Johnston et al v. Apple, Inc.

Filing 23

SECOND AMENDED COMPLAINT against Apple, Inc., Omniscient Investigation Corp. with JURY DEMAND. Document filed by Brian Johnston, Nile Charles. (ft) (ama).

LNITED STATES DISTRICT C'OURT
SOTJTF{ERN DISTRICT OF NEW YORK
(JSR)

BzuAN JOHNSTON and NILE (,'I{ARLES.

Plaintift\.
-againsr

SECOND AMENDED

COMPLAINT
APPLE INC. & OMNISCIENT INVESTIGATION CORP..
Defendants.

Plaintiffs Brian Johnston and Nile Charles. b1' their attomeys. complain of Defendants

as

follows:

l.

NATURE OF THE CASE
'1866.
Section 1982. the New York
Plaintiffs complain pursuant the Civil fughts Act of
State Human Rights Lav, ("NYSHRL") and the New York City Administrative Code,
Human Rights Law (''NYCHRL'') seeking damages to redress the injuries Plaintiffs have

suffered as a result of b:ing discriminated against by Defendants based on their race

(African American.)

I.JTISDICTION AND VENUE

)

The Court has jurisdiction pursuant to 42 U.S-C.
U.S.C.

J.

$

133

l.

$

12101 et. Seq.; 29 U.S.C. {2617; 28

,rendent jurisdiction thereto.
$1343 and

Venue is proper in this di:itrict based upon Defendants' business locations and operations
Iocated within New York
the Southern District of

Cit]. Ne\r' York

Nt'u York and

Count-v in the State of New

York and within

pursuant to 28 U.S.C. S 1391(b).

PARTIES

4.

That at all times material. Plaintiff JOIINSTOT- is a resident of the State of New York,

Counry ofNew York.

5.

Plaintiff JOIJNSToN is rur African American malc. \4.ith j4 yeals Of agg.

6.

That at all times materiirl, Plaintiff CHARLES is a resident of the State of

Ne* york,

County ofNew York.

7.

PlaintiffCHARLES is an ;\frican American male, with 25 years of age.

8.

That al all times material" Defendant APPLE INC. was and is a foreign business corporation

duly existing by virtue of the
9

.

lara,.s

of the State of Califomta.

That at all times material, Defendant APPLE INC was and

is a foreign

business

corporation authorized to and does in lact conduct business in the State ofNew York.

10.

That at all times material. Defendant OMNISCIENT INVESTIGATION CORPORATION

("OIC") was and is a New' York Corporation, licensed to do business in the state of new
york and having a principal place ofbusiness in Liberty. Neu'York.
1

1.

12.

Defendants APPLE INC. ..rrd OIC are herein after refened to as "Defendants."

At all times material. Defendant APPLE INC owns or
Broadway New York Citv.

NY

leases a retail store located at 1981

10023 (''Broadway Store") for the purposes

of selling,

servicing and marketing re,ail merchandise.

13.

At all times material. Del-e rdant OiC has contracted with Defendant APPLE INC to provide
"security Personnel" for the purpose of securing the premises at Defendants' Broadway
Store and in order to preveut loss from theft or other illegal actions.

14.

Upon information and belief', this Security Personnel
Defendant APPLE

15.

NC

quali! as employees of

both

and Defendant OIC.

Upon inlbrmation and belir-f the Security Persomel have apparent authority to act on behalf

of

Defendant APPLE

lN(: and further this apparent authority is

communicated to the

general public by Defenclant APPLE

lillc permitting Security Personnel

to work within the

Broadnay srore withoul restdction and to speak on their behalf, as w.as the case in the
situation detailed

herein This apparent authoriry-

creates a master-servant relationship

bet\4€en Security Persorurel and Defendant APPLE AIC.

16.

Further. Securit,v Persornel have apparent authority which

is

supported

by

Defendant

APPLE II.iC's managements' acts which support and condone Security Personnel actions, as
detailed herein.

17.

Defendant APPLE

ltiC,

b1' contract, requires that Security Personnel

repofi all inappropriate

or suspicious behavior to l)efendant APPLE INC employees or management.

18.

Defendant APPLE INC. by contract, requires that Security Personnel perform services
under a standard ofbehavrol or process set fofth by Defendant APPLE IlriC.

19.

Securit-v Persorurel

may act as a liaison for Delendant APPLE

enforcement as directed by Defendant APPLE
as Defendant

NC.

