Armstrong v. Target Corporation et al
ORDER 38 Motion for Summary Judgment is DENIED; 57 "Word Count Permission" Request has been granted. (Written Opinion). Signed by Judge Richard H. Kyle on 04/12/11. (kll)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civ. No. 10-1340 (RHK/JJG)
Anthony Armstrong, Minneapolis, Minnesota, Plaintiff, pro se.
Brian A. Wood, Eric J. Steinhoff, Lind Jensen Sullivan & Peterson, PA, Minneapolis,
Minnesota, for Defendant.
In this action, Plaintiff Anthony Armstrong alleges that Defendant Target
Corporation (―Target‖) violated Title II of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000a, by removing him from its downtown-Minneapolis store in August 2009.
Armstrong originally asserted multiple claims arising from the same incident at the
Target store; however, all that remains is his Title II claim. (See Order on Motion to
Dismiss, Doc. No. 30.) Armstrong now moves for summary judgment. For the reasons
set forth below, his Motion will be denied.
Armstrong‘s factual allegations are set forth in detail in the Court‘s prior Order on
Target‘s Motion to Dismiss. (Doc. No. 30.) They will not be repeated herein.
Following the resolution of Target‘s Motion to Dismiss, a Pretrial Scheduling
Order established deadlines for discovery. (See Doc. No. 51.) Disclosures under Rule
26(a)(1) are due by May 1, 2011, discovery is to be completed on or before December 1,
2011, and the dispositive-motion deadline is not until February 2012. (See id.) However,
before discovery had even begun, Armstrong filed this Motion for Summary Judgment.
In support of his Motion, he re-submitted two exhibits and four separate affidavits setting
forth his detailed account of the events giving rise to this action.1 (See Doc. Nos. 40–43;
Mem. in Supp. Exs. SJ-A, SJ-B.)2
In response to the Motion, Target submitted affidavits from three employees who
were involved in the complained-of events: Bryan Studley (identified by Armstrong as
―head of security ‗Bryan‘ (plain clothed)‖); Cody Heinold (identified as ―first uniformed
security guard ‗Cody‘‖); and Elizabeth Hauser (identified as ―Libby‖). These affidavits
largely corroborate the gist of the incident—Armstrong was speaking with a female
customer at the store‘s photo kiosks, he had contact with a number of Target employees,
including security guards and a manager, and he was eventually asked to leave the
premises. However, the employees‘ recollections of the details differ from Armstrong‘s.
The affidavits and exhibits submitted in support of Armstrong‘s Motion are identical to the
documents and affidavits he previously submitted in opposition to Target‘s Motion to Dismiss,
although he had the affidavits re-notarized.
Armstrong‘s Reply Memorandum filed in support of this Motion caused him to exceed the
12,000-word limit imposed by Local Rule 7.1(d); he filed a ―Word Count Permission‖ Request
with his Reply, asking the Court to consider it despite the word limit. (Doc. No. 57.) Although
the Court notes that Armstrong‘s initial Memorandum in Support of his Motion contained
extensive discussion of irrelevant topics, his request is nonetheless GRANTED, and the Court
has considered his Reply in deciding the instant Motion.
Both Studley and Heinold state that the female customer‘s body language
appeared ―uncomfortable‖ or ―strange‖ while Armstrong was speaking to her. (Studley
Aff. ¶¶ 8–10; Heinold Aff. ¶ 3.) Studley asked Armstrong if he would like to use another
available kiosk, and he claims Armstrong immediately became upset and confrontational.
(Studley Aff. ¶ 13.) When Heinold approached, he observed Armstrong being ―very
upset and very loud.‖ (Heinold Aff. ¶ 8.) Hauser, the leader on duty the day of the
incident, similarly recalls that Armstrong was ―loud and upset‖ when she first came into
contact with him. (Hauser Aff. ¶ 4.) Officer Stoll was called ―because Armstrong would
not comply‖ with the employees‘ requests that he leave the store. (Heinold Aff. ¶ 10.)
All three employees aver that Armstrong‘s race played no part in their observations or the
actions they took, and none of them recalls any comment about Armstrong‘s race on the
date in question. (Studley Aff. ¶ 16; Heinold Aff. ¶ 11; Hauser Aff. ¶ 10.)
Since no discovery has been conducted to date, the affidavits and documents
mentioned above comprise the entire record.
STANDARD OF REVIEW
Summary judgment is proper if there is no genuine issue as to any material fact
and Armstrong is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The plaintiff bears the burden of showing
that the material facts in the case are undisputed. Id. at 322; Mems v. City of St. Paul,
Dep‘t of Fire & Safety Servs., 244 F.3d 735, 738 (8th Cir. 2000). The Court must view
the evidence, and the inferences that may be reasonably drawn from it, in the light most
favorable to the non-moving party. Graves v. Ark. Dep‘t of Fin. & Admin., 229 F.3d
721, 723 (8th Cir. 2000); Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116 (8th Cir.
