K-Mart Corp. v. West Virginia Human Rights Commission , 181 W. Va. 473 ( 1989 )

BROTHERTON, Chief Justice:

This case involves an appeal by the appellants, Abdul Baram and the West Virginia Human Rights Commission, from the order of the Kanawha County Circuit Court entered on September 9, 1986. In that order, the court reversed the finding of the Human Rights Commission and concluded that the evidence in the record did not substantiate a conclusion that Mr. Baram and his family were discriminated against by K-Mart Corporation when they were observed as possible shoplifters.

On September 19, 1981, Mr. Baram, his wife (Ms. Dehnah), their two children, and several adult relatives entered the St. Al-bans K-Mart store with the intention of purchasing gifts for the relatives to take with them back to Syria. Only Ms. Dehnah wore the traditional loose-fitting Islamic dress. Upon seeing the Baram family group heading toward the store from the parking lot, the K-Mart personnel called the St. Albans Police as a precautionary measure, believing the Barams might be a group of shoplifters the store had been warned were victimizing the area. Upon entering the store, the Barams shopped for approximately fifteen minutes without incident, until Ms. Dehnah noted that the group was being observed by K-Mart employees and one policeman. Upon learning that he and his family were being watched, Mr. Baram remarked “Don’t pay [them] any attention. Who cares?” Hearing Transcript at p. 26. While shopping, neither the police nor any K-Mart personnel confronted or hindered the Barams.

Eventually, Mr. Baram confronted a K-Mart manager and asked why his group was being watched. The manager explained that all customers were observed while in the store and apologized for any embarrassment or inconvenience. Shortly thereafter, the Barams left the store, leaving several half-filled shopping carts.

At this point, an officer with the St. Albans Police Department, who had been summoned to the store with two other officers, instructed one of the officers to follow the Barams down the mall to keep an eye on them. After traveling approximately 800 yards from the entrance of the K-Mart store, Mr. Baram realized he was being followed by the police. Mr. Baram angrily requested to know why he was being followed. The officer, believing that Mr. Baram was going to “jump me or something,” advised Mr. Baram that he had been instructed by his supervisor to follow him and called for a back-up unit. This confrontation was observed by passing mall patrons. Thereafter, the Barams left the shopping center.

Later, Mr. Baram contacted the St. Al-bans Police Department to inquire about their actions. It was explained to him that K-Mart personnel had believed he and his family might be associated with “gypsies,” who routinely engaged in shoplifting.

Subsequent testimony revealed that approximately a week or two before September 19, 1981, K-Mart had received a warning from county sheriffs that a group of “gypsies” was present in the area and had victimized a local Putnam County store through mass shoplifting. The term “gypsy” was used generically among retail merchants and police, referring to an organized band of shoplifters of no specific origin or nationality.¹ K-Mart noted that in 1980, the St. Albans K-Mart store had been victimized by a similar group of shoplifters who entered the store, dispersed, and through “diversionary tactics and skilled shoplifting techniques,” proceeded to conceal and attempt to steal a large amount of merchandise. On that occasion, the St. Al-bans Police were summoned and, with the help of K-Mart personnel, restored order and arrested the shoplifters.

On November 17, 1981, the Barams filed a complaint against K-Mart with the Human Rights Commission, claiming discrimination on the basis of national origin in a place of public accommodation (No. PANO 254-82).²

A Human Rights Commission hearing was held on April 8, 1985. The Barams claimed that they had been discriminated against because of their national origin. K-Mart responded that their actions were justified as they believed the Barams fit a bona fide shoplifting profile, pointing to their prior victimization by the organized band of shoplifters and the warning received in the weeks prior to September 19, 1981. Further, K-Mart asserted that there was no discrimination against the Barams because of their national origin, noting that the Barams openly admitted they shopped without any trouble at least once a week for over a year at the St. Albans K-Mart.³

Following the public hearing, findings of fact and conclusions of law were entered on May 23, 1985, which concluded that K-Mart had denied Mr. Baram and his family “the advantages, privileges and services offered to other K-Mart customers because of the ethnic appearance (and the national origin) of the complainant and his family because of the dress of Ms. Dehnah (Mrs. Baram).” In the conclusions of law, the Human Rights Commission Hearing Examiner stated that:

Although recognizing responsibility to protect both the store’s merchandise and store patrons, the complainant and his family were victims of the respondent’s unreasonable surveillance, intimidation and public embarrassment and thus unable to purchase the gifts which they had intended. Furthermore complainant and his family were made to feel uncomfortable, unwelcome and afraid to remain in the store, although they were never told or asked to leave by the respondent. Discrimination in access to public accommodation may arise through subtleties of conduct just as surely as through openly expressed refusal to serve. Such discrimination may occur where no physical violence is used or threatened and where the defendant merchant is courteous. Browning v. Slenderella Systems of Seattle, [54 Wash.2d 440] 341 P.2d 859 (Wash.1959).

