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Iowa Department of Inspections and Appeals
Division of Administrative Hearings
Wallace State Office Building, Third Floor
Des Moines, Iowa 50319
DIA Nos. 14ICRC003-006
This case involves complaints filed by Complainants Robert Harbin III, James Kirk, Camisha Nelson,1 and Reginald Kirk with the Iowa Civil Rights Commission (the Commission) against Respondents Wal-Mart Stores, Inc. (“Wal-Mart”), City of Davenport (“Davenport”), and the Davenport Police Department (“DPD”). After an investigation, the Commission determined that probable cause existed with regard to the allegations by Complainants of discrimination in public accommodation on the basis of race. The Commission filed Statements of Charges regarding all four Complainants and Respondents Wal-Mart, Davenport, and DPD. The cases were subsequently consolidated for hearing.
Hearing in this matter was originally set for February 18 and 19, 2015. Prior to that date, Respondents filed motions for summary judgment. On February 6, 2015, the undersigned issued an order granting Respondents’ motions for summary judgment. The Commission filed an Order of the Iowa Civil Rights Commission Rejecting Summary Judgment Ruling on May 15, 2015. Respondents Davenport and DPD subsequently filed a petition for writ of certiorari with the district court, in which Respondent Wal-Mart joined. Proceedings before the Commission were continued pending the outcome of the proceedings regarding the writ of certiorari. On December21, 2016, the Iowa Court of Appeals affirmed the district court’s denial of Respondents’ petition for writ of certiorari. A hearing was subsequently scheduled in this matter.
Hearing was held on May 23 and May 24, 2017 in Davenport, Iowa. Attorney Stephanie Adkisson represented the Commission. Attorney Heidi Guttau-Fox represented Respondent Wal-Mart. Attorney Chris Jackson represented Respondents Davenport and DPD. Complainants Robert Harbin III, James Kirk, and Camisha Nelson appeared in person and testified. Complainant Reginald Kirk appeared by telephone and testified. In addition to Complainants, the Commission called Officer Samuel Miller as a witness. Respondent Wal-Mart called Richard Ewoldt and Matthew Gehant as witnesses.
Arrangements were made at hearing to hold the record open until June 7, 2017 for the Commission to submit a post-hearing brief; until June 21, 2017 for Respondents to submit post-hearing briefs; and until June 28, 2017 for the Commission to submit a reply brief. The Commission timely submitted a post-hearing brief and a reply brief. Respondent Wal-Mart and Respondents Davenport and DPD timely submitted post-hearing briefs.
At hearing, Respondent DPD made a motion to be dismissed from the action and removed from the caption. DPD requested to brief the issue in its post-hearing brief. The Commission requested to respond to the argument in its post-hearing brief as well. The undersigned reserved ruling on the motion until after the parties presented post-hearing briefing.
Under the Iowa Civil Rights Act (ICRA), a public accommodation is defined as:
[E]ach and every place, establishment, or facility of whatever kind, nature, or class that caters or offers services, facilities, or goods for a fee or charge to nonmembers of any organization or association utilizing the place, establishment, or facility, provided that any place, establishment, or facility that caters or offers services, facilities, or goods to the nonmembers gratuitously shall be deemed a public accommodation if the accommodation receives governmental support or subsidy.2
Public accommodation includes “each state and local government unit or tax-supported district of whatever kind, nature, or class that offers services, facilities, benefits, grants or goods to the public, gratuitously or otherwise.”3
In its motion, DPD argues that the police department cannot be sued apart from its parent municipality, as it is a legal subdivision of the city. In support of this argument, DPD cites to Iowa law giving a city the authority to exercise any power and perform any function it deems appropriate to “protect and preserve the rights, privileges, and property of the city or of its residents, and to preserve and improve the peace, safety, health, welfare, comfort, and convenience of its residents.”4 Davenport Municipal Code chapter 2.42 establishes a police department of the city of Davenport consisting of a chief and several ranks and such other police officers and staff as are necessary for the efficient operation of the department and authorized and provided for by the city council in budget appropriations.5 In further support of its motion, DPD cites to two federal cases in which the Eighth Circuit held that a police department was not amenable to suit; one involved 42 U.S.C. § 1983, and the other involved Title VII of the Civil Rights Act.6
The Commission, in resistance to DPD’s motion, argues that the DPD is a “local government unit” under the Iowa Civil Rights Act (ICRA). The Commission argues that it has named police departments as respondents in the past with no objection. In support of this proposition, the Commission cites City of Des Moines Police Dept. and Des Moines Civil Service Commission v. Iowa Civil Rights Commission.7 There is no indication in that case that either of the respondents challenged whether it could be named as a respondent by the Commission; the Iowa Supreme Court did not address this issue.
Respondent Wal-Mart has taken no position on Respondent DPD’s motion to be dismissed from the action.
