United States District Court, N.D. California
[Copyrighted Material Omitted]
For Christian Ruiz Baptiste, Plaintiff: Derek Charles Decker, LEAD ATTORNEY, Frank Mathew Radoslovich, Megan A Shapiro, Radoslovich | Krogh PC, Sacramento, CA; Elizabeth Tange, LEAD ATTORNEY, Radoslovich Krough, Sacramento, CA.
For Hat World, Inc., Genesco, Inc., Defendants: Eric Meckley, LEAD ATTORNEY, Morgan, Lewis & Bockius LLP, San Francisco, CA; Kathryn M. Nazarian, Morgan, Lewis and Bockius, San Francisco, CA.
For Michael Samoon, Defendant: Daniel A. Croley, LEAD ATTORNEY, Futterman Dupree Dodd Croley Maier LLP, San Francisco, CA.
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
PHYLLIS J. HAMILTON, United States District Judge.
Defendants' motions for summary judgment came on for hearing before this court on December 11, 2013. Plaintiff Christian Ruiz Baptiste appeared by his counsel Derek C. Decker; defendants Genesco, Inc. (" Genesco" ), and Hat World, Inc. (" Hat World" ), appeared by their counsel Eric Meckley; and defendant Michael Somoon (" Somoon" ) appeared by his counsel Daniel A. Croley. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby GRANTS the motions as follows.
Plaintiff is a dark-skinned United States citizen of Puerto Rican and Haitian ancestry. He was employed by Hat World at a LIDS store in San Francisco. Plaintiff's employment with Hat World began on November 25, 2007, when he was hired as a part-time Sales Associate at store number 5968 located on Market Street in San Francisco, California (" the Market Street Store" ). Deposition of Christian Ruiz Baptiste (" Baptiste Depo." ), 52-55, Exh. 1; Declaration of Carrie Baird (" Baird Decl." ) ¶ 2.
The then-Store Manager, Paul Pamatmat, considered plaintiff to be a " very responsible and trustworthy individual." Deposition of Paul Pamatmat (" Pamatmat Depo." ), 52. Both Mr. Pamatmat and Assistant Store Manager Jennifer Burket (since married and changed last name to Watkins) recommended that plaintiff be promoted to the " Third Key" at the Market Street Store. Pamatmat Depo., 56; Declaration of Paul Pamatmat (" Pamatmat Decl." ) ¶ 3; Deposition of Jennifer Watkins (" Burket/Watkins Depo." ), 9; Deposition of Dale Nichols (" Nichols Depo." ), 43-44.
Plaintiff was promoted to the Third Key position on April 25, 2008. In this position, he had duties and responsibilities as a Sales Associate plus the added responsibilities of maintaining a key to the store, making sure inventory was stocked, counting cash, and making cash deposits. Baptiste Depo., 56, 69-71; Nichols Depo., 43-44; Baird Decl., ¶ 2. Both Mr. Pamatmat and Ms. Burket were happy with plaintiff's performance, and found him to be a good employee. Pamatmat Decl. ¶ 3; Pamatmat Depo., 59-60; Burket/Watkins Depo., 9, 63.
Plaintiff understood that his employment with Hat World was " at-will," and that Hat World could terminate his employment for no reason. Baptiste Depo., 229. Plaintiff never received a performance evaluation because he was employed for less than one year. Baird Decl., ¶ 5. However, he was also never written up or counseled for any performance issues. Baptiste Depo., 132; Burket/Watkins Depo., 10; Deposition of Carrie Baird (" Baird Depo." ), 36-38.
In July 2008, Somoon became the District Manager for Hat World's Northern California and Nevada District, which included about 20 stores employing approximately 100 employees. Cplt ¶ 14; Baptiste Depo., 99-100; Deposition of Michael Somoon (" Somoon Depo." ), 9, 14. According to Somoon, each store under his jurisdiction could typically expect to see him at least once a month. Somoon Depo., 14.