Conclusion of Law No. 9. In Conclusion of Law No. 10, the hearing examiner stated that “shoppers who are detained by store employees or police who lack probable cause to believe they are shoplifters suffer deprivation of their civil rights_ Shoppers who are forced to leave a store because of discriminatory, unreasonable actions of store employees suffer no less deprivation. Adickes v. Kress & Co., 398 U.S. 166 [144, 90 S.Ct. 1598, 26 L.Ed.2d 142] (1970).” The hearing examiner recommended incidental damages to be awarded to Mr. Baram in the amount of $1,250 to compensate him for embarrassment, humiliation, and emotional and mental distress.

These recommendations were forwarded to the Human Rights Commission. On July 18, 1985, the Commission entered a final order which adopted the hearing examiner’s findings of fact and conclusions of law, but modified the proposed order by increasing the incidental damages from $1,250 to $10,000. No basis was given for the increase.

K-Mart appealed the decision to the Circuit Court of Kanawha County, seeking review of the Commission’s decision both on liability and damages. The circuit court reversed the Commission’s findings on both issues and stated, in pertinent part:

There is no evidence in the record to show that the police were summoned because of the national origin or ethnic appearance of the members of the Baram party.

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The record clearly shows that the police were summoned because the Baram party fit a shoplifting profile.... It was the potential for shoplifting that caused the police to be summoned.

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The evidence in the record does not substantiate the conclusion of the Human Rights Commission that the complainant was denied the privileges accorded to others because of national origin.

Furthermore, there is no evidence in the record to show that the complainant was denied any privileges accorded to others. At no time were any members of the Baram party denied service by K-Mart employees. No member of the Baram party was denied the opportunity to purchase any goods which K-Mart offered for sale. The Baram party was not denied entry to the store, and was not asked to leave the store.

The only problem that the complainant had with K-Mart is that they were observed by K-Mart personnel while in the store. The mere fact that the complainant’s party was observed by K-Mart personnel does not constitute a violation of their human rights. This is a risk inherent in shopping in any store at any time. Had the complainant not initiated verbal contact, it does not appear any contact would have occurred.

This proceeding is the Barams’ appeal from that final order.

The sole issue before this Court is whether K-Mart Corporation denied the Barams the advantages, services, and privileges offered others at its St. Albans, West Virginia, store, a place of public accommodation, because of their national origin. For the reasons stated below, we find no discrimination and affirm the opinion of the Kana-wha County Circuit Court.

This Court has not yet had the opportunity to address in detail discrimination occurring in places of public accommodation, as the majority of the case law in our jurisdiction has dealt with discrimination in employment.⁴ Our decision in Shepherdstown V.F.D. v. West Virginia Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983), while touching briefly on discrimination in places of public accommodation, is primarily concerned with employment discrimination. Specifically, this Court held that:

[i]n an action to redress unlawful discriminatory practices in employment and access to “place[s] of public accommodations” under The West Virginia Human Rights Act, as amended, W.Va.Code 5-11-1 et seq., the burden is upon the complainant to prove by a preponderance of the evidence a prima facie case of discrimination, which burden may be carried by showing (1) that the complainant belongs to a protected group under the statute; (2) that he or she applied and was qualified for the position or opening; (3) that he or she was rejected despite his or her qualifications; and (4) that after the rejection the respondent continued to accept the applications of similarly qualified persons. If the complainant is successful in creating this rebuttable presumption of discrimination, the burden then shifts to the respondent to offer some legitimate and nondiscriminatory reason for the rejection. Should the respondent succeed in rebutting the presumption of discrimination, then the complainant has the opportunity to prove by a preponderance of the evidence that the reasons offered by the respondent were merely a pretext for the unlawful discrimination.

Syl. pt. 3, 172 W.Va. at 628-29, 309 S.E.2d at 343-44. We, therefore, turn to W.Va. Code § 5-11-1 et seq. (1987) for guidance in determining what constitutes discrimination in a place of public accommodation.

