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IN THE UNITED STATES DISTRICT
FOR THE DISTRICT OF KANSAS
PAULA DARLENE HAMPTON and ) DEMETRIA COOPER ) ) Plaintiffs, ) CIVIL ACTION ) v. ) No. 97-2182-KHV ) DILLARD DEPARTMENT STORES, ) INC., ) ) Defendant. ) )
PRETRIAL ORDER
A final pretrial conference was held in the above case on the 26th day of September, 1997.
1. APPEARANCES
a. Plaintiffs appeared by and through their attorneys, Aften McKinney, Kathy Finnell and Jane McQueeny, of the firm of ARTHUR BENSON & ASSOCIATES.
b. Defendant appeared by and through its attorneys, Elaine Drodge Koch and Karen Kessler Cain of the firm of SPENCER FANE BRITT & BROWNE, LLP.
2. VENUE: JURISDICTION OF PARTIEES AND SUBJECT MATTER;
PROPRTIETY OF PARTIES
a. Jurisdiction and venue are based on 28 U. S. C. § § 1343, 13 3 1, and 13 3 2, as well as 28 U.S.C. § 1367.
b. There are no objections at this time to venue, jurisdiction, or the propriety of the parties at this time. Defendant contends that pending the Court's decision on defendant's motion for summary judgment, jurisdiction may be an issue.
3.1 NATURE OF THE CASE
In this case, plaintiffs claim racial discrimination under 42 U.S.C. § 1981 and false imprisonment. Plaintiffs' complaint is premised upon events that occurred at defendant's Oak Park store on April 5, 1996 when plaintiffs were shopping. Specifically, plaintiffs contend that while they were shopping, they were observed by defendant's employees for an extended period of time, and that they were approached and stopped by defendant's employee, during which time defendant's employee conducted a five-minute investigation which included looking into plaintiffs' bag, removing the items from the bag, and comparing the items with the receipt in the bag.
Plaintiffs allege that defendant's actions constituted a surveillance, detention, and search of plaintiffs that is part of defendant's disparate security practices that unequally burden African American shoppers and violated plaintiffs' rights under Section 1981. Plaintiffs further allege defendant's five minute investigation constituted false imprisonment.
Defendant denies all allegations.
4.0 PLAINTIFFS'FACTUAL CONTENTIONS AND LEGAL THEORIES
Defendant has, for a substantial period of years, engaged in a pattern and practice of treating African-American and/or other minority race shoppers differently than it treats white shoppers by subjecting them to heavier surveillance, more frequent stops and searches, more detentions and investigative stops and/or more aggressive and less polite and unprofessional treatment, hereinafter referred to as disparate security practices.
Former Dillard security officers have complained to defendant management that African-American shoppers are subjected to disparate security practices because of their race.
Defendant engaged in disparate security practices as to plaintiffs Paula Hampton and Demetria Cooper on April 5, 1996 because of plaintiffs' race.
Plaintiffs Paula Hampton and Demetria Cooper are African-American women who were shopping at Dillard Oak Park on April 5, 1996.
Plaintiffs Paula Hampton and Demetria Cooper were accompanied by four children ages seven years, seven years, twelve months, and eight months.
Upon entering the infant's department of Dillard Oak Park, plaintiffs Paula Hampton and Demetria Cooper were placed under surveillance by defendant's security officer Tom Wilson.
Plaintiffs Paula Hampton and Demetria Cooper were shopping for clothes for Demetria Cooper's infant son, Omari Collins.
Plaintiffs Paula Hampton and Demetria Cooper selected items for Omari Collins and entered the fitting room in the boy's department to try them on him.
Defendant's security officer Wilson never saw plaintiffs Paula Hampton and Demetria Cooper remove any Dillard merchandise or property.
Defendant's security officer Wilson never saw plaintiffs Paula Hampton and Demetria Cooper conceal any Dillard merchandise or property.
Defendant's security officer Wilson asked defendant's employee Pamela Fitzgerel to watch plaintiffs as they were walking into the fitting room.
