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STUCKY v. WAL-MART STORES

August 19, 2005.

LORETHA H. STUCKY, Plaintiff,
v.
WAL-MART STORES, INC., Defendant.



The opinion of the court was delivered by: CHARLES SIRAGUSA, District Judge

DECISION AND ORDER

INTRODUCTION

  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.

  BACKGROUND

  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,
Personal Checks
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.
Driver's license.
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 did say —
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 on it?

  A. Yes.

 
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 follows:
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 . . .") (emphasis added).)

  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 ...


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