West Virginia Code § 5-11-9 (1987) sets out the elements necessary for a party to make a complaint of discrimination in a place of public accommodation. Specifically, W.Va.Code § 5-ll-9(f)(l) (1987) provides that it shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodation to:

[r]efuse, withhold from and deny to any individual because of his race, religion, color, national origin, ancestry, sex, age, blindness or handicap, either directly or indirectly, any of the accommodations, advantages, facilities, privileges or services of such place of public accommodations ....⁵

For the purpose of creating a workable test, we believe that the elements found in W.Va.Code § 5-11-9 (1987) and our opinion in Shepkerdstown can be easily adapted to situations involving discrimination in places of public accommodation. Therefore, we propose the following test for determining whether a complainant has proved a prima facie case of discrimination in places of public accommodation in violation of W.Va.Code § 5-11-9 (1987). The complainant must prove the following elements:

1. that the complainant is a member of a protected class;

2. that the complainant attempted to avail himself of the “accommodations, advantages, facilities, privileges or services” of a place of public accommodation; and

3. that the “accommodations, advantages, facilities, privileges or services” were withheld, denied, or refused to the complainant.

Once the complainant has established a prima facie case of discrimination, the burden shifts to the defending place of public accommodation to demonstrate a legitimate and nondiscriminatory reason for their action sufficient to overcome the inference of discriminatory intent. 172 W.Va. at 637, 309 S.E.2d at 352.⁶ If the defendant is successful in rebutting the prima facie case of discrimination, the complainant then has the opportunity to show that the reason given by the defendant was merely a pretext for a discriminatory motive. Id.

Turning to the case at hand, we find that the first two factors of the test are simple to apply — there is no question that the complainant and his family are members of a protected class and that the Bar-ams entered the store intending to shop for and purchase merchandise. The final factor, however, is more problematic.

The appellant cites as proof of discrimination the fact that the police were summoned shortly after the family group headed toward the store. He further points to his wife’s traditional loose fitting dress and the darker skin color of some members of the group as the basis for suspicion. Those facts alone, however, are insufficient to persuade us there was a nexus between the Barams’ national origin and the police summons where no services were denied or refused.⁷ In fact, nowhere in the record do we find that the appellant and his family were actually denied, refused, or withheld any services or amenities as required by W.Va.Code § 5-11-9 (1987) and the last element of our test. The complainant, who entered the store and shopped without hindrance, left without attempting to buy any items offered by K-Mart. No one approached the Barams while shopping nor asked them to leave. Consequently, we do not believe that a violation of W.Va.Code § 5-11-9 (1987) occurred on September 19, 1981.

Even assuming, however, that the complainant had made a prima facie case of discrimination, we believe that the appellee demonstrated a legitimate, nondiscriminatory reason for its actions. K-Mart points to its previous experience with shoplifting bands, the warning call it received in the week prior to the incident, and its obligation to protect both its customers from danger and its inventory from shrinkage. Most influential in our decision, however, is the fact that the Barams admitted to peaceably shopping at the St. Albans K-Mart at least once a week for a full year prior to September 19, 1981, despite the fact Ms. Dehnah wore her native dress and Mr. Bar-am had dark skin. Moreover, the Barams acknowledged that they had obtained a K-Mart “courtesy card” for use when purchasing goods. If discrimination had been a motive, surely K-Mart would have denied them the card in order to discourage their shopping. Given those facts, we believe the shoplifting warnings and the chance fact the family group fit the profile of the shoplifting band precipitated the police summons, not discrimination.

Nor was the complainant able to show that the reasons given by K-Mart were a pretext for a discriminatory motive. Nowhere in the record is it suggested that the warning of shoplifters in the area was untrue or a pretext. Moreover, as discussed above, the Barams’ allegations that their garb and skin tone precipitated the police summons were weakened by their admission that they shopped at that K-Mart without incident for an extended period pri- or to September 19, 1981.

