Opinion
Case No. 8:01CV182.
April 12, 2002
MEMORANDUM AND ORDER
INTRODUCTION
This matter is before the Court on the Defendant's Motion for Summary Judgment (Filing No. 22). The ½ Price Store has submitted evidence in support of its motion, and the parties have fully briefed the issues.
The Defendant Gordmans, Inc. was formerly known as the ½ Price Store, and the events that give rise to the Complaint occurred when Defendant was known as the ½ Price Store. Accordingly, "½ Price Store" will be used in this memorandum.
Plaintiffs Jung Chu and Hyun Chu are husband and wife, and they are Korean citizens who reside in Crete, Nebraska. Complaint at ¶ 5. They commenced this action against the ½ Price Store claiming violations of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et. seq., ("Title II") and of 42 U.S.C. § 1981 ("Section 1981"). Title II prohibits discrimination on the basis of race, color, religion, or national origin in public accommodations. Section 1981 prohibits racial discrimination in "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." Id. at § 1981(b). For the reasons provided below, the Defendant's motion shall be granted in its entirety.
FACTUAL BACKGROUND
The events that give rise to this lawsuit occurred on March 25, 1999, when the Chus were shopping at the ½ Price Store. The couple shopped on their own, and Hyun Chu spent time shopping in the cosmetic and perfume department. Hyun Chu made her selections, and admits that she opened three or four Elizabeth Arden gift boxes to check the contents. Hyun Chu at 22:20-25. Hyun Chu was allowed to shop unhindered and she made her purchases using a credit card. At the store door, the ½ Price Store's Manager of Investigation, Robert Palmer, asked her to follow him, and they proceeded, along with Jung Chu, to a private office area.
The Chus' depositions and the Miller and Palmer Affidavits are contained in the Index of Evidence (Filing No. 23), but will be referenced by the deposition cite.
Palmer states that he had observed what he considered suspicious behavior on the part of Hyun Chu. He observed her opening boxes of cosmetics and moving shelved items to different locations. He also observed that she carried a large empty purse. He then went to the store's security office and observed her on the video screen. The Court has viewed the video. (Filing No. 23B). Palmer believed that certain of her actions on the video were also suspicious. Palmer inspected Hyun Chu's purchased merchandise and some cosmetic bottles in non-matching cosmetic boxes. Palmer Aff. at ¶¶ 2-7.
Palmer informed Chu that there were three or four items in her bag that she did not pay for, including bottles of perfume that had been inserted into boxes containing less expensive perfume. Hyun Chu Dep. at 28:3-6. These events occurred in a matter of minutes. Hyun Chu Dep. at 16:20-23. After Hyun Chu denied the shoplifting charge, Jung Chu requested that the police be called. Following the police investigation, Hyun Chu was issued a citation for shoplifting and left the store with all of the items that she unquestionably purchased. Palmer Aff. at ¶ 9. Altogether, Hyun Chu was detained approximately two hours. Hyun Chu Dep. at 26:23. Jung Chu was never accused of wrongdoing and was free to go at any time. Palmer Aff. at ¶ 6.
The store retained three or four small boxes that she was accused of using to shoplift other items. Jung Chu Dep. 20:17-20; 22:5-12; Hyun Chu Dep. at Dep. Correction Sheet, 31:20 (Hyun Chu stated that "[s]he kept only her purchases. Not what she was accused of stealing. Those items she did not keep and did not want.") Later, Hyun Chu's credit card account was credited for the Elizabeth Arden perfumes contained in the boxes that the store retained as evidence of her shoplifting. Jung Chu Dep. at Dep. Correction Sheet 17:3-14. The shoplifting charges against Hyun were dismissed because Palmer, who did not receive notice of the trial, did not appear. Palmer Aff. at ¶ 10.
SUMMARY JUDGMENT STANDARD
With respect to summary judgment, the Court must examine the record in the light most favorable to the nonmoving party, in this case the Chus. U.S. ex rel. Quirk v. Madonna Towers, Inc., 278 F.3d 765, 767 (8th Cir. 2001). The proponent of a motion for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 322 (quoting Fed.R.Civ.P. 56(c)). The proponent need not, however, negate the opponent's claims or defenses. Id. at 324-25.
