Jesse J. Williams v. Staples, Incorporated, D/B/A the Office Superstore Staples, Incorporated

correctly Venable, the district court part Because found the of Officer hardly it was justified was in stop Officer Venable misconduct. Officer Venable did not em- ping attempting stop, as it were— bark on a fishing expedition merely hoping —or him, Humphries detaining and and that he turn up.” Brown v. “something might down, United States him patted could have Illinois, 590, 605, 2254, U.S. 95 S.Ct. Hamlin, 666, v. 319 F.3d 671-72 Cir. (1975).2 45 L.Ed.2d 416 Unlike police the 2003), fact that the Officer Venable “ar Brown, supra, misconduct Humphries’ him patted rested” first and then him arrest was not effected for purpose the was, bottom, down harmless. if Even obtaining evidence. illegal, nothing the arrest gained I Accordingly, would sup- reverse the from the arrest other than that which pression ground order on the narrower properly pursuant could have been seized harmless arrest. pat-down investigative to the lawful and Surely, seized, detention. evidence later lawfully

which could have been seized ear lier, poisonous is not fruit of a tree when stop

the “tree” pat-down— itself—the poisonous was never in the first instance. suppressing When evidence as the fruit arrest, illegal of an guiding question WILLIAMS, Jesse J. Plaintiff- “whether, granting establishment of the Appellant, primary illegality, the evidence to which objection instant is made has been come at by exploitation illegality of that or instead STAPLES, INCORPORATED, d/b/a sufficiently distinguishable means to be Superstore Staples, The Office In- purged of taint.” Wong Sun primary corporated, Defendant-Appellee. States, v. United 407, (1963) (citation S.Ct. 9 L.Ed.2d 441 No. 03-1550. omitted) added). (emphasis In this United Appeals, States Court of “primary illegality.” And, there was no Fourth Circuit. pat-down was the that lead Officer Venable contraband; weapon there was 5, Argued: Dec. 2003. no intervening police other action. More- Decided: June 2004. over, the purpose suppressing evidence prevent is to similar misconduct on the

part police of the deny the future and to

them any benefit from such conduct. Al- though might one envision different—

perhaps even better —course of action on Brown, Supreme In suppressed Amendment, Court reversed the be under the Fourth Supreme per Illinois Court’s se rule that tree, poisonous as fruit police due to improper confession that is otherwise under misconduct, i.e., where "the detectives em- Amendment, may Fifth suppressed not be upon expedition barked for evidence in under the Fourth Amendment. 422 U.S. hope something might up turn [or 45 L.Ed.2d 416. The Court where the manner an] arrest was affected emphasized prophylactic purposes of the gives appearance having been calculat- Fourth Amendment voluntary and held that a surprise, fright, ed to cause and confusion." confession may under the Fifth Amendment

him on account of his race when it refused his personal check to make a purchase. The granted district court sum- mary judgment Staples. favor appeals. judg- We reverse the ment of the district court and remand.

I.

