The opinion of the court was delivered by: CHARLES SIRAGUSA, District Judge
Plaintiff alleges that defendant Wal-Mart Stores, Inc.
("Wal-Mart"), and specifically the one located in Elmira, New
York, discriminated against her on the basis of race by refusing
to accept a personal check as payment for items she intended to
purchase. According to plaintiff's amended complaint, she seeks
recovery pursuant to the Thirteenth and Fourteenth Amendments to
the U.S. Constitution, 42 U.S.C. §§ 1981 and 1982, and the New York State Executive Law. The case is before the Court on
Wal-Mart's motion (# 29) for summary judgment. For the reasons
stated below, the application is granted.
Plaintiff states she is an African-American and that Faith
Moffe ("Moffe") is a Caucasian. She alleges that she and Moffe
went to a Wal-Mart store in Elmira, New York ("Elmira store") on
December 4, 1999. After shopping, they entered the check-out line
of Wal-Mart cashier Jean Shepard ("Shepard") with Moffe in front
of plaintiff. Moffe paid for her items using a check that had her
address printed on its face. Shepard asked Moffe if she wanted to
write the check for up to twenty dollars over the purchase amount
and Moffe declined. As to this, plaintiff testified at a pretrial
deposition that she did not think that it was strange that the
cashier offered to let Moffe write her check for twenty dollars
over the amount, and that she believed the offer was consistent
with Wal-Mart's check cashing policy.
When Moffe's transaction was completed, plaintiff then
presented a check to Shepard for payment of her own items, but
plaintiff's check did not have her address on it. Shepard looked
at plaintiff's check and told her that she could not accept it
because it was against company policy to accept a check that did
not have the check writer's address on it. Plaintiff protested,
and several employees were called to address this situation.
These included two managers, and all supported Shepard's
determination that the Elmira store would not accept a check
without the writer's address on it. It was explained to plaintiff
that the Elmira store's check-cashing policy required that
plaintiff's check include an address in order to be accepted for
payment. Plaintiff left the store without making a purchase.
Moffe returned to the Elmira store after the incident and found
a posted statement labeled "Personal Checks." Moffe copied down
the words, which stated,
We gladly accept them for the amount of purchase.
We ask that you endorse your check in front of our cashier and
show proper I.D.
Sorry we cannot accept two party checks, multiple payee check[s],
post dated checks, payroll checks, checks made out to cash.
Ask about our check cashing card!
Def.'s Appendix., Ex. L (notes by Faith Moffe).
At her deposition, plaintiff was asked about the policy
statement Moffe found. She testified,
A. So we [she and Moffe] looked up together and she
says, there's nothing in here that says you have to
have your address on it [the check]. And it said
something to the fact [sic] that you can write a
check in the amount of your purchase, third-party
checks would not be accepted, blah, blah, blah [sic].
It also didn't say that you could write it for
anything over. It stated about I remember that it
Q. So everything about the policy wasn't on this
written policy [sic] that was on the wall, right?
A. That's correct.
(L. Stucky Dep., at 175-76.) Plaintiff also testified with regard
to whether she believed the cashier's reason for not accepting
her check: Q. Did she [the cashier] tell you that she couldn't
accept your check because it did not have you address
Q. Did you have any reason to believe she wasn't
telling you that because that was her understanding
of Wal-Mart's policy?
A. Not really.
Q. You didn't have any reason to think she wasn't
being truthful with you about her understanding of
the policy, did you?
A. No, not really.
(L. Stucky Dep., at 110.) Plaintiff further testified at her
deposition that on November 22, 1999, she used a check at the
Elmira store that did not have her address on it, which was
accepted. (L. Stucky Dep., at 222-23.) She also produced checks,
which lacked her address, that she had used at Wal-Mart in 1997.
(Id., at 225-28.)
Plaintiff's husband, who is Caucasian, testified at a pretrial
deposition that on December 5, 1999, he went to the Elmira store
"[b]ecause they refused my wife's check the day before and said
their policy being [sic] stringently enforced was no checks being
accepted without full name and address on it [sic]." (G. Stucky
Aff., at 82.) Plaintiff's husband further testified that he went
to that store, "[b]ecause I wanted to see if they were they
would take my check or not." (Id.) Plaintiff's husband
described the cashier assisting him as "a young lady, blond or
light brown hair," around "eighteen, twenty" years of age with a
light build and about "five, six; five, eight." (Id., at
83-84.) Plaintiff agreed at her deposition that her husband had
used a different cashier than the one she had encountered on
December 4, 1999. (L. Stucky Aff., at 203 ("It was a different
cashier.").) However, although plaintiff's husband's check lacked an address,
it was accepted and no other Wal-Mart employees were called over
during his transaction. He described the cashing-out process as
She [the cashier] ran the check through the scanner,
said okay, please put your I need your phone
number. Well, I'm assuming she said, I need you phone
number. I usually don't add it unless it's requested.
I filled out the check, put the number on it and give
it to her without no [sic] form of identification.
(G. Stucky Aff., at 81.)
Wal-Mart's check cashing training materials*fn1 require
the following information to be written legibly on a personal
check before moving to the next step in the check cashing
process: (a) customer's name, (b) customer's complete address and
(c) customer's telephone number. (Ramsey Aff. ¶¶ 1-9 and attached
Exhibit A.) Additionally, Shepard stated in an affidavit, that as
part of her training as a cashier, she was instructed that
Wal-Mart's check cashing policy required this information to be
written legibly on a personal check before it could be accepted.
(Shepard Aff. ¶¶ 3-4 and attached Exhibit A.)
Shepard also stated that she has processed dozens of checks as
a Wal-Mart cashier and has accepted checks from individuals of
various racial and ethnic groups, including African-Americans.
(Shepard Aff. ¶ 6.) Additionally, she stated that she follows
Wal-Mart's check cashing policy as she understands it, based upon
her training, and applies it the same way to everyone without
regard to their racial or ethnic group. (Shepard Aff. ¶¶ 7-8.)
Shepard further offered that she refused to accept plaintiff's
check on December 4, 1999 because it did not contain a full address as
required by Wal-Mart's check cashing policies. (Id. ¶¶ 10-11.)
She also said that her understanding of Wal-Mart's check cashing
policy is that she cannot run a personal check through the check
verification system until the name and contact information are on
the check. (Id. ¶¶ 10-14.) Finally, it is clear from her
affidavit, that hand lettering the address information on the
check would be sufficient to meet Wal-Mart's requirements. (See
Shepard Aff. ¶ 4 ("I was instructed that Wal-Mart's check cashing
policy required the following information to be written legibly
on a personal check . . . customer's complete address . . .")
With regard to her damages for this incident, plaintiff
testified that actual damages were less than $15 (based on the
amount of the check her husband wrote on December 5, 1999, after
her check on the same account was refused the prior day). The
items he purchased on the December 5 were for a craft project
plaintiff was working on, and were not the same items she had
attempted to purchase the previous day. Additionally, plaintiff
is claiming compensation for the time and ...