Murphy v. Family Christian Stores Inc et al
Filing
59
OPINION AND ORDER granting in part and denying in part 41 Motion for Summary Judgment by Defendants, Family Christian Stores, Inc. and Julie McNutts. Plaintiffs claim of intentional infliction of emotional distress alleged in COUNT III is DISMISSE D against Defendants Family Christian Stores, Inc., and Julie McNutt. Plaintiffs claims of discrimination under 42 U.S.C. §§ 1981 and 1982, alleged in COUNTS I and II REMAIN PENDING. Signed by Magistrate Judge Paul R Cherry on 5/5/11. (kjp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ALVIN MURPHY,
Plaintiff,
v.
FAMILY CHRISTIAN STORES, INC.,
JULIE MCNUTT, SECURITAS
SECURITY SERVICES USA, INC., and
DENISE ABRAM,
Defendants.
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CAUSE NO.: 2:09-CV-146-PRC
OPINION AND ORDER
This matter is before the Court on Defendants’, Family Christian Stores, Inc. and Julie
McNutt’s, Motion for Summary Judgment [DE 41], filed by Defendants Family Christian Stores,
Inc., and Julie McNutt (“Defendants”) on February 14, 2011. Plaintiff filed his response on March
15, 2011, to which Defendants filed their reply on March 28, 2011. This Motion is fully briefed and
ripe for ruling.
PROCEDURAL BACKGROUND
On May 22, 2009, Plaintiff Alvin Murphy filed a Complaint against Defendants Family
Christian Stores, Inc. (“FCS”), Ms. McNutt, Securitas Security Services USA, Inc., and Denise
Abram alleging race discrimination in violation of 42 U.S.C. §§ 1981 and 1982 and an Indiana state
law tort claim of intentional infliction of emotional distress (“IIED”). Defendants FCS and Ms.
McNutt filed their Answer on August 21, 2009. Securitas Security Services USA, Inc., and Denise
Abram (“Security Defendants”) filed their Answer on August 11, 2009, a Motion for Summary
Judgment on February 15, 2011, and a Notice of Settlement on March 14, 2011. Security
Defendants indicated that Plaintiff will be moving to dismiss them. Their Motion will therefore not
be addressed at this time.
The parties orally agreed on the record to have this case assigned to a United States
Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this
case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
SUMMARY JUDGMENT STANDARD
The Federal Rules of Civil Procedure mandate that motions for summary judgment be
granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). Rule 56(c) further requires the entry of summary judgment,
after adequate time for discovery, against a party “who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ.
P. 56(c)). “[S]ummary judgment is appropriate – in fact, is mandated – where there are no disputed
issues of material fact and the movant must prevail as a matter of law. In other words, the record
must reveal that no reasonable jury could find for the non-moving party.” Dempsey v. Atchison,
Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations omitted).
A party seeking summary judgment bears the initial responsibility of informing the court of
the basis for its motion and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, that it believes
demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed. R.
Civ. P. 56(c). The moving party may discharge its initial responsibility by simply “‘showing’ – that
is, pointing out to the district court – that there is an absence of evidence to support the nonmoving
party’s case.” Celotex, 477 U.S. at 325. When the nonmoving party would have the burden of proof
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at trial, the moving party is not required to support its motion with affidavits or other similar
materials negating the opponent’s claim. Celotex, 477 U.S. at 323, 325; Green v. Whiteco Indus.,
Inc., 17 F.3d 199, 201 n.3 (7th Cir. 1994); Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254,
1256 (7th Cir. 1990). However, the moving party, if it chooses, may support its motion for summary
judgment with affidavits or other materials, and, if the moving party has “produced sufficient
evidence to support a conclusion that there are no genuine issues for trial,” then the burden shifts
to the nonmoving party to show that an issue of material fact exists. Becker v. Tenenbaum-Hill
Assoc., 914 F.2d 107, 110-111 (7th Cir. 1990) (citations omitted); see also Hong v. Children’s
Mem’l Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993).
