Christian v. Wal-Mart Stores, Inc.

• Decision Date: 07 March 2001
• Docket Number: No. 99-3926,99-3926
• Citation: 252 F.3d 862
• Parties: (6th Cir. 2001) Lois Christian; Amber Edens, Plaintiffs-Appellants, v. Wal-Mart Stores, Inc., Defendant-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 862

252 F.3d 862 (6th Cir. 2001)

Lois Christian; Amber Edens, Plaintiffs-Appellants, v. Wal-Mart Stores, Inc., Defendant-Appellee.

No. 99-3926

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: March 7, 2001

Decided and Filed: June 6, 2001

NOTE: AMENDED PER ORDER OF AUGUST 31, 2001 AT 266 F.3d 407

Appeal from the United States District Court for the Northern District of Ohio at Cleveland, No. 98-00922, Patricia A. Gaughan, District Judge. [Copyrighted Material Omitted] John W. Mygrant, Valarie J.R. Young, MENTZER, VUILLEMIN & MYGRANT, Akron, Ohio, for Appellants.

Clifford C. Masch, REMINGER & REMINGER, Cleveland, Ohio, for Appellee.

Before: MARTIN, Chief Judge; MOORE, Circuit Judge; TARNOW, District Judge. ^*

OPINION

KAREN NELSON MOORE, Circuit Judge.

Plaintiffs-Appellants Lois Christian and Amber Edens appeal the district court's grant of judgment as a matter of law on their federal and state claims of race discrimination in a retail establishment. Christian, who is black, and Edens, who is white, went to a Wal-Mart on December 15, 1997 to buy Christmas presents. A Wal-Mart employee offered Christian repeated assistance, which Christian declined. Edens was offered no assistance. The employee, claiming that Christian was shoplifting, then called the police. Thereafter, Christian and Edens were escorted out of the store by police officers and were not allowed to complete their purchases. Christian and Edens brought this action under 42 U.S.C. §1981, 42 U.S.C. §2000a, and Ohio Revised Code §4112.02(G), alleging, inter alia, that they were refused their right to make a contract with Wal-Mart because of Christian's race. Because we believe the district court erred by granting Wal-Mart judgment as a matter of law, we conclude that we must REVERSE the district court's judgment.

I. BACKGROUND

On December 15, 1997, at approximately 1:45 a.m., Christian and Edens, who are close friends, entered a Wal-Mart in Jackson Township, Ohio to shop for Christmas presents for their respective children. Both women stayed within the toy department but they shopped separately. They were the only two shoppers in the toy department. Christian walked around with a shopping cart; Edens occasionally placed items in Christian's cart but she did not have her own cart. According to Christian, Rose Monnot, a Wal-Mart employee, watched her as she shopped and repeatedly offered her assistance. Christian stated that she was initially offered help two or three times, although she later stated that she was offered help a total of six times throughout the hour and three quarters during which she shopped. ¹ J.A. at 119, 144. Edens testified that within the first 20 minutes after their arrival at the store, Christian informed her that she had been offered help a couple of times. Edens stated that once Monnot saw that she was with Christian, Monnot started to follow her as well. ² Edens, however, was never offered assistance.

Sometime close to 3:00 a.m., Christian put her purse on a shelf, unzipped it, and reached into her purse for a jar of vasoline. J.A. at 119. At that moment, Christian noticed Monnot "jogging down" the aisle toward her. Monnot, upon reaching Christian, again asked if she could be of assistance, but Christian declined her help. Christian then reported the incident to Edens.

Monnot testified to a very different set of events. According to Monnot, she heard Christian unzip her purse from where she was standing six aisles away. ³ She says that she saw Christian reach with her left hand, pick up a toy, and place the toy in her purse which was hanging over her left shoulder. Monnot then saw Christian place her bag on a shelf and zip it. Monnot stated that she recognized which item had been taken because she had been stocking that particular toy earlier that night.

Monnot testified that she then paged the manager, Richard Clark, and informed him that a woman had placed an item in her purse. Clark told Monnot to call the police; Monnot then instructed a cashier to call the police. Clark also directed Monnot to keep an eye on the woman. Monnot and the cashier then returned to the toy department so that Monnot could point out Christian to the cashier. Christian testified that she then approached Monnot and the cashier and told Monnot, "Excuse me, ma'am. Do you believe I'm stealing? Because I'm not. I went into my purse for something for me." J.A. at 120. Monnot denied that she suspected her of shoplifting. According to Edens, she then stated to Monnot: "[Christian] has been feeling uncomfortable and we're ready to leave. And we have a right to shop here, and we would like to just finish our Christmas shopping." J.A. at 207. Edens testified that Monnot replied, "Oh, no, at this time of year I not only watch for shoplifters, you know, people lingering around the store and have knives and gun[s] on them." J.A. at 207.

