Lee v. K Mart Corp.

836 F. Supp. 2d 841, 2011 WL 6740335, 2011 U.S. Dist. LEXIS 146643
CourtDistrict Court, D. Minnesota
DecidedDecember 21, 2011
DocketCivil No. 10-3892 (JNE/JJK)
StatusPublished
Cited by1 cases

This text of 836 F. Supp. 2d 841 (Lee v. K Mart Corp.) is published on Counsel Stack Legal Research, covering District Court, D. Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lee v. K Mart Corp., 836 F. Supp. 2d 841, 2011 WL 6740335, 2011 U.S. Dist. LEXIS 146643 (mnd 2011).

Opinion

ORDER

JOAN N. ERICKSEN, District Judge.

Plaintiff Cinnecole Lee (Lee) brought this action against Defendant K Mart Corporation (Kmart), alleging racial discrimination in violation of Title VII, 42 U.S.C. [845]*845§ 2000e-2(a), and the Minnesota Human Rights Act (MHRA), Minn.Stat. § 363A.08, subdiv. 2. Lee, an African-American woman, asserts that she was racially discriminated against when Kmart terminated her employment after an incident in which Lee made physical contact with a customer. Kmart moved for Summary Judgment on both the Title VII and MHRA claims. For the reasons stated below, Kmart’s motion is granted.

I. BACKGROUND1

Lee began her employment with Kmart as a Loss Prevention Associate (LPA) at Kmart’s store in Burnsville, Minnesota, on June 20, 2005. As an LPA, Lee was responsible for detecting, reporting and preventing external and internal theft incidents, and training store associates in the area of loss prevention. In November 2005, Lee was promoted to Loss Prevention Coach (LPC)2 at the Richfield, Minnesota store. She resigned from her LPC position in August 2006, but a few weeks later was rehired as an LPA at the New Hope, Minnesota store. In November 2007, Lee transferred to the Lake Street store in Minneapolis, Minnesota. In early 2008, Mike Brosam became the LPC at the Lake Street store and was Lee’s direct supervisor until the date of her termination. The Store Manager at the Lake Street store was Dan Lawler, who also supervised aspects of Lee’s performance. During her employment, Lee was an excellent employee. Prior to September 2008, Lee had never been disciplined and her managers consistently reported that Lee was a top performer and did her job well.

Kmart has two policies related to the use of force in the workplace. The Workplace Violence Policy prohibits threatening behavior and acts of workplace violence, including conduct such as slapping. Employees who engage in violent, abusive, or threatening behavior on Kmart premises can be subject to disciplinary action, up to and including termination.3 The second policy applies only to the Loss Prevention (LP) employees and is related to the procedures that apply to shoplifting apprehensions. This policy, known also as the “No Touch” or “Hands Off’ Policy, prohibits LP employees from touching a suspected shoplifter’s body, clothes, or possessions. Under this policy, if a shoplifting apprehension cannot be completed due to a threat of violence or bodily harm, the apprehension must be terminated. However, when the LP employee cannot safely remove herself or a witness from a potentially violent situation, the LP employee may use limited forms of restraint on the suspect. This is sometimes referred to in shorthand by employees as the “self-defense exception.” Lee received training on and understood both of these policies. On a number of occasions, LP employees have used physical contact in connection with detaining shoplifters. Some of the incidents were captured on a “Greatest Hits” videotape, which some LP employees and managers viewed.4 Lee claims that the [846]*846incidents captured on the tape did not result in termination. However, between 2008 and 2010, four LPAs (other than Lee) were terminated for violating Kmart’s “Hands Off’ Policy — three of these employees were Caucasian, and one was African-American.

In September 2008, the LPC at the Anoka store went on maternity leave. Keith Cockriel, the District Loss Prevention Manager, assigned Lee to cover that LPC position. Jay Gullickson was the Store Manager at the Anoka store, and Bryan Ruby was the Assistant Manager. On September 15, 2008, Lee’s first day working in the Anoka store, Lee observed a Caucasian woman stealing items. She called Ruby to assist her in stopping the shoplifter. The shoplifter was holding a baby and was accompanied by a female shopping companion.5 When Lee confronted the shoplifter, the shoplifter took the items out of her bag and said she did not want them. Lee asked the shoplifter to come to the Loss Prevention office in the back of the store with her, and the shoplifter complied. As they walked toward the back of the store, the shoplifter’s companion followed behind them, yelling and swearing. Lee repeatedly told the companion to calm down. When Ruby, Lee and the shoplifter entered the back area through the double swinging doors, Lee told the companion not to enter. As described by Lee in her deposition, while they were in the hallway of the back area, the companion opened the swinging doors, swore, flailed her arms, pointed her fingers in Lee’s face, and repeatedly yelled, “you’re a nigger on a power trip.” Ruby and Lee pushed back on the doors, but the companion pushed through. Lee testified that based on the companion’s tone, volume, and flailing arms, Lee believed that the companion was going to hit her. Lee raised her left arm to block and tapped/ slapped the companion on the right cheek, telling her to leave the area.6 The companion did so. Ruby called the Anoka police, who removed the companion and the shoplifter from the store.

After the police left, Lee called Brosam, her supervisor at the Lake Street store, and told him about the incident. Lee cannot recall whether she told Brosam about the customer’s flailing arms or that she believed that she needed to respond in self-defense. Brosam called Gullickson, the Anoka Store Manager, and asked him to collect statements from witnesses. But for this phone call, Brosam had no involvement in any investigation into Lee’s conduct or the eventual decision to terminate her employment. The day after the incident, Ruby also told Gullickson about what he had witnessed. Gullickson and Ruby together called Cockriel, and Ruby relayed his version of the events. Cockriel and Gullickson asked Ruby to write a statement, which he did. Ruby’s statement explained that after the companion called Lee derogatory names, Lee “gave her a slap in the face to get her attention.” It did not mention a risk of physical violence or need for self-defense.

On September 17th, Cockriel and Lee spoke on the telephone about the incident. Lee described the incident, but does not recall telling Cockriel about the companion’s flailing arms or that Lee felt that the [847]*847companion was going to hit her.7 Cockriel did not think that anything would come of the incident, but asked Lee to email him a quick summary of the events. Lee typed a summary, which explained that Lee and Ruby apprehended a female shoplifter, and as they were bringing her to the “employee’s only entrance” in the back of the store,

[the companion] pushed her way through the doors and was asked again by Lee to remain outside of them. [The companion] refused. [The companion] began to yell and swear. Lee opened the door and told [the companion] to exit. [The companion] yelled, “No, this is bullshit, your just a ‘Nigger’ on a power trip!” I reacted with a quick tap with my right hand to the left side of [the companion]’s check. I said, “I am not a nigger and you need to leave!” [The companion] then repeated, “You are, you are a nigger!” I opened the door and [the companion] stepped back. As the door was closing, [the companion] once again tried to push it open. I pushed on the door to get it to close fully and it did.

The statement did not include additional information indicating that the companion physically threatened Lee or that Lee felt the need to act in self-defense.

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Bluebook (online)
836 F. Supp. 2d 841, 2011 WL 6740335, 2011 U.S. Dist. LEXIS 146643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-k-mart-corp-mnd-2011.