Opinion
Case No. 6:04 CV 123.
February 2, 2005
ORDER
Before the Court is Dillard's, Inc.'s Motion for Summary Judgment (Docket No. 53) and Plaintiffs' response thereto. For the reasons discussed below, the Court finds that Dillard's motion should be GRANTED IN PART and DENIED IN PART.
SUMMARY JUDGMENT STANDARD
A grant of summary judgment is appropriate when there is no genuine issue of material fact such that the moving party is entitled to judgment as a matter of law. FED R. CIV. P. 56(c); Martin v. Alamo Community College District, 353 F.3d 409, 412 (5th Cir. 2003). Thus, summary judgment may be granted when no "reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering whether there is a genuine issue of material fact, the evidence must be viewed in the light most favorable to the party opposing the motion, with doubts resolved in favor of the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).ANALYSIS
Plaintiffs have brought suit against Dillard's, Inc ("Dillard's) alleging violations of 42 U.S.C. §§ 1981 1983 and various state causes of action. 42 U.S.C. § 1981
Plaintiffs have dismissed their claims under 42 U.S.C. §§ 1982 1985 and their claims against Defendant the Higbee Company d/b/a/ Dillard's. Plaintiffs have also clarified that they are not asserting causes of action under the Texas Constitution.
To establish a claim under 42 U.S.C. § 1981, Plaintiffs must establish three elements: (1) that they are members of a racial minority; (2) that Dillard's had intent to discriminate on the basis of race; (3) that the discrimination concerned one or more of the activities enumerated in the statute, in this instance, the making and enforcing of a contract. Morris v. Dillard's Dept. Stores, Inc., 277 F.3d 743, 751 (5th Cir. 2001). A "plaintiff must show the loss of an actual, not speculative or prospective, contract interest." Id. Dillard's contends that Plaintiffs cannot show that Dillard's interfered with an actual contract interest.
Although the failure to show interference with an actual contract interest was the only element of a section 1981 claim addressed in its motion, at oral argument, Dillard's argued that Plaintiffs could not show that race was a motivating factor in its actions. The Court finds that Dillard's did not adequately brief this issue as it relates to a section 1981 claim. Assuming Dillard's had adequately briefed this issue, the Court finds that under the applicable summary judgment standard, Plaintiffs have raised sufficient circumstantial evidence of intent to discriminate to survive summary judgment. Plaintiffs have presented affidavits from three former Dillard's employees that show that black customers were treated differently than white customers at the Dillard's in Tyler. Lewis testified that she believed that the sales personnel at the Chanel counter treated her differently than white customers. Karen Davis, the Dillard's sales associate who asked other Dillard's employees to watch the Plaintiffs based on an earlier incident, testified that Lewis and Ervin were not doing anything suspicious on the evening the incident occurred. Further, Davis had difficulty specifying the year in which the previous incident occurred and had difficulty describing what Lewis and Ervin look like giving rise to at least an inference that Davis's request to watch Lewis and Ervin may have been based on their race.
In the light most favorable to Lewis, the evidence shows that when Tyler Police Officer James Smith approached Jannie Lewis ("Lewis") and her daughter, Jasmine Chan'Telle Ervin ("Ervin"), they were at the cosmetics counter waiting for the saleslady to find a particular lipstick color. Officer Smith snatched Lewis's purse off her shoulder saying "Where is it, where is it?" When Lewis asked what he was talking about, Smith responded "the lipstick you stole." Smith then searched Lewis's Victoria's Secret bag and a Dillard's bag Ervin was holding. Smith discovered a lip gloss and a lipstick in that bag, but Ervin showed him a receipt for those items. Smith then asked for identification and Lewis showed him a "Texas ID card," but Smith refused to look at it. Smith asked both Lewis and Ervin to follow him to the back of the store where he wrote Lewis a citation for failure to identify. After Smith issued the citation, Lewis and Ervin immediately left the store. According to Lewis, the episode lasted between forty-five minutes and an hour. Lewis claims that had Officer Smith not detained her, she would have "definitely" purchased lipstick from the saleslady at the cosmetics counter.
The evidence shows that Dillard's employees told Smith they had observed Lewis place lipstick testers in her purse.
