Opinion
3:20-cv-00076-YY
07-21-2021
ELIZABETH OFUASIA, an individual, Plaintiff, v. SPIRIT HALLOWEEN SUPERSTORES, LLC, a foreign business corporation; JANE DOE, an individual; JOHN DOE, an individual, Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge
FINDINGS
Plaintiff Elizabeth Ofuasia (“Ofuasia”) brings this action against defendant Spirit Halloween Superstores, LLC (“Spirit Halloween”) and defendants Jane Doe and John Doe (“Doe defendants”)[ , alleging claims of racial discrimination under federal and state law and a common law tort claim for intentional infliction of emotional distress (“IIED”)[ arising out of an incident at a Spirit Halloween store where Ofuasia or her friend were accused of shoplifting and asked to leave the store. Am. Comp., ECF 8. Against Spirit Halloween and the Doe defendants, Ofuasia alleges violations of 42 U.S.C. § 1981 (equal rights) (First Claim); 42 U.S.C. § 1982 (property rights) (Second Claim); 42 U.S.C. § 2000a (public accommodations) (Third Claim); RCW § 49.60.215 (public accommodations) (Fifth Claim); and RCW § 49.60.030 (freedom from discrimination) (Sixth Claim); and an IIED claim (Seventh Claim). Am. Comp. ¶¶ 30-38, 42-47, ECF 8. She alleges a violation of 42 U.S.C. § 1985(3) (conspiracy to interfere with civil rights) (Fourth Claim) against the Doe defendants only. Id. ¶¶ 38-41.
Plaintiff has never identified the Doe defendants, and the time for amending the complaint has elapsed. See ECF 15 (“Deadline to amend pleadings and join parties is 8/27/2020.”).
This court has federal question jurisdiction over the federal law claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(a).
Spirit Halloween moves for summary judgement on all of Ofuasia's claims. Defs.' Cross Mot. Summ. J. and Resp. Pl.'s Mot. Partial Summ. J. (“Defs.' Mot.”), ECF 23, and Ofuasia moves for partial summary judgment on liability on her four federal claims. Pl.'s Mot. Partial Summ. J. (“Pl.'s Mot.”), ECF 21. For the reasons set forth below, Spirit Halloween's motion for summary judgment should be GRANTED, and Ofuasia's motion for partial summary judgment should be DENIED.
I. Background Facts
On October 18, 2019, Ofuasia and a friend, both African American women, were shopping for Halloween costumes. Ofuasia Decl. ¶¶ 3-5, ECF 22. They visited the Spirit Halloween store number 60288, located in Vancouver, Washington, three times that day. Id. Spirit Halloween sales associate Lakendra Taylor and store manager Austin Collins were both working in the store. Taylor Decl. ¶ 3, ECF 26; Collins Decl. ¶¶ 2-3, ECF 25.
On their first visit, Ofuasia and her friend purchased no items. Pl.'s Decl. Supp. Pl.'s Mot. (“Ofuasia Decl. I”) ¶ 3, ECF 22. On their second visit, Ofuasia purchased a choker necklace. Id. ¶ 4. Taylor, an African American woman, attests that during the second visit, she saw either Ofuasia or her friend put an Egyptian bracelet in her purse without paying for it. Taylor Decl. ¶¶ 4, 7, ECF 26. Shortly after Ofuasia and her friend left, Taylor informed store manager Collins, who had been on lunch break, that she had seen one of the women put the bracelet in her purse. Taylor Decl. ¶ 5, ECF 26; Collins Decl. ¶ 3, ECF 25. Collins instructed Taylor to notify her if either Ofuasia or her friend returned to the store. Taylor Decl. ¶ 5, ECF 26; Collins Decl. ¶ 4, ECF 25.