Once a properly supported motion for summary judgment is made, the non-moving party
cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See
Fed. R. Civ. P. 56(e)(2); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). Rule
56(e) provides that “[i]f a party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the
fact undisputed for purposes of the motion [or] grant summary judgment if the motion and
supporting materials – including the facts considered undisputed – show that the movant is entitled
to it . . . .” Fed. R. Civ. P. 56(e)(2), (3); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24850 (1986). Thus, to demonstrate a genuine issue of fact, the nonmoving party must “do more than
simply show that there is some metaphysical doubt as to the material facts,” but must “come forward
with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986) (quoting Fed. R. Civ. P. 56(e)).
In viewing the facts presented on a motion for summary judgment, a court must construe all
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facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor
of that party. See Anderson, 477 U.S. at 255; Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir.
2009); NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995). A court’s role is not
to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth
of the matter, but instead to determine whether there is a genuine issue of triable fact. See Anderson,
477 U.S. at 249-50.
FACTUAL BACKGROUND
On October 3, 2008, Plaintiff Alvin Murphy, an ordained black minister, entered Defendant
Family Christian Stores’ Merrillville location. Mr. Murphy had been a loyal FCS customer and was
a member of their customer loyalty program. He had been in the store at least fifty times over a
period of fourteen years.
On October 3, 2008, when Mr. Murphy entered FCS, Defendant Julie McNutt, a white
woman, was present in her role as store manager. Mr. Murphy’s godson, James Green, also black,
was with him in the store. While in the store, Mr. Murphy spoke with another black customer,
Victor Nelson. Ms. McNutt recognized Mr. Nelson from other occasions when he had been in the
store and made returns without receipts. Mr. Nelson was informed prior to October 3, 2008, that
he would be banned from FCS locations.
Upon seeing Mr. Murphy and Mr. Nelson speak with one another, Ms. McNutt contacted the
mall security guard, Ms. Abram, who was employed by Securitas Security Services USA, Inc. Ms.
Abram in turn contacted the Hobart City Police Department. Officers Homaky and Gresser
responded. One or both of the officers escorted Mr. Murphy out of FCS and issued a no-trespass
warning to him.
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Mr. Murphy spoke about the incident with several pastors, requesting counseling. Mr.
Murphy relayed to them that he was very upset and solicited advice on what they thought he should
do.
ANALYSIS
In support of their Motion for Summary Judgment, Defendants contend that Plaintiff cannot
prove that Defendants violated Plaintiff’s civil rights under 42 U.S.C. § 1981 to make and enforce
contracts or his rights under 42 U.S.C. § 1982 to purchase property. Defendants also contend that
Plaintiff has failed to prove the elements necessary to sustain his cause of action for intentional
infliction of emotional distress. The Court evaluates each argument in turn.
A.
42 U.S.C. §§ 1981 and 1982
In order for Plaintiff to establish a prima facie claim under 42 U.S.C. § 1981, he must show
that he (1) is a member of a racial minority; (2) Defendants “had an intent to discriminate on the
basis of race; and (3) the discrimination concerned one or more of the activities enumerated in the
statute (i.e., the making and enforcing of a contract).” Morris v. Office Max, 89 F.3d 411, 413 (7th
Cir. 1996) (citations omitted). Similarly, “[t]o prove a violation of § 1982, a plaintiff must
demonstrate 1) interference with property rights, which interference is 2) motivated by racial
prejudice.” Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty
Abuse-Wisconsin, Inc., 991 F.2d 1249, 1257 (7th Cir. 1993). Due to “their common origin and
purpose, § 1981 and § 1982 are generally construed in tandem.” Morris, 89 F.3d at 413 (citations
omitted).
Both parties recognize that there is no direct evidence of discrimination, and rely on a
modification of the McDonnell Douglas burden-shifting framework to determine whether there was
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discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973). Under the modified framework, to establish a violation of § 1981 Plaintiff must first
establish a prima facie case of race discrimination by showing “that (1) the plaintiff is of a racial
minority, (2) he attempted to make or enforce a contract, (3) the defendant[s] denied him the right
to make or enforce the contract and (4) the defendant[s] treated the plaintiff less favorably than other
white people who were similarly situated.” Williams v. S. Ill. Riverboat/Casino Cruises, Inc., No.
