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Bonner v. S-Fer International, Inc.

United States District Court, District of Columbia

September 14, 2016

TASHA BONNER, Plaintiff,
v.
S-FER INTERNATIONAL, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          CHRISTOPHER R. COOPER, United States District Judge.

         Plaintiff 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.

         I. Background

         Bonner, 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. ¶21.

         Bonner 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.[1]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.

         II. Legal Standard

         A valid 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.

         III. Analysis

         A. Counts Alleging Racial Discrimination

         Bonner 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).

         Bonner 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.

         Ferragamo 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)).

         These 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))).

         The 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 ...


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