Jackson v. Starbucks Corporation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HAROLD STANLEY JACKSON, :
:
Plaintiff, : Civil Action No.: 19-1487 (RC)
:
v. : Re Document Nos.: 46, 48, 55
:
STARBUCKS CORPORATION, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT; GRANTING IN PART AND DENYING IN PART DEFENDANT’S SEALED MOTION FOR
LEAVE TO FILE CERTAIN EXHIBITS UNDER SEAL; GRANTING PLAINTIFF’S MOTION FOR
LEAVE TO FILE A SURREPLY
I. INTRODUCTION
The Plaintiff, Mr. Harold Stanley Jackson, entered a Starbucks store, selected some
packaged cookies, and had started to get in line to purchase them when the cashier made a
comment implying that he intended to steal the cookies. A verbal disagreement ensued, the
manager became involved, and another Starbucks employee told Mr. Jackson to leave and
pushed him to the ground—causing Mr. Jackson to lose consciousness and suffer injuries.
Beyond this broad level of events, however, the details of the altercation and the motivations of
the individuals involved are subject to a range of interpretations and competing characterizations.
Because weighing those characterizations and drawing those inferences is a task for the jury, the
majority of Mr. Jackson’s claims survive the summary judgment stage intact.
II. BACKGROUND
On April 24, 2018, at a few minutes past 12 p.m., Mr. Jackson entered the Gelman
Library Starbucks on the George Washington University Campus in Washington, D.C. Defs.’
Statement of Undisputed Material Facts (“Defs.’ SUMF”) ¶ 8, ECF No. 46-1; Pl.’s Resp. Defs.’
Statement Material Facts (“Pl.’s Fact Resp.”) ¶ 8, ECF No. 50-13. Mr. Jackson was a regular
customer of that particular Starbucks. Pl.’s Fact Resp. ¶ 7. Although the exact details of Mr.
Jackson’s appearance that day are contested, the parties agree that he was not especially well-
dressed. Pl.’s Counterstatement Undisputed Material Facts (“Pl.’s SUMF”) ¶ 21, ECF 50-14;
Defs.’ Resp. Pl.’s Counterstatement Material Facts (“Defs.’ Fact Resp.”) ¶ 21, ECF No. 54-1.
Mr. Jackson testified that because he had recently found housing and moved out of a shelter, his
“clothes situation wasn’t all that great,” and a Starbucks employee who was a witness that day
recalled that Mr. Jackson “looked a little beat up or grungy” and had “a look, like he’s a drug
user.” Pl.’s SUMF ¶¶ 21, 24–25 (quoting Deposition Tr. Harold Jackson at 225:5–227:9, Ex. 3
of Defs.’ Opp’n (“Jackson Dep. Tr.”), ECF No. 46-5 and Deposition Tr. Charlene Ward at
221:7–22, 225:1–4, Ex. 13 of Pl.’s Opp’n (“Ward Dep. Tr.”), ECF No. 50-5); see also Defs.’
Fact Resp. ¶¶ 21, 24–25 (disputing only the materiality of these statements). After entering the
store, Mr. Jackson walked to the front counter and selected two bags of packaged cookies.
Defs.’ Fact Reply ¶ 28. The video surveillance footage shows him slowly selecting the cookies
and holding them in full view before walking toward the end of the line and away from the exit.
Ex. 5 of Defs.’ Mot. at 12:08:44–55.
Accounts of what happened next diverge. According to the Defendants, the cashier
Chelsea Robinson called out, “Sir, you have to pay for those.” Defs.’ SUMF ¶ 13. According to
Mr. Jackson, Ms. Robinson spoke loudly and used the phrase “Hey, you” before telling Mr.
Jackson, in a condescending tone, that he had to pay for the cookies. Pl.’s Fact Resp. ¶ 13;
Jackson Dep. Tr. 212:17–213:8. The Defendants claim that Mr. Jackson then became
“belligerent” and made “verbal threats” toward Ms. Robinson, Defs.’ SUMF ¶¶ 14–15, whereas
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Mr. Jackson insists that he maintained a calm demeanor throughout, Pl.’s Fact Resp. ¶¶ 14–15.