NC with

local law

This permits Security Personnel to act

APPLE INC's agent in that respect.

20.

Defendant OIC must coorrlinate all actions with Defendant APPLE Il'iC's employee.

21.

Defendant APPLE INC maintains the right to request specific types of Security Personnel

liom

a number

of acceptable backgrounds and credentials from Defendant OIC'

22. All work performed by Security Personnel is done within Defendant APPLE INC's
Broadway Store.

23. All work performed

by Security Personnel occurs r.r'ithin the time limits and restrictions

imposed by Defendant API'l-.E NC's store operation hours.

24.

Defendant APPLE INC . equires by contract that
Defendant APPLE

NC's SOP Manual and all

all

Security Personnel comply with

Post orders given while they are working

in

the Broadu'ay Store, which upon information and belief allows Defendant AppLE INC
to
add additional tasks to Security personnel

25

job duties.

Defendant OIC Security Personnel must provide incident reports in a format designated and
required by Defendant AirpLE INC.

26.

Securiqv Personnel are rcq,rired to implement loss prevention tools and techniques at the

direction of Delendant AI,lrLE I\lC's employees.
27

.

In

these ways and oth( rs Defendant APPLE INC utilizes Defendant OIC's Security

Persormel in a Master-Servant context. ln other words, Defendant APPLE INC controls the

means of carrying out the tasks required of them through contractual obligation, standards

and procedures provided

in writing and through oversight by

Defendant APPLE INC

employees.

28.

Security Personnel act t'oth n'ith apparent and limited actual authority on behalf of
Defendant APPLE

29.

NC

as controlled b1 Defendant APPLE INC personnel.

The relationship which is created betw.een Defendant APPLE INC and Security Personnel is
one of an Ernployer to Empl()yee.

MATERIAL FACTS

30.

Plaintiffs are long time customers of Defendant APPLE INC.

31.

Plaintiff JOHNSTON orvns the following products soldby Defendant APPLE

NC.: IPAD,

MAC BOOK, Pouer MAC G-4, and an I-TOUCH

32.

Plaintiff CHARLES owns the following products sold by Defendant APPLE INC.: IPAD.
IPOD, and a VIDEO IPOD

33.

On or about December 9, 2t)10, Plaintiffs visited Del-endants' Broadway Store.

34.

Plaintiffs were dressed in bi,ggyjeans and large sweaters with hoods.

35.

Plaintiffs were lai'n-fully present in Defendants. Broadway Store.

36.

Plaintiffs were at Deflendants' Broadrvay Store to pwchase personal properfy.

37

.

38.

Plaintiffs purchased headphones from Defbndants- Broadr.r ay Store.

Plaintiffs made their prrrchase

in the basement of

Defendants' Broadwav Store and

proceeded upstairs.

39

At approximately 3:20 pm- Plaintiffs were standing on the entry level of the

Defendants'

Broadway Store and wen: approached by one of Defendar.tts' emplo-vees, now known to be
Secwity Personnel. wearing in khaki pants and a black shirt.

40.

Upon information and belief. this individual

is

subject

to the same

oversight and

requirements as all other Security Personnel and as alleged herein.

41.

Defendants' Security Personnel who approached them was a Caucasian male, in his 50's

with salt and pepper hair, was about 6 feet and 2 inches tall, and weighed about 225 pounds
("John Doe").

42.

John Doe approached Plaintiffs and said. ''You know the deal. You

43.

John Doe told Plaintiffs. "Either you're here to see a Mac Specialist or to purchase

kno* the deal."

something. If you are noi doing either you have to leave the store'"

44.

I'm

raciallv

am discriminating against vou.

I don't

When Plaintiffs protested. John Doe responded, "And before vou sav
discriminating against vou let me stop vou.

I

want'your kind' hanqinq out in the store."

45.

Plaintiffs were shocked and humiliated by the racist remark made by John Doe.

46.

After John Doe made the racist remark. Plaintiffs used their cell phones to record B'hat
transpired when another of Defendants' Security Personnel approached Plaintiffs.

47.

The second of Defendants' S ecurity Personnel to approach Plaintiffs identified himself

as

the Head of Security anci told Plaintiffs, "Now vou have to go.

Ifyou want to know whv,

ONSIDER ME GOD. Y
48.

Plaintiffs asked to speak :o a manager to file a complaint. Def-endants' Head of Security told
Plaintiffs that there was no complaint to be made and vr,alked away from the Plaintiffs,
deliberately ignoring thei- request to see a manager.

