No. 22-1949 ___________________________

Nicolas Tashman

Plaintiff - Appellant

v.

Advance Auto Parts, Inc.

Defendant - Appellee ____________

Appeal from United States District Court for the Eastern District of Missouri - St. Louis ____________

Submitted: January 12, 2023 Filed: March 27, 2023 ____________ Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges. ____________ BENTON, Circuit Judge.

Nicolas A. Tashman sued Advance Auto Parts, claiming unlawful discrimination under 42 U.S.C. § 1981, assault, and intentional infliction of emotional distress. The district court 1 granted Advance Auto’s motion for summary judgment. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

1 The Honorable Henry E. Autrey, United States District Judge for the Eastern District of Missouri. I.

On September 19, 2019, Tashman visited Advance Auto Parts, intending to purchase a vehicle part and test his car battery. Kevin L. Doe, an Advance Auto employee, told Tashman to fill out two forms. When Tashman did not sign his name on a form, Doe became angry, saying, among other things, “Go back to your damn country, go to your camel country”; “you don’t belong in this country”; and “I’ll kick your ass.” The incident was recorded.

Within minutes, Tashman called Advance Auto’s corporate office, which contacted the store manager and district manager. The district manager did not view the video, create an incident report, discipline Doe, or “escalate” the incident to the regional Human Resources manager. Instead, the store manager and the district manager told Doe they did not want to fire him. Six weeks later, the regional HR manager learned of the incident after an Advance Auto attorney received a litigation letter from Tashman’s attorney. The regional HR manager immediately investigated and ordered the district manager to fire Doe. The district manager, after delaying for 11 days, fired him on November 12, 2019—two months after the incident.

Tashman sued Advance Auto for unlawful discrimination under 42 U.S.C. § 1981 and, under Missouri law, for assault and intentional infliction of emotional distress. The district court granted Advance Auto’s motion for summary judgment, finding no § 1981 violation because Advance Auto did not have the requisite discriminatory intent, and no state tort violations because Doe’s conduct was not within the scope of employment. The delay in terminating Doe, the district court concluded, did not amount to ratification.

This court reviews de novo the grant of summary judgment and the district court’s conclusions of law. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). This court affirms if there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). On summary judgment, this court views all evidence and -2- reasonable inferences most favorably to the non-moving party. Torgerson, 643 F.3d at 1042.

II.

Section 1981(a) guarantees that “all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a). Congress defines “make and enforce contracts” as “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, pri