Johnson v. Grady Way Station LLC et al, No. 2:2008cv01651 - Document 71 (W.D. Wash. 2009)
Court Description: ORDER denying 37 Motion for Summary Judgment; denying 40 Motion for Summary Judgment by Judge Richard A Jones. The court directs the parties to appear for a pretrial conference at 3:00 p.m. on October 30, 2009. Trial will commence on November 9, 2009. (JJ)
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Johnson v. Grady Way Station LLC et al Doc. 71 HONORABLE RICHARD A. JONES 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 CARLOS JOHNSON, 10 Plaintiff, 11 CASE NO. C08-1651RAJ v. ORDER 12 GRADY WAY STATION, LLC, et al., 13 Defendants. 14 15 16 17 18 I. INTRODUCTION This matter comes before the court on cross-motions for summary judgment (Dkt. ## 37, 40). Plaintiff has requested oral argument; Defendants have not. The court finds these motions appropriate for disposition without oral argument. For the reasons stated below, the court DENIES both motions. 19 20 21 22 23 24 25 26 II. BACKGROUND No one disputes that on September 10, 2008, Plaintiff Carlos Johnson attempted to purchase ten dollars’ worth of gasoline from a station in Renton, Washington, operated by Defendant Grady Way Station, LLC. Mr. Johnson gave ten dollars to Defendant Jay Cramer, the cashier on duty, then returned to his vehicle to pump gas. The pump did not work. Mr. Johnson returned to Mr. Cramer to inform him that the pump was not working; Mr. Cramer told him to try again. The two men repeated this process several times. Mr. Cramer at one point had Mr. Johnson attempt to get gasoline from a different 27 28 ORDER – 1 Dockets.Justia.com 1 pump. Finally, Mr. Johnson gave up, and asked Mr. Cramer to return his ten dollars. As 2 Mr. Cramer returned the money to Mr. Cramer, he used either the term “nigger” or 3 “nigga” at least once. According to his counsel, Mr. Johnson’s “racial identity was and is 4 that of a Black male,” and his “ethnic identity was and is that of an Afro-American.” 5 Pltf.’s Mot. at 2. 6 Mr. Cramer and Mr. Johnson have sharply different views of the transaction. Mr. 7 Johnson alleges that at some point Mr. Cramer was deliberately refusing to dispense 8 gasoline to him, and that his decision to do so was racially motivated. He alleges that 9 when he asked for his money back, Mr. Cramer responded: “Nigger, what’s your 10 problem?” When Mr. Johnson expressed shock to other customers, Mr. Cramer allegedly 11 said, “Yea, I called you a Nigger. So what.” Mr. Johnson contends that Mr. Cramer 12 threw ten dollars at him, and told him to “get the fuck out of the store.” Mr. Johnson 13 called the police soon thereafter, and a Renton Police Officer responded to the incident. 14 According to Mr. Cramer, Mr. Johnson’s inability to pump gas was due to his own 15 error, Mr. Cramer’s error, or a combination of the two. He contends that he was juggling 16 several customers, and inexperienced with the pump equipment. Mr. Johnson was 17 “flaming mad” when he returned to demand his money back. Mr. Cramer claims that he 18 did not call Mr. Johnson a “nigger,” but rather said “whoa, whoa, nigga please,” and did 19 so “in sort of a kinship way” in an effort to calm him. Defs.’ Opp’n at 4. He placed the 20 ten dollars on the counter, rather than throwing it at Mr. Johnson. When Mr. Johnson 21 reacted strongly to his use of the term “nigga,” he apologized twice. He undisputedly 22 apologized to Mr. Johnson, to a police officer who responded to the incident after Mr. 23 Johnson called for assistance, and to his employer. In his view, he inadvertently offended 24 Mr. Johnson, but had neither racial animus toward him nor a desire to prevent him from 25 buying gas. 26 The parties offer a plethora of evidence and argument in support of their versions 27 of these events. At least one customer at the station witnessed the incident and has 28 ORDER – 2 1 offered testimony. The Renton Police Officer who responded to the scene took 2 statements from both Mr. Cramer and Mr. Johnson. Mr. Cramer and Mr. Johnson have 3 offered their versions of events in several declarations to this court, as well as in 4 depositions. The electronic record of transactions on the station’s pumps is part of the 5 record, but it does not conclusively show either intentional or accidental conduct on Mr. 6 Cramer’s part. The parties debate the difference (if any) between the terms “nigger” and 7 “nigga,” and attempt to demonstrate that these words are or are not invariably racially 8 offensive. As the court discusses below, a jury, not this court, must resolve the parties’ 9 disputes. 