A short time later, Taylor saw Ofuasia and her friend re-enter the store and notified Collins. Taylor Decl. ¶ 6, ECF 26; Collins Decl. ¶ 5, ECF 25. According to Ofuasia, she and her friend re-entered the store to purchase a set of bunny ears but were approached by a store employee (later identified as Collins) who accused her of shoplifting and did not allow Ofuasia to make the purchase. Ofuasia Decl. I ¶ 6-7, ECF 22. Ofuasia contends that she “protested the accusations” and “offered to show . . . my purse (which was see-though [sic] and could not hide items).” Ofuasia Decl. I ¶ 8, ECF 22. She further alleges that “[t]he Spirit Halloween employees repeatedly claimed to have ‘video footage' showing me or my friend shoplifting from the store . . . but refused to show it to me or my friend, and refused to show it to the officers when they arrived on the scene and requested to see it.” Id. ¶ 11.
Sometime after the current action commenced, Spirit Halloween provided Ofuasia with a copy of the videotape in question, which Ofuasia represents “does not show shoplifting, or any activity that could be reasonably interpreted as shoplifting by me or my friend.” Ofuasia Decl. I ¶ 13, ECF 22. Collins attests that “the store had recently installed some security cameras” and she “did mention to the young women that there were security cameras in the store.” Collins Decl. ¶ 7, ECF 25. However, Collins claims she made the decision to ask Ofuasia and her friend to leave the store based on Taylor's report that she had observed either Ofuasia or her friend take the Egyptian bracelet without paying for it. Id. The parties agree that Ofuasia objected to being asked to leave but exited the store with her friend. Collins Decl. ¶ 8, ECF 25; Ofuasia Decl. I ¶¶ 8, 10, ECF 22.
Ofuasia claims that she called the police “to make a report of the incident” and to have a police officer “view the alleged incriminating video, and determine that there had been no shoplifting.” Ofuasia Decl. Supp. Pl.'s Reply (“Ofuasia Decl. II”) ¶ 10, ECF 28. Collins claims that she called the police because the two women “remained outside [the store], ” “began harassing an employee leaving the store for the evening, ” and “employees were afraid to leave the store.” Collins Decl. ¶ 8-9, ECF 25.
When the police arrived, Collins declined to bring shoplifting charges against Ofuasia and her friend. Collins Decl. ¶ 9; Pl.'s Mot. 3. Collins “did not want to bring any charges against the young women . . . [and] just wanted them to stop harassing my employees and my customers.” Collins Decl. ¶ 9, ECF 25. The police issued a trespass citation to Ofuasia and her friend. Id.; Ofuasia Decl. I ¶ 14, ECF 22.
II. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (citing Fed.R.Civ.P. 56(e)).
In determining what facts are material, the court considers the underlying substantive law regarding the claims. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Otherwise stated, only disputes over facts that might affect the outcome of the suit preclude the entry of summary judgment. Id. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49. A “scintilla of evidence” or “evidence that is merely colorable or not significantly probative” is insufficient to create a genuine issue of material fact. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu, 198 F.3d at 1134 (citation omitted).
On cross-motions for summary judgment, the court must consider each motion separately and consider each party's motion on its own merits. See Ionian Corp. v. Country Mut. Ins. Co., 744 F.Supp.2d 1104, 1107 (D. Or. 2010); see also Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). Further, the court must “draw all reasonable inferences against the party whose motion is under consideration.” Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 314 (2d Cir. 1981).
III. Spirit Halloween's Motion for Summary Judgment
Spirit Halloween argues it is entitled to summary judgment on Ofuasia's state and federal racial discrimination claims because she has failed to produce any evidence that it discriminated against her on the basis of her race. Defs.' Mot. 4-7, ECF 23. Spirit Halloween also moves for summary judgment on Ofuasia's IIED claim because she has not produced evidence of any action by Spirit Halloween employees that meets the requisite standard for outrageous conduct. Defs.' Mot. 7, ECF 23.