The appellant points to Browning v. Slenderella Systems of Seattle, 54 Wash.2d 440, 341 P.2d 859 (1959) in support of their contention that because the Bar-ams were made to feel uncomfortable and unwelcome, discrimination occurred. We are not persuaded by this reasoning. In Browning, the “discourteous” defendant, Slenderella, refused to serve the complainant at its treatment salon because of her race. Unlike Browning, however, nothing was ever refused or denied the Barams and therefore, Browning is not applicable to this situation.⁸

Standing alone, we do not believe rudeness is sufficient to prove a prima facie case of discrimination. While we do not mean to dismiss the effect of intimidation as an element in discrimination, it is, at best, too objective and difficult to quantify alone. Rather, intimidation should simply be treated as a factor in our test to determine whether the complainant has made a prima facie case of discrimination. In the present case, even considering this additional factor, we still must conclude that the appellant failed to prove a prima facie case of discrimination in a place of public accommodation.

We feel compelled to point out that while we do not condone merchants calling the police at the sight of a person or party it believes to be a possible thief, our holding today is based solely on the fact that we find no nexus between K-Mart’s actions, while hasty and perhaps imprudent, and the Baram’s national origin. No violation of W.Va.Code § 5-11-9 (1987) has occurred, and we, therefore, affirm the decision of the Kanawha County Circuit Court.

Affirmed.

1 . We note, however, that one officer later testified at the hearing that "gypsies" were usually of darker skins, wore loose fitting clothes, and wore rancid perfume.

2 . The Barams also filed a Human Rights complaint against the St. Albans Police Department (No. PANO 253-82). After conducting an investigation, the Human Rights Commission concluded on February 3, 1983, that there was no probable cause to believe the St. Albans Police Department had discriminated against Mr. Bar-am.

3 . The Barams testified that after the incident on September 19, 1981, they continued to shop at K-Mart stores in the Kanawha Valley, although they did not return to the St. Albans store. Mr. Baram and his wife had no problem whatsoever shopping in these K-Mart stores. The Barams also testified that during the year preceding September 19, 1981, when they shopped weekly, without incident, at the St. Albans K-Mart store, they carried a K-Mart courtesy card.

4 . We discussed the general standards for determining employment discrimination in Conaway v. Eastern Associated Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986), in which the guidelines enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and its progeny, Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979) were examined. After noting that the Supreme Court never intended the McDonnell Douglas test "to be a panacea to correct all discrimination wrongs,” this Court formulated a new test to deal with general cases of discrimination. 178 W.Va. at 170, 358 S.E.2d at 429. That general test, however, dealt only with employment discrimination and is inapplicable in this situation.

See also Price v. Boone County Ambulance Authority, 175 W.Va. 676, 337 S.E.2d 913 (1985); State v. Logan-Mingo Area Mental Health Agency, 174 W.Va. 711, 329 S.E.2d 77 (1985).

5 . There is no question that the St. Albans K-Mart store was a place of public accommodation. West Virginia Code § 5 — 11—3(j) (1987) defines a “place of public accommodations” as “any establishment or person, as defined herein, including the state, or any political or civil subdivision thereof, which offers its services, goods, facilities, or accommodations to the general public, but shall not include any accommodations which are in their nature private_”

6 . In Conaway, we noted the nondiscriminatory reason given by the employer did not even need to be a "particularly good one." 178 W.Va. at 171, 358 S.E.2d at 430. However, the reason cannot be a pretext in itself and must be sufficient to overcome the inference of discriminatory intent created by the prima facie case.

7 . The complainant also implies that the term "gypsies” itself was a racial term. However, at the hearing, K-Mart noted that the term "gypsies” was not meant racially, but rather as a generic term used to describe roving bands of shoplifters. It was Sergeant Halstead of the St. Albans Police Department who defined gypsies as usually being dark skinned and wearing long clothing. See Finding of Fact 19. We note that the complaint against the police department was not found to be based upon probable cause and no appeal was taken.

8 . Similarly, we find the appellant’s reliance on Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), to be unsubstantiated. In Conclusion of Law No. 10, the Human Rights Commission cited Adickes, con-eluding that ”[s]hoppers who are forced to leave a store because of discriminatory, unreasonable actions of store employees suffer no less deprivation." A careful review of the Supreme Court’s opinion in Adickes reveals that service was denied to the complainant because she was in the company of black persons. Therefore, like Browning, Adickes is inapplicable to the case at hand.

Conclusion of Law No. 10 contains another element we find disturbing. The Human Rights Commission concluded that "[sjhoppers who are detained by store employees or police who lack probable cause to believe they were shoplifters suffer deprivation of their civil rights." The Human Rights Commission found no probable cause to proceed in the Baram’s complaint against the St. Albans police. As the only detention that day was made by the St. Albans police outside the K-Mart store, we believe this conclusion is factually incorrect.