a racially discriminatory incident. That intriguing issue is central to Fashion Bug’s motion for summary judgment. Other Circuit Courts of Appeals to address the claims of customers against retail stores have held that there must be a “nexus” between the asserted discrimination and some contractual right or relationship. See Garrett v. Tandy Corp., 295 F.3d 94, 98 (1st Cir.2002) (summarizing cases). The nature of the required “nexus” is such that, at least since the 1991 amendment adding subsection (b) to the statute, the statute “extends ... to situations beyond the four corners of a particular contract” and “applies to those situations in which a merchant, acting out of racial animus, impedes a customer’s ability to enter into, or enjoy the benefits of, a contractual relationship.” Id. at 100. Nevertheless, the “benchmark,” according to these courts, is that, “in order to satisfy the foundational pleading requirements for a suit under section 1981, a retail customer must allege that he was actually denied the ability either to make, perform, enforce, modify, or terminate a contract, or to enjoy the fruits of a contractual relationship, by reason of a race-based animus.” Id. at 100-101 (emphasis added) (summarizing cases, including Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 751-53 (5th Cir.2001) (Dillard Dep’t Stores); Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1117-18 (10th Cir.2001) (Hampton), cert. denied, 534 U.S. 1131, 122 S.Ct. 1071, 151 L.Ed.2d 973 (2002); Youngblood, 266 F.3d at 853-54; and Morris v. Office Max, Inc., 89 F.3d 411, 412-14 (7th Cir.1996) (Office Max), and noting that the court was “not comfortable with all of these outcomes, nor [did it] make a wholesale endorsement of the reasoning employed by these courts.”). As Fashion Bug points out here, some of the courts requiring “actual denial” of the right to contract have held that, where a plaintiff fails to make any actual attempt to make a purchase, despite discriminatory conduct of a store employee, the plaintiff has no § 1981 right-to-contract claim. See Dillard Dep’t Stores, 277 F.3d at 751-53 (an African-American woman who was accused of shoplifting, arrested, and temporarily banned from returning to a store could not succeed on a § 1981 claim, because she did not “offer evidence of some tangible attempt to contract with [the defendant’s store] during the course of the ban, which could give rise to a contractual duty between her and the merchant, and which was in some way thwarted,” and thus, her claim of loss of an actual contract interest was “too speculative”); Hampton, 247 F.3d at 1117-18 (a woman of African-American descent could not assert a claim pursuant to § 1981, despite being ejected from a store, where she had neither attempted nor planned to make any specific purchase, because “the mere expectation of being treated without discrimination while shopping” will not support a claim; on the other hand, another African-American woman ejected at the same time, who attempted to redeem a coupon that she had received incidental to a prior purchase, had been denied her right to contract); Office Max, 89 F.3d at 412-14 (two African-American customers who were hassled by police after an assistant manager became suspicious about them, but whom the police concluded had not engaged in any wrong-doing, had no § 1981 claim, because they could not “point to specific facts showing that Office Max deprived them of any of the enumerated rights in § 1981 [where] [t]hey were denied neither admittance nor service, nor were they asked to leave the store”). More specifically still, Fashion Bug contends that, in Bagley v. Ameritech Corp., 220 F.3d 518 (7th Cir.2000), in circumstances even more closely resembling those presented in Kirt’s case, the Seventh Circuit Court of Appeals rejected a § 1981 right-to-contract claim on the basis that the store was not responsible for terminating a sales transaction, where the plaintiff voluntarily left the store without making a purchase after it was made clear that the store was willing to serve him. The court concludes that the decision in Bagley requires careful consideration, because it does appear to be on point here. In Bagley, the court considered the § 1981 claim of a black man who was told by the assistant sales manager of a store that she would not serve him and was then purportedly “given the finger” by the assistant sales manager. Bagley, 220 F.3d at 519. The first step in the court’s analysis was to hold that the district court had erred to the extent that it had relied on the plaintiffs failure to state specifically that he would like to purchase a product, finding a contrary holding was “both reprehensible and in no way encouraged by our decision in [Office Max, 89 F.3d at 411].” Id. at 521. Thus, even under Bag-ley, neither Kirt’s failure to tell anyone at Fashion Bug that she intended to purchase pink jeans nor her failure to ask to purchase pink jeans is dispositive of her claim. The second step in the