The Fifth Circuit has explained that an "allegation of 'the mere possibility that a retail merchant would interfere with a customer's right to contract in the future' is insufficient to support recovery under § 1981." Arguello v. Conoco, Inc., 330 F.3d 355, 358 (5th Cir. 2003) (quoting Morris, 277 F.3d at 752). In contrast, evidence that a customer engaged in an actual attempt to contract that was in some way thwarted by the merchant is sufficient to support recovery under section 1981. Morris, 277 F.3d at 752; see also Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 874 (6th Cir. 2001) ("[W]e have no trouble concluding that [plaintiff] made herself available to enter into a contractual relationship for services ordinarily provided by Wal-Mart: the record reflects that she had selected merchandise to purchase . . . and would, in fact, have completed her purchase had she not been asked to leave the store."); Fakorzi v. Dillard's Stores, Inc., 252 F.Supp.2d 819, 835 (S.D. Ia. 2003) ("Plaintiffs allege they would have purchased the dress from Dillard's had they not been detained by the police. Thus, the third element [discrimination concerned making of a contract] is met."); Henderson v. Jewel Food Stores, Inc., 1996 WL 617165, at *3-4 (N.D. Ill. Oct. 23, 1996) (finding plaintiff's allegations sufficient to sustain a section 1981 claim where the "plaintiff was midstream in the process of making a contract for [a] goods purchase" at a cashier at the time an officer arrested him).
In the light most favorable to Lewis, the evidence shows that Lewis was in the process of purchasing lipstick when Officer Smith approached and that she would have purchased lipstick had she not been detained. Dillard's contends that this evidence is insufficient because Lewis did not attempt to purchase the lipstick after she was detained. In essence, Dillard's asks for the law to require that a customer who was approached by a police officer as she was making a purchase, detained for forty-five minutes to an hour as an officer accused her of shoplifting and searched her bags, asked to accompany the officer to the back of the store, and then cited for failure to identify must then seek to make a purchase which is refused by the merchant. The Court concludes that an additional attempt to contract after a person is initially thwarted by the merchant goes beyond what the law requires. Accordingly, the Court concludes that judgment as a matter of law is inappropriate as to Lewis's section 1981 claim and DENIES Dillard's motion as to this cause of action. However, the undisputed evidence shows that Ervin had completed her shopping when she was detained by Smith. Therefore, the Court GRANTS Dillard's motion for summary judgment as to Ervin's section 1981 claim.
42 U.S.C. § 1983To establish a viable claim under section 1983 against a private entity, such as Dillard's, a plaintiff must show that the conduct of the private defendant constitutes state action under color of law. Morris, 277 F.3d at 747. The "focus of the inquiry into whether a private actor can be subjected to constitutional liability is whether 'such a close nexus between the State and challenged action' exists 'that seemingly private behavior may be fairly treated as that of the State itself.'" Id. at 747-48 (quoting Brentwood Acad. v. Tennessee Secondary Sch. Athletic Assoc., 531 U.S. 288, 295 (2001)). Here, the Court is faced with a situation where a private employer, Dillard's, hired an off-duty police officer as a private security guard who detained and searched a customer subsequent to a report made by another employee. In this context, a merchant is not subject to section 1983 liability unless an officer failed to perform an independent investigation. Id. at 750. Evidence of a proper investigation may include an officer's interview of an employee, independent observation of a suspect, and the officer writing his own report. Id.
The failure to independently investigate is required because what is improper in this context is where "'police, pursuant to a 'preconceived plan' would arrest any person merely because he was designated for arrest by the store [employee].'" Morris, 277 F.3d at 749 (quoting Hernandez v. Schwegmann Bros. Giant Supermarkets, Inc., 673 F.2d 771, 772 (5th Cir. 1982)).
Officer Smith's testimony shows that he was called to the Dillard's cosmetics counter where several Dillard's employees related previous incidents where Lewis and Ervin had purchased expensive items and then returned less expensive products for a refund. While Officer Smith was at the counter, two Dillard's employees informed him that they witnessed Lewis place two lipstick testers in her purse. Officer Smith approached Lewis and Ervin, asked where the lipstick was, observed lipstick marks on Lewis' hand and looked into Lewis' purse but did not find the lipstick. He did not observe any lipstick testers on the floor or the counter. He then asked Lewis and Ervin to accompany him to the security office where he cited Lewis for failure to identify but not for shoplifting. Smith completed a report concerning the incident. There is no evidence in the record that Dillard's and Officer Smith had a preconceived plan where Smith would arrest persons designated for arrest by store employees. Further, other than the initial report of suspicion of shoplifting, there is no meaningful evidence that Dillard's controlled Smith's actions on the occasion at issue. It is important to note that although Dillard's employees informed Smith that they believed Lewis had stolen the lipstick testers, after investigating the report, Smith did not cite Lewis for shoplifting.
