Pack v. Walmart, Inc.

• Decision Date: 10 April 2023
• Docket Number: 3:20-cv-01604-YY
• Parties: LATRESE PACK Plaintiff, v. WALMART, INC. and JANE DOE, Defendants.
• Court: U.S. District Court — District of Oregon

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LATRESE PACK Plaintiff, v. WALMART, INC. and JANE DOE, Defendants.

No. 3:20-cv-01604-YY

United States District Court, D. Oregon, Portland Division

April 10, 2023

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.^[1]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.

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, 2021 WL 3779834 (D. Or. Aug. 24, 2021), aff'd, No. 21-35783, 2022 WL 15523098 (9th Cir. Oct. 27, 2022). Plaintiff offers no other evidence of discrimination, such as (1) race-based statements, see Makhzoomi v. Sw. Airlines Co., 419 F.Supp.3d 1136, 1150 (N.D. Cal. 2019) (finding prima facie case where plaintiff was chastised for speaking in “that language” given “the environment,” told he was not “getting back onto the airplane,” and turned over to law enforcement); (2) racial slurs, see King, 61 Or.App. at 203 (finding that defendant violated Oregon Public Accommodations Act where defendant's employees directed racial slurs at plaintiff); or (3) proof 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...