In response to the proponent's showing, the opponent's burden is to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (quoting Fed.R.Civ.P. 56(e)). A "genuine" issue of material fact is more than "some metaphysical doubt as to the material facts." Id. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "If the evidence is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Id. (citations omitted). In addition, "the mere existence of some alleged factual dispute between the parties is not sufficient by itself to deny summary judgment. . . . Instead, `the dispute must be outcome determinative under prevailing law.'" Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992) (citation omitted) (quoting Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989)).
TITLE II CLAIM
Plaintiffs seek relief under Title II, which was enacted to eliminate segregation of privately-owned places of public accommodation on the basis of race, color, religion, and national origin. The ½ Price Store seeks summary judgment on this claim, arguing that its store is not a place of public accommodation under Title II. According to the statute, the types of business that are considered places of public accommodation include:
(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;
(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and
(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishments.
42 U.S.C. § 2000(a)(b)(1)-(4).
Defendant argues that it is a retail store, and as such, it is not considered a place of public accommodation covered by Title II. The Chus contend that retail establishments are covered under Section 2000(a)(b)(3) above if they provide peripheral "entertainment," citing U.S. v. Baird, 85 F.3d 450 (9th Cir. 1996). Baird decided that the presence of two video game machines in a retail convenience store transformed the retail store into a place of pubic accommodation under 42 U.S.C. § 2000(a)(b). The court reasoned that the video games were a form of "entertainment" that changed the way customers used the store. The addition of this form of "entertainment" brought the retail store within the definition of public accommodation in section 2000(a)(b)(4).
The Court agrees that retail stores generally are not considered places of public accommodation under Title II, but that retail stores may be covered under Title II if the retail stores include on their premises another establishment that is a place of public accommodation under the Act. 42 U.S.C. § 2000(a)(b)(4). Compare Halton v. Great Clips, Inc., 94 F. Supp.2d 856, 861-62 (N.D.Ohio. 2000) (holding that a hair salon is not a place of entertainment, and, therefore, not a place of public accommodation under Title II) with Thomas v. Tops Friendly Markets, Inc., 1997 WL 627553 (N.D.N.Y. 1997) at * 3 (holding that a retail establishment that contains a food counter covered by 42 U.S.C. § 2000(a)(b)(2) is a place of public accommodation).
The evidence is undisputed that the ½ Price Store is strictly a retail store. Robert Miller was the Assistant Manager of the ½ Price Store on March 25, 1999. He states that on that date, the store's sole purpose was to sell retail merchandise and that no area on its premises existed for any purpose other than for selling retail merchandise. (Filing No. 23, Aff. of Robert Miller at ¶ 4).
Plaintiffs do not seem to dispute the statements in Miller's affidavit. Rather, Plaintiffs argue that shopping itself is a form of entertainment, and that, based on the meaning of "entertainment" employed in Baird, the ½ Price Store is a place of public accommodation covered by Title II. The Court does not agree. The statutory framework is such that retail stores, in and of themselves, are specifically not included under Title II. 42 U.S.C. § 2000(a)(b), and (a)(b)(2). See also Newman v. Piggie Park Enterprises, 377 F.2d 433, 436 (4th Cir. 1967) (noting that "[r]etail stores, food markets, and the like were excluded from the Act for the policy reason that there was little, if any, discrimination in the operation of them," quoting the 110 Cong. Rec. 6533 (1954) (remarks of Senator Humphrey)); McCrea v. Saks, Inc., 2000 WL 1912726, *2 (E.D.Pa. December 22, 2000) (holding that retail establishments are excluded from Title II based on the ordinary meaning of the statute's words and the exclusionary language in § 2000(a)(b)(2)); Gigliotti v. Wawa Inc., 2000 WL 133755, *2 (E.D.Pa. 2000) (granting defendant retail store's motion to dismiss a Title II claim); and Priddy v. Shopko Corp. 918 F. Supp. 358, 359 (D.Utah, 1995) (finding Shopko retail store was not covered by Title II).
Below is a straightforward explanation with which this Court agrees:
It is clear that Congress did not intend for retail establishments . . . to be included in § 2000a. Section 2000a(b)(2) lists cafeterias, lunchrooms, etc. as establishments which are considered as "places of public accommodation". This subsection goes on to include any facility (e.g., restaurants) ". . . located on the premises of any retail establishment . . . ." The clear implication of this provision is that Congress did not intend to include retail establishments — thus the need to make clear that restaurant type facilities within a retail establishment were covered under 42 U.S.C. § 2000a(b)(2). If retail establishments were also intended to be covered, there would be no need for this provision.Priddy v. Shopko Corp., 918 F. Supp. 358, 359 (D.Utah1995).
