Brackens v. TX Roadhouse Wichita, et al

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1 “Redneck Woman” was a hit country song by Gretchen
Wilson.
United States Court of Appeals
Fifth Circuit
F I L E D
January 31, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-50736
Summary Calendar
STACEY W. BRACKENS,
Plaintiff-Appellant,
versus
TEXAS ROADHOUSE IN WICHITA, FRANCHIZES; TEXAS ROADHOUSE,
INC IN LOUISVILLE, KENTUCKY
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:05-CV-1074
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Brackens, a pro se Afican-American male,
filed this suit because, while dining at a Texas Roadhouse
restaurant in Wichita, Kansas, the facility played the song
“Redneck Woman,” and its employees danced to it.1 Brackens
asserted that the song’s use of the term “redneck” is racially
offensive to him because, as a black man, he can never be a

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“redneck.” The defendants filed a 12(b)(6) motion to dismiss, and
it was referred to a Magistrate Judge for Report and Recommendation
pursuant to 28 U.S.C. § 636(b). The district court approved and
accepted the Magistrate’s Report and Recommendation and granted the
defendants’ 12(b)(6) motion to dismiss.
We review the district court’s grant of a motion to dismiss
under 12(b)(6) de novo. Carroll v. Ft. James Corp., 470 F.3d 1171,
1173 (5th Cir. 2006). On appeal, Brackens argues only that the
district court failed to construe his complaint liberally. We
disagree. In his complaint, Brackens asserted the following causes
of action: (1) Title VII; (2) breach of contract; and (3)
“unprofessional conduct causing public humiliation and mental
anguish.”
As to Brackens’s Title VII claim, the district court noted
that this federal statute only applies to employment discrimination
and that Brackens is not an employee of the defendants; therefore,
it liberally interpreted plaintiff’s claim as one of race
discrimination pursuant to 42 U.S.C. § 2000a, which prohibits
discrimination in places of public accommodation. The court
explained that 42 U.S.C. § 2000a was enacted to require that all
patrons be admitted and served without discrimination; it was not
designed, by contrast, to require places of public accommodation to
cater to the musical tastes of all of its patrons.

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2 The district court correctly notes that Texas substantive
law applies in the instant case under Erie R.R. Co. V. Tompkins,
304 U.S. 64 (1938). Texas is the forum state, so its choice of
law principles apply. Its choice of law principles provide that
the state with the most significant relationship to the
particular substantive issue will be applied. Fleetwood v.
Enterprises, Inc. v. Gaskamp, 280 F.3d 1069, 1073 n.4 (5th Cir.
2002). But where there are no differences in the substantive law
of the respective states there is no conflict and a court need
not undertake a choice of law analysis. R.R. Mgmt. Co L.L.C. v.
CFS La. Midstream Co., 428 F.3d 214, 222 (5th Cir. 2002). IN the
instant case, the relevant states are Kansas and Texas, and their
substantive laws do not differ.
3 The district court correctly notes that Kansas law applies
to this claim. Although the tort of outrage is similar under
Texas and Kansas law, it differs in terms of damages. Because
all of the events giving rise to the plaintiff’s claim occurred
in Wichita, Kansas law should apply under Texas choice of law
principles.
Bracken next asserted that the defendant breached the implied
contract that it, under Texas law,2 had entered into with him.
Specifically, he argued that he and his family became obligated to
pay for their meals once they had ordered and eaten them; the
defendant, he asserted, was obligated to serve the meal and refrain
from playing offensive music during it. The district court
correctly found that there was no valid contract between the
parties, as the defendant never assented to an obligation to
refrain from playing “Redneck Woman” during the plaintiff’s meal.
There can be no contract without assent. Southwell v. Univ. of the
Incamate Word, 974 S.W.2d 351, 354-55 (Tex.App. 1998).
Finally, Bracken urged a claim for unprofessional conduct.
Construing his complaint liberally, the district court interpreted
this as a claim for the tort of outrage.3 However, it found that
the facts alleged by the plaintiff, even if true, were not “so

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outrageous in character and so extreme in degree as to go beyond
the bounds of decency and to be regarded as atrocious and utterly
intolerable in a civilized society“ as required by Kansas law.
Taiwo v. Vu, 249 Kan. 585, 593 (1991).
In sum, we find that the district court liberally interpreted
the plaintiff’s complaint and see no error in its granting
defendant’s motion to dismiss under 12(b)(6). Therefore, we AFFIRM
the ruling of the district court.

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