The phrase “state and local government unit” is undefined in ICRA and the undersigned could not find any case law specifically addressing the meaning of the phrase under ICRA. The Act itself provides that it should be construed broadly to effectuate its purposes.8 The Act authorizes broad remedial action if it is found that a respondent has engaged in a discriminatory or unfair practice.9 The Commission also has the authority to seek temporary injunctive relief against a respondent where a complainant may suffer irreparable injury.10
In this action, the Commission has not named DPD as a respondent apart from the city of Davenport; both have been named and have participated, represented by a single attorney, during proceedings that have lasted from 2014 to present. DPD has not made a persuasive argument that naming it as a respondent, along with the city of Davenport, runs afoul of ICRA. DPD presented no evidence regarding the ability of Respondent Davenport to implement remedial action, if any is ordered, within DPD. Under these circumstances, I conclude that DPD fits within the definition of a “local government unit” under ICRA. DPD’s motion to be dismissed from the action is denied.
The events underlying the complaints filed by Complainants with the Commission took place on November 24, 2011 at the Wal-Mart store located at 3101 West Kimberly Road in Davenport, Iowa. (Miller, Harbin, Nelson, R. Kirk, J. Kirk testimony).
Asset protection associates are charged with detection and prevention of external theft from Wal-Mart stores. They wear plainclothes; the intent is for them to blend in at the store and not be recognized as store security personnel. During the Black Friday event described below, asset protection associates also had duties related to crowd control and stocking merchandise on the floor. (Ewoldt testimony).
Wal-Mart’s Investigation and Detention of Shoplifters Policy, which applies to all Wal-Mart associates, allows associates to approach an individual to investigate suspected shoplifting only if the associate has observed the following four elements: 1) selection of merchandise; 2) concealment or removal of tags from merchandise; 3) continued possession, verified by maintaining visual contact with the individual; and 4) passing the last point of sale. (Ewoldt testimony; Exh. 3).
Wal-Mart occasionally hires off-duty police officers to assist with asset protection and crowd control. For the West Kimberly Road location, Wal-Mart informs the Davenport Police Department how many officers are needed, then the highest ranking officer on shift typically compiles a list of officers and reviews it with Wal-Mart. Wal-Mart then arranges the shift times and rate of pay; Wal-Mart pays the officers directly. DPD encourages officers to work off-duty assignments, as it helps with the call load of officers on duty. (Ewoldt, Gehant, Miller testimony).
Off-duty police officers do not receive training from Wal-Mart; rather, Wal-Mart personnel simply inform the officers where they will be stationed in the store and what role they will perform. Officers are expected to rely on their law enforcement training to deal with specific situations. During 2011, the Black Friday event was the only occasion on which Wal-Mart hired off-duty police officers. (Ewoldt, Gehant testimony).
On the evening of November 24, 2011, Complainants Robert Harbin, James Kirk, Camisha Nelson, and Reginald Kirk were shopping at the Black Friday event at the West Kimberly Road Wal-Mart store.11 All of the Complainants are African American. (Nelson, J. Kirk, Harbin, R. Kirk testimony).
The Black Friday event is typically the busiest night of the year at the West Kimberly Road Wal-Mart store. During the event in 2011, there were thousands of customers in the store and the scene was chaotic. The priorities for Wal-Mart during the event are customer and associate safety, making sure the sale goes smoothly, and crowd control. Wal-Mart had hired off-duty police officers from DPD for the event. One of the DPD officers who was hired by Wal-Mart for the Black Friday event was Officer Samuel Miller, who has served as an officer for 13 years with DPD. Miller currently works off-duty assignments approximately two to four times per month. Wal-Mart requested that Miller work in uniform for the Black Friday event; Miller sought and received approval from DPD to do so. Miller’s duties during the Black Friday event included crowd control and theft detection and prevention. In performing his duties that night, Miller broke up several fights. (Ewoldt, Gehant, Miller testimony; Exh. 1).
Richard Ewoldt was an asset protection associate on duty at the store on the date in question.12 Ewoldt’s primary responsibility during the Black Friday event was transferring merchandise to the floor for sale. Ewoldt first observed Complainants when he was removing debris from pallets placed near the grocery section of the store. Ewoldt noticed that two individuals in the group selected video games from the store’s display. Ewoldt also noted that one of the individuals in the group, later identified as Harbin, was carrying a backpack. While Wal-Mart does not have a policy against backpacks, a customer carrying a backpack is something that catches the eye of an asset protection associate. During asset protection awareness classes, Wal-Mart trains asset protection associates that large bags and backpacks may be an indicator of theft. Ewoldt later saw the group by the sporting goods section while he was restocking merchandise nearby. At that time, Ewoldt observed Harbin scratching at the packaging of a video game with a key; he believed Harbin was trying to remove the cellophane the package. (Ewoldt, Gehant testimony).