The Market Street Store was one of the stores that came under Somoon's jurisdiction. Plaintiff met Somoon only three times; and they never communicated via telephone, email, or text messaging. Baptiste Depo., 145. Plaintiff's first encounter with Somoon was in July 2008, when Somoon was at the Market Street Store for less than an hour. Baptiste Depo., 100-101, 145-146. When asked during his deposition, plaintiff initially did not remember having interacted with Somoon that day, other than an introduction and a handshake. Baptiste Depo., 101-102, 106. However, after resuming his testimony following a break in the deposition, plaintiff recalled that at some point during this encounter, " we were in front of the building and he [Somoon] had said, 'I don't like working with you people. . . . you are all
thieves.'" Baptiste Depo., 107-108, 116; Declaration of Christian Ruiz Baptiste (" Baptiste Decl." ) ¶ 4.
Nevertheless, even after recalling this incident, plaintiff continued to testify that Somoon was " cordial" during this initial meeting: " I thought that the first -- the first time that I met with Somoon he was cordial and he wasn't harassing me at all. I know from the second to the third time that I met with him, he was harassing me." Baptiste Depo., 110-112. Plaintiff did not ask Somoon what he meant by " you people; " instead, he just " shook it off" and left. Baptiste Depo., 117-118.
Plaintiff's second interaction with Somoon occurred when Somoon visited the Market Street Store in September 2008. Baptiste Depo., 106-107; 124. This visit lasted three to four hours. Baptiste Depo., 107, 124, 145-146. Plaintiff claims that while he was in the back room changing into his company work shirt, Somoon repeatedly hit him with the door, saying, " We're not paying you to get dressed, so hurry the fuck up." According to plaintiff, this action intimidated him. Baptiste Depo., 125-126; Baptiste Decl. ¶ 6.
Plaintiff testified further that during this visit, Somoon questioned him about why sales of discount cards were low and why test checks were showing a lot of missing merchandise. Baptiste Depo., 127-131. It was on this occasion that plaintiff claims Somoon called him a " lazy thug." Baptiste Depo., 131-133; see also Baptiste Decl. ¶ 7. Plaintiff asserts that Somoon also commented that plaintiff " dressed ghetto," which plaintiff did not understand because all employees at the store dressed the same. Baptiste Depo., 137-140. However, plaintiff did not ask Somoon what he meant by " dressing ghetto." Baptiste Depo., 139-140.
In addition, plaintiff asserts that Somoon " walked past me and whispered " nigger" in my ear." Baptiste Depo., 140. Plaintiff could not recall where he was when Somoon made this statement, but testified that Somoon muttered the word when walking past him. Baptiste Depo., 140-144. No one overheard Somoon make this comment. Baptiste Depo., 143. Plaintiff was bothered by this comment, and it " threw [him] off his game." Baptiste Depo. 144-145. However, plaintiff did not ask Somoon why he said " nigger," nor did he say anything else to Somoon about this comment. Baptiste Depo., 144.
Mr. Pamatmat testified that on that same occasion, Somoon stated that plaintiff should not be the Third Key -- that plaintiff was " lazy" and " not cut out for the job." Pamatmat Depo., 75-79. Mr. Pamatmat, on the other hand, felt that plaintiff was trustworthy and " up to the job," and insisted that plaintiff was " honest," " professional," and " a diligent employee." Pamatmat Depo., 133-137; Pamatmat Decl. ¶ 3.
Mr. Pamatmat told plaintiff that Somoon was hostile towards him (plaintiff) and wanted to fire him, and that plaintiff should watch out for Somoon. Pamatmat Depo., 104-106; Pamatmat Decl. ¶ 7; Baptiste Depo., 146-148. Plaintiff asked Mr. Pamatmat why Somoon didn't like him (plaintiff), and the response, according to plaintiff, was " '[H]e just doesn't. . . . He doesn't want you here. He wants to fire you.'" Baptiste Depo., 148. According to plaintiff, all this put him in fear of losing his job. Baptiste Decl. ¶ 8. Nevertheless, there is no evidence that plaintiff was looking for other employment during this time. Indeed, plaintiff testified that Mr. Pamatmat told him he was leaving Hat World for other employment, and that if plaintiff wanted to come with him, " there's a spot for you." Baptiste Depo., 149. However, notwithstanding his dislike of Somoon's comments, plaintiff responded, " 'I'm fine
here. Like, as long as I don't keep running into Somoon, I'll be fine.'" Baptiste Depo., 149. Plaintiff added that he did not take Mr. Pamatmat up on his offer to go work elsewhere because " I just got comfortable where I was at and I wanted to last at LIDS a year, so it doesn't look funny when I, you know, go off to another place. I want to try to have some type of consistency." Baptiste Depo., 150.