Mr. Jackson asked to speak to a manager, and Defendant Dan White-Hunt, who was the Store
Manager at that location, came out from the back to speak to him. Pls.’ Fact Resp. ¶¶ 16–17; Ex.
5 of Defs.’ Mot. at 12:10:46–11:08.
The conversation between Mr. White-Hunt and Mr. Jackson lasted only a few minutes.
Defs.’ Fact Resp. ¶ 45. After the conversation, Mr. Jackson returned to the end of the line, just
out of range of the video. Ex. 5 of Defs.’ Mot. at 12:12:34–41. He claims he was waiting there
“in a non-threatening manner” when another Starbucks employee by the name of Richard
Washington, who was over six feet tall and twice Mr. Jackson’s weight, approached him, with
Mr. White-Hunt close behind. Pl.’s SUMF ¶¶ 46–49. Defendants dispute all these assertions,
Defs.’ Fact Resp. ¶¶ 46–49, and instead claim that Mr. Washington “approached Mr. Jackson to
calm him down and ask him to leave the store after Mr. Jackson continued to behave
belligerently,” Defs.’ SUMF ¶ 18. Mr. Jackson also claims that Mr. Washington’s involvement
was in accordance with company policy to “physically confront” disruptive customers in some
instances, pointing to Mr. White-Hunt’s testimony to that effect. Pl.’s SUMF ¶ 51; see also Tr.
White-Hunt Deposition at 153: 12–19, Ex. 14 of Pl.’s Opp’n (“White-Hunt Dep. Tr.”), ECF No.
50-6 (“Q: And so does the training say that if someone is being verbally disruptive that a
Starbucks partner should physically confront that person? A: If they feel comfortable. Q: If they
feel comfortable doing so they should physically confront the person? A: Yes.”).
Again, the precise details of the interaction between Mr. Washington and Mr. Jackson are
contested, but it is undisputed that Mr. Washington “shoved” Mr. Jackson, who ended up
motionless on the ground. Pl.’s Fact Resp. ¶ 19. Mr. Jackson’s fiancée, Jillian Workman, who
had been waiting outside and did not witness the incident, entered the store at that point, found
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Mr. Jackson on the floor, and believed that he was having a seizure. Defs.’ Fact Resp. ¶¶ 61–62.
Charlene Ward, another Starbucks employee who was present that day, testified that the
employees were surprised that Ms. Workman was with Mr. Jackson because “she was a white
lady . . . she looked all right, and he was a black man, and he looked a little beat up or grungy
and they were together.” Ward Dep. Tr. at 221:19–22. George Washington University
Hospital’s Emergency Medical Response Group arrived shortly thereafter. Defs.’ Fact Resp.
¶ 64. The emergency medical technicians found Mr. Jackson unconscious, administered oxygen,
and took him to the University Hospital on a stretcher. Pl.’s SUMF ¶¶ 65–69; Defs.’ Fact Resp.
¶¶ 65–69. Later that afternoon, Mr. White-Hunt reported the incident to the Starbucks customer
care support team and the District Manager, and he took written statements from the employees
who had witnessed the incident. Pl.’s Fact Resp. ¶¶ 20–22. Mr. Washington was issued a
written warning on approximately May 8, 2018. Id. ¶ 23.
Mr. Jackson now asserts claims of negligence and negligent supervision (Count I),
battery (Count II), race and personal appearance discrimination under the D.C. Human Rights
Act (“DCHRA”) (Count III), and race discrimination in violation of 42 U.S.C. § 1981 (Count
IV). See generally Am. Compl., ECF No. 22. The instant action was removed from the D.C.
Superior Court on May 21, 2019. See Notice of Removal at 1. This Court has original
jurisdiction over the claim for race discrimination in violation of Section 1981 and supplemental
jurisdiction over each of the other claims pursuant to 28 U.S.C. §§ 1367(a) and 1441(c). Id.III. ANALYSIS
A. Defendant’s Motion for Leave to File Video Exhibits Under Seal
The Court begins by resolving a dispute over two exhibits that the Defendants seek to file
under seal. The two exhibits are surveillance videos recorded in the Starbucks store during the
4
time of the incident. See Def. Starbuck Corp.’s Opposed Mot. File Under Seal Certain Exs.