Harbin recalls that there was sticker residue on the video games he was carrying. He had his keys in his hand and believes it is possible he may have been picking at the game packaging with his keys. Harbin was also carrying a flyer from another store in his hand; while he cannot recall specifically how he was carrying the video games, he acknowledged the possibility that the flyer may have been wrapped around the video games he was holding. (Harbin testimony).
Due to these observations, Ewoldt began following Complainants. At some point, after Complainants had been in the store for approximately 30 to 60 minutes, the group realized that they were being followed and observed by Ewoldt. Harbin recognized Ewoldt as a Wal-Mart employee, despite the fact that he was in plainclothes. Complainants gestured toward Ewoldt, talked amongst themselves, then quickly left the department where they had been shopping. At that point, the group began trying to “lose” Ewoldt by going through different aisles and quickly changing directions. They exited the back of the sporting goods department and turned toward cosmetics. From there, they continued to move quickly through the store, though they did not slow to select any other merchandise. The group went through a number of departments, including health and beauty, pharmacy, and domestics, before stopping to talk in the seasonal greeting card area. (Nelson, J. Kirk, Harbin, R. Kirk, Ewoldt testimony).
Ewoldt called Wal-Mart asset protection associate Christine Brownson on his radio and reported to her that he believed the group was engaged in shoplifting. Ewoldt followed the group and reported his observations to Brownson by radio, including that one of the group members was picking at or trying to tamper with a video game and that the group was trying to elude Ewoldt. At this point, Ewoldt was trying to be more obvious in his observations of the group in an attempt to deter any illegal activity. (Ewoldt testimony).
During this time frame, Miller had been assigned to walk around the store with Brownson. At some point, Ewoldt asked that Miller walk toward the group as a sign of police presence. Miller and Brownson walked past the group without stopping and Miller said something like, “Hey, how you doing?” Miller did not notice any of the Complainants holding anything during this first encounter with them. (Miller testimony).
After the encounter, Miller continued walking the store with Brownson until it was time for him to relieve another officer at the doors. On the way to the doors, Miller saw the group of Complainants a second time; approximately 30 minutes had passed since their first contact. Miller observed the group huddled together. It appeared to Miller that one of the individuals had another one’s sweatshirt and pants pulled back; Miller saw a third person with video games in his hand held near the pants. Miller believed that the group was trying to conceal video games. At this point, Miller asked the group for the video games. (Miller testimony; Exh. J3).
Complainants were upset when Miller confronted them. When Miller asked Complainants for the video games they were carrying, they all wanted Miller to explain his actions. Complainants explained to Miller after he confronted them that Nelson had pulled out the back of Harbin’s sweatshirt because she had noticed a stain on it that she wanted to point out to him. Miller looked and saw a stain on the back of the sweatshirt.
Reginald Kirk calmed down Harbin and James Kirk and did most of the talking to Miller. During the conversation Complainants had with Miller, Ewoldt, who was standing nearby, could hear three or four different voices over the background noise of the store. Ewoldt did not hear Miller’s voice raised. Other shoppers began to gather around Complainants and Miller. (R. Kirk, Nelson, Harbon, Ewoldt, Miller testimony; Exh. J3, p. 36, J11, p. 34).
Miller ultimately asked Complainants to leave and escorted them out of the store. Miller did not allow any of the Complainants to purchase the video games that they had been carrying. The Complainants indicated to Miller that he was free to search them; Miller did not do so because he believed he had retrieved the merchandise that he saw Complainants attempting to conceal. (Miller, Nelson, J. Kirk, R. Kirk, Harbin testimony).
None of the Complainants were cited for theft or issued no trespass orders by Wal-Mart. Miller told Complainants that they could not come back to the West Kimberly Road Wal-Mart store that day. Miller does off-duty assignments for other businesses in the community as well, where he is engaged to assist with safety and theft deterrence. Ejecting individuals because of suspicious behavior is a standard practice in the businesses where he has done such assignments. (Miller testimony).
After Miller escorted Complainants out of the store, Complainants came back and asked Miller for his badge number and stated their intent to file a complaint against him. Complainants filed a complaint with DPD on the night of or the day after the incident. DPD investigated the incident, including interviewing Miller, and concluded that the complaint was “not sustained.” No action was taken against Miller as a result of the complaint. (Nelson, J. Kirk, Miller testimony; Exh. 8, 13, 15; Exh. HH).
There were other African American customers in the store in the same age range as Complainants during the Black Friday event who Ewoldt did not follow or suspect of shoplifting. Miller did not ask any other African American shoppers to leave the store during the Black Friday event. (Miller, Ewoldt testimony).
