United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
CHRISTOPHER R. COOPER, United States District Judge.
Tasha Bonner had a shopping experience that she likens to
that depicted in a well-known scene of the 1990 box-office
hit Pretty Woman. Excerpting portions of the script
in her multi-count Complaint, Bonner alleges that, like Julia
Roberts' character Vivian, she was treated rudely in a
high-end boutique, Salvatore Ferragamo, on the basis of her
appearance. Defendant, the boutique's operator, now moves
to dismiss all but one of Bonner's claims.
an African-American woman, alleges that she visited Salvatore
Ferragamo's Ff Street store in downtown Washington, D.C.,
on a Tuesday morning in September 2015, "smartly
dressed." Am. Compl. ¶¶ 1, 4, 6. After
"warmly greet[ing] the two Caucasian employees working
in the store, " Bonner began to browse the store's
merchandise and try on some clothing. Id.
¶¶ 7-9. At that point, she claims, "a store
employee flippantly asked her'if she knew the jacket cost
$4, 500, '" "rudely asked Bonner if she was
going to buy the jacket, " and "made a remark which
Bonner understood [as meaning] that he would prefer if she
allowed [the employee] to physically handle the
merchandise." Id. ¶¶ 9- 11. When
Bonner proceeded to examine the shoe display and requested to
see a certain pair, the same "employee responded by
immediately demanding that she leave the store, "
causing her to feel "embarrassed, threatened, and
demeaned" and to protest the manner of her treatment.
Id. ¶¶ 12-15. The employee then falsely
"told Bonner that she was being asked to leave because
she needed a membership to shop" at the store.
Id. ¶¶ 16-17. Later, after Bonner had
begun to record her conversations with the employees with her
phone, she was told that "she was being asked to leave
because of her 'attitude.'" Id.
¶¶ 17-18. One employee then called the police while
the other employee locked the door-"Bonner's only
available exit from the store"-and told her she could
not leave. Id. ¶ 19. Bonner was
"trapped" in the store for "several
minutes" before she was permitted to leave. Id.
filed a Complaint in the Superior Court of the District of
Columbia in December 2015 against the boutique's
operator, S-Fer International, Inc., d/b/a Salvatore
Ferragamo ("Ferragamo"), alleging three state law
claims: violation of the D.C. Human Rights Act of 1977
("DCHRA"), D.C. Code § 2-1401, et
seq. (Count I); false imprisonment at common law (Count
II); and intentional infliction of emotional distress
("IIED") at common law (Count III). Ferragamo moved
to dismiss Counts I and III for failure to state a claim.
After that motion became ripe, Ferragamo removed the action
to this Court, asserting diversity
jurisdiction.Following removal, Bonner filed an Amended
Complaint with an additional count, asserting a violation of
the federal statute 42 U.S.C. § 1981 (Count IV), which
prohibits discrimination in the formation and enforcement of
contracts. Ferragamo then moved to dismiss that count as
well. On September 8, 2016, the Court held a hearing on the
dismissal motions, which taken together challenge three of
Bonner's four claims.
complaint must contain "a short and plain statement of
the [relevant] claim showing that the pleader is entitled to
relief." Fed.R.Civ.P. 8. "To survive a motion to
dismiss, [the] complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief
that is plausible on its face.'" Ashcroftv.
Iqbaj 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
reviewing a dismissal motion, the Court "accept[s] as
true all of the allegations contained in [the] complaint,
" disregarding "[t]hreadbare recitals of the
elements of a cause of action" and "mere conclusory
statements." Iqbal, 556 U.S. at 678. Then, the
Court examines the remaining "factual content [to
determine if it may] draw the reasonable inference that the
defendant is liable for the misconduct alleged." LI That
liability must be "plausible"-more than just
"possib[le], " even if less than
"probab[le]." Id. at 678-79.
