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Jacobs v. Walgreen Co.

November 30, 2006

LEROY JACOBS, ABDOU BARRY, LEROY MIDYETTE, FRANCIS CLAY, CARLA MCCOY, JESSICA MOORE, JONAS HARGER, RAYNARD OWENS, AND OLIVER TONEYBEY PLAINTIFF,
v.
WALGREEN CO. DEFENDANT.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendant Walgreen Co.'s ("Walgreens") motions for summary judgment. For the reasons stated below, we deny Walgreens' motions for summary judgment except for the claim brought by Jonas Harger ("Harger").

BACKGROUND

Plaintiffs Leroy Jacobs ("Jacobs"), Abdou Barry ("Barry"), Leroy Midyette ("Midyette"), Harger, Raynard Owens ("Owens"), and Oliver Toneybey ("Toneybey")(collectively referred to as "Customer Plaintiffs") allege that they were customers at various Walgreens retail stores located in the Chicagoland area. Plaintiffs Francis Clay ("Clay"), Carla McCoy ("McCoy"), and Jessica Moore ("Moore")(collectively referred to as "Employee Plaintiffs") allege that during 2004 and 2005 they were employed at the Walgreens store located at the intersection of Chicago Avenue and Michigan Avenue in Chicago, Illinois ("Michigan Avenue Store"). Jacobs was allegedly a customer at the Michigan Avenue Store in 2003 and 2004. Midyette and Barry allegedly were customers at the Michigan Avenue Store between May 1, 2004 and November 2004. On November 20, 2005, Harger was allegedly a customer at a Walgreens store located in Hanover Park, Illinois ("Hanover Park Store"). Between July 1, 2003 and November 30, 2004, Owens was allegedly a customer at a Walgreens store located at the intersection of Belmont Avenue and Broadway Street in Chicago, Illinois ("Belmont Store"). Between June 1, 2003 and November 30, 2004, Toneybey was allegedly a customer at a Walgreens store located at the intersection of Clark Street and Ontario Street in Chicago, Illinois ("Clark Store").

Customer Plaintiffs claim that when they entered the Walgreens stores as customers they were harassed by Walgreens employees. Specifically, Customer Plaintiffs allege that they were closely followed by Walgreens employees and the employees stood near Customer Plaintiffs when they inspected merchandise as if they were suspected of being shoplifters. Customer Plaintiffs also claim that they were forced to provide proof of purchase for merchandise purchased in the stores, were detained in the stores, and were barred from the stores without sufficient justification. Customer Plaintiffs contend that they were unfairly treated because of their race.

Employee Plaintiffs claim that they were ordered to follow a Walgreens policy ("Policy") under which African-American customers were presumed to be criminals. The Policy, which was allegedly formulated by Caucasian supervisors, required the Employee Plaintiffs to follow African-American customers around the Michigan Avenue Store to ensure that they did not steal any merchandise. Employee Plaintiffs also claim that they were discriminated against because of their race and received harsher discipline, less sick leave, less work accommodations, and were unfairly treated under the seniority system. Employee Plaintiffs also claim that they were forced to do work that Caucasian employees refused to perform and that Caucasian supervisors used racial epithets when speaking to African-American employees at the Michigan Avenue Store. Plaintiffs include in their amended complaint claims alleging an interference with their right to make contracts in violation of 42 U.S.C. § 1981 ("Section 1981") (Count I), and Section 1981 hostile work environment claims (Count II). Walgreens has moved for summary judgment on all claims except for the claims brought by Clay.

LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In seeking a grant of summary judgment the moving party must identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

DISCUSSION

Plaintiffs' claims are all based upon Section 1981, which provides as follows:

(a) Statement of equal rights

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.

(b) "Make and enforce contracts" defined

For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

(c) Protection against impairment

The rights protected by this section are protected against impairment by non-governmental discrimination and impairment under color of State law.

42 U.S.C. § 1981.

I. Interference with Right to Make Contracts Claims (Count I)

Customer Plaintiffs argue that Walgreens interfered with their right to make contracts because of their race in violation of Section 1981. A retail customer can bring a Section 1981 claim based upon a "refusal of service." See, e.g., Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996)(stating that customers could bring a Section 1981 claim).

A. Leroy Jacobs

Walgreens argues that some of the allegations presented by Jacobs are untimely and also argues that the incidents alleged by Jacobs that are timely do not show a violation of Section 1981.

1. Statute of Limitations

Walgreens argues that some of Jacobs' allegations are untimely. There is a two-year statute of limitations period for Section 1981 claims. Walker v. Abbott Laboratories, 340 F.3d 471, 474 (7th Cir. 2003); Vakharia v. Swedish Covenant Hosp., 190 F.3d 799, 807 (7th Cir. 1999); Smith v. City of Chicago Heights, 951 F.2d 834, 837 (7th Cir. 1992). In response to Walgreens' statement of material facts, Jacobs acknowledges that his Section 1981 claim is partly based upon misconduct that occurred on April 9, 2003, on April 10, 2003, and on November 9, 2003. (R WSF Par. 11, 29, 42). Jacobs brought the instant action on November 28, 2005, and thus his allegations concerning misconduct by Walgreens employees that occurred prior to November 28, 2003 might technically be untimely.

Jacobs argues that under the continuing violation doctrine the court should consider the allegations concerning misconduct that occurred prior to November 28, 2003. The Seventh Circuit has indicated that the continuing violation doctrine applies to Section 1981 claims in the context of employment discrimination. Dandy v. United Parcel Service, Inc., 388 F.3d 263, 270 (7th Cir. 2004). Under the doctrine, although a statute of limitations period generally begins to run on the date that the plaintiff is injured, the period does not begin running "when it 'would be unreasonable to expect the plaintiff to perceive offensive conduct,' or when the earlier violation may be recognizable as actionable ...


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