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Mikes v. Albertsons Companies, LLC

United States District Court, D. Oregon

April 10, 2019

NYLAEKIA MIKES, Plaintiff,
v.
ALBERTSONS COMPANIES, LLC, a Delaware Corporation, Defendant.

          FINDINGS AND RECOMMENDATION

          JOLIE A. RUSSO, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Nylaekia Mikes filed this action against defendant Albertsons Companies, LLC (“Albertsons”) alleging race discrimination claims under 42 U.S.C. § 1981, 42 U.S.C. § 2000a, and ORS 659A.403(1). Plaintiff also asserts a common law Intentional Infliction of Emotional Distress (“IIED”) claim. Albertsons moves for summary judgment pursuant Fed.R.Civ.P. 56 against all claims. For the reasons set forth below, Albertsons' motion should be granted.

         BACKGROUND

         On December 10, 2016, plaintiff entered an Albertsons grocery store in Portland, Oregon. Mikes Decl. ¶ 1 (doc. 23-2). Plaintiff was accompanied by her goddaughter. Id. at ¶ 2. Shortly after entering the store, plaintiff was confronted by an Albertsons employee, Jordan Thorkildson. Id. at ¶ 4. Thorkildson “got in plaintiff's personal space, ” loudly called plaintiff a thief multiple times, took plaintiff's grocery basket, and told plaintiff to leave the store. Id. at ¶¶ 5-8. Plaintiff acquiesced and left the store without purchasing anything. Pl.'s Resp. 4 (doc. 23).

         Days earlier, Thorkildson and another Albertsons' employee witnessed two women purportedly shoplifting at closing time and asked them not to return to the store. Thorkildson Decl. ¶ 3 (doc. 20). When Thorkildson saw plaintiff and her companion, she “believed that they were the same two women who had been in the store several days earlier.” Id. at ¶ 4; Compl. ¶ 12 (doc. 1). Thorkildson expressed this belief to plaintiff at the time of their interaction. Mikes Decl. ¶ 6 (doc. 23-2). Plaintiff initiated this lawsuit in September 2017 based on Thorkildson's actions.

         STANDARD OF REVIEW

         Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.

         Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.

         DISCUSSION

         Defendant argues summary judgment is warranted because plaintiff failed to provide sufficient evidence to prove her claims of intentional discrimination, and Thorkildson's actions did not exceed the farthest reaches of socially tolerable behavior.

         I. 42 U.S.C. § 1981 Claim

         To prevail on a claim under 42 U.S.C. § 1981, the plaintiff must present a prima facie case of race discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). To establish a prima facie case, the plaintiff must show she: (1) is a member of a protected class; (2) attempted to contract for certain services; (3) was denied the right to contract for those services; and (4) was deprived of contractual services while similarly situated persons outside her protected class were not and/or she received services in a markedly hostile manner which a reasonable person would find objectively discriminatory. Jefferson v. City of Fremont, 73 F.Supp.3d 1133, 1147 (N.D. Cal. 2014). Courts have therefore construed § 1981 claims to require proof of intentional discrimination. See, e.g., Menchu v. Legacy Health, 2014 WL 2855042, *4 (D. Or. June 23, 2014).

         If the plaintiff establishes a prima facie case, the burden shifts to the defendant to prove it had a “legitimate non-discriminatory reason for the adverse action.” McDonnell Douglas, 411 U.S. at 802. The plaintiff may then rebut this by showing ...


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