(“Sealing Mot.”), ECF No. 48. Starbucks requests that these exhibits be sealed, offering as
justification concerns over store security and the personal and financial privacy of the customers
depicted in the videos. Id. at 4.
“The common-law right of public access to judicial records ‘is a fundamental element of
the rule of law, important to maintaining the integrity and legitimacy of an independent Judicial
Branch.’” In re Leopold to Unseal Certain Elec. Surveillance Applications & Orders, 964 F.3d
1121, 1127 (D.C. Cir. 2020) (quoting MetLife, Inc. v. Fin. Stability Oversight Council, 865 F.3d
661, 663 (D.C. Cir. 2017)). If a document is a judicial record, a “strong presumption in favor of
public access” applies. In re Leopold, 964 F.3d at 1127 (quoting United States v. Hubbard, 650
F.2d 293, 317 (D.C. Cir. 1980)). The Court has little difficulty concluding that video exhibits 4
and 5 are judicial records, because they “were filed before the district court’s decision and were
intended to influence it.” Metlife, 865 F.3d at 668; see also League of Women Voters of U.S. v.
Newby, 963 F.3d 130, 136 (D.C. Cir. 2020). However, this presumption “may be outweighed by
competing interests” after balancing the “public and private interests at stake.” MetLife, 865
F.3d at 665. District courts in this Circuit balance those competing interests by applying the six-
factor Hubbard test, which considers: (1) the need for public access to the documents at issue;
(2) the extent of previous public access to the documents; (3) the fact that someone has objected
to disclosure, and the identity of that person; (4) the strength of any property and privacy
interests asserted; (5) the possibility of prejudice to those opposing disclosure; 1 and (6) the
1
The fifth factor refers to “legal prejudice—i.e., harm in future litigation” rather than
general reputational harm or inconvenience. Zapp v. Zhenli Ye Gon, 746 F. Supp. 2d 145, 150
(D.D.C. 2010). Starbucks does not identify any harm to its interests in future litigation that
would flow from release of the videos, making the fifth factor inapplicable here.
5
purposes for which the documents were introduced during judicial proceedings. Hubbard, 650
F.2d at 317–23.
First, the “fact that documents are ‘specifically referred to in the trial judge’s public
decision’ creates a public need for those documents.” EEOC v. Nat’l Children’s Ctr., Inc., 98
F.3d 1406, 1411 (D.C. Cir. 1996) (quoting Hubbard, 650 F.2d at 318). It is “a fundamental
norm of our judicial system[] that judges’ decisions and their rationales must be available to the
public.” Metlife, 865 F.3d at 675. Because the Court relied on the videos in order to reach its
decision, there is a strong public interest in disclosure. The first factor substantially overlaps
here with the sixth—the purposes for which the documents were introduced—because the
documents were introduced as evidence in order to help the Court reach its decision. See
Hubbard, 650 F.2d at 321. Allowing the public to view the videos “will promote the integrity of
the judicial process” by enabling members of the public “to consider for themselves the merits”
of the Court’s decision. In re Nat. Broad. Co., Inc., 653 F.2d 609, 614 (D.C. Cir. 1981). The
first and sixth factors therefore weigh strongly in favor of disclosure.