The ½ Price Store is not a place of public accommodation under Title II unless there is a covered establishment operating on its premises that brings it within Title II's purview. See, i.e., Baird, 85 F.3d at 454; and Halton, 94 F. Supp.2d at 861-62. Plaintiffs admit that they did not eat at the store and that they did not go there to be entertained. Jung Chu Dep. at 10:1-8; Hyun Chu Dep. at 33:1-14. Moreover, there is no evidence that other mechanisms of entertainment, like video games, were on the store's premises.
An argument that some people find shopping to be amusing and a way to pass time is not "evidence" of the kind needed to overcome a properly made and supported motion for summary judgment. Fed.R.Civ.P. 56(e). There simply is no evidence to support the Plaintiffs' Title II claim. Accordingly, the Court finds that the Defendant is entitled to summary judgment as a matter of law on Plaintiffs' Title II claim.
SECTION 1981 CLAIM
The parties agree that to state a claim of discrimination under Section 1981, the Chus must show that:
1) they are members of a racial minority;
2) the ½ Price Store intended to discriminate against them on the basis of their race;
3) the discrimination related to one of the activities encompassed by Section 1981, in this case the formation of a contract.Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996).
The Court notes that the United States Circuit Courts are not wholly in agreement as to the prima facie case in a Section 1981 action based on a commercial transaction. The Second Circuit Court, the Fifth Circuit Court and the Tenth Circuit Court agree with the prima facie case set out by the Seventh Circuit Court in Morris. See generally, Mian v. Donaldson, Lufkin Jenrett Sec. Corp., 7 F.3d 1085, 1087 (2nd Cir. 1993); Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th Cir. 1997); Hampton v. Dillards Dept. Stores, Inc., 247 F.3d 1091 (10th Cir. 2001). The Sixth Circuit Court has adopted an approach that attempts to more fully recognize the presumption of discriminatory animus created by a prima facie case in an employment discrimination context. See Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 874 (6th Cir. 2001). The Eighth Circuit Court has not directly addressed the elements of a prima facie case under Section 1981. See Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851 (8th Cir. 2001). This Court adopts the elements as set forth in Morris.
Defendants admit that the first prong of the prima facie case is satisfied based on the Chus' Korean ancestry. However, Defendant argues that it did not intend to discriminate against the Chus, and that Plaintiffs' Section 1981 claim must be dismissed because there is no evidence that the ½ Price Store impeded the Chus' ability to contract. The Eighth Circuit Court recently addressed a similar issue in a case that this Court deems dispositive of this matter. See Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851 (8th Cir. 2001) rehearing and rehearing en banc denied (2001). Carl Youngblood was an African American who had been a customer at the defendant's retail food store. Youngblood brought an action pursuant to 42 U.S.C. § 1981 claiming that he had been discriminated against in violation of Section 1981 because the defendant, based on a racially discriminatory animus, had impeded his right to contract. Youngblood was detained by the store management and later arrested on suspicion of shoplifting.
The facts of Youngblood and the case presented to this Court are very similar. While shopping, Youngblood aroused the suspicion of a store employee who believed that Youngblood had picked up a canister of beef jerky, placed his hands under his shirt, replaced the canister on the shelf, and then picked up a second canister. Youngblood then went to the cashier and paid for one can of beef jerky. The employee checked the can of beef jerky that Youngblood had first handled and found that most of the jerky was gone. After Youngblood made his purchase, but before he left the store's premises, the employee stopped Youngblood and asked to check his receipt. Youngblood gave him the receipt and the merchandise. The employee opened the canister and observed that it was "crammed full" of beef jerky. The stop in front of the store lasted approximately two to five minutes, and then Youngblood waited in an upstairs office for another 20 minutes until the police arrived. The door to the office remained open during this time, and Youngblood was not physically restrained. The police, after questioning Youngblood and the employee, and after examining the contents of the canister, arrested Youngblood. The charges against Youngblood were ultimately dismissed.