1997). As the party opposing summary judgment, Target may not rest on mere
allegations or denials, but must show through the presentation of admissible evidence that
specific facts exist creating a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 256 (1986); Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
Title II of the Civil Rights Act, 42 U.S.C. § 2000a et seq., prohibits discrimination
on the basis of race in places of public accommodations. It provides:
All persons shall be entitled to the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, and accommodations of any
place of public accommodation as defined in this section, without
discrimination or segregation on the ground of race, color, religion, or
42 U.S.C. § 2000a(a). In order to establish a prima facie case of public-accommodation
discrimination, Armstrong must show that: ―(1) he is a member of a protected group;
(2) he was similarly situated by circumstance to other individuals not members of such a
group; and (3) he was treated more harshly or disparately than other similarly situated
non-group members.‖ O‘Neal v. Moore, Civ. No. 06-2336, 2008 WL 4417327, at *24
(D. Minn. Sept. 24, 2008) (Montgomery, J.), aff‘d, 355 F. App‘x 975 (8th Cir. 2009)
(citations omitted). Target has not attempted to rebut Armstrong‘s claim that he is a
member of a protected group due to his race. It does, however, dispute whether
Armstrong was treated more harshly or disparately than other similarly situated
individuals who were not members of his protected group.
The parties fundamentally differ in their characterizations of Armstrong‘s conduct
leading up to his removal from the store. Armstrong contends that his interaction with
the female customer at the photo kiosk was merely ―innocent‖ and ―idle conversation,‖
and the woman assured him that she was alright. (Armstrong Aff. (Doc. No. 40) at 2;
Compl. ¶¶ 24, 27.) Conversely, the Target employees claim they heard Armstrong
making ―unusual comments,‖ heard the woman giving ―short uncomfortable responses‖
(Studley Aff. ¶ 10), and observed her ―uncomfortable and agitated‖ body language (id. ¶
8; accord Heinold Aff. ¶ 3 (―their body language and the situation seemed strange‖)).3
Armstrong further claims he spoke ―softly and casually‖ to the kiosk attendant following
his initial interaction with Target security guards (Compl. ¶ 31), while the guards claim
he ―immediately got upset‖ and became ―confrontational‖ and ―loud‖ when he was asked
to leave the woman alone (Studley Aff. ¶ 13; Heinold Aff. ¶ 8). Studley and Heinold
both claim they would take the same actions in a situation involving a patron of any race
who acted in a similarly confrontational manner. (Studley Aff. ¶ 13; Heinold Aff. ¶ 11.)
These differing accounts create a material fact issue. The facts surrounding
Armstrong‘s conduct are necessary to determine whether he was treated disparately from
individuals in similar circumstances who were not members of a protected class. If
Armstrong was acting calmly and rationally, then the actions taken by Target‘s
Armstrong argues Target‘s affidavits contain ―perjury‖ because they contradict his own
recollection. (See Reply Mem. ¶¶ 7–11.) However, the mere fact that people remember events
differently does not mean one must be lying. At the summary-judgment stage, contradictory
testimony means there exists a ―genuine dispute as to [a] material fact.‖ Fed. R. Civ. P. 56(a).
Moreover, even if Target‘s affidavits are perjured (which this Court is in no way suggesting), the
Supreme Court has acknowledged that perjured affidavits may still overcome a motion for
summary judgment. St. Mary‘s Honor Ctr. v. Hicks, 509 U.S. 502, 522 (1993) (―[P]erjury may
purchase the defendant a chance at the factfinder.‖)
employees likely were harsher than their treatment of calm, rational patrons of other
races. On the other hand, if he was making another customer uncomfortable, responding
confrontationally, and being generally loud and disruptive, it is difficult to conclude that
Target‘s response was any harsher than it would have been in a situation involving a
similarly-belligerent customer of any race. Simply put, there are genuine issues of
material fact making summary judgment inappropriate. See Fed. R. Civ. P. 56(c)(2).
Armstrong also argued extensively about damages in his memorandum supporting
this Motion. (See Mem. in Supp. at 16–24.) The issue of damages is irrelevant at this
stage. However, in his discussion of damages, Armstrong raised arguments sounding in
the Fourteenth Amendment, 42 U.S.C. §§ 1981, 1983, and 1988, and various state-law
torts. Armstrong‘s only remaining claim against Target is for public-accommodations
discrimination in violation of Title II of the Civil Rights Act, 42 U.S.C. § 2000a (see
Order on Motion to Dismiss, Doc. No. 30), and continued discussion of other theories
and claims is thus unwarranted and should be avoided in future submissions.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Plaintiff‘s Motion for Summary Judgment (Doc. No. 38) is DENIED.4
Dated: April 12, 2011
s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge
In denying Armstrong‘s Motion, the Court in no way expresses an opinion on either party‘s
ability to survive a later summary-judgment motion on a more extensive factual record once
discovery has been conducted.
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