The second factor—the extent of prior public access to the videos—tips only slightly in
favor of sealing. The full videos were filed under seal and have only been produced to the
parties themselves. See Def. Starbucks Corp.’s Reply Further Supp. Mot. Seal (“Sealing Reply”)
at 2, ECF No. 53. 2 But Mr. Jackson also correctly points out that multiple screenshots of the
2
Mr. Jackson makes much of the fact that the videos were first produced by Starbucks
without a confidentiality designation and prior to the entry of a protective order, even seeking
leave to file a Surreply to establish that point and the arguably misleading characterization of the
prior release in Starbucks’s Reply brief. See Pl.’s Mot. Leave to File Surreply to Def. Starbucks’
Mot. File Under Seal Certain Exs., ECF No. 55; see also Pl.’s Surreply at 2, ECF No. 55-1
(clarifying the timing of the prior release). A court determining whether to allow a surreply
considers whether the reply raises new arguments, whether the proposed surreply would be
helpful to the resolution of the pending motion, and whether the other party would be unduly
prejudiced. Glass v. Lahood, 786 F. Supp. 2d 189, 230–31 (D.D.C. 2011). “[T]he determination
6
same videos are already part of the public record in the Amended Complaint. See Pl.’s Opp’n
Def. Starbucks’ Mot. File Under Seal Certain Exs. (“Sealing Opp’n”) at 1, ECF No. 51. The
screenshots would seem to implicate the exact same security and privacy concerns that Starbucks
relies on in its request to seal the full video exhibits. Thus, the prior availability of those
screenshots at least somewhat undermines the weight of this factor.
Starbucks concentrates its main arguments on the third and fourth factors, asserting that
unsealing would jeopardize store security and implicate the privacy interest of the third party
customers who appear in the video. With respect to the argument that “the footage discloses
camera angles and blind spots,” the Court is not convinced. See Sealing Mot. at 4. Mr. Jackson
argues that because there were other cameras in that store whose surveillance footage has not
been filed, it is uncertain whether any such deduction is even possible, or if any there would be
any validity to such a deduction nearly four years later. See Sealing Opp’n at 2–3. In addition,
the screenshots already in the public record likewise show those exact camera angles. See, e.g.,
Am. Compl. ¶¶ 27, 33. Starbucks’s interest in maintaining the confidentiality of these two
camera locations is not enough to overcome the presumption of public access to the videos.
of whether to grant or deny leave is entrusted to the sound discretion of the district court.” Id. at
231. Starbucks’s argument that it produced the videos during the mediation process with an
understanding of confidentiality was articulated for the first time in its Reply brief, albeit in
response to Mr. Jackson’s contrary assertion in the Opposition. See Sealing Opp’n at 1
(“Starbucks . . . produced the videos to Jackson in October 2019 (a month before the parties even
discussed a protective order in this case . . . .)”); Sealing Reply at 2 (“Starbucks agreed to
produce the surveillance footage, which had not been publicly shared, and certain other
documents in or around January 2020, to foster a fruitful discussion during a mutually requested
Mediation later that month.”). Regardless, the exact timing is irrelevant to this factor because the
videos were only ever produced to Mr. Jackson himself and have not been disseminated to the
general public. Because the information provided in the Surreply generally responds to a new
argument, the Court grants Mr. Jackson’s motion and will deem the proposed surreply filed, but
consideration of this information does not ultimately impact the Court’s analysis of the Hubbard
factors.
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Starbucks’s privacy argument on behalf of its customers fares somewhat better. Litigants
“have a lesser claim to privacy than third parties,” McConnell v. Fed. Election Comm’n, 251 F.
Supp. 2d 919, 932 (D.D.C. 2003), but Starbucks has objected to disclosure at least in part on
behalf of its third party customers who appear in this video and have no relation to this litigation.
No third parties have filed an objection, “which the Circuit in Hubbard found to be particularly
problematic,” United States v. ISS Marine Servs., Inc., 905 F. Supp. 2d 121, 141 (D.D.C. 2012),
but it is difficult to see how most of them could have objected given the limited public
availability of the videos so far. Although a few faces do appear in the screenshots of the
amended complaint, there are numerous other individuals who appear over the course of the
video and have no way of knowing that their identity or whereabouts on that date could
potentially become part of the public record in this case. For all these individuals, their
appearance in a public space diminishes, but does not eliminate, their privacy interest. Cf.
Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) (“A person does not surrender all
Fourth Amendment protection by venturing into the public sphere.”). 3 Nevertheless, because
crucial parts of the incident occurred outside of the camera range, the reactions and facial
expressions of the customers themselves carry some probative value. See, e.g., Am. Compl. ¶ 29
(showing the surprised expressions of customers at the front of the line in the moment of the
alleged battery).
Finally, one of the cameras shows the cashier transactions of those parties, potentially
exposing those individuals to financial risk in addition to potential discomfort or embarrassment.
3
Mr. Jackson counters that this factor weighs in favor of disclosure because it could
allow him to identify disinterested witnesses to the events of that day. Sealing Opp’n at 3. But
Mr. Jackson already has access to the videos and has identified no additional witnesses. His
speculation that release of the videos will alert third-party witnesses to the existence of this
lawsuit and that they will come forward to testify is, indeed, highly speculative.
8
Mr. Jackson argues that “it does not appear possible for a bad actor to discern private
information like credit card numbers from the grainy surveillance videos.” Sealing Opp’n at 3.
But the Court is hesitant to assume, without any evidentiary support, that it would not in fact be
possible. See Sealing Mot. at 4. Not only are these transactions the kind of “sensitive financial
information” that traditionally warrants redaction, they carry no evidentiary value or even
connection to the litigation at hand, meaning that no public interest would be served by their
inclusion in the public record. See McConnell, 251 F. Supp. 2d at 934 (allowing parties “to
redact sensitive financial information, including, but not necessarily limited to, credit card and
bank account numbers” where there was no public interest in the release of that information).
After weighing these factors, the Court does not believe that Starbucks has overcome the
strong presumption of public access to maintain these two video exhibits entirely under seal.
However, it recognizes that third parties on the videos have a privacy interest in their financial
transactions that could be implicated by release. The Court will therefore grant Starbucks’s
motion to seal in part, allowing it to blur or otherwise redact the financial transactions of third-
party customers who had no involvement with the incident that day in Exhibit 5, and will deny
the motion in all other respects.
B. Motion for Summary Judgment Legal Standard
Summary judgment is appropriate where the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). This standard serves to streamline litigation by disposing of factually
unsupported claims or defenses and determining whether there is a genuine need for trial. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial burden of
identifying portions of the record that demonstrate the absence of any genuine issue of material
9
fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. If the moving party meets this
burden, then the non-movant must point to specific facts in the record that reveal a genuine issue
that is suitable for trial. See Celotex, 477 U.S. at 324. A “material” fact is one capable of
affecting the substantive outcome of the litigation, see Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986), while a dispute is “genuine” if there is enough evidence for a reasonable jury to
return a verdict for the non-movant, see Scott v. Harris, 550 U.S. 372, 380 (2007). The
nonmovant must provide evidence that would permit a reasonable jury to find in his or her favor.
See Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).
When evaluating whether a genuine dispute of fact exists, a court must refrain from
making credibility determinations or weighing the evidence; rather, “[t]he evidence of the
nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”
Anderson, 477 U.S. at 255; see also Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
However, a conclusory assertion offered without any evidentiary support does not establish a
genuine issue for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). And because
the nonmovant’s evidence must allow a reasonable jury to find in its favor, “merely colorable” or
“not significantly probative” evidence will not preclude summary judgment. Potter v. District of
Columbia, 558 F.3d 542, 549 (D.C. Cir. 2009) (quoting Anderson, 477 U.S. at 249–50).
C. Discrimination Claims
In Counts III and IV, Mr. Jackson asserts claims for discrimination on the basis of race
under 42 U.S.C. § 1981, and race and personal appearance in violation of the D.C. Human Rights
Act. The Court addresses each in turn.