10 III. ANALYSIS 11 The court cannot resolve factual disputes in resolving a summary judgment 12 motion. The court must instead draw all inferences from the admissible evidence in the 13 light most favorable to the non-moving party. Addisu v. Fred Meyer, Inc., 198 F.3d 14 1130, 1134 (9th Cir. 2000). Summary judgment is appropriate where there is no genuine 15 issue of material fact and the moving party is entitled to a judgment as a matter of law. 16 Fed. R. Civ. P. 56(c). The moving party must initially show the absence of a genuine 17 issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The opposing 18 party must then show a genuine issue of fact for trial. Matsushita Elect. Indus. Co. v. 19 Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must present 20 probative evidence to support its claim or defense. Intel Corp. v. Hartford Accident & 21 Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). The court defers to neither party in 22 answering legal questions. See Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th 23 Cir. 1999). 24 Mr. Johnson asserts four claims arising out of his encounter with Mr. Cramer. He 25 alleges violations of 42 U.S.C. §§ 1981-82, violations of the Washington Law Against 26 Discrimination (“WLAD”), violations of the Washington Consumer Protection Act 27 (“CPA”), and intentional infliction of emotional distress. Both parties believe that no 28 ORDER – 3 1 disputed facts prevent the court from deciding what happened at the Grady Way Station 2 on the day in question, and thus the court can decide whether Defendants are liable as a 3 matter of law. The parties are wholly mistaken. The evidence before the court reveals 4 numerous factual disputes. The court need not highlight each of them. There are many, 5 and a jury, not the court, must resolve them. As a result of those disputes, the court 6 cannot determine if Mr. Cramer expressed any racial animus toward Mr. Johnson, much 7 less if his alleged animus led him to deliberately refuse to sell him gasoline. The court 8 cannot determine what term Mr. Cramer used when referring to Mr. Cramer, nor can the 9 court determine what Mr. Cramer meant by the term. In short, the court can only 10 determine that Mr. Johnson was unsuccessful in purchasing gas, and that he has brought a 11 lawsuit as a result. 12 The remainder of this order discusses Mr. Johnson’s causes of action, highlighting 13 factual disputes that prevent the court from determining liability. The court’s discussion 14 of these disputes is not exhaustive. The parties raise many more disputes than the court 15 addresses in this order. 16 1. 17 The federal statutes that Mr. Johnson invokes protect private parties from, among 18 other things, discrimination in the making and enforcement of contracts and in purchases 19 of real property. 42 U.S.C. § 1981(a) (“All persons within the jurisdiction of the United 20 States shall have the same right in every State and Territory to make and enforce 21 contracts . . . .”); 42 U.S.C. § 1982 (“All citizens of the United States shall have the same 22 right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, 23 purchase, lease, sell, hold, and convey real and personal property.”). 