On the afternoon of June attempted purchase a printer cartridge at the office supply Winchester, photocopying Virgi- store finding nia.1 After cartridge, Williams check, presented personal his in- which address, cluded pre-printed Maryland his time, to a female sales clerk. At the Sta- ples policy accepting had a nationwide Colfax, Washing- Reed Neill ARGUED: (as long checks as met certain Lawyers’ for Rights ton Committee Civil case). criteria not material to this Clerks Affairs, D.C., Washington, & Urban for to insert all checks into a Appellant. Regan Hughes, Sey- Jessica register, device on the cash which would Shaw, D.C., Washington, Appel- farth for electronically verify the through checks Platts-Mills, lee. BRIEF: Eliza T. ON neutral, third-party sys- check guarantee Lawyers’ Washington Committee for Civil Contrary Staples’ policy, tem. the clerk Affairs, D.C.; Rights Washington, & Urban informed “did not Williams Hanlon, Mason, Stephen F. Jennifer M. accept out-of-state checks.” J.A. 141. L.L.P., Knight, Washington, Holland & offered to Williams show clerk his D.C., Hairston, Abbey Appellant. for G. Maryland drivers license and his identifica- Shaw, D.C., Seyfarth Washington, Ap- for nearby university tion from the card he pellee. attending, repeated was but the clerk WIDENER, MICHAEL, Before and could not out-of-state SHEDD, Judges. Circuit checks. Williams left the store without making purchase. by published Reversed and remanded opinion. Judge incident, SHEDD wrote the About after this three weeks majority opinion, Judge which Williams had breakfast with several of his joined. Judge MICHAEL WIDENER university classmates. One of the class- concurring opinion. wrote complained mates that the Winchester Sta- ples had his or- photocopying mishandled OPINION der. added that he also was Williams SHEDD, Judge: Circuit dissatisfied with because refused classmate, his out-of-state check. Another rights In complaint, his civil Jesse Hutchinson, white, Williams, African-American, replied Heather who is an claims Staples, against recently Inc. discriminated that she had used her out-of-state therefrom, reviewing light 1. Because we are of sum- enees drawn in the most fa Deeds, mary judgment Staples, in favor of we view vorable to Williams. See Altizer 1999). all the F.3d Cir. and the reasonable infer- Maryland Staples. cept out-of-state checks. J.A. Cook check—also —at card, receipt if he had a later showed Williams asked Sullivan credit She dated from her transaction. June not. replied Cook that he did Cook then day Staples refused to the same manager, called the who examined the take check and told Cook to Sullivan’s processing. processed check for The clerk promptly telephoned Williams through register, the check the cash but it spoke manager. with a Williams ex- was declined the automated check veri- differently plained how he was treated system. fying paid pur- Sullivan than Hutchinson. The informed chase cash. with accept par- that the decision to Williams “judgment ticular call” decided check is deposed of the female several “case-by-case on a basis.” J.A. 155. employees day who worked the of his al- leged attempted transaction.3 Williams Believing that he had been discriminated identify race, has been able female of his re- because clerk who refused his check. None of the ported rights the incident to a civil advoca- cy agency. agency deposed This sent two male who were remembers “testers,” waiting employ- one African-American and the on All of these Williams. white, other Winchester except Staples’ policy ees one testified that purchases make to see would how be required accept them to all checks—in- treated. cluding processing out-of-state checks—for through verifying system. the check The tester, Hill,

The first Herman is Afri- Johnson, exception sole was Debbie who presented personal can-American. He his in training testified she was told that Sta- Maryland— out-of-state check—also from ples accept did not out-of-state checks and Cook, Mary an African-American sales required that sales clerks to summon clerk.2 She looked at the check and said that a store whenever an Staples accept could not an out-of- Cook, state check. Hill asked if she was certain presented. check was As for policy. about the Cook insisted that testers, Sta- clerk who waited on the two she ples accept did not out-of-state checks. testified that Staples’ policy she knew that Hill pay then offered to his debit with Visa was to processing. checks for card, accepted, which Cook and the trans- Although waiting she did not on remember action completed. testers, the two she denied she would have any Staples told that customer could tester, Sullivan,

The second Daniel is accept an out-of-state check. white. shortly He entered the store after Hill present- finished his transaction. He II. ed his personal out-of-state check—also Cook, § 42 Maryland- Williams filed this U.S.C. 1981 ac- the same clerk —to tion, alleging Staples deprived who handled Hill’s that him of transaction. Cook told Staples “usually” right Sullivan that did not ac- his to make and enforce contracts 2. contends the fact that Cook is an fected treated how she the African-American negates any African-American inference that tester is a matter for the finder of fact to against she would discriminate Hill. We dis- decide. agree. person An African-American can dis- against criminate another African-American clerks, appears that two female Carol person just person based on race as a white Morrison, Corby Stidman and were not de- against per- can discriminate another white posed. son based on race. Whether Cook’s race af-

