Business Associations, Pages 81–84

Arguello v. Conoco, Inc.

United States Court of Appeals for the Fifth Circuit, 200


Plaintiff and her father visited defendant's gas station. After they pumped their gas, plaintiff went in to pay and purchase some other items. The cashier, Smith, demanded to see plaintiff's driver license and then refused service, saying that out-of-state licenses were not acceptable identification. Plaintiff argued with Smith, and Smith began to swear and insult her with racial epithets. Smith also knocked a case of beer off the counter towards plaintiff. Plaintiff left the store, but Smith then used the station's intercom system to continue yelling racial epithets and made obscene gestures through the window.

Plaintiff and her father used a pay phone outside to call defendant's customer service and complain about Smith's conduct. Plaintiff's father tried to enter the store to find out Smith's name, but she and another employee had locked the doors. Corbin, a district manager reviewed the silent security footage, concluded that Smith had acted inappropriately, and confronted Smith. Smith admitted to the claimed behavior, but did not suspend or fire Smith. Months later, Corbin learned that a protest was planned at the store, so she then transferred Smith to another store to protect her from potential violence. Plaintiffs sued defendant for its agent denying service based on race.

Procedural History:

District court granted summary judgment to defendant, finding that Smith's acts were outside the scope of her employment.


Did Smith act outside the scope of her employment?


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Some of the factors used when considering whether an employee's acts are within the scope of employment are:

  1. the time, place and purpose of the act;
  2. its similarity to acts which the servant is authorized to perform;
  3. whether the act is commonly performed by servants;
  4. the extent of departure from normal methods; and
  5. whether the master would reasonably expect such act would be performed.


  1. Smith's behavior occurred while she was on duty in defendant's station where she was employed while she was completing a sale to plaintiff.
  2. Smith was selling gasoline and other items which are customary functions. She also used the intercom, which is also a customary function of gas station clerks.

  1. Smith's conduct was not the normal way of making a sale. Even if it is comparable to an intentional tort, committing an intentional tort does not necessarily mean that one is outside the scope of his employment. Defendant could not have expected Smith to have committed behavior of this type, she was to interact with customers and the incident took place during this duty.
  2. No evidence shows that defendant could have reasonably expected Smith to act as she did, but a jury may find this outweighed by other factors.

Just because Smith behaved in an unacceptable manner does not inherently mean that she was acting outside of her scope. Summary judgment is also inappropriate if the parties disagree about the material factual inference that may be drawn from facts.


Defendant did not act outside the scope of her employment as a matter of law. Determination that Cindy Smith acted outside the scope of her employment as a matter of law reversed and remanded.