Alleged Shoplifters’ Race and “Perceived Sex” Discrimination Claims Continue Against J.C. Penney

In Martin v. J.C. Penney, decided by the Eastern District of New York on June 10, 2014, Judge Weinstein denied defendants’ motion for summary judgment on plaintiff’s claims under 42 USC 1981 and the New York State and City Human Rights Laws.

Plaintiffs, “dark-skinned females who dress in stereotypically male attire”, sued after being detained for alleged shoplifting at a J.C. Penney store in Queens. In particular:

Shortly after plaintiffs entered the store, individual defendants Pena and Bolanos, J.C. Penney loss prevention specialists, began watching them as they shopped for merchandise. Pena assumed plaintiffs were male and Bolanos admitted some confusion as to their genders. Both Pena and Bolanos testified that they made the determination that plaintiffs were not white, but were unable to identify their races.

Plaintiffs were observed picking up between four and six items of merchandise prior to entering the fitting rooms. Pena and Bolanos testified that they created a list of the merchandise plaintiffs brought into the fitting room with them. Pena contacted the third loss prevention specialist, defendant Rodriguez, requesting assistance with two “males” who entered the fitting room. Pena followed plaintiffs into the fitting room area, while Bolanos watched from the camera room.

Plaintiffs exited the fitting rooms, leaving some merchandise with the attendant, including at least one shirt. Pena searched the fitting rooms and testified to finding price tags left behind. None of the defendants could recall what merchandise the price tags matched or whether they created a record of the tags that were recovered. While Pena searched the fitting rooms, Bolanos watched plaintiffs exit the fitting rooms with approximately three items on a surveillance camera.

Plaintiffs testified that they discarded several items on shelves and racks prior to exiting the store. Pena recovered some of these items. Defendants Pena and Bolanos determined that more than one item of merchandise was missing and, despite being unable to identify the specific missing item or items, made a determination to detain plaintiffs.

Pena and Rodriguez stopped plaintiffs just outside the entrance to J.C. Penney and demanded that they return to the store. Plaintiffs allege Pena and Rodriguez proceeded to grab Martinez by the arm and grab Martin by the shoulder and force them back into the store.

Plaintiffs were led past customers and employees to the security office in the back of the store. Defendant Bolanos was in the security office when plaintiffs arrived.

They allege that defendants patted them down, emptied the contents of their bags, and required them to strip off layers of their clothing to search for the missing merchandise. Plaintiffs contend that they attempted to tell defendants where they had left the merchandise in the store but were detained by defendants for almost an hour.

The court initially held that plaintiffs presented enough facts to support a claim under 42 USC 1981, which provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. (Emphasis added.)

Citing cases applying 42 USC 1981 to claims of wrongful detention for alleged shoplifting, the court held:

Plaintiffs’ allegations that defendants assaulted, battered, and falsely imprisoned them on suspicion of shoplifting because of the color of their skin fall within the ambit of “laws or proceedings for the security of persons and property” protected by 1981’s equal benefit clause. …

Disputed issues of material fact exist with respect to defendants’ discriminatory intent in detaining plaintiffs as suspected shoplifters. A finding of discriminatory intent is a finding of fact, as are findings of discrimination, and causation. An invidious discriminatory purpose may often be inferred from the totality of the relevant facts. A reasonable jury could conclude based on defendants’ surveillance of plaintiffs and their alleged failure to conform with store policy that plaintiffs were intentionally discriminated against based on the color of their skin.

Next, the court denied defendants’ motion for summary judgment as to plaintiffs’ race and sex discrimination claims under the New York State and City Human Rights Laws.

Initially, the election-of-remedies provisions of those statutes – which, when applicable, bar a court action when a complaint is filed under the State Division of Human Rights for the same acts of discriminatory conduct – did not apply, since plaintiffs filed in court before filing at the State Division.

Turning to plaintiffs’ sex/gender discrimination claims, the court noted that plaintiffs “are in the unusual position of being females alleging that they were discriminated against for being male” and allege “that they were discriminated against because of their perceived male sex, rather than their actual female sex.”

Plaintiffs clearly stated valid claims for discrimination under the City Human Rights Law, which forbids discrimination based on “actual or perceived” gender, where gender is defined as “actual or perceived sex.” They also stated valid claims for sex discrimination under the State Human Rights Law, notwithstanding that that statute does not explicitly forbid discrimination based on “perceived” sex:

Since the statute is to be “construed liberally” to accomplish its purpose, defendants should not be permitted to avoid responsibility for some discriminatory acts motivated by sex and not others. Discrimination based on an individual’s perceived sex is discrimination “because of sex” in the same way that discrimination based on an individual’s actual sex is.

The court concluded that “material issues of fact exist as to plaintiffs’ discriminatory intent in detaining plaintiffs” and that “[a] reasonable jury could conclude that plaintiffs were intentionally discriminated against based on the color of their skin and their perceived male sex.”

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