Opinion
3:20-cv-01604-YY
03-23-2023
LATRESE PACK Plaintiff, v. WALMART, INC. and JANE DOE, Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge
FINDINGS
Plaintiff Latrese Pack has filed this action against defendants Walmart, Inc. (“Walmart”) and Jane Doe asserting a claim of racial discrimination under Oregon law, O.R.S. 659A.403.Plaintiff, who identifies as African American, alleges that she was accused of shoplifting at a Walmart store because of her race. First Am. Compl. ¶ 7, ECF 4.
Plaintiff's domicile is Oregon and Walmart is a Delaware corporation. Therefore, diversity jurisdiction is conferred by 28 U.S.C. § 1332.
Walmart has filed a motion for summary judgment (ECF 27) contending that plaintiff has failed to present evidence that Walmart's actions were racially motivated. Walmart's motion for summary judgment (ECF 27) should be GRANTED for the reasons set forth herein.
I. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party seeking summary judgment bears the initial burden of showing the absence of a genuine issue of material fact by citing to the record, including “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party must then “go beyond the pleadings” and identify in the evidentiary record “specific facts showing that there is a genuine issue for trial.” Id. at 324.
Only disputes over facts that are outcome determinative preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Furthermore, the dispute must be genuine, “such that a reasonable jury could return a verdict for the nonmoving party.” Id. Where the nonmoving party offers only a “scintilla of evidence” or evidence that is “merely colorable” or “not significantly probative” of the nonmoving party's position, summary judgment may be granted. Id. at 249, 252. There must be “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249. The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). The evidence of the nonmovant must be believed, and all rational and reasonable inferences are drawn in the nonmoving party's favor. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989).
II. Analysis
Plaintiff asserts a claim under O.R.S. 659A.403, which proscribes discrimination in public accommodations, including “serving customers of one race in a manner different from those of another race.” Allen v. U.S. Bancorp, 264 F.Supp.2d 945, 953 (D. Or. 2003) (quoting King v. Greyhound Lines, Inc., 61 Or.App. 197, 202 (1982)). The parties agree that the burden shifting analysis articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), governs this state law-based racial discrimination claim in federal court. See Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1093 (9th Cir. 2001) (applying McDonnell Douglas framework to Oregon law discrimination claim); Clark v. Safeway, Inc., 478 F.Supp.3d 1080, 1093 (D. Or. 2020) (same).
A. Plaintiff's Prima Facie Case
Under the McDonnell Douglas framework, the plaintiff has the initial burden of establishing a prima facie case of discrimination. Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1144 (9th Cir. 2006). To state a prima facie case under O.R.S. 659A.403, a plaintiff must show “she was treated unequally because of her race and that she has been injured as a result.” Harrington v. Airbnb, Inc., 348 F.Supp.3d 1085, 1089-90 (D. Or. 2018). The requisite level of proof to establish a prima facie case “is minimal and does not even need to rise to the level of a preponderance of the evidence.” Lindsey, 447 F.3d at 1144 (quoting Chuang v. Univ. of California Davis, Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000)).
Here, the undisputed evidence is that plaintiff entered the self-checkout area with a shopping cart that contained an electronic game and large pillows that she had previously purchased in the electronics section of the store during the same shopping trip. Plaintiff went to the self-checkout area to pay for additional items, including dishes that she had forgotten to pay for earlier, and a beverage and some candy. Fuller Decl., Ex. 1 (Pack Dep.) 29:2-10, ECF 36-1. After plaintiff paid for the additional items, the store clerk who was monitoring the self-checkout area told plaintiff that she did not see plaintiff ring up the pillows, and asked for her receipt. Pack Dep. 17:11-16, 25:24-26:5, ECF 36-1.
Plaintiff's claim relies entirely upon her own testimony that the store clerk was (1) surveilling plaintiff more than the white shoppers around her, and (2) checking plaintiff's receipt and not the receipts of white customers in the self-checkout area. Resp. 12, ECF 35; Pack Dep. 25:24-25, ECF 36-1 (“So during that whole time the employee from Walmart was watching me. . . .”); id. at 31:12-21 (“Q: [Y]ou felt like she was just watching you and not watching any of the other customers in the area; is that correct? . . . A: other white people.... Why am I the only one of color and this is happening to me.”); id. at 34:6-7 (“I didn't see nobody checking receipts. Why was I the only one targeted to get my receipt checked?”).