During the same Black Friday event, a Wal-Mart asset protection associate observed two Caucasian girls, who were minors, shoplifting merchandise. After the associate observed the girls conceal merchandise and pass the last point of sale, the associate brought the girls to Miller at the store door. Miller took the girls to the asset protection office to talk to them; in the office, the girls turned over the merchandise from their purses to Miller and he cited them for theft. At the West Kimberly Road store, the asset protection office is used by Wal-Mart to detain shoplifters in order to avoid the embarrassment of a shoplifting citation being processed in the main area of the store. Wal-Mart’s policy regarding investigation and detention of shoplifters does not require an associate to immediately take a suspect to a private location upon first contact; rather, the associate is required to approach the suspect, identify herself, explain the reason for contact, attempt to verify the suspect is in possession of merchandise that was not purchased, listen to any explanation the suspect may have for possession of the merchandise, and decide whether to detain the subject. Only after it is decided to detain a suspect does the policy instruct associates to request that the suspect follow them to a detention area, such as the asset protection office. The policy requires that “[s]uspects may only be processed in a private location inside the Facility.” (Miller, Ewoldt testimony; Exh. 3).
None of the employees at the Wal-Mart store on November 24 used any racial slurs or referred to Complainants’ race in their interactions with Complainants. (Nelson, R. Kirk, J. Kirk, Harbin testimony).
The Iowa Civil Rights Act (ICRA) provides:
It shall be an unfair or discriminatory practice for any owner, lessee, sublessee, proprietor, manager, or superintendent of any public accommodation or any agent or employee thereof:
a. To refuse or deny to any person because of race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability the accommodations, advantages, facilities, services, or privileges thereof, or otherwise to discriminate against any person because of race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability in the furnishing of such accommodations, advantages, facilities, services, or privileges.13
A public accommodation includes each and every place or establishment that offers services, facilities, or goods for a fee or charge to nonmembers.14 The definition includes “each state and local government unit or tax-supported district of whatever kind, nature, or class that offers services, facilities, benefits, grants or goods to the public, gratuitously or otherwise.”15 Respondents are public accommodations under ICRA.
In the absence of direct evidence of discrimination – evidence that demonstrates a specific link between the challenged action and the alleged animus – courts use the McDonnell Douglas burden-shifting framework.16 The Commission has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. If the Commission does so, the burden shifts to Respondents to articulate some legitimate nondiscriminatory reason for the alleged discriminatory practice. If Respondents can do so, the Commission must prove by a preponderance of the evidence that the legitimate reasons offered by Respondents were not their true reasons, but mere pretext for discrimination.17 There is no direct evidence of discrimination in this case. Therefore, the analysis must proceed via the burden-shifting framework.
Neither the Iowa Supreme Court nor the Eighth Circuit has articulated a precise test to use in establishing a prima facie case of discrimination in public accommodation. In Kiray, the Iowa Court of Appeals noted that courts have typically followed one of two competing tests: the test articulated in Callwood v. Dave & Buster’s, Inc.18, or variations of the test articulated in Williams v. Staples, Inc.19 In Kirt v. Fashion Bug #3253, Inc., a federal district court articulated an adapted Callwood test for race discrimination under section 216.7.20 Under that test, a plaintiff must demonstrate that: 1) she is a member of a protected class; 2) she sought to enjoy the accommodations, advantages, facilities, services or privileges of a public accommodation; and 3) she did not enjoy the accommodations, advantages, facilities, services, or privileges of the public accommodation in that (a) she was refused or denied the accommodations, advantages, facilities, services, or privileges of the public accommodation under circumstances giving rise to an inference of discrimination, or (b) she was allowed to use the accommodations, advantages, facilities, services, or privileges of the public accommodation, but was otherwise discriminated against in the furnishing of those accommodations, advantages, facilities, services, or privileges by being subjected to markedly hostile conduct that a reasonable person would find objectively unreasonable under circumstances giving rise to an inference of discrimination.21 Factors relevant to determining what constitutes markedly hostile conduct under subpart (b) include conduct that:
(1) is so profoundly contrary to the manifest financial interests of the merchant and/or her employees; (2) so far outside of widely accepted business norms; and (3) so arbitrary on its face, that the conduct supports a rational inference of discrimination.22
Under the Williams test, a plaintiff must show that: 1) she is a member of a protected class; 2) she sought to enter into a contractual relationship with the defendant; 3) she met the ordinary requirements for the contractual relationship; and 4) she was denied
the opportunity to enter into the contract, even though the defendant afforded the opportunity to a white customer.
