Chapman v. Higbee Co.

Decision Date11 February 2003
Docket NumberNo. 99-3970.,99-3970.
Citation319 F.3d 825
PartiesLynette CHAPMAN, Plaintiff-Appellant, v. The HIGBEE COMPANY, d/b/a Dillard Department Stores, Inc., Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

David R. Grant (argued and briefed), Smith & Condeni, Cleveland, OH, for Plaintiff-Appellant.

Gregory E. O'Brien, Timothy D. Johnson, Weston, Hurd, Fallon, Paisley & Howley, Cleveland, OH, John B. Lewis (argued and briefed), Thomas J. Piatak (briefed), Baker & Hostetler, Cleveland, OH, for Defendant-Appellee.

Gino J. Scarselli, (briefed), Richmond Heights, OH, for Amicus Curiae American Civil Liberties Union.

Michael W. Donaldson (briefed), Thomas M. Tarpy (briefed), Michael R. Thomas, Vorys, Sater, Seymour Pease, Columbus, OH, for Amici Curiae Ohio Council of Retail Merchants, Kentucky Retail Federation

Inc., Michigan Retailers Association and Tennessee Council of Retail Merchants.

Before MARTIN, Chief Circuit Judge; BOGGS, SUHRHEINRICH, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, Circuit Judges.

BOYCE F. MARTIN, Jr., C.J., delivered the opinion of the court, in which DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, JJ., joined. SUHRHEINRICH, J., delivered a separate dissenting opinion, in which BOGGS and BATCHELDER, JJ., joined.

OPINION

BOYCE F. MARTIN, JR., Chief Circuit Judge.

Lynette Chapman brought suit against the Higbee Company, doing business as Dillard's Department Store, after a Dillard's security officer stopped and searched her. Chapman alleges that the stop and search were racially motivated and violated her right to the "full and equal benefit of the law" under 42 U.S.C. § 1981 and her right to be free from unreasonable search and seizure under the Fourth Amendment. Her claim raises two issues on appeal: (1) whether section 1981 provides a cause of action against a private party under its equal benefit clause and (2) whether the Dillard's security officer acted "under color of law." The court below found that section 1981 does not protect against private impairment of its equal benefit clause and that the security officer did not act "under color of law." A divided panel of this court affirmed. After rehearing en banc, we REVERSE.

I.

On February 20, 1997, Chapman, an African-American, was shopping at Dillard's Department Store in Cleveland, Ohio. After choosing some clothing, Chapman entered a fitting room, from which a Caucasian woman had just exited. When Chapman entered the fitting room, she noticed a sensor tag called a "kno-go" on the floor. After trying on the clothing, Chapman decided not to purchase anything and left the fitting room to return the clothing to the racks.

A Dillard's sales assistant noticed the sensor on the floor of Chapman's fitting room and, suspecting Chapman of shoplifting, notified a Dillard's security officer. The officer, an off-duty sheriff's deputy, was wearing his official sheriff's department uniform, badge, and sidearm. As an employee of Dillard's, the security officer was obligated to obey Dillard's Rules and Procedures for Security Personnel, which provide the following instructions with respect to strip searching customers suspected of shoplifting: "Strip searches are prohibited. If you suspect that stolen objects are hidden on [the shopper's] person, call the police."

The security officer stopped Chapman and directed her back to the fitting room. He and a female manager then searched Chapman's purse. After determining Chapman's purse contained no Dillard's merchandise, the officer informed Chapman that it would also be necessary to check her clothes. At the officer's behest, Chapman accompanied the female manager into the fitting room. The manager then searched Chapman by having Chapman remove her coat and suit jacket and lift up her shirt. After the manager found nothing, she apologized, and Chapman left the store.

As a result of this incident, Chapman brought suit against Dillard's, seeking relief (1) under 42 U.S.C. § 1981 for impairment of her rights under that statute's equal benefit clause and (2) under 42 U.S.C. § 1983 for violations of her right to be free from unreasonable search and seizure under the Fourth Amendment and her right to due process under the Fifth Amendment. A magistrate judge, sitting by the parties' consent, granted summary judgment in favor of Dillard's, finding (1) Chapman could not state a cognizable claim under section 1981 because the statute does not protect against private impairment of its equal benefit clause and (2) Chapman could not state a cognizable claim under section 1983 because the security officer was not acting "under color of state law." After the magistrate denied her motion for reconsideration, Chapman appealed. A divided panel of this court affirmed, and we granted en banc review.

