The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff Ana Gignac ("plaintiff") brings this action against defendants Ontario County, the Ontario County Sheriff's Department, Deputy Timothy Durgan ("Deputy Durgan") (collectively "the County defendants"), and Claire's Boutique's, Inc. ("Claire's"). Pursuant to 42 U.S.C. §1981 ("Section 1981") and §1983 ("Section 1983"), plaintiff alleges that the defendants subjected her to, inter alia, race-based discrimination, false arrest, false imprisonment, and an unreasonable search, and generally violated her constitutional rights in connection with a shoplifting investigation.
Claire's now moves for summary judgment pursuant to Fed. R. Civ. Proc. 56 to dismiss plaintiff's claims (Dkt. #27), on the grounds that there was probable cause to detain the plaintiff, and that both the detention and the related search were reasonable and non-discriminatory. Plaintiff has cross-moved for partial summary judgment on her claim of false imprisonment (Dkt. #34), and in opposing the cross motion, the County defendants adopt the arguments submitted by Claire's, and further argue that the County defendants are entitled to qualified immunity. (Dkt. #39) For the reasons set forth below, Claire's motion for summary judgment (Dkt. #22) is granted, and the complaint is dismissed with respect to all defendants.
Summary judgment is granted if the record demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986).
II. Plaintiff's Section 1981 Claim Against Claire's
Section 1981 provides that, "[a]ll persons within the United States shall have the same right . . . to the full and equal benefit of all lawsand proceedings for the security of persons ans property as is enjoyed by white citizens..." 42 U.S.C. §1981. In order to establish a Section 1981 discrimination claim, plaintiff must provide proof that: (1) she belongs to a racial minority; (2) she was subject to intentional discriminatory conduct by defendants, meaning that a discriminatory motive was a "substantial" or "motivating" factor; and (3) the discrimination related to one of the protected activities to which Section 1981 refers. See Tolbert v. Queens College, 242 F.3d 58, 61 (2d Cir. 2001); Brown v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 2000); Lauture v. IBM, 216 F.3d 258, 261 (2d Cir. 2000). A Section 1981 "equal benefit" claim "'requires a nexus to state proceedings or laws,' even though state action is not required." Bishop v. Toys "R" Us-NY LLC, 2009 U.S. Dist. LEXIS 17377 at *14 (S.D.N.Y. 2009), quoting Phillip v. Univ. of Rochester, 316 F.3d 291, 294-95 (2d Cir. 2003). See generally Pierre v. J.C. Penney Co., 340 F. Supp. 2d 308, 310-311 (E.D.N.Y. 2004) (discussing standards relating to the "[f[ew cases in this circuit or elsewhere [that] arise under the 'equal benefit' clause of §1981," and collecting cases). In alleging that Claire's singled her out for discriminatory treatment on the basis of race, plaintiff must present some "evidence of 'purposeful and systematic discrimination' in the form of specific instances when members of a recognized group were 'singled . . . out for unlawful oppression in contrast to others similarly situated.'" Bishop, 2009 U.S. Dist. LEXIS 17377 at *17, quoting Albert v. Carovano, 851 F.2d 561, 573 (2d Cir. 1988).
The undisputed facts, construed in plaintiff's favor, fail to establish that she was "singled out" for unlawful oppression in contrast to other Claire's shoppers. On June 23, 2007, plaintiff, who alleges that she is of "Latino descent," (Dkt. #1 at ¶38), was browsing in a Claire's store at Eastview Mall, along with her two adolescent daughters. Claire's Assistant ManagerAshley Zimmerman ("Zimmerman"), who had made "over a hundred" shoplifting stops during her previous year-and-a-half of employment with Claire's, testified that she observed plaintiff remove a pair of green polka-dot hoop earrings from a display card, hold them in her hand, and then place her hand into her purse. The earrings were not seen thereafter.