The primary distinction between the Callwood and the Williams tests is that under Callwood the plaintiff may either produce evidence indicating that similarly situated individuals outside the protected class were treated differently or show that the defendant acted in a markedly hostile manner.23 The Callwood court noted the need for “sufficient alternative indicia of discriminatory intent” where, as in public accommodation claims, evidence of a retailer’s conduct toward similarly situated comparators is not necessarily readily available.24 Under Williams, in contrast, the plaintiff must show evidence that she was treated differently from similarly situated individuals outside the protected class. In Kiray, the Court of Appeals declined to endorse either of the competing tests in the absence of guidance from the Iowa Supreme Court or the Eighth Circuit, concluding instead that the plaintiff there had failed to establish a prima facie case under either of the tests.
In this case, Respondents do not dispute that Complainants, who are African American, are members of a protected class. Likewise, Respondents do not dispute that Complainants sought to enjoy the accommodations at Wal-Mart and were denied the opportunity to do so. The parties disagree only with regard to whether Complainants can show that the conduct to which they were subjected occurred because of their race; in other words, prong 3 of the Callwood test and prong 4 of the Williams test.
The Commission argues that the treatment of two Caucasian girls caught shoplifting during the Black Friday event, as compared with the treatment of Complainants, demonstrates that race was a factor in the denial of service to Complainants. As an initial matter, the evidence does not reflect that the outcome of the Caucasian girls’ interaction with Wal-Mart employees and Miller was necessarily better than that of Complainants; the Caucasian girls were cited for theft, whereas Complainants were simply required to leave the store for the night. The Commission argues, however, that the fact that the Caucasian girls were afforded privacy to discuss the allegations against them, whereas Complainants were confronted in the open among other shoppers, demonstrates favorable treatment and permits an inference of discrimination.
The treatment that Complainants allege is discriminatory in this action is their ejection from the Wal-Mart store and inability to complete purchases that they intended to make. There are important distinctions relating to the treatment of Complainants versus the Caucasian girls the Commission proffers as comparators. Those distinctions, however, are more properly examined in the pretext analysis. The prima facie case is a “minimal requirement that is not as onerous as the ultimate burden to prove discrimination.”25 Allowing a generous reading of the evidence, the Commission can establish a prima facie case of discrimination based on the fact that Complainants were not afforded privacy during an encounter regarding suspected shoplifting whereas white shoppers were.
Once the Commission establishes a prima facie case, the burden of production shifts to Respondents to offer a legitimate, nondiscriminatory reason for the action. The Respondents’ burden is a burden of production only, and no credibility assessment is involved at this stage.26 Respondents offered testimony that Complainants were ejected from the store because of suspected shoplifting and because, when confronted by Miller, they were loud and created a disturbance. Respondents presented evidence that Complainants were not taken to the asset protection office, as the Caucasian girls were, because they were not being cited for shoplifting. These are legitimate, nondiscriminatory reasons and satisfy Respondents’ burden of production.
Respondents presented legitimate, nondiscriminatory reasons for the challenged conduct, therefore the Commission has the ultimate burden to show that the proffered reasons are pretextual and that unlawful discrimination was the real reason for the decision to eject Complainants from the store.27 With regard to Complainants’ actions from the time Ewoldt first began observing them up to the moment Miller confronted them while Nelson had Harbin’s sweatshirt pulled out, there is no significant factual dispute. Ewoldt observed Harbin scratching at the packaging of a video game he was holding with a metallic object, then observed as Complainants moved throughout the store attempting to elude him. Finally, Miller observed Complainants in a group with Nelson holding Harbin’s sweatshirt out away from his body. Under these circumstances, the suspicion that the Wal-Mart employees and Miller had that Complainants were engaged in conduct that appeared to be leading to shoplifting of merchandise from the store is reasonable. At least three of the Complainants acknowledged at hearing that the behavior they engaged in on the night in question could be seen as suspicious.
Complainants categorically denied in their testimony at hearing that they engaged in, attempted to engage in, or had any intent to engage in any illegal activity at the West Kimberly Road Wal-Mart store. I found Complainants’ testimony on this point credible. Complainants’ intent, however, is not relevant in determining whether the actions of Wal-Mart’s employees and Miller were motivated by Complainants’ race. Ewoldt and Miller were unable to observe Complainants’ subjective intent; they were only able to observe Complainants’ actions as they moved through the store. Despite the fact that Complainants had no subjective intent to engage in illegal activity, the actions that Ewoldt and Miller observed were enough to arouse suspicion in a reasonable person. Harbin admited to picking at video game packaging with a metal object, taking quick corners and different routes in an attempt to elude Ewoldt after realizing the group was being observed, and finally being discovered by Miller standing in an aisle with Nelson lifting Harbin’s sweatshirt away from his body.