06-cv-664, 2008 U.S. Dist. LEXIS 31309, at *17, 2008 WL 1776461, at *6 (S.D. Ill. Apr. 16,
2008); see also Carney v. Caesar's Riverboat Casino, LLC, No. 4:07-cv-32, 2009 U.S. Dist. LEXIS
10462, at *10, 2009 WL 363623, at *3 (S.D. Ind. Feb. 11, 2009). To establish a violation of § 1982,
the prima facie case requires a plaintiff to show, at steps (2) and (3), that the defendants interfered
with the plaintiff’s attempted purchase of property. Morris, 89 F.3d at 413, 415.
If Plaintiff establishes a prima facie case of race discrimination, the burden of production
then shifts to Defendants to articulate a legitimate, nondiscriminatory reason for the challenged
action. Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 790 (7th Cir. Ill. 2007) (citing Ballance
v. City of Springfield, 424 F.3d 614, 617 (7th Cir. 2005)); Grayson v. City of Chicago, 317 F.3d 745,
748 (7th Cir. 2003). If Defendants meet their burden, it shifts back to Plaintiff, who must
demonstrate that Defendants’ reasons are a pretext for discrimination. Boumehdi, 489 F.3d at 790;
Grayson, 317 F.3d at 748.
In this case, both parties agree that Plaintiff is a member of a racial minority and that he
attempted to make or enforce a retail contract to purchase property, implicating both § 1981 and §
1982. Plaintiff asserts that he was not able to purchase the merchandise he desired, but Defendants
argue that he was not prevented from completing an intended transaction. In support of their
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contention, Defendants point to deposition testimony of Plaintiff and of Officer Homaky. Regarding
the purchases of Plaintiff and his shopping companion, the Officer stated that he “believe[d] they
purchased the items that they had ... [i]f I recollect right.” Homaky Dep. 11:4-9. His statement is
not one of certainty, and his next comment, that Mr. Murphy and Mr. Green did not have any items
on them, could just as easily mean that they had been prohibited from purchasing anything.
The citation from Plaintiff’s deposition is similarly lacking in clarity. The quote in
Defendants’ brief was taken from a single page of Plaintiff’s deposition without other context
provided to the Court. As part of several narrative paragraphs for which Defendants did not include
the initial prompt, Plaintiff said “I got a purchase, and I had the receipt to show it.” Murphy Dep.
128:13-14. Plaintiff provides the preceding pages in the deposition selection contained in the
exhibits to his response, but even with the additional context it is not obvious to the Court that
Plaintiff’s testimony indicates that he was able to make a purchase on the day in question. The few
lines of deposition testimony provided by Defendants are not sufficient to eliminate any dispute
about the material fact of whether Plaintiff was prohibited from making and enforcing a contract to
purchase property with FCS.
In addition, the parties disagree as to whether Defendants treated Plaintiff less favorably than
similarly situated people who were not members of the protected class. Defendants argue that the
evidence demonstrates that Ms. McNutt requested assistance from the security guard because of
Plaintiff’s interaction with Mr. Nelson, not because of his race. However, Plaintiff presents
evidence that white patrons who spoke with Mr. Nelson in FCS were never removed or denied the
ability to make purchases. The parties also discuss Ms. McNutt’s conduct regarding a white
customer who she witnessed shoplifting. Ms. McNutt testified that she first questioned that
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customer herself before summoning assistance from the security guard. In that case, despite not
suspecting him of theft, Ms. McNutt went directly to the Security Defendants without asking
Plaintiff about his shoplifting. However, in Plaintiff’s instant case, Ms. McNutt went first to the
Security Defendants without questioning Plaintiff, despite not suspecting Plaintiff of shoplifting.