667 presented any on his race. moved for sum- Williams has not based direct evi mary judgment, and the district court of dence intentional by Sta discrimination granted the motion. The court ruled that ples, proffer he must sufficient circumstan failed to establish a tial satisfy evidence to the familiar because he had not offered evidence case Douglas analytical McDonnell framework. applied a different check-cash- Motel, See Murrell v. The Ocean Mecca ing policy to African-American customers Inc., (4th Cir.2001). 262 F.3d Un applied than it to white customers. The framework, der this plaintiff must first district court decided that the evidence establish a facie case of discrimina showed, best, at tion, the may respond by pro defendant refused to the checks ducing evidence that it legiti acted with a and the testers the em- because mate, reason, nondiscriminatory and then ployees “did not have a clear understand- plaintiff may showing adduce evidence ing cashing Staples’ policy.” J.A. that the proffered defendant’s reason was 191.4 The court also concluded that pretext mere and that race was the real allegation refused reason for the defendant’s less favorable simply check because of his race was treatment plaintiff. of the Hawkins v. speculative. Inc., PepsiCo, 203 F.3d Cir. 2000). Although respective evidentia- III. ry burdens shift back and forth under the summary We review the framework, “the ultimate per burden of judgment Holding de novo. JKC v.Co. suading the trier of fact that the defendant Ventures, Inc., Washington Sports 264 intentionally discriminated (4th Cir.2001). Summary F.3d plaintiff remains all times with the judgment appropriate when the admissi plaintiff.” Dept. Cmty. Texas Affairs genuine ble evidence demonstrates that no Burdine, 248, 253, 1089, 450 U.S. 101 S.Ct. issue of material fact exists and that the (1981). 67 L.Ed.2d 207 moving party judgment is entitled to as a To prima establish a facie case of 56(c). matter of law. Fed. R. Civ. Proc. § discrimination in a 1981 cause of action evidence, In reviewing the the court must relating purchase of goods or ser draw all reasonable inferences in favor of (1) vices, Williams that: must establish he nonmoving party may not make (2) class; is a member of a protected he credibility weigh determinations or the evi sought to enter into a contractual relation Thompson dence. v. Aluminum Co. of (3) Am., (4th Cir.2002). defendant; with 651, ship he met the 276 F.3d 656 ordinary requirements to pay defendant’s IV. goods for and to receive or services ordi narily provided by the defendant to other grants persons Section 1981 (4) customers; similarly situated he jurisdiction of within the the United States opportunity ... was denied the to contract for right “the same to make and enforce enjoyed by goods ... or services that af contracts as is white citi was otherwise 1981(a). Murrell, § zens.” 42 U.S.C. Because forded to white customers. See finding by clearly wrong by 4. This the court is as dence adduced Williams—which must be Hill, accepted purposes summary it relates to Cook's treatment of as true for judgment accept African-American tester. Cook testified that refused to Hill’s —Cook Thus, policy she understood the and knew that she if Cook refused to Hill's check, pro- to all checks for it was not because she misunderstood Nevertheless, cessing. according Staples' policy. to the evi- 668 (establishing of a white classmate on the same at 257 elements Williams’s

262 F.3d day Staples rejected out- in a hotel accommo- § cause of action 1981 check.6 of-state case).5 dations Because has Williams established conclude that Williams has We prima he has created a to establish a sufficient evidence adduced presumption rebuttable un First, Williams, as an facie case. him. See lawfully discriminated Aikens, Postal v. United States Serv. 460 African-American, pro a member of a 1478, 103 75 L.Ed.2d U.S. S.Ct. Second, sought class. to tected (1983) (Title context). 403 To rebut VII relationship enter into contractual with presumption, Staples clearly must set to attempted purchase he when forth, through the introduction admissi Third, printer cartridge. legitimate, ble nondiscriminato ordinary pay for requirements met the ry disparate reason for the treatment af printer cartridge by offer and receive Reeves v. Williams. See Sanderson forded by out-of-state check be ing payment Prods., Inc., 147, Plumbing 133, cause, attempted at the time of the trans (2000) 2097, 147 L.Ed.2d 105 S.Ct. action, alleges that it maintained a (ADEA context); Aikens, 714, 460 U.S. at accepting all checks from all cus policy 1478; Burdine, 450 U.S. at 254- through processing tomers for its neutral Staples’ 101 S.Ct. 1089. burden is one Fourth, system. check verification See production, persuasion. not of opportunity to Williams was denied the Reeves, 530 U.S. at 120 S.Ct. 2097. into a contract with even enter Staples proffers legitimate, as its non- opportu afforded such an though Staples discriminatory rejecting reason for nity undisputed to a white customer. It is that, in light policy, Williams’s check of its purposes of this motion that clerk sales who handled Williams’s at- accepted tempted transaction7 must have made a attempted 5. The district court used the facie case Williams their transactions dif- elements established in Callwood Dave & registers ferent cash and were served dif- Inc., Buster’s, (D.Md. F.Supp.2d appears ferent sales clerks. that the clerk 2000). adopt We decline the Call-wood who waited on the white classmate clocked purports case. Callwood elements in this out of work before Williams claims he at- provide analytical approach an alternative in tempted his transaction. The fact that public accommodation discrimination cases by Williams was served a different clerk at a in is scant evidence as to which there how register different does not mean he was not protected members of the class are treated similarly purposes establishing situated for differently from members outside the class. prima a facie case. It is sufficient that case, applicable Call-woodis not to this be presented Williams has established that he his adequate comparative cause there is evidence agent Staples reject- check to an and it was showing differently how Williams was treated presented ed while his white classmate also than his white classmate and the white tester agent Staples her check to an on the same and how the African-American tester was day for similar merchandise and it was ac- differently treated the than white tester. cepted. Transp. Corp., See Cook v. CSX 988 (4th Cir.1993) (recognizing F.2d 511 that 6. contends that Williams was not sim- comparison separate a of two incidents will First, ilarly situated to his white classmate. likely never exact a involve the facts and that Staples argues that the classmate was not compare court should the more salient factors told, testers, like Williams and the two incidents). from both did not out-of-state checks. Of course the sales clerk made no such comment classmate, 7.Staples does not admit that Williams's alle- because the clerk instead assumes, accepted gations merely the are true. for the classmate’s out-of-state check. Second, motion, purposes the did claims that classmate and of this