The third time plaintiff had any communication with Somoon was October 29, 2008. Baptiste Depo., 145. On that day, Somoon visited the Market Street Store to conduct a " Manager Change Audit" -- an audit that was ordinarily conducted whenever a new store manager was starting. Somoon Depo., 142-143; Baptiste Depo., 152.
Prior to conducting this audit, Somoon had observed that inventories (" test checks" ) of specific sections of merchandise in the store had reflected discrepancies between the merchandise that should have been present in the store versus what was actually present. Somoon Depo., 127-129, 145. In particular, Somoon questioned the accuracy of plaintiff's counts of the hats in the store's inventory. Somoon Depo., 128. About a week prior to the October 29, 2008, visit, Somoon reviewed the merchandise and inventories reported by plaintiff, and had noted several inaccuracies, which he discussed with the new store manager, David Eisen. Somoon Depo., 127-130.
Somoon testified that he initially simply wanted Mr. Eisen to talk with plaintiff about the accuracy of his test checks. Somoon Depo., 131, 146. During the course of the audit, however, Somoon conducted an inventory count and verified that there was additional missing merchandise -- and that " it was thousands of dollars' worth of missing product within a very short amount of time." Somoon Depo., 148-149. Plaintiff conceded in his deposition that Somoon was correct in concluding that there were hats missing from the store. Baptiste Depo., 163-164.
In an effort to locate the merchandise, Somoon searched the store and found four hats in " what appeared to be like a satchel" in the back room. Somoon Depo., 150, 153. The hats were " fashion hats . . . the expensive ones we had behind the counter." Somoon Depo., 153. According to Somoon, the hats had been worn and were dirty. Somoon Depo., 153. Ms. Burket, the Assistant Store Manager, identified the bag as belonging to plaintiff. Somoon Depo., 153-157; Burket/Watkins Depo., 25-27.
Somoon asked Ms. Burket if the hats were paid for, and she told him that as far as she knew, they were. Burket/Watkins Depo., 28. She also testified that she had no knowledge at that time that plaintiff was taking hats home without paying for them, although she agreed that when employees bought something from LIDS, their purchases for that store were kept in a file in the store. Burket/Watkins Depo., 30. Somoon testified that he reviewed plaintiff's purchase history file, but it did not reflect that plaintiff had purchased those particular hats. Somoon Depo., 160.
Somoon testified that he called his supervisor, Regional Director Dale Nichols, to inform him that he was going to question plaintiff about the missing hats. Somoon Depo., 170-171. According to plaintiff, Somoon left the store and sat in a
chair outside, in the mall's common area; he then came back into the store and told plaintiff he wanted to talk to him, and they both went to the seats in the mall, outside the store. Baptiste Depo., 157-159. Plaintiff testified that Somoon showed him a business card with some kind of police insignia on it, and said he used to be a police officer. Baptiste Depo., 160-161. He told plaintiff he " had evidence of me walking out with hats and stealing from the company." Baptiste Depo., 162.
Somoon also showed plaintiff an inventory report that showed a large number of hats were missing. Baptiste Depo., 163. Plaintiff responded that the hats were " probably stolen" but denied having stolen any of them; nevertheless, he accepted responsibility for approximately 12 of the missing hats. Baptiste Depo., 164-166. Plaintiff claims he did not take the hats, but that they must have been stolen by others during his shifts. Baptiste Depo., 165-166.
