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Denham v. Saks

July 30, 2008

HOWARD N. DENHAM, PLAINTIFF,
v.
SAKS, INC., A TENNESSEE CORPORATION, D/B/A SAKS FIFTH AVENUE, DEFENDANT.



The opinion of the court was delivered by: Charles P. Kocoras United States District Judge

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

This matter comes to us on Defendant SCIL, LLC, incorrectly named as Saks, Inc. ("Saks")'s motion for summary judgment of Plaintiff Howard Denham's three-count complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, Saks's motion is granted.

BACKGROUND*fn1

I. Denham's Employment with Saks

Denham worked at a Saks store located in Skokie, Illinois, as an asset protection investigator from March 10, 2005 until May 13, 2005. Denham's duties as an asset protection investigator included but were not limited to: investigating customers in external investigations, ensuring the physical security of the building, and training associates on avoiding racial profiling.

Saks adopted a policy of "zero tolerance" of racial profiling of its customers and provided its employees with sensitivity training on how to detect suspicious customers. Saks instructed its sales associates to contact an asset protection investigator if they believed that a customer was acting suspiciously. Upon receiving a sales associate's report of a suspicious customer, the asset protection investigator would locate the suspicious customer, observe his behavior, and decide whether the behavior warranted further surveillance. If an asset protection investigator felt that a sales associate was racially profiling Saks's customers, he could confront her or report her to management.

A. The Incident

On April 27, 2005, Denham received two separate reports of suspicious behavior from Marlene Cole, a 72-year-old Caucasian sales associate who worked in the fine jewelry department. Each report involved an African-American male.

Denham, a 30-year-old African-American, found both reports to be unwarranted and concluded that Cole had been racial profiling Saks's customers. This made him upset and angry.

Denham subsequently approached Cole and the other jewelry associates on the sales floor. He had his hand in a fist and asked whether African-Americans were allowed to shop at Saks. In response, Cole pointed her finger towards Denham's face and told him that he did not know what he was talking about and that he should not go there. As Denham left to return to the asset protection office he hit his hand against a counter and said, "I'm not going to take this anymore." Cole felt that Denham was so out of control and angry that if the other sales associates had not been present he might have caused her physical harm.

B. Denham's Claims of Racial Profiling

On April 27, after the Incident, Denham told Elizabeth Wallace, the Human Resources Manager at Saks's Skokie store, "about the issue of how us in asset protection receive numerous calls about black customers that the associates have no reason to call on." Denham also submitted a memorandum to both Wallace and Jim Sloan, the General Manager of the Skokie store, on April 27. In the memo, Denham summarized his version of what happened during the Incident and complained about the sales associates' racial profiling of customers at the store.

This was not Denham's first time reporting sales associates for racial profiling. In his two month career at Saks's Skokie store, Denham made at least ten complaints to his supervisor, Nicole Anderson, about the sales associates' racial profiling of customers and the poor service Saks's African-American customers received.

II. Saks's Investigation into the Incident

Saks's investigation into the Incident was headed by Sloan, Wallace, and Lisa Tarrant, a Regional Human Resources Director for Saks.

A. Sloan

Sloan met individually with Denham and five sales associates who had been working adjacent to the jewelry area during the Incident. He also reviewed a typewritten report from Jamie Speciale, an asset protection investigator who had witnessed the Incident.

B. Wallace

Wallace investigated the Incident from April 27 until May 13. As part of her investigation, Wallace took witness statements and interviewed jewelry sales associates, sales associates who worked adjacent to where the Incident took place on the sales floor, an asset protection investigator, and both Denham and Cole. She took notes ...


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