669 mining whether the refusing proffered defendant’s mistake assume, deciding, that this without explanation pretextual We is and whether the legitimate, a nondis- evidence suffices as unlawfully defendant in fact discriminated. criminatory rejecting reason Williams’s 143, 147-48, Id. at 120 In S.Ct. 2097. some See, Hawkins, e.g., out-of-state check. 203 cases, case, “a plaintiffs prima facie com- (assuming arguendo at 278 that the F.3d bined with sufficient evidence to find that case). prima established a plaintiff justification the asserted [defendant’s] is false, may permit the trier of fact to con- Having assumed that clude that the unlawfully [defendant] dis- nondiscriminatory a explana has offered criminated.” Id. at 120 S.Ct. 2097. check, rejecting tion for Williams’s the presumption by of discrimination raised We conclude that Williams has ad drops the facie case is rebutted and duced sufficient evidence to suggest that Mary’s from the case. St. Honor Ctr. See proffered by Staples the reason pretext Hicks, U.S. for unlawful discrimination. Based on the (1993). Accordingly, 125 L.Ed.2d 407 us, record now before Johnson was the remaining sole issue for our consideration only working female sales clerk on the by can prove becomes whether Williams afternoon of attempted transac preponderance of the evidence that tion Staples’ policy. who misunderstood rejected an Afri his check because he is Yet, it appears that Johnson was not the Reeves, at can-American. See clerk who waited on Williams. Johnson 142-43, 120 S.Ct. 2097. To meet his bur testified that pre whenever customer den, by pre Williams must demonstrate sented an out-of-state she was re ponderance of the evidence that the reason quired to a manager. summon There is no by Staples articulated was not its true appellate evidence record that the rejecting reason for his check but was clerk who waited on Williams summoned a pretext instead a for race discrimination. manager or that a came to the 143,120 Murrell, 2097; See id. at S.Ct. register being cash where Williams was may attempt F.3d at 257. All served. of the other female by showing meet burden that Staples’ deposed working who were who were proffered worthy reason is not of belief. attempted afternoon un transaction Reeves, 143,120 See U.S. S.Ct. they derstood to ac though Even presumption discrimi cept including nation created facie case no checks— Thus, exists, potential checks. all of these clerks longer may the trier of fact still (cid:127) Staples’ policy, understood and it would establishing consider the evidence plaintiffs prima facie and the reason have been “mistake” had re therefrom, able inferences drawn in deter- fused Williams’s check.8 attempt purchase by accept including to make a to all checks— Staples at the check Winchester and that the According out-of-state checks. to the Afri- Staples clerk informed him that did tester, however, not take can-American Cook refused Staples out-of-state checks. will be entitled at accept to his check because it was from out- trial, presents sup- if it admissible evidence to evidence, jury of-state. This if the believes defense, port such a to refute the truthfulness testimony, pro- the African-American tester's allegations supporting prima of Williams's Staples’ vides evidence that sales further facie case. clerks, accept that all who know should checks, accept nevertheless refuse to out-of- Cook, the clerk who waited on the two state checks from African-Americans. testers, also testified that she knew that she payment. alternative form of Moreover, called the Winches- When Williams discovering not, clerk, that his white Staples upon ter white tester said he did to an out-of- tester, allowed use classmate was being by asked the white without hearing After Williams’s state manager, who directed the summoned told him that de- complaint, processing.9 check for accept clerk to a accept to a check is ciding whether light in the most favorable to Viewed “case-by- performed on a “judgment call” Williams, evidence, combined with the testimony, According to this case basis.” supporting evidence policy accepting Staples did not have accepts that out-of- shows asserts, checks, Staples now but as from not state checks white customers but sales clerk to decide allowed each instead African-American customers. Of the check accept an out-of-state whether to of, sug- we the evidence customers know personal judgments. own based on her gests every judgment by Staples that call suggests that the sales clerk response This disadvantages only African-American cus- was not “mistak- who waited on Williams A tomers. rational fact finder could con- policy, stated but was Staples’ en” about clude, evidence, based on this that policy de facto following Staples’ instead unlawfully discriminated case-by-case ba- deciding the matter on of his race. because sis. only we conclude that Williams Not do V. Staples’ prof- that has adduced evidence Viewing the and the reason- false, also we hold fered reason was but therefrom, able inferences drawn in the that the evidence of the two testers tends Williams, light to the real reason Williams’s most prove favorable to we con- rejected was because of his check was clude that Williams has sustained his bur- substantially was treated race. Williams establishing den facie case and the same as the African-American tester. offering Staples’ proffered evidence that They presented out-of-state checks both legitimate, nondiscriminatory reason was unequivocally and were both told Sta- pretext for unlawful discrimination. We ples accept would not out-of-state checks. reverse the district court’s of sum- accept both cheeks for Staples refused mary judgment in favor of processing through the neutral check veri- proceedings. remand for further Conversely, system. fication AND REMANDED REVERSED the African-American tester were treated tester, differently than the white who was WIDENER, Judge, concurring: Circuit not out- told that would I concur in the result rather than the Instead, of-state checks. the white tester majority opinion for the sole reason that only “usually” was told did not im- who waited on Williams on accept out-of-state checks. The clerk mediately complained pro- asked if the white tester had an the occasion of were not guarantee system 9. The fact that the white tester’s check was declined the white tester's guarantee sys- accepted declined the neutral check check after Cook it is of no moment. important accepted tem has little relevance under the circum- What is is that Cook explained by Staples, pays processing stances. As white tester’s but refused party guarantee third all checks—even out- the African-American's check for so, passes potential processing. By doing of-state checks—and lia- Cook treated the bility third-party favorably for bad checks on to the African-American tester less than guarantor. The fact that the neutral check the white tester. poll requested by no either On the given duced and have member of petition the court on the for way rehearing or otherwise. en of affidavit