Nevertheless, plaintiff agreed to write a statement accepting responsibility for the missing hats. Baptiste Depo., 166. Plaintiff testified that he " felt it was my responsibility as a store employee if something gets stolen on my shift or I feel something got stolen on my shift, then I should own up to it, just so we can figure out how to go about it; maybe pairing me up with someone else while I'm working, just to make sure we all -- you know, there's more eyes out on the floor." Baptiste Depo., 167. However, while he felt that " was the right thing to do," he was not going to admit to having stolen the hats himself, " [b]ecause I didn't steal hats." Baptiste Depo., 167.
According to plaintiff, after this interchange, Somoon told him he had the option of either admitting to taking the hats or having the matter referred to the police -- and that his two police officer " buddies" were waiting downstairs, ready to arrest him. Baptiste Depo., 168. Plaintiff initially said he would not sign anything admitting to theft, and claims that Somoon took out a cell phone and told whoever was on the other end, " He's not cooperating" and " you guys need to come up here." Baptiste Depo., 169.
Somoon testified that he questioned plaintiff about why the hats were in the bag; and that plaintiff initially denied stealing, but then he admitted " wearing the hats and trying 'em out and wearing them to different parties and stuff and then bringing them back and changing them out for something else that he wanted to wear out and things like." Somoon Depo., 175. According to Somoon, plaintiff initially claimed he was just going to wear the hats and return them, but that eventually, plaintiff admitted to taking hats without paying for them, even selling or giving some to friends. Somoon Depo., 175-178. Somoon consulted with the Human Resources (" HR" ) Department, the Company's Loss Prevention Department, and his direct supervisor. Per their recommendations, he called the San Francisco Police Department (" SFPD" ) for assistance. Somoon Depo., 175-178.
At that point, Somoon stepped away and plaintiff (who was still sitting outside the store) called his mother on his cell phone. Baptiste Depo., 169. Somoon went back inside the store and then came back outside, where plaintiff was still on the phone with his mother. Baptiste Depo., 170. According to plaintiff, Somoon then talked to plaintiff's mother on the phone, accusing plaintiff of theft. Baptiste Depo., 170-171. He claims Somoon was shouting at her -- " calling me a thief and a liar, and . . . telling my mom it's in my best interest to just own up to it because he has all this evidence." Baptiste Depo., 171. " [H]e was calling me a liar; 'your son's a piece of
shit. You monkeys steal,' things like that." Baptiste Depo., 171.
When questioned further, however, plaintiff testified that he could not be certain that Somoon used the word " monkey; " he could only say that Somoon " said some type of derogatory statement about me and that I was a thief and that I couldn't be trusted." Baptiste Depo., 171-172. This conversation lasted about 5 minutes. Baptiste Depo., 171. Plaintiff could not hear what his mother said to Somoon, but he said he could hear her yelling at Somoon. Baptiste Depo., 175.
Plaintiff's mother, Esther Ruiz, testified in deposition that her son called her saying Somoon " wanted him to sign a letter saying that he was stealing." Deposition of Esther Ruiz (" Ruiz Depo." ), 36-37. She also testified that someone who identified himself as Somoon got on the phone with her " yelling and screaming that he [plaintiff] had to sign the letter, that he had videotapes of him stealing, and that my son was nothing but a thief and something about " you people" and on and on and on and on." Ruiz Depo., 37. She did not, however, hear Somoon (or the person claiming to be Somoon) make any racially derogatory remarks. Ruiz. Depo., 59.
According to Ms. Ruiz, Somoon repeatedly told her, " He has to sign this. He has to sign this. You, know he needs to sign this. I don't care what happens. He has to sign this paper. I know he's a thief." Ruiz Depo., 38. She thought Somoon was irrational, because " I guarantee you my son is not a thief," and she told Somoon to call the police if he believed plaintiff had been stealing. Ruiz Depo., 39-40. Somoon denies ever talking to plaintiff's mother. Somoon Depo., 190-191.