49.

Plaintiffs searched the retail store and found a manager who, upon information and beliel

works exclusivel.v for Defendant APPLE

INC.

Before Plaintiffs could explain their

situation to the manager, )efendants'Head of Security interjected and said,

"I

asked them

if

they needed a specialist."
50.

Due to this interjection ar d the perceived submission to Defendant APPLE INC's manager.

it was apparent that Defendants' Security Personnel were subordinate to Defendant APPLE
INC's management.
51.

Plaintiffs complained aborLt the John Doe's racial profiling and pointed out that none oflhe
Caucasian customers were being approached by' Deiendants' Security Personnel or asked to
leave.

52.

Further, at no point was thcre any accusation made against Plaintiffs that they had done
an)'thing improper. In direct contrast. Plaintiffs \.\'ere merely present in the store in the same
manner as other. non-Blacl: customers and confionted by John Doe and told that they had to
leave and that they were being discriminated against.

5i.

In order to further harass. degrade, humiliate, and discriminate against Plaintiffs, Defendant

APPLE INC's manager ask:c Defbndants' Head of Security to call 91 I .
54.

This was despite knowledg : of PlaintilTs' complaints and in furtherance olthe
discriminatory acts being crrnmitted by Defendants' Security Personnel.

55.

Plaintiffs were then requred to leave the premises by Defendant AppLE NC's employee
with Defendants' Securiqr personnel.

56.

Defendants interfered with Plaintiffs right to purchase personal property because of their
race by removing them fiorn the location where it could be purchased.

57.

Defendants' actions and conduct was intentional and intended to ham plaintiffs.

58.

John Doe acted with racial animus and intentionally discriminated against Plaintiffs.

59.

Defendant APPLE INC's manager condoned John Doe's acts and further participated in
removing Plaintiffs from the store due to racial animus. Defendant APPLE IllC's manager
thus intentionally discrimrnated against Plaintiffs.

60.

As a result of Defendants' actions. Plaintiffs felt extremely humiliated, degraded, victimized.
embanassed. ridiculed aml emotionally distressed.

61.

As a result of the Defbnrlants' discriminatorv and intolerable ffeatment of Plaintiifls, they
suffered severe emotional distress.

62.

As a result of the acts an([ conduct complained of herein. Plaintiffs have suffered and will
continue to suffer emotio:tal pain, suffering, inconvenience, loss of enjoyment of life, and
other non-pecuniary losses.

63.

Defendants' conduct has been malicious.
knowledge of the

law.

willful. outrageous, and conducted with full

Further. and evidenced by John Doe's statements and Defendant

APPLE INC's manager's inclifference to Plaintiff's' complaints of discriminatory treatment.
Defendants' actions were rrade with at the very least a reckless indifference to the New

York State, New York Cig and Federal laws prohibiting discriminatory treatment'

AS A FIRST CAUSE OF ACTION
42 U.S.C. Section 1982
64.

Plaintiffs repeat and reallege each and every paragraph above as

if

said paragraph was

more fully set forth here.n at length.
65.

Civil Rights Act of 1866 Section 1982 states in relevant pans as follows:
(a) All citizens of the United States shall have the same right. in
every State and 1erritory. as is enjol.ed by white citizens thereof to
inherit, purchase, lease, sell, hold, and convey real and personal
propefiy. All persons within the jurisdiction of the United States
shall have the sane right in every State and Tenitory to inherit,
purchase. lease, si,ll. hold, and convey real and personal property to
the full and equal benefit ofall laws and proceedings for the security
of persons and pr()perty as is enjoyed b,v i.r'hite citizens, and shall be
subject to like prnishment" pains. penalties. taxes, licenses, and
exactions ofevery kind. and to no other.

66.

Plaintiffs, members of lhe Black and/or African-American race, were discriminated
against because of their rrrce as prohibited under 42 USC Section 1982 and have suffered
damages as set forth herein.

AS A SECOND C,A.USE OF ACTION FOR DISCRIMINATION

67.

Plaintiffs repeat and reallege each and every paragraph above as

if

said paragraph was

more full.v set forth herein ac length.
68.