court’s analysis in Bagley is more critical here, however. In that step, the court considered the plaintiffs contention that he had stated a claim under § 1981 because he had entered the store for the express purpose of buying a phone, but could not complete the transaction when the assistant sales manager said she would not serve him. Id. The court rejected that argument, as follows: While we do not fault [the plaintiff] for taking offense at [the assistant manager’s] conduct (if, as claimed, it was motivated by racial animus- — not “joking around” as she testified), her actions cannot be construed as anything more than a refusal to personally wait on [the plaintiff]. She did not say “We will not serve you,” nor did she in any way instruct [another sales clerk] to deny [the plaintiff] service. Rather, it is clear that when she handed [the other sales clerk] the brochure she intended that he would continue to wait on [the plaintiff]. [The plaintiff] cut off his exchange — and thus the opportunity to buy the phone— by leaving the store. Further, even if there were any lingering doubt that [the assistant sales manager’s] behavior meant something other than that she would not wait on [the plaintiff] herself, [the other sales clerk’s] offer to help [the plaintiff] make a purchase upon his return later that day definitively establishes that [the store] would have sold [the plaintiff] a phone. Since [the store] was not responsible for terminating the transaction, it did not violate §§ 1981 and 1982. Bagley, 220 F.3d at 521-22 (emphasis added). This court is not convinced that a mere invitation to an offended person to continue shopping after racially discriminatory treatment — however disingenuous or insincere that invitation or whatever conduct belying an intent to serve the person might accompany the invitation— necessarily inoculates a retailer from any and all § 1981 right-to-contract claims. The question under the statute is not merely whether an invitation of some sort to complete a transaction was made, but whether the conduct of the merchant interfered with the customer’s right to make or enforce a contract. See Williams, 288 F.3d at 355 (“The purpose of 42 U.S.C. § 1981 is to prohibit discrimination in the ‘performance, modification and termination of contracts’ and to protect ‘the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.’ ”); Youngblood, 266 F.3d at 855 (the plaintiff was required to point to interference with some contractual relationship to bring a claim under the right-to-contract provisions of § 1981). Even an “invitation” to enter into a transaction could be accompanied by other conduct or presented in such a manner that the customer’s right to contract had been interfered with, because the “invitation” was a sham. Cf. International Bhd. Teamsters v. United States, 431 U.S. 324, 365-66, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (in a case involving discriminatory employment practices under Title VII of the Civil Rights Act of 1964 observing, “When a person’s desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motions of submitting an application.”). This court, like the court in Bag-ley, also cannot conclude that a plaintiffs failure to request to buy a particular item, whether a phone or pink jeans, despite racially discriminatory conduct, bars that plaintiffs § 1981 right-to-contract claim, because a contrary holding would be “reprehensible” in that it would require exceptional perseverance to enjoy rights supposedly guaranteed to all in the face of discriminatory conduct. Id. at 519. Because “ § 1981’s prohibition against racial discrimination in the making and enforcement of contracts applies to all phases and incidents of the contractual relationship,” see Rivers v. Roadway Exp., Inc., 511 U.S. 298, 302, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994), it follows that racially discriminatory conduct that discourages a customer from even attempting to make a purchase may violate § 1981 if that conduct leads the plaintiff reasonably to believe that any attempt to make a purchase would be futile. Cf. International Bhd. of Teamsters, 431 U.S. at 365-66, 97 S.Ct. 1843 (a person seeking a job who is unwilling to engage in a futile gesture of applying is no less a victim of discrimination than one who goes through the motions of applying). In this case, however, there is no evidence giving rise to an inference that Beaudette’s invitation to Kirt to continue shopping was a sham or that any attempt by Kirt to purchase an item from Fashion Bug would have been futile, even in light of Anderson’s statements. Kirt was justifiably hurt by what she reasonably perceived (and a reasonable juror could perceive) to be reprehensible discriminatory comments by Anderson, but the record shows beyond dispute that Kirt could not have reasonably believed that there was no point in attempting to make a purchase after Beaudette’s intervention. Cf. Bagley, 220 F.3d at 521 (the court did not fault the plaintiff for taking