The Commission also argues that the fact that Miller deviated from the procedures that are in place for Wal-Mart employees to handle investigation and detention of suspected shoplifters shows that his actions, and those of the Wal-Mart employees involved in the incident, were motivated by race. The undisputed evidence, however, reflects that Wal-Mart hires off-duty officers and relies upon their law enforcement knowledge and experience to perform duties related to crowd control and theft deterrence, and, if needed, to issue citations for criminal offenses committed within the store. Neither Miller nor any other off-duty officers hired by the West Kimberly Road Wal-Mart store are provided with Wal-Mart’s written policy regarding investigation and detention of shoplifters, nor are they trained on the policy or instructed to follow it. Miller believed that Complainants were engaged in the act of concealing merchandise and, on that basis, he interrupted that action in order to prevent further resources being deployed in the observation of Complainants on the store’s busiest day of the year.
As noted above, the Commission also argues that Miller’s treatment of Complainants, when contrasted with the treatment of the Caucasian girls cited for shoplifting, demonstrates that his actions were motivated by race. There are several key differences in the two situations, however, that render this argument unpersuasive. First, Miller did not have contact with the Caucasian girls until after a Wal-Mart asset protection associate had already observed the four elements required to initiate contact with a suspected shoplifter; it was only after the associate decided to make contact with and detain the shopper that Miller’s aid was enlisted. At that point, Miller took the girls to the asset protection office to process citations for theft. While Miller is not trained on or required to follow Wal-Mart’s shoplifting policy, in this instance his actions comported with how Wal-Mart associates are directed to handling processing of shoplifting citations. In contrast to that situation, Miller was enlisted by Ewoldt and Brownson to assist with observation of Complainants when there was simply a suspicion that Complainants may have been engaged in illegal behavior. Miller reasonably believed that he interrupted Complainants during the act of concealment and in an effort to deter potential theft and to prevent a disturbance in the store on an extremely busy shopping day, Miller made the decision to eject Complainants from the store. Under Wal-Mart’s policy, the asset protection associates would not have been able to initiate contact with Complainants until they passed the last point of sale; as noted above, Miller was not constrained in his actions by that policy. Miller did not observe the Caucasian girls during any of the lead-up to their passing the last point of sale with concealed merchandise; it is unknown, therefore, whether he would have treated them similarly or differently than he treated Complainants had he encountered them earlier.
Additionally, Wal-Mart’s policy does not require that initial contact between the associate and the customer suspected of shoplifting take place in a private area. It is only for processing of suspects that a private location is required; that occurs after the associate makes contact and determines whether to detain the suspect based on information obtained during that contact. Unlike the situation with the Caucasian shoppers who had already been observed passing the last point of sale, Miller had no intention to detain Complainants and issue a citation for shoplifting; his decision not to take them to the private asset protection office in the store, therefore, is not inconsistent with the treatment he afforded to the Caucasian shoppers who were cited for shoplifting.
The Commission also raises Miller’s credibility in attempting to show pretext, and argues that Miller’s reasons for removing Complainants from the store have changed over time and that these changes support a finding of discrimination. The case that the Commission cites for this proposition, Wierman v. Casey’s General Stores,28 dealt with an allegation of discrimination in the area of employment. The court noted that that shifting reasons over time for an employer’s employment decision may support a finding of pretext. The court did not, in that case, find that the discrepancies in the employer’s explanation supported a finding of pretext. The court held that the minor discrepancies that appeared in various explanations for the decision did not undermine the consistent reason proffered by the employer for the plaintiff’s termination.29
I conclude that the discrepancies the Commission points to regarding Miller’s explanation for ejecting Complainants from the store are similarly minor and do not justify a finding that the reasons proffered are mere pretext for discrimination. As part of this argument, the Commission argues that there may have been justification for initially observing Complainants in the store, but that Miller “refused to back down and admit he was wrong” when he “realized no concealment occurred[.]”30 The evidence does not reflect, however, that Miller believed he was wrong about Complainants’ intent to steal merchandise from the store. Miller believed that he interrupted the act of concealment and thwarted illegal activity; at the time of the incident, Miller did not believe he was wrong about Complainants’ intentions.
The Commission also cites to slight disparities in Miller’s account of the events over time. During an internal affairs review, Miller was asked whether the Complainants yelled at him and he responded that they were upset and argumentative, but that he did not believe they were yelling at him. At a deposition later, Miller testified that the Complainants became “boisterous and angry” after he confronted them and that they yelled while leaving the store. Miller stated that the reason he escorted Complainants out of the store was because he believed they were shoplifting and also because they were causing a disturbance and distracting other shoppers. During his deposition, Miller also testified that he might have allowed Complainants to stay if they had stopped being loud and causing a disturbance. At hearing, Miller stated that his reasons for ejecting Complainants from the store related to the fact that they were observed tampering with merchandise by an asset protection associate, he witnessed what he believed to be attempted concealment of merchandise, and the group was engaged in disruptive behavior in the store.