New York State Executivr Law $ 296 (2)(a) states:

shall be an unlatvful discriminatory practice for any person"
being the onner. l< ssee. proprietor. manager. superintendent. agent
or employee of ar1 place of public accommodation, reson or
amusement, because of the race, creed, color' national origin'
sexual orientation. rnilitary status. sex, or disability or marital
status of any perso|. directly or indirectly. to refuse. withhold from
or deny to such p,:rson any of the accommodations, advantages,
facilities or privileges thereof, including the extension of credit, or"
directly or indirect r to publish, circulate, issue, display. post or
mail any writte r or printed communication. notice or

It

advefiisement. to the effect thal any of the accommodations,
advantages, facilities and privileges of any such place shall be
refused, rwithhcld from or denisd to any person on account of race.
creed, color. national origin. sexual orientation. military starus, sex.
or disability or marital status. or that the patronage or custom
thereat of any peison of or puryorting to be of any particular racecreed. color. national origin. sexual orientation, military status. sex
or marital status, or having a disability is unwelcome, objectionable
or not acceptable. desired or solicited."
69.

Defendants violated the secrion cited herein as set forth.

70.

That as a direct result of :he foregoing. Plaintiffs have been significantly damaged.
AS A THIRD C-\USE OF ACTION FOR DISCRIMINATION
UNDER TTIE ADMINISTRATIVE CODE OF THE CITY OF NEW YORK

71.

8-107

Plaintiffs repeat and reallege each and every paragraph above as if said paragraph was more

fully
12.

{

set forth herein at length.

The Administrative Code oi the Citv of New York

{

8- 107 states:

Unlawful discriminatory practices.4. Public accommodations. (a) It
shall be an unlawfrrl discriminatory practice for any person, being the
owner, Iessee, prcprietor, manager, superintendent, agent or
employee of any prace or provider of public accommodation because
of the actual or perceived race. creed, color. national origin, age,
gender. disabilitv, r narital status. partnership status, sexual orientation
or alienage or citizt'nship status of any person directly or indirectly, to
refuse, withhold from or deny to such person any of the
accommodations. rdvantages, facilities or privileges thereof. or.
directly or indirec,ly" to make any declaration. publish. circulate.
issue, display, posr or mail any written or printed communication,
notice or advertisenlent. to the effect that any ofthe accommodations.
advantages, faciliti.'s and privileges of any such place or provider
shall be refused, withheld from or denied to any person on account of
race, creed, color. national origin. age, gender. disability, marital
status, partnership status. sexual orientation or alienage or citizenship
status or that the patronage or custom of any person belonging topurponing to be. or perceived to be. of any particular race. creed,
color, national origin. age. gender. disabilit-v. marital status.
partnership status, se).ual orientation or alienage or citizenship status
is unwelcome. objer:ticnable or not acceptable. desired or solicited.

13. Employer

liability for discriminatory conduct by.employee. agent
or independenl contracror. (c) An employer shali be liable for an
unlawful discriminatory practice committed by a person employed
as an independent contractor. other than an agent

of such employer,
furtherance of the employer,s business
enterprise onlv v here such discriminator"n- conduit *as committed
in the course of such employment and the employer had actual
knowledge ofand acquiesced in such conduct.

to carry out work in

73.

upon information and beliel and as further set lorth herein. Defendant AppLE INC had
knowledge of John Does illegal actions and acquiesced to those actions through their
manager.

1,1

Even

if

Defendants' Securiry' Personnel are not employees of Defendant

AppLE NC they

are still liable fbr Defendanls' Security Personnel's illegal actions as independent contractors.
75.

Deflendants'have violated tiese sections ofthe law as cited herein and set forth.

76.

As a direct result ofthe foregoing, Plaintiffs have been significantly damaged.

JURY DEMAND
71.

Plaintiffs demand ajurv t:ial

WHEREFORE' Plaintiffs demands judgment against Delbndants in an
amount which
cannot be determined at this rime and which should be determined
by a jury of plaintiffs'peers rn

order to provide recompense frrr the pain and sulfering inflicted as detailed herein, along with
punitive damages pursuant to 42 u.S.c. 1981a(b)(1) and rhe Administrative code of the
$
city of

New York, Human fughts Lari

$

8-502. together with costs. attomeys fees. interest and

disbursements as and when permitted by law.

DATED:

New York. New" York
Julv 26. 201 I

By:

DEREK T SMITH LAW GROUP, P.C.
Jesse C. Rose.

To: Thomas M. Crispi, Esq.
Schiff Hardin LLP
Attomeys for Defendants Apple Inc.
David Metzger, Esq.
Lewis Johns Avallone Aviles, LLP
Attomeys for Defendants OCI

OfCounsel (JR-2409)