Defendant's employee Fitzgerel did not notice anything suspicious about plaintiffs when Officer Wilson initially asked her to watch them.
Defendant's employee Fitzgerel's perception of plaintiffs Paula Hampton and Demetria Cooper was affected by Tom Wilson's request for her to watch them.
Defendant's employee Fitzgerel was unaware of what kind or how many items plaintiffs Paula Hampton and Demetria Cooper carried into the fitting room.
Defendant's employee Fitzgerel never saw plaintiffs Paula Hampton and Demetria Cooper remove any Dillard merchandise or property.
Defendant's employee Fitzgerel never saw plaintiffs Paula Hampton and Demetria Cooper conceal any Dillard merchandise or property.
Defendant's employee Fitzgerel never informed officer Wilson that plaintiffs Paula Hampton and Demetria Cooper had placed any Dillard merchandise or property into a bag.
Defendant's security officer Wilson did not keep plaintiffs Paula Hampton and Demetria Cooper under constant observation.
Plaintiff Hampton purchased several items of clothing for plaintiff Cooper's son Omari.
Defendant distributed promotional coupons for a men's fragrance to plaintiffs as a result of their purchase.
Defendant's security officer Wilson did not know what items had been purchased by Paula Hampton.
Defendant's security officer Wilson never contacted any associate to determine what items had been purchased by plaintiffs.
Defendant's security officer Wilson never saw plaintiffs Paula Hampton and Demetria Cooper place any Dillard merchandise or property into a shopping bag.
Defendant's security officer Wilson approached plaintiff and told them he needed to search their bag.
Defendants' security officer Wilson did not check plaintiff Cooper's jacket.
Defendants' security officer Wilson did not check plaintiff Cooper's purse.
Defendant's security officer Wilson's demeanor, tone, and body language communicated to plaintiffs Paula Hampton and Demetria Cooper that they were being detained and were not at liberty to leave.
Defendant's security officer Wilson's surveillance, stop, detention, and search of plaintiffs Paula Hampton and Demetria Cooper were part of defendant's pattern and practice of subjecting African American shoppers to disparate security practices.
Officer Wilson placed Paula Hampton and Demetria Cooper under surveillance before they entered the fitting room.
Officer Wilson's surveillance of Paula Hampton and Demetria Cooper was not in good faith.
Defendant's surveillance, detention, and search of plaintiffs were racially discriminatory, deprived plaintiffs of their right to make, perform, modify and terminate a contract with defendant and violated plaintiffs' right to enjoy all benefits, privileges, terms, and conditions of their contractual relationship.
When defendant's security officer Wilson stopped plaintiffs, they were standing at the men's fragrance counter speaking with a fragrance consultant in an attempt to redeem the fragrance coupons they had received.
Plaintiffs' redemption of their coupon was interrupted by defendant's security officer Wilson's stop, detention, and search of plaintiffs.
Plaintiffs' fragrance coupons were never redeemed.
Defendant's security officer Wilson's surveillance and stop of plaintiffs Paula Hampton and Demetria Cooper was not in good faith.
Defendant's security officer Wilson's contact with plaintiffs Paula Hampton and Demetria Cooper was not consensual.
Itemization of Damages
I. Count I (Section 198 1)
a. for inconvenience, mental anguish loss of enjoyment of life, and emotional pain and suffering, plaintiffs claim nominal and compensatory damages against defendant in the amount of $112,000;
b. Punitive damages: $1,000,000; and
c. Statutory attorneys fees.
II. Count H (False Imprisonment)
a. for insult, nervousness, indignity, humiliation, and mental pain and suffering, plaintiffs claim nominal and compensatory damages against defendant in the amount of $56,000; and
b. punitive damages: $1,000,000.
4.1 DEFENDANT'S FACTUAL!CONTENTIONS AND LEGAL THEORIEES
Defendant denies that it discriminated against plaintiffs in any manner, and it denies that it has a pattern and practice of discriminating against African American shoppers in the detention and arrest of suspected shoplifters. In fact, defendant denies that it in anyway detained plaintiffs.