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1. 42 U.S.C. § 1981 (Count IV)
42 U.S.C. § 1981 protects the right of all persons within the United States to make and
enforce a contract free from racial discrimination—and thus prohibits refusals of service based
on race. 42 U.S.C. § 1981(a). “The allocation of burdens in a § 1981 case is governed by the
burden-shifting analysis created by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),”
in which the plaintiff first bears the burden of establishing a prima facie case for discrimination,
after which the burden of production “shifts to the defendant to state a legitimate, non-
discriminatory reason for the lack of service,” and finally the plaintiff has the opportunity to
show by a preponderance of evidence that the stated reason was pretextual. Mitchell v. DCX,
Inc., 274 F. Supp. 2d 33, 45 (D.D.C. 2003) (quotations omitted). The shifting burden under
McDonnell Douglas is one of production, but “[t]he ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated against the plaintiff remains at all times with
the plaintiff.” Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981).
a. Prima Facie Case for Discriminatory Refusal of Service
To establish a prima facie claim for a discriminatory refusal of service under § 1981, “a
plaintiff must show that (1) he or she is a member of a racial minority group; (2) the defendant
had an intent to discriminate on the basis of race; and (3) the discrimination concerned one or
more of the activities enumerated in the statute.” Mitchell, 274 F. Supp. 2d at 45–46 (quoting
Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996) (internal alterations omitted)).
“Jackson is an African American man, and a refusal of service is a covered activity under the
statute,” meaning that “the only element in dispute” is whether the Defendants had an intent to
discriminate against him on the basis of race. See Jackson v. Starbucks Corp., No. 19-cv-1487,
2021 WL 1317883, at *8 (D.D.C. Apr. 8, 2021). This Court previously determined at the motion
11
to dismiss stage that Mr. Jackson had pleaded sufficient facts to establish that element. Id. The
question now is whether, at the summary judgment stage, “a reasonable factfinder in a Title VII
case could infer discrimination based on the evidence submitted.” Hastie v. Henderson, 121 F.
Supp. 2d 72, 77 (D.D.C. 2000), as amended (Nov. 20, 2000), aff’d sub nom. Hastie v. Potter, No.
00-5423, 2001 WL 793715 (D.C. Cir. June 28, 2001). The Court concludes that there is
sufficient evidence from which a reasonable jury could infer discriminatory intent.
Defendants’ primary argument is that the racial discrimination could not have motivated
the incident because the cashier who accused Mr. Jackson of stealing and the Starbucks
employee who physically confronted him were also black. Defs. Starbucks Corp. & Dan White-
Hunt’s Mem. P. & A. Supp. Mot. Summ. J. (“Defs.’ Mot.”) at 15, ECF No. 46-2. Although they
cite cases suggesting that a shared racial identity may undermine an inference of discriminatory
intent, those cases do not foreclose the possibility that an individual might discriminate against
someone of their own race. See Murray v. Gilmore, 406 F.3d 708, 715 (D.C. Cir. 2005) (stating
only that in the employment context, “a replacement within the same protected class cuts
strongly against any inference of discrimination”); Hardy v. Marriott Corp., 670 F. Supp. 385,
392 (D.D.C. 1987) (noting that the fact that the individual who had made an employment
decision was “of the same race as plaintiff which makes any claim of racial discrimination
suspect”). Mr. Jackson testified that “many times” he had “seen people not of my race pick
things up off the counter and get in line and nothing was said.” Jackson Dep. Tr. 125: 17–19; see
also id. at 209:6–8 (“I seen plenty . . . of Caucasian peoples do that plenty of times . . . . And
nothing was said to them.”). A reasonable factfinder could infer that such differential treatment
occurred because of Mr. Jackson’s race even though the employee making the accusation was a
member of the same race. See Williams v. Wendler, 530 F.3d 584, 587 (7th Cir. 2008) (“There
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can, it is true, be ‘racial’ discrimination within the same race, broadly defined, because ‘race’ is a
fuzzy term . . . .”). For instance, another court in this district determined that a bank teller’s
suspicion that the plaintiff “did not ‘look’ like a business owner” “may be a potential
manifestation of race discrimination” even though the bank teller was a member of the same
race. Banks, 505 F. Supp. 2d at 168 & n.12. And of course, Mr. White-Hunt—the manager
whose actions allegedly contributed to Mr. Jackson’s injuries—was white, making this particular
argument wholly inapplicable to him.
