Opinion
NO. 3:99-CV-1291-P.
October 23, 2000.
MEMORANDUM OPINION AND ORDER
Presently before the Court are:
1. Defendants Dillard Department Stores, Inc., Dillard Texas Operating Limited Partnership, and Mike Litchford's Motion for Summary Judgment, filed August 18, 2000;
2. Affidavit of Shirley Shaw as Plaintiffs Response to Defendants' Motion for Summary Judgment, filed September 22, 2000; and
3. Defendants' Reply to Plaintiffs Response to Motion for Summary Judgment, filed September 27, 2000.
In their current motion, Defendants argue that Plaintiff has failed to present evidence that would create a triable issue of material fact with respect to the essential elements of her claims. Defendants therefore move for judgment as a matter of law on all of Plaintiffs causes of action. For the reasons set forth below, the Court concludes that Defendants' motion for summary judgment should be GRANTED in its entirety.
BACKGROUND
Plaintiff filed the current lawsuit, alleging the state law tort claims of malicious prosecution, intentional infliction of emotional distress, and false imprisonment, as well as civil rights violations under 42 U.S.C. § 1983, against all of the Defendants, including Dillard Department Stores, Inc., Dillard Texas Operating Limited Partnership, and Mike Litchford. Plaintiff sues the two Dillard entities under a vicarious liability theory for the actions of its agent and store manager, Mike Litchford.
Shirley Shaw, Plaintiff in this action, originally filed this suit in Dallas County District Court on May 5, 1999, naming Dillard Department Stores, Inc. and Mike Litchford as Defendants. On June 7, 1999, Defendants removed this action to federal court. Plaintiff filed a First Amended Complaint on July 26, 1999, which added Dillard Texas Operating Limited Partnership as a Defendant.
This lawsuit arises out of the events occurring while Plaintiff was employed as a sales associate selling fragrances in the cosmetics department of Dillard's department store at Southwest Center Mall. Specifically, on May 10, 1997, store manager Mike Litchford observed Shaw giving a gift-with-purchase ("GWP") item to a customer, allegedly against store policy. Thereafter, Shaw's supervisor, Annette Coleman, told Shaw that she "needed to go upstairs and meet with Mike." Def. App. at 11-12. Both women then went upstairs to Mike Litchford's office. Id. at 13-17.
Southwest Center Mall was formerly known as Red Bird Mall.
Gift-with-purchase ("GWP") items are used by Dillard's as an incentive to encourage customers to purchase specific cosmetics, fragrances, or other products. The items are given to a customer during a current promotion if a qualifying purchase is made, and are limited to one promotional gift per customer. Def. App. at 7, 55, 97.
Upon arriving at Litchford's office, Shaw states she was met by Litchford and operations manager J. R. Flores. Litchford, with Coleman and Flores present, proceeded to question Plaintiff regarding the transactions involving GWP items. Id. at 22-23. After Plaintiff was asked about the events that had transpired, she wrote a personal statement describing her handling of the GWP items and implicated other sales associates for similar practices. Id. at 26-27, 35.
According to Shaw, an off-duty police officer, Officer Maples, who was working as a security guard for Dillard's, then came into Litchford's office and, at the bequest of Litchford, read Shaw her rights. Id. at 26, 33-34. The two men then left the office for several minutes. Id. Shortly thereafter, Officer Maples returned and gave Shaw a citation for theft. Id. at 33. Although it is not clear from Plaintiff's recitation of the facts, Shaw alleges that, at some point, Litchford told Officer Maples to arrest Shaw and also told Officer Maples to give Shaw a ticket. Plf. Aff. at 1-2.
In the end, Litchford terminated Shaw's employment for violating store policy on the ground that Shaw had improperly given GWP items to customers, and Shaw was banned from all Dillard's department stores in the future. Def. App. at 33. In addition, Officer Maples told Shaw to pay the ticket and move on with her life, and then escorted her out of the store. Id. at 33, 40.
Shaw was terminated for violating Dillard's work rule no. 5 pertaining to "dishonesty" Def. Aff. at 89. The other employees implicated by Shaw in her personal statement were also terminated for violating work rule no. 5. Id. at 64, 91.
Some months later, Mike Litchford was subpoenaed by the Dallas City Attorney's office to appear as a witness in a municipal court proceeding relating to Shaw's ticket for theft. Id. at 68, 99. When Litchford arrived at the municipal court proceeding, he was advised by the city attorney that she had decided to dismiss the prosecution of Shaw's theft ticket. Id.
DISCUSSION
A. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323.
Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
Finally, the Court has no duty to search the record for triable issues. Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992). The Court need only rely on the portions of submitted documents to which the non-moving party directs. Id.
B. False Imprisonment Claim
Plaintiff brings a cause of action for false imprisonment against Defendants. Plf. Am. Cmplt. at 4. To support a claim of false imprisonment, Plaintiff must prove the following essential elements: (1) willful detention; (2) without consent; and (3) without authority of law. Sears, Roebuck Co. v. Castillo, 693 S.W.2d 374, 375 (Tex. 1985).
At the onset, the Court notes that Plaintiff has entirely failed to brief any of Plaintiffs causes of action or cite the Court to any relevant case law on the issues at bar. Plaintiff offers only her two-page affidavit as a response to Defendant's motion for summary judgment. Furthermore, Plaintiffs affidavit fails to even address the issue of false imprisonment.
The Court looks to Plaintiffs Amended Complaint, in which she alleges that she was threatened with being sent to jail. Plf. Am. Cmplt. at 3. This allegation alone, however, is insufficient to establish a willful detention. Morales v. Lee, 668 S.W.2d 867, 869 (Tex.App. — San Antonio 1984, no writ); Safeway Stores, Inc. v. Amburn, 388 S.W.2d 443 (Tex.Civ.App.-Fort Worth 1965, no writ). The evidence in the record indicates that Shaw acquiesced to going to Litchford's office, to being questioned about her alleged wrongdoing, and thus was not confined against her will. In fact, Shaw admits that she never asked or attempted to leave Litchford's office or use the telephone, and was not prevented from doing so. Def. App. at 24-25, 38. Shaw also acknowledges that she was left alone in Litchford's office on several occasions. Id. at 23, 27, 29, 30.
Plaintiff claims that Litchford told her to write a statement about everything that happened and that she would be taken to Lew Sterrett Jail and would lose her day job if she did not write the statement. Def. App. at 21, 26, 42.
In addition, Plaintiff claims that, when she arrived at Litchford's office, two off-duty police officers working as security guards for Dillard's stood in the doorway of a security office, which was located across the hall from Litchford's office. Assuming arguendo that Shaw's assertion is true, the conclusion that two security guards standing in the doorway of their own office was intended as a threat or a means to confine Plaintiff in Litchford's office is wholly speculative in nature. Without more, there is no evidence that Plaintiff was detained against her will, and thus Plaintiffs false imprisonment claim fails as a matter of law.
C. Malicious Prosecution Claim
A brief discussion of the relevant case law and various allegations Plaintiff has made in support of her malicious prosecution claim will assist the Court in explaining why Shaw's current allegations do not state a claim for malicious prosecution.
To succeed in a malicious prosecution claim, a plaintiff must establish:
(1) the commencement of a criminal prosecution against the plaintiff;
(2) causation (initiation or procurement) of the action by the defendant;
(3) termination of the prosecution in the plaintiffs favor;
(4) the plaintiffs innocence;
(5) the absence of probable cause for the proceedings;
(6) malice in filing the charge; and
(7) damage to the plaintiff.
Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (1997).
To maintain the balance between protecting citizens from malicious prosecution and preserving the reporting of crime, the exact prerequisites for liability in malicious prosecution must be strictly adhered to. Browning-Ferris Industries v. Lieck, 881 S.W.2d 288, 291 (1994) (stating that even "a small departure . . . may threaten this delicate balance").
As to the causation element, Defendants must have either initiated or procured Plaintiffs prosecution. Initiation requires filing formal charges with law enforcement authorities. Lieck, 881 S.W.2d at 292-93. Plaintiff makes no such contention in this case. Alternately, procurement has occurred if "[Defendant's] actions were enough to cause the prosecution, and but for his actions the prosecution would not have occurred." Id. at 293. Procurement does not occur "when the decision whether to prosecute is left to the discretion of another, including a law enforcement official . . . unless the person provides information which he knows is false." Id. Nor is there liability for "merely aiding or cooperating in causing a criminal prosecution;" otherwise people might not wish to cooperate with law enforcement. Id. at 292.
Plaintiff alleges that "Mike Litchford told Officer Maples to arrest me for theft without cause," Plf. Aff. at 1; and Defendant Litchford "told him [the police officer] to read me my rights." Def. App. at 26, 34. Furthermore, Plaintiff asserts that "[a]s a result of Mike Litchford instructing Officer Maples to give me a ticket and Officer Maples doing so . . . ." Plf. Aff. at 2. Such statements offered by Plaintiff are merely conclusory allegations and do not present a genuine issue of material fact. Assuming arguendo that Defendant Litchford did tell the police officer to read Plaintiff her rights, arrest her, and give her a citation, the Court could not conclude that Officer Maples would not have taken action against Plaintiff but for Litchford having instructed the police officer to do so.
