Clark v. Safeway, Inc.

• Court: U.S. District Court — District of Oregon
• Writing for the Court: HERNÁNDEZ, District Judge
• Citation: Clark v. Safeway, Inc., 478 F.Supp.3d 1080 (D. Or. 2020)
• Decision Date: 12 August 2020
• Docket Number: No. 3:19-cv-00851-HZ,3:19-cv-00851-HZ
• Parties: Roosevelt CLARK, Plaintiff, v. SAFEWAY, INC., a Foreign Corporation, Defendant.

478 F.Supp.3d 1080

Roosevelt CLARK, Plaintiff,

v.SAFEWAY, INC., a Foreign Corporation, Defendant.

No. 3:19-cv-00851-HZ

United States District Court, D. Oregon.

Signed August 12, 2020

Beth Ann Creighton, Laura Koistinen, Creighton & Rose, PC, 65 SW Yamhill Street, Suite 300, Portland, OR 97204, Attorneys for Plaintiff.

Jonathan Mark Radmacher, McEwen Gisvold LLP, 1100 SW Sixth Avenue, Suite 1600, Portland, OR 97204, Attorney for Defendant.

OPINION & ORDER

HERNÁNDEZ, District Judge:

Plaintiff brings a claim of racial discrimination under 42 U.S.C. § 1981, state law claims of racial discrimination and racial intimidation, and a state law negligence claim against Defendant arising from an altercation during which Plaintiff was assaulted by a customer while he was shopping in one of Defendant's grocery stores. Defendant moves for summary judgment on each of Plaintiff's claims. The Court grants in part Defendant's motion for summary judgment.

BACKGROUND

Plaintiff is a Black man who visited a Safeway grocery store located on Division Street in Gresham ("Division Safeway") on the evening of April 27, 2018. Not. Remov. Ex. 2 ("Compl.") ¶¶ 1, 7. Plaintiff first visited the customer service counter and bought cigarettes. Creighton Decl. Ex. 7 ("Pl. Dep.") 35:3–20, ECF 30-7. After buying cigarettes, Plaintiff went to the back of the store, selected two beers, and went to find soda. Id. at 35:21–36:2. While he was in the soft drink aisle of the grocery store looking for soda, Plaintiff asked a store employee where he could find refrigerated soda. Id. at 36:13–20. As Defendant's employee directed Plaintiff to the refrigerated soda, another customer who was later identified as Jonathan Garner approached Plaintiff. Compl. ¶ 8; Van Zante Decl. Ex 1 at 12–13, ECF 18. At that time, a total of three Safeway employees were standing nearby in the same aisle as Plaintiff and Mr. Garner. Id. ; Compl. ¶ 7. As Plaintiff began to walk away and passed Mr. Garner, who was walking in the opposite direction, Mr. Garner reached out and shoved Plaintiff, who fell into the shelves and stumbled. Id. ¶ 10; Pl. Dep. 38:19–25, 39:2–7; Van Zante Decl. Ex. 1 at 16–19. After shoving him, Mr. Garner yelled at Plaintiff and called him racial slurs. Creighton Decl. Ex. 3 ("Carter Dep.") 47:8–23, ECF 30-3. Plaintiff suffered injuries to his ribs and arm. Compl. ¶ 10. Mr. Garner then left the store. Id. ¶ 12. Mr. Garner was in the store for a total of just over two minutes from 8:48 p.m. until 8:50 p.m. Van Zante Decl. Ex 1 at 5, 26.

The Safeway employees in the aisle with Plaintiff did not react, intervene, attempt to assist Plaintiff, or complete an incident report. Clark Decl. ¶ 4, ECF 29. After the incident, Plaintiff found the refrigerated soda he was looking for and paid for his items at a cashier station in the front of the store. Pl. Dep. 47:22–48:8; Radmacher Decl. II Ex. 4 at 3, ECF 33. Plaintiff told the cashier what had happened, and the cashier responded that if someone had shoved the cashier into a shelf, the cashier would "go kick his ass." Id. at 48:9–16. The cashier then assisted Plaintiff with purchasing his items, and Plaintiff left the store. Radmacher Decl. II Ex. 4 at 3. Plaintiff spent almost twelve minutes in the store from 8:44 p.m. until 8:55 p.m. Van Zante Decl. Ex. 1 at 1, 33.

The next day, Plaintiff reported the assault to the police and returned to Safeway to report the assault. Pl. Dep. 50:9–23. Plaintiff spoke to a Safeway employee named Tim Thompson, who told Plaintiff that he would review the security video and that Plaintiff should call Mr. Thompson the following day. Id. at 54:11–21. Plaintiff testified that Mr. Thompson did not want to make a report. Id. at 53:19–21. Plaintiff misplaced Mr. Thompson's phone number, so he did not call back the following day. Id. at 54:5–8, 54:14–21. Instead, Plaintiff returned to Safeway on Monday, three days following the incident, and dropped off a copy of the police report and a note that Plaintiff had received from his doctor. Id. 54:14–25.

In 2019, Mr. Garner was convicted of fourth-degree assault and harassment for his assault of Plaintiff. Creighton Decl. Ex. 16, ECF 30-16; Radmacher Decl. Ex. 4, ECF 19.