Defendant admits that plaintiffs were shopping at the Oak Park Dillard's store on April 5, 1996, and that plaintiffs were accompanied by children.
On April 5, 1996, Officer Tom Wilson of the Kansas Highway Patrol. was working for defendant as a part-time security officer. In his part-time position with Dillard's Officer Wilson is responsible for detecting suspicious conduct in an effort to deter, prevent and stop shoplifting. When he was walking through the children's department on April 5, 1996, Officer Wilson noticed plaintiffs who were accompanied by children and a stroller. Officer Wilson was aware that strollers were sometimes used with shoplifting, and he continued to observe plaintiffs. Shortly thereafter, plaintiff Hampton departed with the children, leaving plaintiff Cooper alone in the children's department. Officer Wilson continued to observe plaintiff Cooper and noticed that she appeared to be looking around the store - as if to see if someone was watching her - rather than looking at the merchandise. As he watched plaintiff Cooper, he noticed that she had rolled-up a dark cloth item in her left hand.
After approximately ten minutes, plaintiff Hampton and the children returned to the children's department. Plaintiffs then proceeded to the fitting rooms in the boys section of the children's department. At this time, Officer Wilson asked Pamela Fitzgerel, a buyer for defendant who was working on the sales floor and whom Officer Wilson believed to be a sales associate, to watch plaintiffs while they were in the fitting room. Fitzgerel agreed to do so. While plaintiffs were in the fitting room, they left both the door to the fitting room and the door to the fitting room area open, allowing them to see out of the fitting room onto the sales floor, and allowing Fitzgerel to watch them. Fitzgerel observed plaintiff Cooper shoving what appeared to be a piece of merchandise up into her coat under her lapel. Fitzgerel reported this to Officer Wilson who asked Fitzgerel at least twice if she was certain, and Fitzgerel responded affirmatively each time. Officer Wilson continued to observe plaintiffs as plaintiff Hampton made a purchase. Plaintiffs then proceeded to the men's cosmetics area and Officer Wilson approached plaintiffs as they were leaving the store.
Officer Wilson identified himself as a security officer and informed plaintiffs that an associate had observed plaintiff Cooper concealing merchandise under her coat. Plaintiff Cooper does not believe Officer Wilson identified himself, and she believed throughout the entire encounter that Officer Wilson was just a "pervert." Plaintiffs did not respond to Officer Wilson's allegation, and Officer Wilson indicated he needed to look in their shopping bag. He reviewed the contents of the bag and determined that the items matched the store receipt, and he returned both the items and the bag to plaintiffs. Plaintiffs did not withhold the shopping bag; they did not tell Officer Wilson that he could not look in the bag; and they did not request the return of the bag after Officer Wilson had the bag. Although plaintiff Hampton now claims that plaintiff Cooper carried a dark child's jacket under her arm at least some of the time she was at Dillard's, plaintiffs did not inform Officer Wilson of this at any time during the encounter. In fact, plaintiff Cooper said nothing to Officer Wilson throughout the encounter.
Plaintiff Hampton was upset and began loudly asking questions and making statements concerning the treatment she felt she had been subjected to by Officer Wilson. Officer Wilson, in an attempt to preserve the peace, asked plaintiff Hampton to calm down and instructed her that he would call the Overland Park Police Department and have her removed from the premises if she did not calm
down. Plaintiff Hampton calmed down, and told Officer Wilson that she was going to customer service; plaintiffs then walked away, thereby terminating the encounter. Officer Wilson expressed no opposition to plaintiffs' termination of the encounter and departure from the cosmetics area.