offense at the allegedly discriminatory conduct by one employee, but nevertheless held that it was clear from the circumstances that the merchant intended that a different employee would continue to serve the plaintiff). The record shows, beyond dispute, that Beaudette did everything she could reasonably have been expected to do to make clear that Kirt could complete any purchase she desired. Cf. id. at 522 (even if there was some lingering doubt about discriminatory intent behind the assistant sales manager’s conduct, the other sales clerk’s offer to help the plaintiff make a purchase upon his return to the store later that day “definitively established that the store would have sold the plaintiff a phone”). There is not the slightest hint that Beaudette’s offer to Kirt to continue shopping was in any way disingenuous or belied by other conduct or circumstances. Indeed, on the undisputed record, Beaudette not only stopped Anderson’s conduct, invited Kirt to finish her shopping, and offered to help Kirt with whatever she needed, but provided Kirt with all of the information necessary to make a complaint about Anderson’s conduct over Beaudette’s head to company representatives. Nor is there any dispute that Kirt understood the sincerity of Beau-dette’s offer, because she believed that Beaudette had been “really nice.” Under these undisputed circumstances, it is plain that Kirt terminated the opportunity to enter into a contract or purchase of goods by leaving the store. Cf. id. at 521 (the plaintiff had no § 1981 claim, because the plaintiff “cut off his exchange — and thus the opportunity to buy the phone — by leaving the store”). Even though such a reaction to the discriminatory conduct by Anderson was entirely understandable, Kirt’s hurt feelings and emotional upset resulting from discriminatory conduct, which prompted her to abandon her shopping, do not establish that the discriminatory conduct actually violated her § 1981 right to contract. In her brief and at oral arguments, Kirt asserted that denial of her contention that her rights were violated would not be countenanced, for example, in the Tenth Circuit. In support of this contention, she cited Miales v. McDonald’s Restaurants of Colorado, Inc., 438 F.Supp.2d 1297 (D.Colo.2006), which she argued stands for the proposition that, when a retail store engages in racial discrimination that deters a customer from engaging in a purchase, such discrimination is sufficient to create a cause of action under § 1981, even if the plaintiff does not thereafter attempt to make a purchase and is not specifically denied service. Here, Kirt contends that she should not be left without recourse where she was too upset to continue shopping and left the store without making a purchase as the result of Anderson’s discriminatory comments. The court would not be unsympathetic to this argument, if the “make or enforce contracts” provision of § 1981 could be read so broadly as to prohibit any interference, of any kind, at any point in the “shopping” process as an interference with the right to “make” a contract. The problem with Kirt’s contention, however, is that neither the Eighth Circuit Court of Appeals nor any other Circuit Court of Appeals, so far as this court has been able to find, has actually interpreted interference with the right to “make” a contract under § 1981 so broadly. First, Kirt relies on the prediction of the district court in Míales that the Tenth Circuit Court of Appeals would reject the proposition that a § 1981 claim necessarily fails if the plaintiff voluntarily left after being subjected to racial discrimination, but was not specifically denied service. This court finds that prediction suspect. The court in Míales characterized the decision of the Tenth Circuit Court of Appeals in Hampton as affirming a jury verdict against a retail store, even though the plaintiff left voluntarily without being told that the store would not complete her transaction and while employees who might have assisted her were nearby. See Miales, 438 F.Supp.2d at 1301 (so characterizing Hampton, 247 F.3d 1091). In Hampton, however, the Tenth Circuit Court of Appeals found that the plaintiff was actually engaged in attempting to redeem a coupon when a security guard interrupted the redemption and accused the plaintiff of shoplifting, and that the jury had reasonably concluded that, had there been no interference, the plaintiff would have received the service of redemption of her coupon. See Hampton 247 F.3d at 1106. Thus, this court does not belief that the district court in Miales has correctly characterized the holding of the Tenth Circuit Court of Appeals in Hampton. Furthermore, the court in Hampton stated the applicable rule to be “that a § 1981 claim for interference with the right to make and enforce a contract must involve the actual loss of a contract interest, not merely the possible loss of future contract opportunities.” See id. at 1104 (quoting Wesley v. Don Stein Buick, 42 F.Supp.2d 1192, 1200 (D.Kan.1999), in turn citing Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1267 (10th Cir.1989)). Thus, unlike the court in Míales, this court believes that the Tenth Circuit Court of Appeals would, at a minimum, require proof that the plaintiffs right to services was actually interfered with by the allegedly discriminatory conduct, and would not permit a claim where the plaintiff shows only generally that discriminatory conduct occurred and that she declined to proceed further with any transaction. Second, this court believes that the Eighth Circuit Court of Appeals would require a closer nexus between the allegedly discriminatory conduct and the interference with a customer’s right to “make and enforce contracts” than Kirt has shown. The Eighth Circuit Court of Appeals has concluded that § 1981 does not provide a “general cause of action for race discrimination if it in fact occurred,” and has, instead, read the statute to require proof of interference with “some contractual relationship.” Youngblood, 266 F.3d at 855 (“Section 1981 does not provide a general cause of action for race discrimination if in fact it occurred”; rather, the plaintiff must point to interference with “some contractual relationship” to bring a claim under § 1981). The Eighth Circuit Court of Appeals suggested that even proof that the plaintiff was “blatantly discriminated against” would not be sufficient in the absence of proof that the discriminatory conduct actually interfered with a contractual right, because the statute provides for a cause of action in contract, not in tort. Id. Here, there is no genuine dispute that Kirt could have, and was aware that she could have, completed any transaction that she desired notwithstanding Anderson’s allegedly discriminatory conduct and Kirt’s understandably hurt feelings from that conduct. Thus, under Eighth Circuit precedent, even if Anderson’s conduct constituted “blatant discrimination,” there was no actual interference with Kirt’s right to “make” a contract sufficient to sustain a § 1981 claim. Third, as explained above, the court is not holding that the plaintiff must attempt to make a purchase or must be refused service after discriminatory conduct in order to pursue a § 1981 right-to-contract claim. Instead, the court identified above certain circumstances in which the plaintiffs failure to attempt to make a purchase would not be fatal to her claim. The court has also noted that the standard is whether there was actual interference with the plaintiffs right to make a contract, not whether the plaintiff attempted to make a purchase. The court is holding, however, that, under the undisputed facts here, there was no actual interference with Kirt’s right to make a contract as a matter of law, where there is no dispute that Kirt could have, and knew that she could have, completed a transaction, in light of Beau-dette’s conduct, but Kirt chose not to do so. The result might be quite different, however, had Beaudette not intervened and had Kirt left the store in the face of Anderson’s conduct, even if Kirt had not attempted to make a transaction. Finally, Kirt seems to suggest that nothing Beaudette did can undo Anderson’s interference with Kirt’s right to make a contract, even if Beaudette’s conduct might mitigate Kirt’s damages. Again, such an argument might be persuasive if § 1981 provided a “general cause of action for race discrimination,” but it does not. See id. Because the test is whether there has been interference with a contractual right, see id., the court concludes that an employer can “reopen the door” to a customer to make a contract after discriminatory conduct by an employee by making clear that the employer is willing to enter into a transaction with the offended customer. Cf. Bagley, 220 F.3d at 521-22 (another sales clerk’s offer to help the plaintiff make a purchase upon his return later in the day “definitively establishes that [the store] would have sold [the plaintiff] a phone,” and thus, the store had not interfered with the plaintiffs right to contract, where the plaintiff terminated the transaction). In other words, it is appropriate to conclude that, where the record shows beyond dispute that a customer could and knew that she could complete any desired transaction, notwithstanding a store employee’s discriminatory conduct, there has been no interference with the customer’s right to make a contract within the meaning of § 1981. Such a rule for liability properly focuses on whether or not the actor has engaged in prohibited conduct, rather than on the plaintiffs subjective reaction to that conduct. The offended person’s subjective reaction, of course, might still be relevant to damages. Even viewing summary judgment with the caution that this court has deemed to be appropriate for a § 1981 claim based on circumstantial evidence, as explained above on page 9, in the undisputed circumstances presented here, Kirt’s § 1981 claim fails as a matter of law, because she cannot establish interference