Counts Alleging Racial Discrimination
brings two claims asserting that Ferragamo unlawfully denied
her service on the basis of race. First, she alleges that
"she was denied service and was told to leave
[Ferragamo's] store due to her race, color, or personal
appearance, " in violation of the DCHRA, D.C. Code
§ 2-1401, etseq. Am. Compl. ¶ 26, which
makes it unlawful to "deny, directly or indirectly, any
person the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, and accommodations of any
place of public accommodations" either "wholly or
partially" on the basis of, inter alia,
"race, color, [or] personal appearance."
Id. § 2-1402.31(a)(1).
makes a similar claim of racial discrimination under federal
law, alleging that Ferragamo violated 42 U.S.C. § 1981
by "depriv[ing her] of her right to make and enforce
contracts on the same terms as enjoyed by white persons ...
in that she was asked to leave the store and falsely
imprisoned on the basis of her race." Am. Compl. ¶
39. Although "[§] 1981 claims most commonly involve
contracts of employment, " the provision "also
prohibits refusal of service based on race."
Mitchell v. PCX, Inc., 274 F.Supp.2d 33, 44 (D.D.C.
2003). "To establish a claim under § 1981, a
plaintiff must show that (1) [he or she is a member] of a
racial minority [group]; (2) the defendant had an intent to
discriminate on the basis of race; and (3) the discrimination
concerned one or more of the activities enumerated in the
statute." LI at 44-45.
argues Bonner has failed to state claims under the DCHRA or
§ 1981 because she has failed to allege facts sufficient
to make it plausible that "she was denied the
opportunity to shop at Salvatore Ferragamo on the basis of
her race[.]" Mot. Dismiss Counts I& III ("First
Mot. Dismiss") 5; see also Mot. Dismiss Count
IV ("Second Mot. Dismiss") 6. Indeed, says
Ferragamo, the facts alleged in Bonner's Complaint
suggest alternative explanations for the refusal of
service-namely, the employees' statements that Bonner
needed a "membership" and was being asked to leave
due to her "attitude." Am. Compl. ¶¶ 16,
18. Furthermore, Bonner's allegation that the two
Ferragamo employees were "Caucasian, " being mere
"demographic information, " is insufficient to
found an inference of racially discriminatory intent. First
Mot. Dismiss 5 (citing Boykin v. Gray, 895 F.Supp.2d
199, 208 (D.D.C. 2012)).
arguments are unpersuasive. As an initial matter, Bonner
alleged far more than the facts of her own race, the race of
the employees at the store, and their refusal of service. She
also alleged: that she was "smartly" dressed; that
she "warmly greeted" the employees; that shortly
after she began browsing the merchandise one of the employees
"flippantly" asked her if she was aware of an
item's high price tag and then "rudely" asked
her if she was prepared to make a purchase; and that an
employee "demand[ed]" that she leave the store in
response to her request to see a display shoe. Am. Compl.
¶¶ 1, 7-14. In the context of these facts, accepted
as true, a "reasonable inference" to be drawn
regarding the supposed alternative explanations for her
dismissal, Iqbal, 556 U.S. at 663, is that those
reasons were pretextual. If it was indeed made, the statement
regarding a purported "membership" requirement for
shoppers was false; and the statement regarding Bonner's
"attitude" as a basis for her removal was made much
later in the alleged sequence of events, after she had
allegedly been poorly treated in numerous ways by the
Ferragamo employees. As Plaintiff argues, the employees'
"phony reasons" and "changing rationale"
for dismissing her may themselves be evidence of
discriminatory intent. PL's Opp'n First Mot. Dismiss
3-4; see also Geleta v. Gray, 645 F.3d 408, 413
(D.C. Cir. 2011) ("[S]hifting and inconsistent
justifications are'probative of pretext.'"
(quoting EEOC v. Sears Roebuck & Co.,
243 F.3d 846, 853 (4th Cir. 2001))).
parties debate whether this Court should apply a framework
developed in Callwoodv. Dave &
Buster's, Inc., 98 F.Supp.2d 694, 704-08 (D. Md.
2000), for § 1981 cases in the commercial or retail
context. Under those circumstances, Callwood permits