Somoon then told plaintiff to return to the store. Plaintiff called his mother's friend, Teresa Rodriguez, because " she knew somebody in the San Francisco Police Department." Baptiste Depo., 178-179. Ms. Rodriguez testified in her deposition that she spoke to Plaintiff on the phone on October 29, 2008. She confirmed that plaintiff " told me that his boss was accusing him of stealing, and since I know people in the law enforcement and I used to work for a law firm myself for about four years . . . and he called me for advice if I knew of a lawyer that I could call and ask what to do, because this -- his boss was accusing him of stealing." Deposition of Teresa Rodriguez (" Rodriguez Depo." ), 16. She advised him not to sign any statement admitting theft. Rodriguez Depo., 17.
Meanwhile, two San Francisco Police Officers had responded to the call. Baptiste Depo., 181. Plaintiff testified that he was in the back room (a very small storage room) and that he observed Somoon talking to the officers. Baptiste Depo., 183. Somoon stayed outside the store during his interaction with the SFPD officers. Baptiste Depo., 183.
Plaintiff testified that one of the police officers came into the back room, bent his arm behind his back and threw him up against a wall; that he yelled out in pain; that the officer pushed his face into the wall and threatened to " break" his teeth if he cried out again; and that the officer knocked the cell phone out of his hand. Baptiste Depo., 183-185. According to plaintiff, the officer then told him " that he deals with monkeys like me every day; 'all you niggers steal. I don't care if you stole hats or not, just sign the piece of paper.'" Baptiste Depo., 187-188.
Plaintiff testified that this encounter lasted two to three minutes. Baptiste Depo., 188-190. The officer then left the back room and plaintiff followed. Plaintiff did not hear Somoon tell the officers he wanted them to do anything to plaintiff.
Ms. Rodriguez claims that after talking to plaintiff on the phone, she drove to the Market Street Store to pick him up, and that when she was arriving, she saw a " bald man" laughing with two police officers, across the street. Rodriguez Depo., 28-29. She could not identify the race of the bald man. She could not see the bald man's face, but plaintiff later told her it was Somoon. Rodriguez Depo., 34, 37-38, 86.
The two police officers who came to the Market Street Store on October 29, 2008 were Officer Noel Schwab and Officer Adam Street. Officer Schwab testified that he and his partner responded to a notification advising them that there was an issue of internal theft. Schwab Depo., 56-57. Officer Schwab testified that plaintiff did not yell " ouch" (or anything like it) during their interaction; he also denied swearing at plaintiff, threatening to break his teeth, calling him racist names, or making any of the threats plaintiff detailed in the complaint. Schwab Depo., 24-28, 37-41. Rather, he testified, it seemed to be a " pretty calm situation when we got there; " Somoon was calm, and did not want to have plaintiff arrested but preferred to handle the matter " internally" within the company. Schwab Depo., 27-28, 30. Officer Schwab denied having met Somoon before this incident, and did not recall laughing with Somoon on the street after the incident. Schwab Depo., 16, 22, 44.
Officer Street testified that the officers met with plaintiff in the store's back room, where they explained to him that he needed to sign a statement admitting to the theft or he would be arrested. They left him alone to decide what to do, and, after a short time, plaintiff told them he would sign a statement. Street Depo., 16-17. According to Officer Street, Somoon's demeanor was calm and he was not yelling. Street Depo., 19-20. Officer Street denied the physical altercation plaintiff alleges, and denied using any racial slurs. Street Depo., 20-24, 30. He also testified that Somoon did not want to press charges if plaintiff signed a statement admitting to the thefts. Street Depo., 29. He denied meeting with Somoon on the street afterwards. Street Depo., 29-30.
After the officers left, plaintiff hand-wrote the following statement: " I Christian Baptiste feel that its my responsibility to come clean about the following. In my eleven months at the company I left the store with some hats that I did not pay for. I brought the hats back." Baptiste Depo., 196-197; Exh. 5. Plaintiff testified that these were his own words, and that the statement was true. Baptiste Depo., 198-199, ...