Defendant Litchford denies instructing Officer Maples to take any such action against Plaintiff.
In addition, Plaintiff alleges that Litchford did not fully and fairly disclose all material information and knowingly provided false information to a police officer, causing a criminal prosecution. Plf. Am. Cmplt. at 4. Litchford states that he informed the police officers of the incident involving Shaw and several other associates "in the event Shirley Shaw and the other sales associates who were terminated that day caused a disruption after their termination." Def. App. at 98. Litchford further states that he told police officers about the alleged wrongdoing he observed on the part of Shaw. Id. at 70. Moreover, Litchford states that he gave Shaw's personal statement as well as the statements written by the other associates to the police officers to inform them of the developing situation. Id. In response, Plaintiff pleads no facts that the information relayed by Litchford was false or incomplete. The only evidence Shaw offers is that Litchford told her to write the statement or she would be taken to Lew Sterrett Jail and would lose her day job. Def. App. at 21, 26, 42. Plaintiff does not allege that Litchford forced her to write admissions in the statement that were not true. In fact, Plaintiff does not refute any of the declarations she made in her statement. Thus, the Court can not conclude that Plaintiff's statement is tainted or that it constitutes giving false information to a police officer. There is no liability for one who merely aids the police. Lieck, 881 S.W.2d at 292. To permit a malicious prosecution charge against a defendant for merely giving information to the police would unduly inhibit the reporting of crimes.
As a second ground for granting summary judgment, the court notes that Plaintiff has not established the other elements of malicious prosecution, including specifically, the absence of probable cause for the proceedings against her. Probable cause is "the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor [complainant] that the person charged was guilty of the crime for which he was prosecuted." Brookshire Grocery, 952 S.W.2d at 517, 518 (noting also that "[w]hat facts and circumstances amount to probable cause is a pure question of law." (internal quotes omitted)). Based on the information the officer had at the time, including the personal statement written by Plaintiff herself (Def. App. at 70) and given the uncontroverted contents of the statement (Def. App. at 100), it is clear that the officer had sufficient evidence to decide, on his own, whether to issue the citation to Plaintiff.
Finally, Plaintiff fails to prove the existence of malice on the part of Defendants. Plaintiff asserts in her Affidavit that "Mike Litchford had no reason other than malice and personal ill will to tell Officer Maples to arrest me." This allegation is clearly conclusory and speculative; no facts are pled to support such a statement. Thus, the evidence in the record is inadequate to support a claim for malicious prosecution, and Plaintiffs claim therefore fails as a matter of law.
D. Intentional Infliction of Emotional Distress
Plaintiff asserts a common law claim for intentional infliction of emotional distress against Defendants. To recover for intentional infliction of emotional distress, a plaintiff must prove that (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). In Twyman, the Texas Supreme Court adopted the Restatement's formulation of the tort of intentional infliction of emotional distress, including the definition of extreme and outrageous conduct as conduct that is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. (quoting Restatement (Second) of Torts § 46 cmt. d (1965)); see also Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir. 1993).
It is only in "the most unusual cases" that an employer's conduct may be regarded as so extreme and outrageous that it gives rise to a claim for intentional infliction of emotional distress. Hirras v. National R.R. Passenger Corp., 95 F.3d 396, 400 (5th Cir. 1996) (citing Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 654 (5th Cir. 1994)). Thus, such a claim normally does not lie for "mere employment disputes." MacArthur v. University of Tex. Health Cir., 45 F.3d 890, 898 (5th Cir. 1995); Johnson v. Merrell Dow Pharmaceuticals, Inc., 965 F.2d 31, 33 (5th Cir. 1992) (per curium).
Here, Plaintiff cannot sustain a claim for intentional infliction of emotional distress against Defendants. The entire argument made by Plaintiff on this claim is that "[a]s a result of Mike Litchford instructing Officer Maples to give me a ticket and Officer Maples doing so, I suffered mental anguish, embarrassment and loss of reputation . . . ." (Plf. Aff. at 2). This statement is a conclusory allegation unsubstantiated by any evidence. Such an allegation is simply not enough to sustain a claim for intentional infliction of emotional distress. Consequently, Plaintiffs action for intentional infliction of emotional distress fails as a matter of law.