It is true that Complainants and Miller disagree regarding the tenor of their interaction after Miller confronted them the second time he saw them in the store and asked them to give back the video games. While Complainants testified that they did not yell or swear at Miller, Reginald Kirk also testified that he calmed Harbin and James Kirk down after Miller confronted them the second time and asked them to return the games. Complainants have acknowledged that they were upset when Miller stopped them, but have asserted that it was Miller who escalated the situation by raising his voice. Ewoldt testified that, while standing nearby during the interaction, he could hear raised voices but did not hear Miller’s voice. Deciphering precisely when an upset voice becomes a raised voice becomes yelling is inherently subjective. I do not find that the disagreement between Complainants and Miller on this point necessary reflects negatively on the credibility of either Complainants or Miller; rather, it points to a difference in perception regarding how the incident unfolded.
The general outlines of Miller’s explanation have been the same since the event occurred. He confronted Complainants about shoplifting, they denied it, became upset, and then he escorted them from store. This was a pinpoint interaction; Miller and the Complainants interacted very briefly and there is no contemporaneous documentation regarding Miller’s thought processes. The time period between the initial internal affairs interview and Miller’s testimony at hearing was over five years; almost three years elapsed between the event and Miller’s deposition. I find that the passage of time is a more likely explanation for the slight changes in Miller’s explanation of this single interaction with Complainants, rather than that the changes mask intentional discrimination on the basis of race.
Under these circumstances, the Commission has not proven by a preponderance of the evidence that the legitimate, nondiscriminatory reasons proffered by Respondents were pretext and that Respondents were motivated by race in the decision to eject Complainants from the store.
Markedly Hostile Behavior
Even without evidence of similarly situated comparators, it is possible to show discrimination in public accommodation under the Callwood test with evidence of markedly hostile conduct. There are three factors to consider in determining whether the Wal-Mart employees’ conduct in regard to Complainants was markedly hostile. The first is whether the challenged action is profoundly contrary to the manifest financial interests of the merchant and/or the merchant’s employees. As described in more detail above, the suspicion that the Wal-Mart employees and Miller had that Complainants were engaged in conduct that appeared to be leading to shoplifting of merchandise from the store was reasonable under the circumstances. At least three of the Complainants acknowledged at hearing that the behavior they engaged in on the night in question could be seen as suspicious. The fact that Miller decided to eject Complainants from the store under these circumstances does not demonstrate a profound disconnect with Wal-Mart’s financial interests. There was a large crowd at the Black Friday event and the fact that Wal-Mart had to devote resources to following this group of Complainants around the store, rather than to restocking shelves or engaging in other activities calculated to increase sales, deter theft, or promote customer and associate safety, demonstrates that the decision to eject Complainants is consistent with Wal-Mart’s interests.
The second factor to consider in the markedly hostile analysis is whether the challenged action is outside widely accepted business norms. The Commission contends that Miller’s failure to follow Wal-Mart’s written asset protection policy is outside of widely accepted business norms. The credible evidence demonstrates that Wal-Mart hires off-duty police officers to work at events, such as the Black Friday sale that took place on November 24, 2011, to assist with crowd control and theft deterrence. Wal-Mart does not provide the off-duty officers with copies of its asset protection policy; instead, it relies on their law enforcement knowledge. The Commission has presented no evidence that this practice is outside of widely accepted business norms. The Commission has presented no evidence regarding how other retailers similar to Wal-Mart handle training of off-duty police officers and whether those officers typically follow standard law enforcement protocols or instead follow the retailer’s internal policies regarding theft deterrence. Likewise, the Commission has not presented any evidence that the decision to eject the Complainants from the store after employees observed what they perceived as suspicious behavior is outside of widely accepted business norms. Miller credibly testified that ejecting individuals engaged in the type of behavior that Complainants were observed engaging in is standard operating practice at other off duty assignments he has worked. Under these circumstances, the Commission has not established that the Wal-Mart employees acted outside of widely accepted business norms.
The third factor to be considered in the markedly hostile behavior analysis is whether the challenged action is arbitrary. As discussed above, the actions the Complainants admit to engaging in reasonably raised the suspicions of Ewoldt and Miller, leading to the Complainants’ ejection from the store. The actions of Wal-Mart’s employees cannot, under these circumstances, be termed as arbitrary.
Courts have found that proving markedly hostile behavior occurred requires more than a retailer or its employees demonstrating a simple lack of courtesy or failing to follow customer service best practices. In Kiray, the Iowa Court of Appeals recognized that the failure by a retailer’s employees to interact with the plaintiff according to the retailer’s customer service instructions was insufficient to establish that markedly hostile behavior had occurred. Similarly, the court recognized that markedly hostile behavior could not be found simply because employees did not interact with a customer “as politely as they should have.”31 The Callwood court concluded that failure to handle an incident “in a manner more calculated to preserve the [plaintiff’s] dignity” is not sufficient to establish markedly hostile conduct.32 There is no question that a myriad of options were available to Miller with regard to how to handle his suspicions about Complainants’ behavior. The fact that he did not choose the most polite or least confrontational of those options does not mean that his conduct was outside of widely accepted business norms and, by extension, markedly hostile.