At some point, either before or after Christian and Edens spoke with Monnot, Christian heard an announcement over the store intercom calling "employees to the toy department," and when she looked up she found six or seven employees staring at her. J.A. at 121.

Monnot testified that when she later returned to the aisle, she realized that the item she believed had been stolen had been returned. Monnot then called the cashier and told her to tell the police not to come to the store because the item had been returned. Shortly thereafter, at approximately 3:33 a.m., the police arrived. Monnot then told the police that the item had been returned and she was sorry they had been called to the store for no reason. Police Officer Todd Macaluso testified that Monnot explained that she did not see a customer place an item in her purse, just that an item was missing. J.A. at 178. According to Monnot, the police asked her if she wanted to have the woman whom she had suspected of shoplifting removed from the store and then asked her to describe the two women. Monnot stated that she did not have the authority to decide whether the women should be removed. At that point, Monnot testified that she informed the police that one woman was white and the other was black. She testified that this was the first time she had mentioned either shopper's race to anyone.

Clark, the store manager, then approached the police officers. According to Officer Macaluso, he then asked Clark what the officers should do, if anything. Clark appeared "indecisive" but ultimately decided that the officers should ask the two women to leave. Monnot testified that she never told Clark the race of either of the two women. Macaluso also testified that he never discussed the women's race with Clark. Macaluso testified that he did not know Christian or Eden's race until Monnot walked him to the toy department. Clark testified that he never saw the two women, nor was he ever informed of their race.

Monnot directed the police officers to Christian and Edens. Monnot admitted to telling the officers that if they removed Christian, they should also remove Edens so that it would not become a racial issue. J.A. at 151. Monnot then went on a break. According to Christian, the officers then approached her and Edens and asked them to leave the store. Christian testified that the officers stated, "They do not like your business. They would like you to leave." J.A. at 123. The officers did not accuse Christian of shoplifting or search her bag. The officers then escorted Christian and Edens out of the store. Christian was forced to leave behind her shopping cart of merchandise.

As a result of this incident, plaintiffs brought suit against Wal-Mart in federal district court alleging claims under 42 U.S.C. §1981, 42 U.S.C. §2000a, and Ohio Revised Code §4112.02(G) as well as a claim for intentional infliction of emotional distress. Wal-Mart subsequently moved for summary judgment. The district court granted Wal-Mart's motion as to the 42 U.S.C. §2000a claim and the intentional infliction of emotional distress claim. The district court also granted summary judgment as to Edens's claims. Edens then moved to have the first and third counts reinstated as to her, which the district court granted.

At trial, Christian attempted to prove that Wal-Mart had a policy for dealing with shoplifters which Monnot and Clark failed to follow. Clark testified that an employee who sees a shopper place a piece of merchandise on his person is supposed to keep the shopper in view until the shopper leaves the last point of purchase. At that point, Clark testified that the employee could stop the shopper and keep him in the store until the police arrived. Clark stated that if the employee lost sight of the shopper for even a moment, the employee was not permitted to stop the shopper. Monnot testified that she believed it was store policy to notify management if she suspected a shopper of shoplifting. She also stated that she was never given any specialized training with regard to how to deal with shoplifiting.

Wal-Mart focused on the issue of its intent to discriminate. On cross-examination, Wal-Mart's attorney repeatedly questioned Christian about the moment at which she unzipped her purse, ultimately eliciting from her an admission that Monnot could have believed that someone was stealing when Monnot heard the sound of a purse being unzipped. Instead of contesting Monnot's suspicions as racially motivated, Christian conceded that her actions could have given rise to Monnot's perception that she had concealed, or was attempting to conceal, store merchandise. J.A. at 141-42. She also admitted that it is reasonable for a salesperson who suspects someone is stealing to approach that person. J.A. at 142.

At the end of the plaintiffs' case, Wal-Mart moved for judgment as a matter of law. Based on Christian's testimony on cross-examination and Monnot's testimony that she had tried to tell the police to leave when she realized that the allegedly stolen item had been returned, the...