banc, Widener, Judges Niemeyer, Luttig, grant rehearing and Duncan voted to en banc, Judge and Michael voted to deny Wilkins, rehearing Judge en banc. Chief PSINET, INCORPORATED; Char Wilkinson, Williams, Motz, Judges and Health lottesville Sexual & Wellness Trader, King, Gregory, and dis- Shedd Publications, Ltd., Clinic; Portico qualified themselves from in participating Weekly; Publisher of Charlottesville this case. Communications, Silverchair Science petition rehearing denied, The for Alliance; Incorporated; Virginia ISP and, poll because the on rehearing en banc Rockbridge Village; American Global produce majority failed to judges in For Free Ex Booksellers Foundation active in rehearing service favor of en pression; The And Book Periodical banc, petition rehearing for en banc is America, Incorporated; Of Association Judge Niemeyer also denied. wrote an Foundation; Freedom To Read Sexu opinion dissenting from the denial of re- Network; Filkins, al Health Chris hearing en banc. Institute; Proprietor Sex Safer Ellison; Le Harlan The Comic Book NIEMEYER, Judge, dissenting Circuit Fund; gal Bright; A Defense Susie from of rehearing the denial en banc: Light Bookstores; Different Lambda 4-1, By a judges vote of this court Rising Bookstores; Bibliobytes; Peo voted rehear this case en banc. Be- ple Way, For The American Plain judges cause disqualified themselves tiffs-Appellees, however, voting, will not case be and reheard. See Fourth Circuit Local Rule 35(b) (requiring for en banc review the Internet Provider United States Service majority judges of a of circuit who are vote Association, Plaintiff, service). regular, procedur- active This v. particularly ap- al bar is unfortunate as CHAPMAN, Warren D. Commonwealth First plies this seminal Amendment Attorney; Cambloss, III, James L. the law of the Fourth case because Circuit Attorney, Commonwealth Defen solely by judges is now written two district dants-Appellants. designated who were to sit on the three- judge panel, by any judge. and not circuit No. 01-2352. panel majority The struck down as un- Appeals, United States Court of narrowly Virginia’s constitutional tailored Fourth Circuit. pornography on the Internet. regulation Filed: June 18.2-391(A) (1999); § Ann. See Va.Code PSINet, Chapman, Inc. v. 362 F.3d 227 ORDER Cir.2004). Virginia The statute was Appellants petition rehearing for filed originally patterned upheld by on a statute rehearing en banc. Supreme Ginsberg Court New York, deny Judges Spencer and Davis voted to (1968), petition rehearing, Judge Virginia L.Ed.2d 195 and the ver-

Niemeyer upheld by it. us specifically voted sion was

Case Details

Case Name: Jesse J. Williams v. Staples, Incorporated, D/B/A the Office Superstore Staples, Incorporated

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jun 23, 2004

Citation: 372 F.3d 662

Docket Number: 03-1550

Court Abbreviation: 4th Cir.