Courts in the Ninth Circuit have been reluctant to find that a plaintiff's self-serving testimony alone is sufficient to sustain a discrimination claim at summary judgment. See Ofuasia v. Spirit Halloween Superstores, LLC, No. 3:20-cv-00076-YY, 2021 WL 3783069, at *4 (D. Or. July 21, 2021) (collecting cases), report and recommendation adopted, 202 that she was treated differently, see Williams v. Thant Co., No. 3:20-cv-1214-MO, 2004 WL 1397554, at *3 (D. Or. June 22, 2004) (finding genuine issue of material fact existed regarding defendant's application of dress code where defendants allowed non-African Americans into the club even though they were wearing pants at least as baggy as those worn by plaintiffs); Lindsey, 447 F.3d at 1147 (finding plaintiff articulated a prima facie case where predominantly African-American organization was denied the right to contract for use of a ballroom in favor of a “white event”).
In fact, as plaintiff acknowledges, the store clerk requested the receipt of a white couple, directly after requesting plaintiff's receipt. Resp. 8, ECF 35. The evidence shows the store clerk walked away from the self-checkout area with plaintiff and was unable to observe the white couple pay for their items. The store clerk testified that when she returned, she asked the white couple for their receipt as they were leaving, as she had done with plaintiff. Hansen Decl., Ex. 2 (Sacayon Dep.) 25:22-25, ECF 29-2 (“Because I was with the issue with Ms. Parker [sic] and I didn't saw, like, if they fully scan everything. So that's why I have to double check on their receipt.”); Hansen Decl., Ex. 5, 2:07-2:33 (surveillance footage showing the store clerk leaving with plaintiff, returning to the self-checkout area, and the white couple presenting her with a receipt as they were leaving). This is consistent with the store clerk's explanation for requesting plaintiff's receipt-that she did not see plaintiff pay for the pillows. Sacayon Dep. 9:9-12, ECF 29-2 (“Because she was checking out on self-checkout where I was, and I saw that she scan everything except for a pillow. And that's why I ask her if she had her receipt for the pillow.”).
At her deposition, plaintiff testified that the store clerk was “watching [her] the entire time,” but was not watching “other white people,” and that she was being targeted because she was the “only one of color.” Pack Dep. 30:3-7, 31:18-21, ECF 36-1. However, elsewhere in her deposition, plaintiff testified that “some” of the other customers who were with her in the self-checkout area were Black. Pack Dep. 31:22-32:5, ECF 36-1. Additionally, plaintiff's self-checkout stand was the one closest to where the store clerk was stationed “in the exit of the self-checkout area.” Sacayon Dep. 13:2-3, ECF 29-2. The store clerk testified that plaintiff was using the checkout stand next to where she was stationed, and suggested this proximity was “probably . . . why” she gave greater attention to plaintiff. Sacayon Dep. 15:17-21, ECF 29-2 (“Because where I stand . . . I can see, like, almost all . . . the checkout stands. And hers was . . . next to mine; so probably that's why I pay a little more attention.”); see also Hansen Decl., Ex. 5, 0:14-2:00 (surveillance footage showing plaintiff using the checkout stand closest to where store clerk was standing).
Plaintiff also argues that Walmart deviated from its written policy in surveilling her and requesting her receipt. Resp. 13, ECF 35. A defendant's failure to follow its own policies may be evidence of discriminatory intent. See Clark, 478 F.Supp.3d at 1094 (considering defendant's failure to follow incident reporting policy in discrimination analysis). Plaintiff attaches an excerpt of Walmart's written policy governing when an employee may begin surveilling a customer, and offers, as evidence of a failure to follow policy, the store clerk's admission that she had not observed plaintiff exhibit one of the listed “Examples of Suspicious Behavior,” Resp. 13, ECF 35; Fuller Decl., Ex. 5, ECF 36-5, or a “recordable observation” of suspicious behavior, as required by the policy, before beginning to surveille plaintiff. Resp. 1314, ECF 35; Fuller Decl., Ex. 5, ECF 36-5.
Plaintiff has not shown that Walmart departed from its policies, and even assuming such a departure, plaintiff has not shown that her race played a role in Walmart's failure to adhere to its policies. As Walmart articulates, the policy does not purport to be an exhaustive list of behaviors that may justify surveillance. Reply 4, ECF 38. The policy specifically notes that the list provides “merely examples of conduct” suggestive of an intent to shoplift. Fuller Decl., Ex. 5, 2, ECF 36-5. Furthermore, the store clerk's primary task is to observe the customers in the self-checkout area and confirm that they have scanned their items. Reply 5, ECF 38; Sacayon Dep. 14:8-23; 20:8-15, ECF 29-2. Plaintiff has not shown that the store clerk's monitoring of plaintiff during the checkout process constituted anything other than the store clerk's fulfillment of her job responsibilities. Moreover, even assuming that the store clerk's behavior constituted a deviation from policy, plaintiff has not shown that plaintiff's race motivated the store clerk's decision to monitor plaintiff. See Clark, 478 F.Supp.3d at 1094 (“None of that evidence suggests that Plaintiff's race played a role in Defendant's failure to follow its own policies and [the store employee's] reluctance to complete a report.”).