24 Federal Civil Rights Claims If a jury believes Mr. Cramer, then he did not deprive Mr. Johnson of property 25 because of his race. Instead, he temporarily deprived Mr. Johnson of property because he 26 lacked either the focus or the competence to operate the pumps. Mr. Johnson terminated 27 28 ORDER – 4 1 the transaction out of frustration, and Mr. Johnson’s expression of racial animus (if there 2 was one) came after Mr. Johnson had already decided to terminate the transaction. 3 If a jury believes Mr. Johnson, then they may conclude that racial animus 4 motivated Mr. Cramer’s slur and also motivated Mr. Cramer’s refusal to dispense 5 gasoline to Mr. Johnson. The court cannot determine on a summary judgment motion 6 whose version of events to believe. 7 Much of Mr. Johnson’s argument is pinned to his erroneous view that Mr. 8 Cramer’s “use of a racial slur in the midst of a commercial retail sales transaction is 9 conclusive evidence of a racially discriminatory intent.” Pltf.’s Mot. at 11. Mr. Johnson 10 offers no legal support for this view. The cases he cites properly note that the use of a 11 racial slur is evidence of racial animus. It is not conclusive evidence. It is possible that 12 Mr. Cramer meant nothing derogatory, despite his use of a slur with a deplorable history. 13 It is possible that Mr. Cramer is a bigot, but nonetheless was not discriminating against 14 Mr. Johnson. Mr. Johnson’s view that the use of a racial slur is dispositive of liability in 15 this case is mistaken. 16 2. WLAD Claim 17 The WLAD’s prohibition of invidious discrimination, including racial 18 discrimination, guarantees citizens “the right to full enjoyment of” public 19 accommodations. RCW § 49.60.030(1)(b). Defendants concede, as they must, that 20 Grady Way Station is a public accommodation. They request summary judgment 21 because they assert that the “offensive post-contractual language used by Mr. Cramer was 22 uttered after [Mr. Johnson] indicated he was no longer interested in exercising ‘the right 23 to full enjoyment of any of the accommodations, advantages, or privileges’ of Grady 24 Way Station.” Def.’s Mot. at 16 (quoting RCW 49.60.030(1)(b)). 25 Unlike Mr. Johnson’s federal claims, his WLAD claim does not require him to 26 prove that Mr. Cramer refused to sell him gas because of his race. He need only prove 27 that he was deprived of his “right to full enjoyment” of the gas station because of his 28 ORDER – 5 1 race. As the court has noted, Mr. Johnson’s use of a racial slur is evidence of racially 2 motivated conduct. Nonetheless, a reasonable jury could believe Mr. Johnson’s assertion 3 that he was using that slur as an expression of kinship in an effort to calm Mr. Johnson. 4 The parties endlessly debate the meaning and context in which the terms “nigga” or 5 “nigger” may be used.1 The jury must decide what Mr. Cramer said, what he meant by it, 6 and what the surrounding circumstances prove about the motivation for his conduct 7 toward Mr. Cramer. 8 3. CPA Claim 9 The CPA provides a private right of action to a plaintiff who suffers injury in his 10 “business or property” as a result of, among other things, “unfair or deceptive acts” that 11 occur in trade or commerce. RCW § 19.86.020 (prohibiting “unfair or deceptive acts or 12 practices in the conduct of any trade or commerce”); § 19.86.090 (delimiting private right 13 of action). Violations of the WLAD that occur in the course of trade or commerce are per 14 se violations of the CPA. State v. Schwab, 693 P.2d 108, 110-111 & n.8 (Wash. 1985). 15 Again, Defendants’ sole basis for avoiding Plaintiffs’ CPA claim is their 16 contention that Mr. Johnson had completed his “trade or commerce” at Grady Way 17 Station before any discriminatory conduct occurred. For the reasons already stated, the 18 court rejects that argument. The court also rejects, however, Plaintiff’s contention that 19 the court can find discriminatory conduct as a matter of law. Again, a reasonable jury 20 could conclude that Mr. Johnson’s race did not motivate Mr. Cramer’s conduct. 21 4. 