with her right to contract as required by the third element of her prima facie case. See Daniels, 373 F.3d at 887 (framing the third element of a plaintiffs § 1981 right-to-contract claim as “discrimination interfering with a protected activity (i.e., the making and enforcement of contracts)”). Therefore, Fashion Bug is entitled to summary judgment on that claim. Celotex Gorp., 477 U.S. at 323, 106 S.Ct. 2548 (if a party fails to make a sufficient showing of an essential element of a claim with respect to which that party has the burden of proof, then the opposing party is “entitled to a judgment as a matter of law”). C. Kirt’s Iowa Civil Rights Claim Fashion Bug also seeks summary judgment in its favor on Kirt’s claim that the racially discriminatory conduct to which she was subjected violated her rights under Iowa Code § 216.7 to “accommodations, advantages, facilities, services, and privileges” without regard to her race and not to be “otherwise ... discriminate^] against ... because of race ... in the furnishing of such accommodations, advantages, facilities, services, or privileges.” Kirt also resists summary judgment on this claim. 1. Arguments of the parties a. Fashion Bug’s initial argument In support of this portion of its motion for summary judgment, Fashion Bug argues that, as with Kirt’s § 1981 claim, there was no denial by Fashion Bug of any right secured by Iowa Code § 216.7, because it is undisputed that Kirt was repeatedly invited to continue her shopping and to come back and shop again at any time. Fashion Bug also contends that there is no evidence that Kirt was ultimately treated less favorably than similarly-situated white persons. Again, Fashion Bug argues that there is no evidence of discrimination on the basis of race, even if Anderson made the comments attributed to her. Fashion Bug contends that it has a legitimate reason for greeting customers promptly and keeping an eye out for possible theft, which is to avoid or prevent losses from shoplifting. Fashion Bug contends that there is no evidence that this reason is a pretext, and no evidence that Kirt was prevented from buying anything in light of Beaudette’s intervention. Indeed, Fashion Bug contends that no racial comments were actually made, because the comments in question do not reasonably carry any racial connotation and the clerk who made the comments had a legitimate belief that Kirt had engaged in shoplifting the night before. b. Kirt’s response In response, Kirt argues that Anderson’s comments reveal a racially discriminatory animus and that no non-minority patrons were subjected to similar abusive comments or accusations. Kirt also contends that any supposed store policy to greet customers as they enter does not explain why Anderson followed Kirt around the store after Kirt told her she did not require assistance nor does it explain Anderson’s diatribe. c. Fashion Bug’s reply In its Reply in further support of its motion, Fashion Bug argues that Kirt has pointed to no record evidence proving or suggesting that no non-minority patrons were treated differently nor has she pointed to any evidence that suggests that “you people” implies a racial animus. Fashion Bug also contends that it is undisputed that no one at Fashion Bug refused or denied Kirt the right to buy pink jeans, in violation of § 216.7. Absent such evidence, Fashion Bug argues that Kirt must show that she was “otherwise discriminated” against, but she cannot generate a genuine issue of material fact that she was treated less favorably than other shoppers. 2. Applicable law a. The statute The Iowa Civil Rights Act (ICRA) defines unfair practices in accommodations and services, in pertinent part, as follows: 1. It shall be an unfair or discriminatory practice for any owner, lessee, sub-lessee, proprietor, manager, or superintendent of any public accommodation or any agent or employee thereof: a. To refuse or deny to any person because of race, creed, color, sex, national origin, religion or disability the accommodations, advantages, facilities, services, or privileges thereof, or otherwise to discriminate against any person because of race, creed, color, sex, national origin, religion or disability in the furnishing of such accommodations, advantages, facilities, services, or privileges. Iowa Code § 216.7(l)(a). A “public accommodation” is defined in the ICRA as follows: 12. “Public accommodation” means each and every place, establishment, or facility of whatever kind, nature, or class that caters or offers services, facilities, or goods for a fee or charge to nonmembers of any organization or association utilizing the place, establishment, or facility, provided that any place, establishment, or facility that caters or offers services, facilities, or goods to the nonmembers gratuitously shall be deemed a public accommodation if the accommodation receives governmental support or subsidy. Public accommodation shall not mean any bona fide private club or other place, establishment, or facility which