United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
A. RUSSO, UNITED STATES MAGISTRATE JUDGE
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
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
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
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).
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
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.
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
42 U.S.C. § 1981 Claim
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).
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 ...