On these facts, the Eighth Circuit Court found no violation of Section 1981, explaining:
While there is scant precedent, courts that have addressed the issue have concluded that once the purchase is completed, no contractual relationship remains. See, e.g., Lewis v. J.C. Penney Co. Inc., 948 F. Supp. 367, 372 (D.Del. 1996); see also Rogers v. Elliott, 135 F. Supp.2d 1312, 1315 (N.D.Ga. 2001). Youngblood correctly points out that in these cases the customers did not have the merchandise they purchased taken away. This distinction is of little significance, however, as the key is whether any contractual duty remained after Youngblood made his purchase. Once Youngblood paid the cashier and received the beef jerky from the cashier, neither party owed the other any duty under the retail-sale contract . . . .
This case is distinguishable from Hampton v. Dillard Dept. Stores, Inc., 247 F.3d 1091 (10th Cir. 2001), where the Tenth Circuit found a contractual relationship existed after the purchase. In Hampton, the customer received a coupon for a fragrance sample as a benefit of her purchase and the Tenth Circuit concluded that the store had a contractual duty to allow the customer to redeem the coupon. See id. at 1103-05. In this case, nothing that happened after the sale created any further contractual duty on Hy-Vee's part. Accordingly, Hy-Vee cannot be said to have deprived Youngblood of the benefit of any contractual relationship, as no such relationship existed when it took the beef jerky away from Youngblood.Id. at 854-855. While this Court has expressed its belief that the right to contract under Section 1981 should be broadly construed, there are no material, factual differences between this case and Youngblood upon which this Court chooses to distinguish the holding or find a diminution of Youngblood's precedential authority.
Like Youngblood, Hyun Chu was allowed to shop and pay for her selections without interference. Palmer stopped, questioned, and inspected her merchandise only after she had completed her shopping. Items were found in Elizabeth Arden gift boxes that did not belong there. All the merchandise that the Chus had undisputably paid for, as indicated by their receipt, was returned to them. The Elizabeth Arden boxes and the perfume bottles that had been wrongly inserted into the Elizabeth Arden boxes, which Palmer and the police believed had been used in the alleged shoplifting, were retained by the store. The shoplifting charges were dismissed, and the store credited the Chu's credit account for the value of the confiscated gift boxes.
Like Youngblood, the Chus claim that some of their merchandise was confiscated by the store, specifically the three or four Elizabeth Arden gift boxes that were the subject of the alleged shoplifting. Even if I accept the Chus' assertion as true, and I must as I consider the facts in the light most favorable to the nonmoving party, the Court's conclusion is not changed. This Court finds that at the time the Defendant confiscated the three or four boxes, "neither party owed the other any duty under the retail-sale contract." Youngblood, 266 F.3d at 854-55. The retail-sales contract had been fully executed before Hyun Chu was asked to follow Palmer to the office. Therefore, Plaintiffs have failed to show that a genuine issue of material fact remains for trial. Defendant is entitled to summary judgment as a matter of law on the Section 1981 claim.
This conclusion does not leave customers like the Chus without legal recourse. As the court in Youngblood acknowledged, state law recognizes an action based on tortious conversion which applies when "any distinct act of dominion [is] wrongfully asserted over another's property in denial of or inconsistent with that person's rights." Id. at 854. See Baye v. Airlite Plastics Co., 260 Neb. 385, 393, 618 N.W.2d 145, 152 (2000). For all these reasons, Defendant's motion for summary judgment on Plaintiffs' Section 1981 claim will also be granted.
Because Defendant is entitled to summary judgment on the federal claims, the only remaining claim is a state law claim based on the intentional infliction of emotional distress. This Court declines to exercise its supplemental jurisdiction over the state law claim pursuant to 28 U.S.C. § 1367 (c)(3). See Condor Corp. v. City of St. Paul, 912 F.2d 215, 220 (8th Cir. 1990) ("stress[ing] the need to exercise judicial restraint and avoid state law issues wherever possible"); and Gregoire v. Class, 236 F.3d 413, 420 (8th Cir. 2000) (reaffirming Condor court's admonition). Plaintiffs' claim that the Defendant has intentionally inflicted emotional distress upon them shall be dismissed without prejudice for consideration in the state courts of Nebraska.
IT IS ORDERED:
1. Defendant's Motion for Summary Judgment (Filing No. 22) is granted in its entirety;
2. The Complaint's First Cause of Action ( 42 U.S.C. § 2000a) and Second Cause of Action ( 42 U.S.C. § 1981) are dismissed with prejudice;
3. The Complaint's Third Cause of Action (Intentional Infliction of Emotional Distress) is dismissed without prejudice; and
4. All other pending motions are denied as moot.