Under part 3(b) of the Callwood test, the Commission has not made out a prima facie case of discrimination on the basis of markedly hostile conduct. Even had the Commission done so, the pretext analysis above reflects that the Commission has not proven that the challenged actions were motivated by Complainants’ race.
The Commission has not proven that Respondents Wal-Mart Stores, Inc., City of Davenport, or Davenport Police Department committed an unfair or discriminatory practice. Pursuant to 161 Iowa Administrative Code 4.32(1), the Commission shall bear costs incurred as a result of the proceedings. All further proceedings are dismissed.
Dated this 5th day of September, 2017.
Laura E. Lockard
Administrative Law Judge
cc: Stephanie Adkisson, ICRC
Robert Harbin III
Heidi Guttau-Fox, Attorney
Chris Jackson, Attorney
City of Davenport
Davenport Police Department
Wal-Mart Stores, Inc.
Any adversely affected party may appeal this proposed decision to the Iowa Civil Rights Commission within 30 days of the date of the decision.33 The appeal must be signed by the appealing party or a representative of that party and contain a certificate of service. In addition, the appeal shall specify:
a. The parties initiating the appeal;
b. The proposed decision or order appealed from;
c. The specific findings or conclusions to which exception is taken and any other exceptions to the decision or order;
d. The relief sought;
e. The grounds for relief.34
The Commission may also initiate review of a proposed decision on its own motion at any time within 60 days following the issuance of the decision.35
1 Subsequent to the filing of the complaint in this action, Camisha Nelson married Respondent James Kirk. Her name is now Camisha Kirk. The caption and this Proposed Decision will continue to refer to her as Camisha Nelson, however some documents admitted into the record and witness testimony may refer to her as Camisha Kirk.
2 Iowa Code § 216.2(13)(a).
3 Iowa Code § 216.2(13)(b).
4 Iowa Code § 364.1.
5 Davenport City Code § 2.42.010.
6 See Diggs v. City of Osceola, 270 Fed. Appx. 469, at *1 (8th Cir. 2008) (unpublished per curiam opinion); Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992).
7 343 N.W.2d 836 (Iowa 1984).
8 Iowa Code § 216.18.
9 See Iowa Code § 216.15(9).
10 Iowa Code § 216.5(4).
11 While November 24, 2011 was actually Thanksgiving Day, a Thursday, the majority – if not all – of the witnesses referred to the sales event occurring at Wal-Mart as the “Black Friday” sale. This proposed decision will refer to the event in that fashion.
12 Ewoldt is still employed by Wal-Mart, but has been promoted to asset protection manager at the Elmore Avenue store in Davenport, Iowa. (Ewoldt testimony).
13 Iowa Code § 216.7(1).
14 Iowa Code § 216.2(13)(a).
15 Iowa Code § 216.2(13)(b).
16 Kiray v. Hy-Vee, Inc., 716 N.W.2d 193, 202 (Iowa App. 2006).
18 98 F.Supp.2d 694, 707 (D. Md. 2000).
19 372 F.3d 662, 668 (4th Cir. 2004).
20 479 F.Supp.2d 938, 963 (N.D. Iowa 2007).
21 Id. The Callwood test was designed for a claim under § 1981. The district court in Kirt adapted the test “more specifically to the language of the Iowa statute and the factual situation at hand[.]”
22 Id. at 960 (citing Callwood, 98 F.Supp.2d at 708).
23 While evidence of similarly situated comparators is not required under the Callwood test, the Callwood court recognized that to the extent there is evidence showing similarity between protected and non-protected members, such evidence retains utility under subpart (3)(b) in exposing potentially arbitrary behaviors toward members of the protected class. Such arbitrariness may support the conclusion that the conduct of a particular employee or agent of a public accommodation is markedly hostile. Callwood, 98 F.Supp.2d at 708.
25 Smidt v. Porter, 695 N.W.2d 9, 14 (Iowa 2005) (citing Young v. Warner-Jenkinson Co., 152 F.3d 018, 1022 (8th Cir. 1998)).
26 Id. at 15.
28 638 F.3d 984, 995 (8th Cir. 2011).
29 Id. at 995-96 (citing EEOC v. Trans States Airlines, Inc., 462 F.3d 987, 995 (8th Cir. 2006)).
30 Commission reply brief, p. 2.
31 716 N.W.2d at 204.
32 98 F.Supp.2d at 720.
33 161 Iowa Administrative Code (IAC) 4.23(1).
34 161 IAC 4.23(3).
35 161 IAC 4.23(2).