Throughout the incident, plaintiffs could have walked away as they, in fact, did. Officer Wilson never touched them nor threatened to touch them through either his words or conduct. In fact, the only comment Officer Wilson made that could be interpreted as potential physical contact was Officer Wilson's reference to calling the police if plaintiff Hampton did not calm down, after which plaintiff Hampton calmed down. His reference to the police was in response to plaintiff Hampton's upset demeanor and loud voice in making unsolicited comments regarding defendant's encounter with them; the comments did not request any response from Officer Wilson but were merely loud, accusatory, self righteous statements. Officer Wilson did not suggest the police would be called in regard to the alleged shoplifting. Defendant, through Officer Wilson or otherwise, did not tell plaintiffs they could not shop at Dillard’s and plaintiffs were not prevented from making any purchases at Dillard’s. In fact, Officer Wilson observed plaintiffs making a purchase and did not intercede - after he had been told of the concealed merchandise. If plaintiffs do not continue to shop at Dillard’s, it is of their own voluntary choice.
Claim For Discrimination in Violation of 'section 1981.
To maintain an action for duration in violation of section 198 1, plaintiffs have the burden of proving (1) that they are members of a protected class; (2) that they attempted to contract for certain services; (3) that they were denied the right to contract for those services; and (4) that such services remained available to those outside the protected class. White v. Denny's, Inc., 918 F. Supp. 1418, 1424 (D. Colo. 1996). Plaintiffs must have attempted to contract for certain services. 42
U.S.C. § 1981; Patterson v. McLean Credit Union, 491 U.S. 1642 172 (1989). Plaintiffs must establish the actual loss of contractual interests - potential loss of contractual interests is insufficient. Phelps v. Wichita Fagle-Beacon, 886 F.2d 1262 (10th Cir. 1989). Plaintiffs will not be able to prove sufficiently that defendant interfered with their right to contract. Because there was no contract interest at stake, plaintiffs cannot establish the remaining two elements either.
Furthermore, plaintiffs must establish intentional discrimination. White v. Denny's, Inc., 918 F. Supp. 1418, 1424 (D. Colo. 1996). Throughout the encounter, and even including events thereafter, no racial slurs or epithets were directed at plaintiffs by any employee of defendant. Although plaintiffs have an opportunity to prove discrimination by circumstantial evidence, White v. Denny's, Inc., 918 F. Supp. 1418 (D. Colo. 1996), defendant still is afforded the opportunity to establish that the reasons given for approaching plaintiffs are not a pretext. Defendant had probable cause to approach plaintiffs, which will serve to defeat any pretext argument asserted by plaintiffs.
Plaintiffs' Claim For False Imprisonment,
To maintain an action for false imprisonment plaintiffs must establish both that (1) they were restrained of their liberty by words or acts that they feared to disregard and (2) that there was no legal excuse for the restraint. Thompson v. General Finance Co., Inc., 205 Kan. 76, 88, 468 P.2d 269 (1970). Plaintiffs' Complaint does not allege any words or actions of defendant which plaintiffs feared to disregard, and there is no evidence to support an allegation that they feared to disregard Officer Wilson. In fact, (1) plaintiff Cooper claims she was unaware Officer Wilson was a security officer and just went along with him thinking he was a "pervert;" and (2) plaintiff Hampton unilaterally terminated the encounter and walked away -- showing complete disregard to Officer
Wilson -- before Officer Wilson had an opportunity to inform them that he did not intend to investigate the allegation any further. Plaintiffs' responsiveness to Officer Wilson was consensual.
Although plaintiffs have testified that defendant threatened to call the Overland Park Police Department ("OPPD") and have them removed from the store, Officer Wilson's comment concerning the OPPD was directly in response to plaintiff Hampton's upset state and the loud comments that she was malting that did not request a response but merely accused defendant of unfair practices. Officer Wilson never implied the OPPD would be called to respond to the alleged shoplifting.