When plaintiff attempted to cash out and leave the store without paying for the earrings Zimmerman believed she had seen plaintiff conceal, Zimmerman instructed plaintiff to remain in the store, and called mall security and the police. A security guard and Deputy Durgan responded and briefly questioned plaintiff in a private storage room in the rear of the store, out of the view of the public. Plaintiff also voluntarily submitted to a search of her purse, underwent a "pat-down" of her pocket area because she was unable to turn her pockets out herself, and was asked by Deputy Durgan to untuck her shirt to release any items secreted in her waistband. After the brief search failed to turn up the missing earrings, plaintiff was told she was free to leave. From start to finish, the detention lasted thirty or forty minutes. Plaintiff thereafter returned the items she had previously purchased, and left the store.
The only evidence cited by plaintiff in support of her allegation that the shoplifting investigation was discriminatory is an alleged statement attributed to Zimmerman. Plaintiff testified that after the investigation was concluded, she asked Zimmerman why Zimmerman believed that plaintiff, as opposed to others in the "lot of people in the store" at the time, had stolen the earrings, and that Zimmerman made a statement to the effect that "you Spanish people, all you do is steal." (Dkt. #27-8 at 60). Zimmerman denies making any such statement, and claims that the only reason she detained plaintiff was because of her observations of plaintiff's conduct, which led Zimmerman to believe that plaintiff had taken a pair of earrings. (Dkt. #27-7).
Even assuming the truth of plaintiff's testimony concerning Zimmerman's alleged "Spanish people" remark, I conclude that a single racially charged remark by a store employee -- even one that suggests a belief that one's minority status predisposes him or her to steal -- is "insufficient to support an inference of a discriminatory selective-enforcement policy" by itself. Bishop, 2009 U.S. DIST. LEXIS 17377 at *14 (store security guard's use of a racial epithet, and his comment that "blacks steal more than whites" are insufficient to support an inference of discrimination in the alleged selective enforcement of anti-shoplifting policies and procedures, where there is no evidence that plaintiff was actually treated differently from similarly-situated non-minority customers), aff'd, 2010 U.S. App. LEXIS 14668 (2d Cir. 2010). In light of the fact, asserted by Claire's in its statement of undisputed facts and expressly assented-to by plaintiff, that Zimmerman's reported observations provided "reasonable ground[s]" to detain plaintiff on suspicion of shoplifting, (Dkt. #34 at ¶68), the remark attributed to Zimmerman after the fact "would [appear to] show some evidence of hostility on the part of [an employee], not disparate treatment among those similarly situated, and animus or incivility alone is insufficient to raise an inference of discriminatory treatment." Id. at *28. In other words, the relevant question is not whether Zimmerman expressed or even believed that "Spanish people . . . steal," but whether plaintiff has come forward with evidence in admissible form, sufficient to convince a reasonable finder of fact, that such a belief on Zimmerman's part was a "substantial or motivating factor" in Zimmerman's decision to detain plaintiff on the suspicion of shoplifting, and that in being so detained, plaintiff was being treated differently from other, similarly-situated, non-Hispanic shoppers in Claire's.
Notwithstanding her allegation that her detention was discriminatory,
plaintiff presents no evidence that she was treated differently from
any similarly-situated shoppers. She does not, for example, allege or
offer evidence that that there were other customers present in the
store at the time the earrings went missing, or who engaged in similar
behavior to plaintiff's ,who were non-Hispanic, and who were not
questioned or detained. Because plaintiff offers no evidence
whatsoever concerning the ethnic background and/or behavior of other
customers alleged to have been in the store at the time, it would be
impossible for any reasonable finder of fact to conclude that she was,
in fact, treated differently from non-minority shoppers.*fn1
See Rivera v. United States, 928 F.2d 592, 608 (2d Cir. 1991)
(plaintiffs alleging Section 1981 claim that police officers treated
persons with Spanish surnames differently from others in the same
building must come forward with evidence concerning whether other
persons of Hispanic descent lived in the building, and whether they
were similarly treated). In light of these circumstances, even
assuming the truth of ...