Especially viewed in the light most favorable to the non-moving party, the question of whether Mr.
Murphy was treated differently than similarly situated white patrons is disputed. Therefore, the
Court need not move on to the next step of the analysis and address whether Defendants can
sufficiently articulate a non-discriminatory motivation for their actions.
For the foregoing reasons, summary judgment is inappropriate on the counts alleging
interference with property rights under § 1982 and the making and enforcing of a contract under §
1981.
B.
Intentional Infliction of Emotional Distress
Defendants move for summary judgment on Plaintiff’s Indiana tort claim for intentional
infliction of emotional distress claim on the grounds that Plaintiff has not demonstrated any intent
by either Ms. McNutt or FCS to discriminate against Plaintiff and Plaintiff has not exhibited
symptoms of severe distress. As established above, Defendants are not entitled to summary
judgment on the question of whether Ms. McNutt or FCS discriminated against Mr. Murphy.
Therefore, the Court will turn to the other elements of an IIED claim.
Under Indiana law, the tort of IIED is defined as “[o]ne who by extreme and outrageous
conduct intentionally or recklessly causes severe emotional distress to another is subject to liability
for such emotional distress.” Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991) (quoting
Restatement (Second) of Torts § 46 (1965)). “It is the intent to harm one emotionally that
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constitutes the basis for the tort of an intentional infliction of emotional distress.” Id.; see also
Powdertech, Inc. v. Joganic, 776 N.E.2d 1251, 1264 (Ind. Ct. App. 2002)). Conduct is “extreme and
outrageous”
only where the conduct has been so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a civilized
community. Generally, the case is one in which the recitation of the
facts to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim, “Outrageous!”
Conwell v. Beatty, 667 N.E.2d 768, 777 (Ind. Ct. App. 1996) (quoting Restatement (Second) of Torts
§ 46 (1965)); see also Powdertech, 776 N.E.2d at 1264. To recover, Plaintiff must prove that
Defendant “(1) engage[d] in extreme and outrageous conduct (2) which intentionally or recklessly
(3) causes (4) severe emotional distress to another.” Lindsey v. DeGroot, 898 N.E.2d 1251, 1264
(Ind. Ct. App. 2009) (quoting Cullison, 570 N.E.2d at 31).
In Indiana, the proof requirements for an IIED claim are “rigorous.”
Rhoades v.
Penn-Harris-Madison Sch. Corp., 574 F. Supp. 2d 888, 908 (N.D. Ind. 2008) (citing Branham v.
Celadon Trucking Servs., 744 N.E.2d 514, 523 (Ind. Ct. App. 2001)). The conduct must be “so
outrageous in character and so extreme in degree as to go beyond all possible bounds of decency,
to be regarded as atrocious and utterly intolerable in a civilized community.” Gable v. Curtis, 673
N.E.2d 805, 810 (Ind. Ct. App. 1996). Liability for IIED “clearly does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities,” because in our society
“plaintiffs must necessarily be expected and required to be hardened . . . to occasional acts that are
definitely inconsiderate and unkind.” Id.
Even viewing the facts in the light most favorable to Plaintiff, having him removed from a
store is not the kind of behavior that is “atrocious” or “extreme.” It may be inconsiderate and
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unkind, but that indignity does not rise to the level of outrageousness required to sustain an IIED
claim. Therefore, summary judgment will be granted to Defendants on Count III of Plaintiff’s
Complaint.
CONCLUSION
For the foregoing reasons, the Court hereby GRANTS in part and DENIES in part
Defendants’, Family Christian Stores, Inc. and Julie McNutt’s, Motion for Summary Judgment [DE
41]. Plaintiff’s claim of intentional infliction of emotional distress alleged in COUNT III is
DISMISSED against Defendants Family Christian Stores, Inc., and Julie McNutt. Plaintiff’s claims
of discrimination under 42 U.S.C. §§ 1981 and 1982, alleged in COUNTS I and II REMAIN
PENDING.
SO ORDERED this 5th day of May, 2011.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:
All counsel of record
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