Plaintiffs also cannot establish that they were detained unlawfully. A merchant's defense is provided in K.S.A. 21-3424. The statute provides a defense to merchants who are attempting to protect their goods. Codner v. Skaggs Drug Center, Inc., 224 Kan. 531, 533, 581 P.2d 387 (1978). Plaintiffs have the burden of establishing that defendant had no legal excuse for approaching plaintiffs -- thereby requiring that plaintiffs establish that defendant did not have probable cause to make the stop. Officer Wilson reasonably relied upon a store associate's report that plaintiff Cooper had an item concealed in her coat. Plaintiff Hampton's own testimony affirms Fitzgerel's observation. Plaintiff Hampton testified that plaintiff Cooper was carrying a child's jacket under her arm at least some of the time plaintiffs were shopping in the children's department at Dillard's. Carrying any item within one's coat is suspicious, much less a children's coat when shopping in a children's department. Plaintiffs could have avoided any difficulty this encounter has brought them if they simply had informed Officer Wilson that plaintiff Cooper had been carrying a child's coat under her arm.
5. STIPULATIONS
a. That this Court has jurisdiction over the parties at this time. Defendant contends that depending on the Court's decision on defendant's motion for summary judgment, jurisdiction may be an issue;
b. That all persons who are contingently necessary persons for purposes of this litigation have been joined as parties hereto;
c. That all witnesses endorsed by the parties hereto, and any exhibit fisted by any of the parties hereto, may be used by the other party without further endorsement or fisting -- although this stipulation is not intended to waive either party's right to object to witnesses and exhibits fisted by the opposing party;
d. That legible copies of original documents may be offered and admitted into evidence
without further objection on the ground of the best evidence rule;
e. That reproductions and overlays of documents listed as exhibits hereto may be used in this litigation so long as any reproduction or overlay thereof does not otherwise distort the document;
f. That the following documents be admitted into evidence without objection on foundation, but reserving all other objections, including relevance.
1) Overland Park Police Report 96-019090;
2) Dillard incident logs;
3) Dillard History of Arrests;
4) Dillard incident reports;
5) Dillard personnel file of Tom Wilson;
6) Kansas Highway Patrol personnel file of Tom Wilson;
7) Kansas Highway Patrol disciplinary file of Tom Wilson;
8) Kansas Highway Patrol Training records of Tom Wilson;
9) Dillard personnel file of Pamela Fitzgerel; and
10) Plaintiff Hampton's Dillard credit card account records.
6. AMENDMENTS TO THE PLEADINGS
The Complaint shall be amended to reflect the accurate date of the occurrence April 5, 1996 and as necessary to permit this Pretrial Order to supersede prior pleadings.
7. ISSUES OF FACT
Defendant submits that there remain no material issues of disputed fact. However, should the court deny defendant's motion for summary judgment, the parties submit the following remaining ultimate and controlling issues of fact in dispute:
a. All those questions of fact arising out of plaintiffs' theories of claim.
b. Whether defendant, for a substantial period of years, has engaged in a pattern and practice of treating African-Americans and/or other minority race shoppers differently than it treats write shoppers by subjecting them to heavier surveillance, more frequent stops and searches, more detentions and investigative stops and/or more aggressive and less polite treatment, hereinafter refer-red to as "disparate security practice."
c. Whether defendant prohibited plaintiffs from making or enforcing a contract.
d. Whether defendant on April 5, 1996 subjected plaintiffs to disparate security practices because they are African-American.
e. Whether defendant detained plaintiffs on April 5, 1996 against their will and without reasonable cause or legal excuse.
f. If defendant detained plaintiffs, whether defendant had probable cause to detain plaintiffs.
g. Whether plaintiffs were damaged by any of the foregoing acts or omissions of
defendant.
h. Whether the acts of defendant were willful, wanton reckless, and malicious, and showed a complete and deliberate indifference to, and conscious disregard for rights of plaintiffs.
i. Whether plaintiffs are entitled to actual damages, nominal damages, and exemplary or punitive damages.
j. Whether plaintiffs are entitled to their reasonable attorneys fees pursuant to 42 U.S. C. § 1988.