is by its nature distinctly private, except when such distinctly private place, establishment, or facility caters or offers services, facilities, or goods to the nonmembers for fee or charge or gratuitously, it shall be deemed a public accommodation during such period. “Public accommodation” includes each state and local government unit or tax-supported district of whatever kind, nature, or class that offers services, facilities, benefits, grants or goods to the public, gratuitously or otherwise. This paragraph shall not be construed by negative implication or otherwise to restrict any part or portion of the preexisting definition of the term “public accommodation.” Iowa Code § 216.2(12). Neither the statute nor case law, however, defines such terms as “accommodations,” “advantages,” “facilities,” “services,” or “privileges” of such a “public accommodation” or the meaning of “otherwise to discriminate.” b. Requirements for proof of a claim Iowa decisions considering the requirements to prove a claim comparable to Kirt’s under § 216.7 or its predecessor, Iowa Code § 601A.7, are sparse indeed. Nevertheless, some guidance can be gleaned from the recent decision of the Iowa Court of Appeals in Kiray v. Hy-Vee, Inc., 716 N.W.2d 193 (Iowa Ct.App.2006), in which a customer of a grocery store filed a § 216.7 claim alleging that the store had discriminated against her on the basis of race after the store’s security system alerted as the customer left the store. In Kiray, the Iowa Court of Appeals recognized that civil rights cases under the ICRA, of which § 216.7 is a part, “are guided by federal law and federal cases,” including the burden-shifting analytical framework for such claims, but that Iowa courts “do not substitute the language of the federal statutes for the language of the Iowa Civil Rights Act.” Kiray, 716 N.W.2d at 202. The applicable burden-shifting analysis for a § 216.7 claim, thus, involves the plaintiffs presentation of a -prima facie case, the defendant’s assertion of a legitimate, non-discriminatory reason for its conduct, and if the defendant meets that burden, the return of the burden to the plaintiff to prove that the legitimate reason proffered by the defendant was not the true reason, but a pretext for discrimination. Id. i. Possible formulations of the prima facie case. Although the Iowa Court of Appeals noted that the prima facie case must be adapted to the factual situation at hand, the court found that neither Iowa nor federal courts had adopted a uniform adaptation of the burden-shifting framework for claims of race discrimination in public accommodations. Id. at 203. The Iowa Court of Appeals found, instead, that courts presented with similar claims generally had adopted one of two alternatives, “the Call-wood prima facie case” and “the Williams prima facie case.” Id. at 203-04. The explanation of these tests in Kiray deserves more detailed consideration. In Kiray, the court noted, first, that some courts had adopted “the Callwood prima facie case,” based on Callwood v. Dave & Buster’s, Inc., 98 F.Supp.2d 694 (D.Md.2000), which had adapted the McDonnell Douglas prima facie case to a 42 U.S.C. § 1981 claim. Kiray, 716 N.W.2d at 203 (citing courts that have adopted “the Call-wood prima facie case”). As the court in Kiray explained, Under that test, to satisfy a prima facie case of discrimination, plaintiffs must show (1) they are members of a protected class; (2) they made themselves available to receive and pay for services ordinarily provided by the defendant to all members of the public in the manner in which they are ordinarily provided; and (3) they did not enjoy the privileges and benefits of the contracted for experience under factual circumstances which rationally support an inference of unlawful discrimination in that (a) they were deprived of services while similarly situated persons outside the protected class were not deprived of those services, and/or (b) they received services in a markedly hostile manner and in a manner which a reasonable person would find objectively unreasonable. Callwood, 98 F.Supp.2d at 707. Kiray, 716 N.W.2d at 203. Courts to reject this test, the Iowa Court of Appeals noted, found it inappropriate where there was sufficient evidence showing that minority plaintiffs were treated differently from similarly-situated whites. Id. The alternative test identified by the Iowa Court of Appeals, “the Williams pri-ma facie case,” based on Williams v. Staples, Inc., 372 F.3d 662 (4th Cir.2004), requires the plaintiff to show the following: (1) he was a member of a protected class; (2) he sought to enter into a contractual relationship with the defendant; (3) he met the ordinary requirements for the contractual relationship; and (4) he was denied the opportunity to enter into the contract with the defendant, even though the defendant afforded such an opportunity to a white customer. Kiray, 716 N.W.2d at 204 (citing Williams, 372 F.3d at 668). The Iowa Court of Appeals noted that the courts in H