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Morris v. Office Max

July 12, 1996

DARRYL MORRIS AND LEGGITT NAILOR,

PLAINTIFFS-APPELLANTS,

v.

OFFICE MAX, INC.,

DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 C 6978--George M. Marovich, Judge.

Before FLAUM, MANION, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

ARGUED APRIL 23, 1996

DECIDED JULY 12, 1996

Within minutes of entering an Office Max store to purchase office supplies, Darryl Morris and Leggitt Nailor were approached by police officers who had been summoned by the store's assistant manager to investigate two black males purportedly acting suspiciously. The only two black men in the store at the time, Morris and Nailor, showed identification and answered questions posed by the officers, who then apologized and left. As a result of the incident, this case was filed, in which it is alleged that the only reason Office Max called the police was that Morris and Nailor are African-Americans. The men claim that the store's actions interfered with their right to "make and enforce" a contract in violation of 42 U.S.C. sec. 1981 and impaired their ability to purchase personal property in violation of 42 U.S.C. sec. 1982. The district court granted summary judgment for Office Max, and this appeal followed.

The undisputed facts reveal that at 8:48 p.m. on October 24, 1994, just minutes before the 9 o'clock closing time, Morris and Nailor entered the Office Max store in the Orland Towne Center in Orland Hills, Illinois. Both men had shopped at the store before. Morris, in fact, had shopped at various Office Max stores approximately 35 times. This time, they had come to the store to purchase telephone message pads.

They state that despite the fact that they were conservatively dressed *fn1--presumably like most Office Max customers--their entrance drew the attention of store personnel. At 8:49 p.m., the assistant store manager, Kathleen Donley, telephoned the Orland Hills Police Department to report "two male blacks acting suspiciously." The police department immediately dispatched two police officers (they were actually in the area at the time) to the store. According to her deposition testimony, Donley observed that the front door was propped open after the men entered the store and that they were not walking together. She said that the men vaguely matched the description of individuals who reportedly passed a bad check and stole a laptop computer from another store. Donley claimed that whenever she noticed patrons acting suspiciously, she customarily asked police to walk through the store to deter problems.

In the meantime, Morris was looking for telephone message pads. A store clerk directed him to the proper location, and Morris picked up several pads. While Morris was paying for the items, Nailor continued to walk around the store. After making his purchases, Morris rejoined Nailor, and the two began to examine time-stamp machines.

By this time, two uniformed police officers arrived at the store. Donley directed the officers toward the two men. When the officers approached, Nailor asked if there was a problem. One of the officers responded that they had received a report that two black men were loitering in the store. Morris told the officers that he and Nailor were the only two black persons in the store and that they were not loitering. According to Morris' deposition testimony, one of the officers said that the store had "been having a problem with black people coming in near closing and taking computers out and other supplies." In response to the officers' questions, the men produced their drivers licenses. Morris recalled that one of the officers then apologized, stating that "it was not our fault . . . management called us and we didn't know what to expect." According to Nailor's deposition testimony, one of the officers said, "[G]uys, unfortunately you are guilty by association." As the officers left the store, Morris overheard one of them tell Donley that "these two are okay."

Morris complained to Donley that she had called the police only because he and Nailor were African-American. Donley responded that she had asked the police to come to the store because the store had been experiencing thefts by customers entering the store at night shortly before closing.

Morris and Nailor filed this action in November 1994, alleging that Office Max denied them "the freedom to buy whatever a white man can buy." They alleged that Office Max discriminated against them on the basis of race in violation of 42 U.S.C. secs. 1981 and 1982 and that as a result of Office Max's wrongful acts, they were subjected to badges and incidents of slavery, embarrassed, humiliated, and subjected to severe emotional distress.

The district court granted Office Max's motion for summary judgment in September 1995. The court found that the plaintiffs failed to produce any evidence to suggest that Office Max interfered with their right to make further purchases or to enter into a retail contract.

We review a grant of summary judgment de novo, drawing all reasonable inferences in favor of the nonmoving party. Bratton v. Roadway Package System, Inc., 77 F.3d 168, 173 (7th Cir. 1996). Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56. Where the party opposing a motion for summary judgment bears the burden of proof on an issue at trial, that party must go beyond the pleadings and affirmatively establish a genuine issue of material fact. Bratton, 77 F.3d at 173.

In this case, although Morris and Nailor say that the case should be remanded for trial, thus implicitly arguing that there are disputed issues of material fact precluding the grant of summary judgment, their real argument is about, as they phrase it, "whether there is a federal remedy under either 42 U.S.C. Section 1981 or 42 U.S.C. Section 1982 when a store summons the police to 'check out' patrons simply because the patrons are African-American . . . ." Specifically, they claim on appeal that the district court erred in granting summary judgment because (1) secs. 1981 and 1982 provide federal remedies for patrons who have been discriminated against on the basis of race while making a ...


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