E. 42 U.S.C. § 1983 Claim
Plaintiff bases her federal law claim on 42 U.S.C. § 1983. To state a cause of action under Section 1983, a plaintiff must allege that some person, acting under the color of state law, has deprived him of a right "secured by the Constitution and the laws" of the United States. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978); Cinel v. Connick, 15 F.3d 1338, 1342 (1994) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980); Auster Oil Gas, Inc. v. Stream, 764 F.2d 381, 387 (5th Cir. 1985), cert. denied, 488 U.S. 848 (1988)). A o private party may be held liable under Section 1983 if he is a "`willful participant in joint activity with the State or its agents.'" Cinel, 15 F.3d at 1343 (quoting Adickes v. S.H Kress Co., 398 U.S. 144, 152 (1970); Stream, 764 F.2d at 387).
42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
The Fifth Circuit recognizes causes of action under § 1983 for illegal detention (or false imprisonment) and malicious prosecution. See Sanders v. English, 950 F.2d 1152, 1159 (5th Cir. 1992), citing Simmons v. McElveen, 846 F.2d 337 (5th Cir. 1988) (false imprisonment); Hand v. Gary, 838 F.2d 1420, 1424, 1427 (5th Cir. 1988) (malicious prosecution); Brummett v. Camble, 946 F.2d 1178, 1180 n. 2 (5th Cir. 1991) (tracing origins of malicious prosecution action under § 1983). As discussed previously, however, Plaintiff has failed to provide sufficient evidence to support her claims for false imprisonment and malicious prosecution. See Parts II-B, C supra. Even if Plaintiff had established that she was deprived of a constitutionally-protected right, Shaw has provided no evidence that Defendants acted in concert with a police officer, as needed for a Section 1983 claim.
For a court to hold a non-governmental private defendant liable under Section 1983, a plaintiff must assert that state action was present so as to make the private party a state actor. To establish the requisite state action, a plaintiff must show that the police acted in accordance with a "customary" or "preconceived plan" with the private party, not on the basis of their own investigation. Bartholomew v. Lee, 889 F.2d 62, 62-63 (5th Cir. 1989); Hernandez v. Schwegmann Bros. Giant Supermarkets, Inc., 673 F.2d 771, 772 (5th Cir. 1982); White v. Scrivner Corp., 594 F.2d 140, 143 (5th Cir. 1979); Smith v. Brookshire Bros., 519 F.2d 93, 94 (5th Cir. 1975), cert. denied, 424 U.S. 915, 96 S.Ct. 1115, 47 L.Ed.2d 320 (1976).
To satisfy the state action requirement, Plaintiff offers statements intended to show that Officer Maples acted on the say-so of Defendants and without independent investigation. Shaw asserts that "Mike Litchford told Officer Maples to arrest me for theft without cause," Plf. Aff. at 1; Defendant Litchford "told him [the police officer] to read me my rights." Def. App. at 26, 34; and "As a result of Mike Litchford instructing Officer Maples to give me a ticket and Officer Maples doing so . . . ." Plf. Aff at 2. Such allegations, however, do not establish a preconceived plan between Defendants and Officer Maples, nor do they show that the police officer did not make an independent determination whether there was cause to issue a citation to Plaintiff. In other words, the record simply does not include any evidence of an actual agreement between Defendants and the police officer.
In sum, Plaintiff does not provide sufficient evidence to meet the threshold requirements of a Section 1983 claim — i.e., that Plaintiff was deprived of a federal right and that Defendants were acting under color of state law if and when that federal right was deprived. Consequently, Plaintiff has not asserted a genuine issue of material fact as to her federal civil rights claim, and it therefore fails as a matter of law.
F. Claims that Dullard Department Stores, Inc. is not a Proper Party-Defendant and Tort Claims are Barred by the Texas Workers' Compensation Act
Because the Court agrees that Plaintiff has not presented a genuine issue of material fact as to any of her claims, we grant Defendant's motion for summary judgment on all of Plaintiff's claims without reaching these issues.
CONCLUSION
For the foregoing reasons, the Court finds that Plaintiff has failed to demonstrate a genuine issue of material fact on any of her claims. The pleadings, depositions, and affidavits, when considered together, do not establish the essential elements required for each cause of action. Accordingly, Defendants' Motion for Summary Judgment is hereby GRANTED in its entirety, and all of Plaintiff's claims against Defendants Dillard Department Stores, Inc., Dillard Texas Operating Limited Partnership, and Mike Litchford are DISMISSED WITH PREJUDICE.
So Ordered.