A. Section 1981 Claims and McDonnell Douglas Burden-Shifting
Section 1981 protects the equal right of “‘[a]ll persons within the jurisdiction of the United States' to ‘make and enforce contracts' without respect to race.” Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 474 (2006) (quoting 42 U.S.C. § 1981(a)). The statute defines the phrase “make and enforce contracts” to include “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b). Claims brought under section 1981 require proof of “intentional discrimination on account of race.” Evans v. McKay, 869 F.2d 1341, 1344 (9th Cir. 1989); see Gen. Bldg. Contractors Ass'n, Inc. v. Pa., 458 U.S. 375, 391 (1982) (holding that “§ 1981 . . . can be violated only by purposeful discrimination.”). Section 1981 reaches both public and “purely private acts” of intentional racial discrimination. Runyon v. McCrary, 427 U.S. 160, 170 (1976).
The parties agree that the McDonnell Douglas burden-shifting analysis is the proper framework for considering motions for summary judgment on section 1981 claims of racial discrimination. See Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1144-45 (9th Cir. 2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973)). Under this analysis, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Id. To establish a prima facie case under section 1981 outside the employment context, a plaintiff must show: (1) membership in a protected class; (2) an attempt to contract for certain services, and (3) denial of the right to contract for such services because of the plaintiff's race. Lindsey, 447 F.3d at 1145 (citing Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 872 (6th Cir. 2001)). Further, to prevail in a section 1981 claim, “a plaintiff must initially plead and ultimately prove that, but for race, [the plaintiff] would not have suffered the loss of a legally protected right.” Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 140 S.Ct. 1009, 1019 (2020).
If the plaintiff satisfies the initial burden of establishing a prima facie case of racial discrimination, “the burden shifts to the defendant to prove it had a legitimate, non-discriminatory reason for the adverse action.” Lindsey, 447 F.3d at 1144 (citing McDonnell Douglas, 411 U.S. at 802). If the defendant meets that burden, “the plaintiff must then prove that such a reason was merely a pretext for intentional discrimination.” Id. (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
1.Plaintiff's Prima Facie Case
Here, there is no dispute that Ofuasia has satisfied the first and second elements of a section 1981 prima facie case. As an African American woman, Ofuasia is a member of a protected class, and Spirit Halloween employees made her leave the store. Am. Comp. 11, ECF 8. Spirit Halloween argues, however, that “plaintiff has failed to produce any evidence of the third element, that race had anything to do with the actions of Spirit Halloween employees.” Defs.'s Mot. 5, ECF 23. Defendants further argues, “plaintiff cannot make out a prima facie case [so] there is no need to get to any McDonnell Douglas burden shifting. But even if were to get into a burden-shifting analysis the outcome is the same.” Defs.' Reply 4, ECF 32.
To support her claim of intentional discrimination, plaintiff relies heavily on her own declarations, offers no additional evidence, and cites no legal authority. Ofuasia states: “It was clear to me that Defendants' conduct was based on my race, and not on anything I did in the store.” Ofuasia Decl. I ¶ 15, ECF 22. Ofuasia further states: “It was apparent to me that the employees had manufactured a reason to not sell to us, knew that the video would not show any shoplifting, and wanted to get us out of the store after I challenged their attempt to racially profile me and my friend.” Ofuasia Decl. II ¶ 13, ECF 28. However, these declarations- standing alone and without more-cannot give rise to an inference of discriminatory intent because Ofuasia describes conduct that is race-neutral and “pleads no facts that demonstrate any of the actions that occurred were related to racial discrimination.” Moralez v. Whole Foods Mkt. California, Inc., No. 14-CV-05022-EMC, 2016 WL 845291, at *2 (N.D. Cal. Mar. 4, 2016).