Lastly, plaintiff posits that the video footage showing the interactions between Walmart employees and plaintiff “leave genuine disputes as to material facts at issue” because the footage is “not conclusive as to either party's theory of the case,” and there is “not enough detail in the video segments to credibly support or attack either party's theory of what exactly happened.” Fuller Supplemental Decl. ¶¶ 2, 3, ECF 44. To survive summary judgment, plaintiff was required to identify a genuine issue of material fact by presenting evidence on which a reasonable trier of fact could find for plaintiff. Anderson, 477 U.S. at 248. However, as plaintiff acknowledges, it is “not possible to tell with any level of certainty exactly who [the store clerk] is looking at during the interactions, nor why she is looking at them, nor the races of all the shoppers,” and the videos “do not conclusively show [the store clerk] looming over Ms. Pack.” Fuller Supplemental Decl. ¶ 3, ECF 44. No reasonable trier of fact could find that plaintiff established a discrimination claim based on the video footage; therefore, this evidence does not create a genuine issue of material fact. Furthermore, because the video footage does not “credibly support or attack either party's theory,” it is not probative of a prima facie case of discrimination.
At the hearing on the motion, plaintiff argued that Walmart's failure to preserve additional video footage would support an adverse inference instruction at trial. But even if additional video had been preserved and produced, as plaintiff has conceded, it is “not possible to tell with any level of certainty exactly who [the store clerk] is looking at during the interactions, nor why she is looking at them, nor the races of all the shoppers.” Fuller Supplemental Decl. ¶¶ 2, 3, ECF 44; see also Akiona v. United States, 938 F.2d 158, 161 (9th Cir. 1991) (holding spoliation sanctions not warranted absent threshold showing of relevance).
In sum, plaintiff's subjective belief that she was under greater observation or that she was singled out for a receipt check because of her race is not sufficient evidence of discrimination; therefore, she has not established a prima facie case. See Gaines v. Nordstrom, Inc., No. 3:05-cv-689-PK, 2006 WL 2711779 (D. Or. Sept. 19, 2006) (finding no prima facie case where the plaintiff “offered no evidence to suggest Nordstrom applied their policies differently because of her race”); Mikes v. Albertsons Companies, LLC, No. 3:17-cv-01400-JR, 2019 WL 2251821, at *2 (D. Or. Apr. 10, 2019), report and recommendation adopted, 2019 WL 2250579 (D. Or. May 24, 2019) (finding no prima facie case where the plaintiff provided no “evidence in support of her conclusion that Albertsons treated persons outside her protected class differently”).
B. Walmart's Legitimate, Nondiscriminatory Reasons
Under McDonnell Douglas, if the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to articulate “a legitimate nondiscriminatory reason for the challenged action.” Chuang, 225 F.3d at 1123-24. Walmart asserts that, assuming arguendo, plaintiff established a prima facie case, it has met its burden of articulating a legitimate nondiscriminatory reason for the challenged action.
Walmart has provided evidence that the store clerk monitored all customers, including plaintiff, in the self-checkout area, as required by her job duties. Mot. Summary J. 9, ECF 27; Sacayon Dep. 14:11-14, ECF 29-2 (“[S]o what I do is see which items they have. And then I have, like a pay palm to check the items. I see everybody to see-like, try to have everything there.”). And in the course of her duties, the store clerk observed that plaintiff possessed large pillows that appeared to be unscanned. The store clerk confirmed, by consulting her handheld computer, that plaintiff had not scanned the pillows at the self-checkout stand and then asked plaintiff for her receipt for the pillows. Mot. Summary J. 8, ECF 27; Sacayon Dep. 18:15-19:1, 21:18-22, ECF 29-2.
The store manager who spoke with plaintiff confirmed that asking to see the receipt of a customer who possessed “a big, bulky item without . . . a bag” was consistent with Walmart's policies. Hansen Decl., Ex. 3 (Daniels Dep.) 36:14-25, ECF 29-3. And the store clerk's decision to ask plaintiff for her receipt while she was in the checkout area was consistent with Walmart's policy permitting store clerks to ask customers for a receipt for merchandise in their possession. Id. at 38:3-14, ECF 29-3 (describing Walmart's “Merchandise in the Customer's Hand” Policy).