Citing Nancy Strickland's deposition, Plantiffs claim that Officer Smith only spoke to Strickland before approaching Lewis and Ervin. Assuming that were the case, however, the fact remains that Officer Smith received a report of illegal activity, i.e. the theft of the lipstick testers, before detaining Lewis and Ervin. It is clear that an "officer's partial reliance on a report of suspicion made by a merchant employee will not create state action where the officer additionally performs an independent investigation of the alleged crime." Morris, 277 F.3d at 750. In fact, "interviewing the employee to obtain an eyewitness account can constitute sufficient independent investigation where the officer was not an eyewitness to any conduct constituting an alleged crime." Id. Plaintiffs also point out that no one maintained constant visual surveillance, that Smith did not interview Strickland after the incident, that lipstick testers were eventually found on the counter where Lewis and Ervin were shopping, and that some Dillard's personnel were critical of Smith's actions. The Court concludes, however, that none of this evidence raises a material fact issue as to whether Smith conducted an independent investigation.
The Court concludes that Dillard's has shown that Officer Smith conducted an independent investigation as a matter of law, and therefore, Dillard's cannot be found to be a state actor for purposes of section 1983 liability. Accordingly, Dillard's motion on this claim is GRANTED.
State Law Claims
Concerning Plaintiffs' various state law claims, Dillard's argues that it is not vicariously liable for Officer Smith's actions because Smith was acting in a public capacity when he detained Lewis and Ervin on suspicion of shoplifting. In determining the status of an off-duty police officer, Texas courts ask "'in what capacity was the officer acting at the time he committed the acts for which the complaint is made?'" Cherqui v. Westheimer Street Festival Corp., 116 S.W.3d 337, 344 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (quoting Blackwell v. Harris County, 909 S.W.2d 135, 139 (Tex.App.-Houston [14th Dist.] 1995, writ denied)). "If the officer is performing a public duty, such as the enforcement of general laws, the officer's private employer incurs no vicarious responsibility for that officer's acts, even though the employer may have directed the activities. If the officer was engaged in protecting the employer's property, ejecting trespassers, or enforcing rules and regulations promulgated by the employer, however, the trier of fact decides whether the officer was acting as a public officer or as a servant of the employer." Mansfield v. C.F. Bent Tree Apartment Ltd P'ship, 37 S.W.3d 145, 151 (Tex.App.-Austin 2001, no pet.); see also Blackwell, 909 S.W.2d at 139.
Lewis testified that when Smith detained her, he was wearing a uniform and a badge. She further testified that there was no question in her mind that Smith was with the Tyler Police Department. Ervin testified that Smith was in a Tyler Police Department uniform and that she knew he was a police officer. There is no doubt that Lewis and Ervin knew they were dealing with a police officer. Further, the undisputed evidence shows that while attempting to ascertain the identity of Lewis and Ervin, Smith called the Tyler Police Department so officers there would search police department records and databases for any information on Lewis. Moreover, it is undisputed that Smith requested that the Tyler Police Department send another officer to assist him and the department did so. It is also telling that Smith issued Lewis a citation for "failure to identify" that resulted in Lewis being acquitted of this crime at trial. It is difficult to see how an "off-duty police officer" could issue a citation that eventually results in a trial. While it is true that two Dillard's employees told Smith that they saw Lewis place the lipstick testers in her purse, it is clear that Smith was investigating an alleged crime, shoplifting, in his official capacity as a Tyler police officer. See Mansfield, 37 S.W.3d at 149 (finding officer to be performing public duty where he showed his badge, identified himself as an officer, and attempted to get police assistance); see also Hafdahl v. State, 805 S.W.2d 396, 401 (Tex.Crim.App. 1990) ("[W]hen the police officer stopped at the scene of the accident and approached appellant shouting 'halt, halt, stop, police' the officer was no longer off duty."), overruled on other grounds, Madden v. State, 799 S.W.2d 683, 686 n. 3 (Tex.Crim.App. 1990); Selvage v. State, 680 S.W.2d 17, 21 (Tex.Crim.App. 1984) ("[The officer] assumed the role of a peace officer when he removed his coat to identify himself as a Deputy Sheriff and approached appellant in an attempt to deter him from wrongdoing.").
Plaintiffs cite evidence that they argue shows Smith was engaged in the protection of Dillard's property and enforcing Dillard's rules and regulations. But this evidence goes to how Dillard's generally interacts with off-duty police officers it employs as private security guards. See Cherqui, 116 S.W.3d at 345 (the fact that officers were paid by a private employer not determinative of whether private employer could be vicariously liable for officers actions). Here, the question is how was Smith acting at the time he committed the acts for which the complaint is made? Blackwell, 909 S.W.2d at 139. As noted above, the evidence conclusively shows, by Plaintiffs own admission, that Smith was acting as a police officer when he detained Lewis and Ervin. Accordingly, Dillard's is entitled to judgment as a matter of law on Plaintiffs' state law claims and Defendant's motion for summary judgment is GRANTED as to those claims.
SO ORDERED.