Further, plaintiff's declarations consist largely of the type of speculation (“the employees . . . knew that the video would not show any shoplifting”), bare allegation (“the employees had manufactured a reason to not sell to us”), and conclusory statements (“. . . defendants' conduct was based on my race”) that the Ninth Circuit has found is not persuasive on the question of discrimination. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002) (“[T]his court has refused to find a ‘genuine issue' where the only evidence presented is ‘uncorroborated and self-serving' testimony.”); see also F.T.C. v. Publ'g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) (“[a] conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact”); Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996) (“mere allegation and speculation do not create a factual dispute for purposes of summary judgment”); Forsberg v. Pac. Nw. Bell Tel. Co., 840 F.2d 1409, 1419 (9th Cir. 1988) (“conclusory allegations of alleged discrimination, with no concrete, relevant particulars, will not bar summary judgment”) (citation omitted).
Moreover, even assuming Ofuasia's allegations are true-that Spirit Halloween employees asked her to leave the store based on a false report of video cameras capturing shoplifting-Ofuasia's declarations do not, by themselves, show that they were motivated to do so because of plaintiff's race. See Clark v. Safeway, 478 F.Supp.3d 1080, 1091 (D. Or. 2020) (“Even assuming that Defendant's policies required Defendant to take the action Plaintiff alleges, Plaintiff has produced no evidence that [her] race was the reason that Defendant's employees failed to comply with Defendant's policies.”) (emphasis in original).
When courts in the Ninth Circuit have evaluated a similar paucity of evidence regarding discrimination, they have been disinclined to find that a plaintiff has stated a prima facie case under section 1981. In Mikes v. Albertsons Companies, LLC, No. 3: 17-CV-01400-JR, 2019 WL 2251821, at *1 (D. Or. Apr. 10, 2019), report and recommendation adopted, No. 3:17-CV-01400-JR, 2019 WL 2250579 (D. Or. May 24, 2019), for example, the court granted summary judgment for Albertsons on a section 1981 claim that rested largely on the plaintiff's own statements, much like Ofuasia's claim in the present action. An Albertson's employee had “confronted” the plaintiff when she entered the store, got into her “‘personal space, '” loudly called her a thief, took her grocery basket, and told her to leave the store. Id. at *1. In the plaintiff's affidavit, she stated, “I have no doubt that [the employee] acted adversely toward me because of my Black skin.” 2019 WL 2251821, at *2. The court however noted, “such statements ‘cannot by [themselves] create an issue of fact, '” and concluded that “a reasonable juror could not conclude that this interaction was objectively discriminatory.” Id.
In Gaines v. Nordstrom, Inc., No. 3:05-cv-689-PK, 2006 WL 2711779, at *1 (D. Or. Sept. 19, 2006), the court also found the evidence insufficient to support a prima facie case under section 1981. There, the plaintiff was accused of shoplifting, detained, and arrested, but not ultimately charged. Id. at *3-4. In ruling for the defendant on summary judgment, the court noted that the plaintiff-much like Ofuasia-failed to cite legal authority or offer legal analysis in her pleadings. Id. at *7. The court also pointed out that the plaintiff “offered no evidence to suggest Nordstrom applied their policies differently because of her race, ” and concluded there was “simply no evidence that plaintiff was singled out or treated unequally because of her race.” Id.
In Clark v. Safeway, the court also emphasized the nonmoving party's burden on a motion for summary judgment to “come forward with more persuasive evidence to support its claim.” 478 F.Supp.3d at 1087. Clark's discrimination claim was based Safeway's failure to intervene or investigate when another customer shoved him and yelled racial slurs at him. Id. at 1084. Clark argued that store policies required employees to assist customers in his situation and their failure to do so demonstrated racial animus. Id. at 1093.The court found that even if store policy required intervention in such racially charged incidents, Clark had “produced no evidence that [his race] was the reason” that the employees failed follow policy and assist him. Id. at 1091 (emphasis in original). After noting the plaintiff's burden to “at least” produce “circumstantial evidence of Defendant's discriminatory intent, ” the court concluded, “[n]one of the evidence suggests that Plaintiff's race played a role” in Safeway's response to the incident. Id. at 1094.
