Kirt v. Fashion Bug # 3252, Inc.
| Decision Date | 10 July 2007 |
| Docket Number | No. C 05-4142 MWB.,C 05-4142 MWB. |
| Citation | 495 F.Supp.2d 957 |
| Parties | Karen M. KIRT, Plaintiff, v. FASHION BUG, INC. # 3253, an Iowa corporation, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Colby Merlound Lessmann, Jay Elliott Denne, Stanley E. Munger, Munger, Reinschmidt & Denne, Sioux City, IA, for Plaintiff.
Margaret M. Prahl, Sioux City, IA, for Defendant.
This matter is before the court sua sponte for reconsideration of an order granting summary judgment for the defendant merchant on an African-American customer's "right-to-contract" race discrimination claim pursuant to 42 U.S.C. § 1981. The court granted summary judgment for the merchant on the ground that the record shows beyond dispute that, notwithstanding a store employee's discriminatory conduct, the customer could, and knew that she could, complete any desired transaction, where the store manager encouraged her to continue shopping. Under these circumstances, the court concluded that, as a matter of law, there had been no interference with the customer's right to make a contract within the meaning of § 1981. See Kirt v. Fashion Bug # 3253, Inc., 479 F.Supp.2d 938 (N.D.Iowa 2007).1 Just days after the court's ruling, however, the Eighth Circuit Court of Appeals handed down its decision in Green v. Dillard's, Inc., 483 F.3d 533 (8th Cir.2007), in which it reversed summary judgment in favor of a merchant on a retail customer's § 1981 "right-to-contract" claim. This court found that the decision in Green would have been relevant to the court's disposition of the merchant's summary judgment motion in this case on the customer's § 1981 claim. Consequently, the court sua sponte directed the parties to brief the question of whether the decision in Green requires the court to set aside the order granting summary judgment for the merchant on the customer's § 1981 claim in this case. Upon completion of the required briefing, and due consideration of the decision in Green and the parties' arguments, the court enters this ruling reconsidering the viability of the customer's § 1981 claim.
Because the facts are material to the court's reconsideration of the viability of the plaintiffs § 1981 claim, just as they were material to its original summary judgment motion, the court will reprise the pertinent facts here.
Plaintiff Karen M. Kirt is an African-American woman. Defendant Fashion Bug # 3253, Inc., (Fashion Bug) is a retail women's clothing store in Sioux City, Iowa. The parties agree that, on October 19, 2004, Kirt, accompanied by her young daughter, made one of only a handful of visits that she had ever made to Fashion Bug. Kirt does not remember being greeted by any store employee as she entered the store. Kirt contends that she did not stay in the store very long, probably only about fifteen minutes, because her daughter was running around. Kirt decided to leave the store without making any purchases and to return the next day without her daughter. Fashion Bug contends that a store employee, Melissa ("Missy") Anderson, recalls that Kirt was carrying a large, unzipped purse that looked empty and that, after Kirt left, Anderson found an empty hanger and a broken security sensor. Fashion Bug contends that Anderson then called the store manager, Margaret ("Maggie") Beaudette, to report the incident. Kirt denies Anderson's version of events as "self-serving."
The parties agree that Kirt returned to Fashion Bug the next evening, October 20, 2004, accompanied by her boyfriend, now husband, Israel. Kirt contends that she returned to the store to purchase pink jeans, which she had been led to believe by a friend could be found at Fashion Bug. Kirt contends that, when she entered the store, Beaudette approached her and said, "Hi," to which Kirt and Israel responded, "Hi." Anderson stated in her deposition that she was leaving for lunch as Kirt came in, but recognized Kirt as the person who had been acting suspiciously the day before, so Anderson remained in the store and notified Beaudette that she had recognized Kirt.
Fashion Bug admits, for purposes of this motion, Kirt's version of what then occurred. Kirt contends that Anderson approached Kirt and asked if she could help her, what she needed, and if she and her companion were looking for something in particular, but Kirt told Anderson that the other woman (Beaudette) had already greeted her and that she did not need any help. Kirt contends that, thereafter, Anderson followed wherever Kirt and Israel walked in the store. At some point — neither party's statement of facts makes clear what was the catalyst — Anderson purportedly said, "I get sick and tired of you people," "I just get tired of them coming in and messing up things and ... every time you people come we find hangers and beeper tags," screamed at Kirt, and told her that if she did not leave the store, Anderson would call the police. Beaudette approached at some point in the course of this incident to try to get Anderson to stop, apologized for Anderson's behavior, and asked Kirt to "finish [her] shopping." Kirt admits that Beaudette was very pleasant (in cited portions of her deposition, Kirt described Beaudette as "really nice"), that Beaudette provided Kirt with a contact telephone number to advise Fashion Bug representatives of her complaints, and that Beaudette gave her Anderson's name. Kirt nevertheless left the store, went home, and started crying. Kirt later contacted a representative of Fashion Bug, provided information about what had happened on October 20, 2004, and was assured that the representative would look into it. Kirt has never returned to the Fashion Bug store.
Fashion Bug contends that it is store policy to greet customers promptly and to watch them as they move about the store to avoid or minimize theft, which is a large problem in the retail industry. Kirt denies the existence of such a policy, because Kirt contends that no such policy has been produced in this litigation, and the court notes that no such policy appears in either party's appendix.
Kirt filed her Complaint And Jury Demand (docket no. 1) in this action on November 29, 2005, naming Fashion Bug as the sole defendant on a theory of respondeat superior liability for the conduct of the store clerk, Missy Anderson, and asserting that such conduct constituted race discrimination in violation of both 42 U.S.C. § 1981 (Count I) and IOWA CODE § 216.7 (Count II).2 Kirt seeks declaratory relief, compensatory damages including damages for emotional distress, punitive damages, costs, attorneys fees, and such other relief as she may be entitled to obtain. Fashion Bug filed its Answer And Jury Demand (docket no. 4) on January 11, 2006, denying Kirt's claims and alleging, as an affirmative defense, that Kirt's Complaint fails to state claims upon which relief can be granted. Trial in this matter was originally set for May 21, 2007, but was subsequently rescheduled to begin on October 9, 2007, on Kirt's unresisted motion for a continuance.
On December 21, 2006, Fashion Bug filed a Motion For Summary Judgment (docket no. 10) on both of Kirt's claims. Kirt filed her Resistance (docket no. 11) on January 16, 2007, and Fashion Bug filed its Reply (docket no. 13) in further support of its motion on January 23, 2007. The court heard oral arguments on Fashion Bug's Motion For Summary Judgment on March 15, 2007. On March 28, 2007, the court entered its ruling granting Fashion Bug's motion for summary judgment on Kirt's § 1981 claim, but denying the motion for summary judgment on Kirt's ICRA claim. See Kin v. Fashion Bug # 3253, Inc., 479 F.Supp.2d 938 (N.D.Iowa 2007).
In its original ruling on Fashion Bug's motion for summary judgment on...
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