C. Plaintiff's Evidence of Pretext
At the third step of the McDonnell Douglas analysis, “the plaintiff must show that the articulated reason is pretextual either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.” Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1126-27 (9th Cir. 2009). The plaintiff may show, for example, that the stated reason is “internally inconsistent or otherwise not believable.” Chuang, 225 F.3d at 1127. “[V]ery little evidence is necessary to raise a genuine issue of fact regarding [the defendant's] motive; any indication of discriminatory motive may suffice to raise a question that can only be resolved by a fact-finder.” Nicholson, 580 F.3d at 1127.
Even presuming that plaintiff has established a prima facie case of discrimination, plaintiff has not shown that Walmart's proffered explanation is pretextual. Plaintiff argues that Walmart's assertion that the store clerk consulted a handheld device before approaching plaintiff is pretextual because Walmart has not presented evidence corroborating how the store clerk used the device that day. Resp. 16, ECF 35. However, it is plaintiff's burden at step three of McDonnell Douglas to identify evidence of pretext. Plaintiff cites no legal authority for her theory that the absence of evidence corroborating Walmart's witness testimonies indicates pretext. See Schuler v. Chron. Broad. Co. Inc., 793 F.2d 1010, 1011 (9th Cir. 1986) (holding on a motion for summary judgment in a discrimination case, that the plaintiff must “offer specific and significantly probative evidence” that the proffered reason is a pretext for discrimination).
At the hearing on the motion, plaintiff argued that an adverse inference may be drawn from Walmart's failure to preserve the data associated with the handheld device that the store clerk used to review plaintiff's items. See Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993) (“A federal trial court has the inherent discretionary power to make appropriate evidentiary rulings in response to the destruction or spoliation of relevant evidence.”). But even if such data had been preserved, it would not show that the store clerk singled out plaintiff's check stand activity. As the store clerk testified, the handheld device displayed what was occurring at all of the check stands at the same time. Sacayon Dep. 21:14-17, ECF 29-2 (“Q: [D]oes it show you all the different checkout lanes or just one at a time? A: No. All of them. We have six; so I can see the six of them.”).
Plaintiff also contends that the store clerk's testimony that she approached plaintiff because of her unscanned pillows is pretextual because the store clerk failed to mention that plaintiff also possessed an unscanned game. Resp. 16, ECF 35. But the store clerk testified that she noticed plaintiff had not scanned the pillows because they were “something big that you can see.” Sacayon Dep. 14:16, ECF 29-2. The store clerk checked her handheld device, confirmed that the pillows were not scanned, and then approached plaintiff about the pillows. Sacayon Dep. 9:9-15, ECF 29-2. That the clerk did not inquire about plaintiff's unscanned game, which was smaller in size and bagged, is not persuasive evidence of pretext. Thus, plaintiff has not articulated a reason to suggest that the store clerk's testimony that she approached plaintiff for a receipt to verify the item that had drawn her attention-the large pillows-and that were unscanned, is pretextual.
Plaintiff testified that since the incident giving rise to this lawsuit, employees at other Walmart locations have requested that plaintiff show her receipt. Pack Dep. 58, ECF 36-1. Plaintiff acknowledges that the instances when her receipt has been checked are when she possessed “larger items” or an item “that's kind of big, that's kind of bulging out of the cart.” Id. 58-59. This conforms with Walmart's policy to check receipts for big, bulky unbagged items. Daniels Dep. 36:14-25, ECF 29-3.
In sum, plaintiff has not met her burden of establishing a prima facie case, or discredited Walmart's proffered legitimate nondiscriminatory reasons, or presented evidence that Walmart possessed a discriminatory motivation. Accordingly, Walmart is entitled to summary judgment.
III. Jane Doe Defendant
In addition to Walmart, plaintiff alleges her claim against Jane Doe, the Walmart employee who approached plaintiff and asked for her receipt. First Am. Compl. ¶ 7, ECF 4. The deadline to amend the pleadings and join parties elapsed on May 15, 2022. ECF 22. Plaintiff, however, has not identified the Jane Doe defendant and has not rendered service of process within the requisite period. SeeFED. R. CIV. P. 4(M). Furthermore, at oral argument, plaintiff stipulated to the dismissal of Jane Doe from this case. Dismissal with prejudice is appropriate as to the Jane Doe defendant because, after a full opportunity to litigate the issue, plaintiff has not shown that the store clerk acted with racial bias.
RECOMMENDATIONS
Walmart's motion for summary judgment (ECF 27) should be GRANTED, and this case should be dismissed with prejudice against both defendants, Walmart and Jane Doe.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Thursday, April 06, 2023. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.