Safeway may have experienced problems with Mr. Garner before April 27, 2018. Darius Carter, one of the employees who witnessed Mr. Garner assault Plaintiff, described a situation where he had kicked a customer out of the Division Safeway store for being loud, yelling, cussing, and using racial slurs. Carter testified that he thought that the person he had kicked out was Mr. Garner, but Mr. Carter could not be certain if it was Mr. Garner and was uncertain of the date when it happened. Carter Dep. 38:18–39:4; 51:19–52:4; 52:16–21.

Morgan Bratcher, another Safeway employee, testified that Mr. Garner had been kicked out of the Division Safeway store on another occasion after she confronted him and told him that he would have to buy soup because he was taking complimentary crackers from the soup station. Creighton Decl. Ex. 12 ("Bratcher Dep.") 15:8–25, ECF 30-12. In response, Mr. Garner got in her face and began yelling and cursing at her. Id. She walked away from him, and he left the store. Id. Bratcher testified that she believes that incident occurred sometime after April 2018. Radmacher Decl. II Ex. 2 ("Bratcher Dep.") 21:5–10, ECF 33.

Another employee, Nadia Pitsul, also described an incident when she saw Mr. Garner in the floral department talking to himself and yelling. Creighton Decl. Ex. 6 ("N. Pitsul Dep.") 18:21–19:12. The record is unclear about when that incident occurred. Ms. Pitsul wrote a statement in September 2018 in which she said that the incident had occurred a "couple months" earlier. Creighton Decl. Ex. 14, ECF 30-14. James Porter, another Division Safeway employee, described an incident involving Mr. Garner in a statement dated September 26, 2018, in which Mr. Porter had confronted Mr. Garner for theft. Creighton Decl. Ex. 13, ECF 30-13. Mr. Porter said that Mr. Garner gave the item back and then started an "altercation" with Mr. Porter. Id. Mr. Porter's statement does not indicate when that incident occurred. Id.

Safeway contracted with a third-party security company to provide security guards at several—but not all—of its Portland metro area stores. Creighton Decl. Ex. 1 ("Chapman Dep.") 24:3–9; 31:25–32:19. At some of its stores, Defendant had one or more security guards on duty during all hours that the store was open and, at other stores, had security guards on duty only for nine-hour shifts during the store's busiest hours. Chapman Dep. 24:3–9; 31:21–33:15. Safeway decided whether to staff a security guard at a store and how many hours to have a security guard on duty at that store based on a number of factors, including reports of crime in the area surrounding the store, whether the store had experienced robberies or high rates of shoplifting, whether assaults had occurred in the store, whether there were parking or traffic problems at the store, and the national CrimeDex risk rating for the area where the store is located. Id. at 26:5–27:11. Safeway did not staff a third-party security guard at the Division store where Mr. Garner assaulted Plaintiff in April 2018. Safeway did employ an asset protection specialist at the Division store, but he was off duty when Mr. Garner assaulted Plaintiff. Id. at 6:7–23; Creighton Decl. Ex. 10, ECF 30-10.

EVIDENTIARY OBJECTION

Defendant argues that the Court should not consider its policies concerning customer and employee safety, security, and Defendant's zero-tolerance discrimination policy in resolving its motion for summary judgment. Defendant argues that the policies are inadmissible under Oregon law because they are likely to confuse the jury about the applicable standard of care. Plaintiff submitted Defendant's policies for the following purposes: (1) to argue that a reasonable juror could infer Defendant's discriminatory intent from Defendant's failure to follow its own policies; (2) as evidence of the standard of care in Plaintiff's negligence claim; and (3) to show the unreasonableness of Defendant's conduct. Pl. Surreply 4, ECF 35. Plaintiff also argues that the Court should overrule Defendant's objection because Defendant failed to confer with Plaintiff about the objection before making it, which violated Local Rule 7-1(a).

I. Discriminatory Intent

Evidence of discriminatory intent can be inferred from an organization's failure to follow its own policy. See O.H. v. Oakland Unif. Sch. Dist. , No. C-99-5123 JCS, 2000 WL 33376299, at *14 (N.D. Cal. Apr. 14, 2000) (citing Nabozny v. Podlesny , 92 F.3d 446, 454 (7th Cir. 1996), which held that "[i]t is well settled law that departures from established practices may evidence discriminatory intent."). Thus, the Court may consider whether Defendant failed to follow its own policies in determining whether Plaintiff has raised a genuine issue of material fact that Defendant intentionally discriminated against Plaintiff. Defendant's objection is overruled.

II. Negligence

The Court need not consider Safeway's employee and security personnel policies to determine whether Plaintiff has raised a question of fact concerning Defendant's negligence. Consequently, the Court declines to rule on whether Defendant's policies are admissible for the purpose of demonstrating Defendant's negligence at this juncture.

MOTION TO STRIKE CHAPMAN DECLARATION

Plaintiff moves to strike the declaration of Scott Chapman filed in support of Defendant's reply. Plaintiff argues that it is improper opinion evidence, that Mr. Chapman is not qualified as an expert, and that Mr. Chapman lacks personal knowledge about the topics he attests to in his declaration.

Mr. Chapman's declaration is largely duplicative of his deposition testimony, which is in the summary judgment record. To the extent that Mr. Chapman's declaration states facts and opinions beyond those contained in the excerpts of his deposition...