Like the plaintiffs in the cases above, Ofuasia has “presented no evidence of actions by [Spirit Halloween] . . . that could be reasonably construed as ‘objectively discriminatory.'” Gaines, 2006 WL 2711779, at *6. Therefore, she has not established a prima facie case.
Spirit Halloween argues that, even if Ofuasia were able to establish a prima facie case, she has not demonstrated that defendants' explanation for asking her to leave the store-because they suspected her or her friend of shoplifting-was pretextual. See Villiarimo, 281 F.3d at 1062 (addressing the question of pretext without deciding whether the plaintiff had stated a prima face case). Therefore, the court considers the remaining steps of the burden-shifting analysis.
2. Defendants' Legitimate, Nondiscriminatory Reasons
Here, Spirit Halloween clearly meets its burden by submitting declarations from both store employees who unequivocally state Ofuasia and her friend were asked to leave because Taylor reported to Collins that she saw one of them shoplifting. Collins Decl. ¶ 7, ECF 25; Taylor Decl. ¶ 5, ECF 26. Because Spirit Halloween's burden “is one of production, not persuasion, involving no credibility assessment[]” Lindsey, 447 F.3d at 1147, no further inquiry is necessary. See Christian, 252 F.3d at 879 (noting the defendant's burden was one of production only and concluding “we must accept [the defendant's] stated reason”)
3. Plaintiff's Evidence of Pretext
Once a defendant presents a legitimate, nondiscriminatory reasons, “the plaintiff has the new burden of proving that the proffered reasons were a pretext for discrimination.” Lindsey, 447 F.3d at 1148 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993)). A plaintiff can prove pretext “‘either directly by persuading the court that a discriminatory reason more likely motivated [the defendant] or indirectly by showing that [the defendant's] proffered explanation is unworthy of credence.'” Chuang v. Univ. of Calif. Davis, 225 F.3d 1115, 1123 (9th Cir. 2000) (citation omitted). Although a plaintiff may rely on circumstantial evidence to show pretext, “such evidence must be both specific and substantial, ” Villiarimo, 281 F.3d at 1062 (citing Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998)), and the plaintiff must prove “by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-43 (2000).
To show pretext, Ofuasia argues that Spirit Halloween has offered inconsistent reasons for asking her and her friend to leave the store. Specifically, Ofuasia attests that store employees “repeatedly stated they ‘had a video' showing one of us shoplifting, ” Ofuasia Decl. II ¶ 5, but now claim-after discovering that the videotape shows no shoplifting-that she and her friend were asked to leave because an employee saw one of them shoplifting. Thus, Ofuasia contends, “Defendants' in-store justification to Plaintiff and to the Vancouver police for their discriminatory conduct has been proven false and essentially made-up and must be discarded.” Pl's Mot. 4, ECF 27.
Even assuming the truth of Ofuasia's account and viewing the evidence in the light most favorable to her, it is difficult to find any material inconsistency in Spirit Halloween's proffered reasons as they each boil down to a suspicion of shoplifting. However, even if Spirit Halloween's reasons could be construed as inconsistent, that does not necessarily show pretext. In Johnson v. Nordstrom, Inc., 260 F.3d 727, 733-34 (9th Cir. 2001), for example, the Ninth Circuit acknowledged cases that found pretext based on inconsistent reasons; however, the court noted, “pretext [in those cases] was demonstrated by not only shifting but also conflicting, and at times retracted, justifications for adverse treatment.” Id. (citing Gordon v. United Airlines, Inc., 246 F.3d 878, 889 (7th Cir. 2001); Lawson v. CSX Transp. Inc., 245 F.3d 916, 931-32, n.13 (7th Cir. 2001)). Here, Spirit Halloween's explanations do not conflict, nor has Spirit Halloween ever retracted its sole reason for asking Ofuasia and her friend to leave the store. Further, even if Collins mistakenly told Ofuasia that store cameras caught her or her friend shoplifting, “a decisionmaker's mistaken judgment is not dispositive of the question of pretext” unless there is evidence that the stated justification “‘was either knowingly false or made in bad faith.'” Kelly v. Boeing, 400 F.Supp.3d 1093, 1109 (D. Or. 2019) (quoting Murray v. Kindred Nursing Centers W. LLC, 789 F.3d 20, 27 (1st Cir. 2015)).