II.

We review de novo a district court's grant of summary judgment, viewing the evidence in the light most favorable to the non-moving party. Grand Rapids Plastics, Inc. v. Lakian, 188 F.3d 401, 405 (6th Cir.1999). Summary judgment is appropriate only when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. fed.R.Civ.P. 56(c); see also Aparicio v. Norfolk & Western Ry. Co., 84 F.3d 803, 807 (6th Cir.1996) ("Without weighing the evidence or judging the credibility of witnesses, and drawing all inferences in favor of the non-moving party, a district court usually undertakes to determine whether there is sufficient evidence to permit reasonable jurors to find for the nonmoving party.").

A.

The viability of Chapman's section 1981 claim turns on whether section 1981 protects against private impairment of its equal benefit clause. In relevant part, section 1981 reads as follows:

(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

* * * *

(c) Protection against impairment

The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.1

42 U.S.C. § 1981(a), (c) (1998) (emphasis added).

"In all cases of statutory construction, the starting point is the language employed by Congress." Appleton v. First Nat'l Bank of Ohio, 62 F.3d 791, 801 (6th Cir.1995). Moreover, where "the statute's language is plain, the sole function of the courts is to enforce it according to its terms." United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (citation and internal punctuation omitted).

Section 1981 is unambiguous. According to subsection (c), the rights protected by section 1981 are "protected against impairment by nongovernmental discrimination." Section 1981 explicitly protects the right "to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens;" therefore, that right is "protected against impairment by nongovernmental discrimination."

1.

Dillard's argues that subsection (c)'s protection against nongovernmental discrimination is limited to subsection (a)'s make and enforce contracts provision.

Because subsection (c) already expressly limits its reach to those rights "protected by this section," the principle of expressio unius est exclusio alterius would seem to preclude this court from grafting additional limitations into the statute.

We may, however, look past the plain language of a statute where: (1) the plain language creates inconsistencies within the statute itself, (2) application of the plain language runs contrary to clearly expressed legislative intent, or (3) application of the plain language would lead to absurd results. Vergos v. Gregg's Enterprises, Inc., 159 F.3d 989, 990 (6th Cir. 1998) (citing United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981)); see also Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 643, 98 S.Ct. 2053, 56 L.Ed.2d 591(1978) ("This Court, in interpreting the words of a statute, has some scope for adopting a restricted rather than a literal or usual meaning of its words where acceptance of that meaning would lead to absurd results or would thwart the obvious purpose of the statute but it is otherwise where no such consequences would follow and where [a literal reading] appears to be consonant with the purposes of the Act.") (quoting Commissioner v. Brown, 380 U.S. 563, 571, 85 S.Ct. 1162, 14 L.Ed.2d 75 (1965) (internal citation and punctuation omitted)); Crooks v. Harrelson, 282 U.S. 55, 59 60, 51 S.Ct. 49, 75 L.Ed. 156 (1930).

2.

Relying on a Third Circuit decision authored before Congress added the language in subsection (c), Mahone v. Waddle, 564 F.2d 1018 (3d Cir.1977), Dillard's suggests that a plain reading of subsection (c) creates internal inconsistencies. In Mahone, the court held that a complaint against a city government for violation of section 1981's equal benefit clause stated a cognizable cause of action. Responding in dicta to the city's contention that the court's broad construction of section 1981 would give rise to a federal cause of action for every racially motivated private tort, the Mahone court suggested that such a result was unlikely, because "the concept of state action is implicit in the equal benefit clause." Id. at 1029-30. Adopting the Mahone court's dicta, Dillard's argues that a plain reading of subsection (c) is inconsistent with section 1981's equal benefit clause, which implicitly incorporates the concept of state action.2

The Supreme Court's decision in Griffin v....

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