8. ISSUES OF LAW
The following are the remaining issues of law in the case:
a. All those questions arising out of plaintiffs' theories of claim.
b. Whether defendant deprived plaintiffs of the full and equal benefit of all laws and proceedings for the security of person and property as are enjoyed by white citizens, in violation of 42 U.S.C.§ 1981.
c. Whether plaintiffs have stated a claim for false imprisonment.
d. Whether the merchant's defense, K.S.A. 21-3424, defeats plaintiffs' claim of false imprisonment.
e. Whether defendant's actions were willful, wanton reckless, and malicious, and further show a complete and deliberate indifference to, and conscious disregard for, rights of plaintiffs and, therefore, whether plaintiffs are entitled to an award of punitive or exemplary damages in an amount
sufficient to punish defendant or to deter defendant and other companies from like conduct in the future.
f. Whether plaintiffs are entitled to actual damages, nominal damages, and exemplary or punitive damages.
g. Whether plaintiffs are entitled to their reasonable attorneys fees pursuant to 42 U.S. C. § 1988.
9. DISCOVERY
Discovery closed on September 18, 1997.
10. WITNESSES AND EXHTBITS
Counsel will exchange exhibits and shall file with the Clerk and serve fists of final witnesses together with their addresses and exhibits by November 10, 1997. Witnesses and exhibits listed by one party may be called or offered by the other party. All exhibits shall be marked by the Clerk at least six days prior to trial or at such other time as may be designated by the Clerk. All exhibits shall be exchanged by counsel at or prior to the time they are marked. Witnesses and exhibits not exchanged, filed and marked, as required by this order, shall not be permitted to testify or be received in evidence, respectively. The Clerk shall not issue any subpoena duces tecum for exhibits not marked and exchanged in compliance with this order. Compliance with the provisions of this section of the Pretrial Order shall be required in all cases except by agreement of counsel or upon order of the Court, or in proper rebuttal.
11. MOTIONS
a. There is pending Defendant's Motion for Summary Judgment.
b. The parties intend to file motions in limine.
c. All pretrial motions (in limine, etc.) shall be filed no later than 5:00 o'clock p.m. October 30, 1997, and all opposing suggestions November 6, 1997. A hearing is set on all motions in limine for November 24 at 10:00 o'clock a.m.
d. Plaintiffs' response to Defendant's Motion for Summary Judgment shall be filed by October 14, 1997, and shall be hand delivered to defendant.
e. Defendant's Reply in Further Support of Defendant's Motion for Summary Judgment shall be filed by October 24, 1997, and shall be hand delivered to plaintiffs.
12. OTHER
Plaintiffs are abandoning Count III (Defamation Per Se) of the Complaint.
13. TRIAL
Trial will be by jury.
14. TIME AND PLACE OF TRIAL
Trial will be in Kansas City, Kansas, or such other place in the District of Kansas where the case may first be reached for trial.
The case is set for trial on the Court's docket beginning the 2nd day of December, 1997.
15. TRIAL AND SETTLEMENT PROSPECTS
a. Estimated trial time is five days.
b. Settlement prospects are poor.
c. Because of the constraints on the judiciary's budget for the compensation of jurors, in any case in which the Court is not notified of a settlement by 3:00 p.m. on the day before trial is scheduled to commence, the costs of jury fees and expenses will be assessed to the par-ties, or any of them, as the Court may order.
d. Mediation is ordered. The parties will undertake mediation on October 14, 1997 with Dave Waxse of Shook, Hardy, and Bacon P.C. Plaintiffs shall provide a settlement proposal to defendant by October 1, 1997, and defendant shall respond by October 7, 1997.
16. TRIAL BRIEEFS
A party desiring to submit a trial brief in this case shall conform with requirements of Rule 112 of this Court.
IT IS SO ORDERED, and this Pretrial Order shall supersede pleadings and control the future course of the action unless modified to prevent injustice.
Dated this 17th day of November, 1997 at Kansas City, Kansas.
KATHRYN H. VRATIL
UNITED STATES DISTRICT JUDGE