Ninth Circuit caselaw also makes it clear that substantial and probative evidence is required to show that a defendant's non-discriminatory reasons were mere pretext. In Lindsey, for example, the court found “specific and substantial evidence” that “non-African Americans were treated differently from African Americans.” 447 F.3d at 1141. After a detailed analysis of the record, the court also found the defendant's explanations were “contradictory and confusing” and contained “substantial inconsistencies” that implicated decision-maker credibility. Id. at 1150. Ultimately, the plaintiff met the burden of persuasion by submitting evidence that “presented genuine issues of material fact for each of [the defendant's] proffered non-discriminatory reasons” Id. at 1149.
Similarly, in Ezell v. Edwards Theatres, Inc., No. 104-CV-6533-SMS, 2006 WL 3782698 (E.D. Cal. Dec. 21, 2006), the defendant movie theater ejected African American patrons based on disruptive behavior-a legitimate, non-discriminatory reason. The plaintiffs, however, marshalled significant evidence that showed the defendant's “deviation from procedures and policies, ” the “disparate treatment given to the white and black [customers], ” and the “undignified manner in which Plaintiffs were removed from the auditorium.” Id. at *15. Thus, the court held the evidence was sufficient to “permit a rational trier of fact to conclude that it is more likely than not that Defendant acted with the intent to discriminate against Plaintiffs on the basis of their race[.]” Id. at *17.
Here, however, it is not possible to conclude, on the basis of Ofuasia's limited evidence and legal authority, that there is a disputed issue of material fact as to the discriminatory intent necessary to her discrimination claims. See id. It is true that “because of the inherently factual nature of the inquiry, ” a plaintiff asserting claims of racial discrimination “need produce very little evidence of discriminatory motive to raise a genuine issue of fact.” Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir. 1991). But “when evidence to refute the defendant's legitimate explanation is totally lacking, summary judgment is appropriate, even though [the] plaintiff may have established a minimal prima facie case based on a McDonnell Douglas type presumption.” Lindsey, 447 F.3d at 1148 (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 890-91 (9th Cir. 1994)). Because such evidence of pretext is “totally lacking” here, Ofuasia has not refuted Spirit Halloween's non-discriminatory reason for its actions, and Spirit Halloween is entitled to summary judgment on Ofuasia's section 1981 claim.
B. Federal Discrimination Claims (42 U.S.C. § 1982, § 1985(3), and § 2000a)
For the reasons stated above, defendants are also entitled to summary judgment on the remainder of Ofuasia's federal law claims as they all require proof of discriminatory intent that plaintiff has failed to establish. See Mikes, 2019 WL 2251821, at *3 (observing the “prima facie case requirements section 2000a and 1981 are ‘substantially similar, '” and granting summary judgment to the defendant on both claims for plaintiff's failure to show discrimination); see also Blocker v. Wells Fargo Bank, No. 3: 08-cv-1196-PK, 2010 WL 6403721, at *8 (D. Or. Nov. 23, 2010), report and recommendation adopted in part, No. 3:08-cv-1196-PK, 2011 WL 1230026 (D. Or. Mar. 30, 2011), and report and recommendation adopted, No. 3:08-cv-1196-PK, 2011 WL 1753216 (D. Or. May 6, 2011) (noting section 1981 and 1982 claims are both analyzed under the McDonnell Douglas framework, and granting defendant summary judgment on both claims after finding that they both failed “as a matter of law” because defendant offered a legitimate, non-discriminatory reason for its conduct and the plaintiff failed “to offer evidence from which a reasonable factfinder could conclude . . . the reasons were pretextual.”); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000) (“An indispensable element of a claim under 42 U.S.C. § 1985(3) is some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirator's action[.]”).