22 A plaintiff claiming intentional infliction of emotional distress (also known as 23 Intentional Infliction of Emotional Distress “outrage”) must prove three elements: “(1) extreme and outrageous conduct, (2) 24 1 27 Defendants introduce evidence of the use of the term “nigger” in popular culture, including in song lyrics. Mr. Johnson has asked the court to strike that evidence. The evidence is of little use to the court. The only relevant issue in this case is what Mr. Cramer meant by his use of the term. Evidence of song lyrics and popular debate over the use of the term is marginally relevant at best. The court declines to strike the evidence, however, as Defendants’ use of it has neither influenced the court’s decision nor otherwise prejudiced Mr. Johnson. 28 ORDER – 6 25 26 1 intentional or reckless infliction of emotional distress, and (3) severe emotional distress 2 on the part of the plaintiff.” Robel v. Roundup Corp., 59 P.3d 611, 619 (Wash. 2002). 3 To satisfy the first element, the plaintiff must prove conduct “so outrageous in character, 4 and so extreme in degree, as to go beyond all possible bounds of decency, and to be 5 regarded as atrocious, and utterly intolerable in a civilized community.” Id. (quoting 6 Dicomes v. State, 782 P.2d 1002 (1989)). A court need not permit a jury to resolve an 7 outrage claim if it determines that reasonable minds could not differ on whether the 8 challenged conduct was sufficiently outrageous. Id. 9 Mr. Johnson believes that whatever slur Mr. Cramer used, it was “extreme and 10 outrageous” as a matter of law. Mr. Johnson is mistaken. Even if a jury finds racial 11 animus in Mr. Cramer’s conduct, it need not necessarily find his conduct extreme and 12 outrageous. Indeed, Defendants’ contention that Mr. Cramer’s conduct, even viewed in 13 the light most favorable to Mr. Johnson, was not sufficiently outrageous presents a close 14 question. A single use of a racial epithet perhaps does not constitute sufficiently 15 outrageous behavior. In this case, however, Mr. Johnson may be able to prove racially 16 motivated misconduct preceding the racial epithet, and may be able to prove that the 17 surrounding circumstances make Mr. Cramer’s conduct sufficiently outrageous. The 18 court thus denies summary judgment against Plaintiff’s outrage claim, without prejudice 19 to revisiting this issue on a proper motion from Defendants after the close of Plaintiff’s 20 evidence. 21 The court also denies Defendants’ motion for summary judgment that Grady Way 22 Station, LLC is not vicariously liable for Mr. Cramer’s intentional tort. The court 23 acknowledges that proof that an employee’s act was intentional and outside the scope of 24 his employment is sufficient to defeat vicarious liability. Robel, 59 P.3d at 620. In this 25 case, however, factual disputes prevent the court from holding that Mr. Cramer’s conduct 26 was outside the scope of his employment as a matter of law. 27 28 ORDER – 7 IV. CONCLUSION 1 2 For the reasons stated above, the court DENIES both parties’ motions (Dkt. ## 37, 3 40). The court directs the parties to appear for a pretrial conference at 3:00 p.m. on 4 October 30, 2009. 5 The court has reviewed Plaintiff’s counsel’s October 14 letter (Dkt. # 14) 6 regarding the scheduling of trial, and has directed its in-court deputy clerk to discuss 7 those concerns with the parties. Based on those communications, the court informs the 8 parties that trial will occur from Monday, November 9, 2009 until Monday, November 9 16, 2009. Trial will not take place on the Wednesday, November 11, 2009 court holiday, 10 but will otherwise run from 9:00 a.m. to 4:30 p.m. Jury selection will be completed by 11 noon on Monday, November 9. Witness testimony will conclude no later than the close 12 of trial on Friday, November 13. If necessary, closing arguments will occur on the 13 morning of Monday, November 16. The court will impose a timing system to ensure that 14 the parties split trial time evenly between them. 15 DATED this 16th day of October, 2009. 16 17 A 18 The Honorable Richard A. Jones United States District Judge 19 20 21 22 23 24 25 26 27 28 ORDER – 8
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