As previously noted, plaintiff's section 1985(3) claim is alleged only against the Doe defendants who have never been identified or served. The claim nevertheless fails for the reasons discussed herein.
C. State Discrimination Claims (RCW §§ 49.60.030 and 49.60.215)
Similarly, Spirit Halloween's motion for summary judgment on Ofuasia's state discrimination claims should be granted. The McDonnel Douglas framework has been adopted by the Washington Supreme Court when reviewing discrimination claims under Washington law. See Djitte v. Delta Glob. Serv., No. 2:19-CV-00480-RAJ, 2020 WL 1689732, at *3 (W.D. Wash. Apr. 7, 2020), appeal dismissed sub nom. Djitte v. Delta Glob. Servs., No. 20-35400, 2020 WL 6582154 (9th Cir. Sept. 10, 2020). Under that framework, Ofuasia's inability to offer proof of intentional discrimination also means she is unable to demonstrate Spirit Halloween's justifications were “mere pretext.”
D. Plaintiff's IIED Claim
To state a claim for intentional infliction of emotion distress, a plaintiff must demonstrate (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) resulting severe emotional distress. Kloepfel v. Bokor, 149 Wn.2d 192, 196-197 (2003). Here, Ofuasia has offered no such evidence and only describes an interaction with Spirit Halloween employees that was brief in duration and involved no threatening behavior, racial epithets, or any other action that “goes beyond all possible bounds of decency.” Reyes v. Yakima Health Dist., 191 Wn.2d 79, 91 (2018). Despite Ofuasia's claim that Spirit Halloween's conduct caused her “to suffer severe emotional distress, embarrassment, and lasting and potentially permanent psychological and emotional injury, ” Am. Comp. 11, ECF 8, summary judgment for Spirit Halloween is appropriate as Ofuasia has failed to allege any of the predicate acts necessary for an IIED claim. See Lyons v. U.S. Bank Nat. Ass'n, 181 Wash.2d 775, 792-93, 336 P.3d 1142, 1151-52 (2014) (noting the “high burden” in IIED cases, finding the plaintiff's allegations “not so outrageous that they shock the conscience, ” and granting summary judgment to the defendant on the IIED claim).
IV. Plaintiff's Motion for Partial Summary Judgment
Ofuasia argues she is entitled to summary judgment on the issue of Spirit Halloween's liability for her First, Second, Third, and Fourth Claims (42 U.S.C. § 1981, § 1982, § 1985(3), and § 2000a) because Spirit Halloween's “claimed justification” for asking her and her friend to leave “has been proven false.” Pl.'s Mot. 5, ECF 5. Granting Spirit Halloween's motion for summary judgment obviates the need to rule on Ofuasia's motion because none of her claims remain viable. In any event, Ofuasia would not be entitled to summary judgment on any of her claims for the reasons stated above, including the fact she has not shown that Spirit Halloween's purported reason-suspicion of shoplifting-was a pretext for racial discrimination.
The court is mindful that the Ninth Circuit has emphasized that “discrimination claims are frequently difficult to prove without a full airing of the evidence and an opportunity to evaluate the credibility of the witnesses.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004). However, this case does not present “the kind of complex factual questions best addressed by juries.” Lindsey, 447 F.3d at 1153. Instead, plaintiff presents bare allegations and uncorroborated assertions that Spirit Halloween discriminated her on the basis of her race- evidence that does not present a triable issue of fact on claims of racial discrimination.
RECOMMENDATIONS
Defendant's motion for summary judgment (ECF 23) should be GRANTED, Plaintiff's Motion for Summary Judgment (ECF 21) should be DENIED, and judgment should be entered for defendants.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Wednesday, August 04, 2021. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.