As Defendants point out, Mr. Jackson also testified to having himself taken items off the
counter on many previous occasions without being accused of stealing, Jackson Dep. Tr. at
223:13-22, 224:1-18. That could undermine an inference that Mr. Jackson was discriminated
against on the basis of race that day, but it is not so overwhelming that no reasonable factfinder
could find otherwise, particularly given that Mr. Jackson also testified that he had never
interacted with that particular cashier before. Id. at 197:5–7. As the Fourth Circuit recently
explained in a § 1981 case in which a city approved a loan for a minority-owned business and
then later revoked it, “it is unlikely today that an actor would explicitly discriminate under all
conditions; it is much more likely that, where discrimination occurs, it does so in the context of
more nuanced decisions that can be explained based upon reasons other than illicit bias, which,
though perhaps implicit, is no less intentional.” Woods v. City of Greensboro, 855 F.3d 639,
651–52 (4th Cir. 2017). It admonished that “imposing unique burdens or stereotypical
expectations on an individual based on her membership in a protected group is illicit
discrimination, even though the defendant may not discriminate consistently against every
woman or minority under all conditions.” Id. at 651 (emphasis in original).
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Mr. Jackson’s belief that his race played a role in his treatment that day 4 is bolstered by
evidence of bias both in Starbucks nationwide and the Gelman Library store. Around the same
time as this incident, Starbucks employees in Philadelphia called the police on two black men in
an incident the company’s CEO acknowledged as “reprehensible,” and Starbucks proceeded to
close its stores for a day to provide training for its employees on racial inequity and implicit bias
a few weeks later. See Am. Compl. ¶¶ 12–14, 40; see also Starbucks’s Am. Answer to Am.
Compl. ¶¶ 12–14, ECF No. 33 (admitting the incident and the statement but averring that those
facts are irrelevant and admitting that stores were closed in May for “implicit bias education”). 5
One employee also testified that there was a perception among some of the staff “that [Mr.
White-Hunt] had implicit bias,” as demonstrated by referring to black employees as “rachet,”
“ghetto,” and “savage” when they did not perform well. Id. at 96:18–20. To be sure, Defendants
dispute these allegations about the Gelman Library store. Defs.’ Fact Resp. ¶¶ 77–81. But it is
not for the Court to decide at the summary judgment stage which party’s version of events is
more credible; it only acknowledges that a reasonable factfinder could choose to credit Mr.
Jackson’s evidence.
Defendants suggest that this Court should apply a similar test articulated in Callwood v.
Dave & Buster’s, Inc., 98 F. Supp. 2d 694, 704–08 (D. Md. 2000), which further elaborates on
4
Defendants relatedly argue that Mr. Jackson has undermined his own case by answering
“no” when asked “And you think that the altercation at Starbucks happened because you’re a
black man?” Defs.’ Reply at 12, ECF No. 54. Such inconsistency could undermine Mr.
Jackson’s credibility with a jury, but it does not defeat summary judgment altogether when other
parts of his testimony do articulate such a belief. See Jackson Dep. Tr. at 195:10–19 (“I picked
something off the counter and took it and got in line and they took it and tried to make it look
like that I was actually attempting to take something when I wasn’t. Q And how do you connect
that with you being black? A Because many times I have went in Starbucks I have seen people
not of my race pick things up off the counter and get in line and nothing was said.”).
5
The Court expresses no opinion at this stage about whether evidence regarding the
Philadelphia incident would be admissible at trial.
14
the showings needed to establish an inference of unlawful discrimination in a retail setting. See
Defs.’ Reply Further Supp. Mot. Summ. J. (“Defs.’ Reply”) at 2, ECF No. 54. Callwood
requires the plaintiff customer to show that:
[They] did not enjoy the privileges and benefits of the contracted for experience
under factual circumstances which rationally support an inference of unlawful
discrimination in that
(a) [they] were deprived of services while similarly situated persons outside the
protected class were not deprived of those services, and/or
(b) [they] received services in a markedly hostile manner and in a manner which a
reasonable person would find objectively unreasonable.
Callwood, 98 F. Supp. 2d at 707. This Court agrees with another court in this district that the
Callwood test “is sensible for the purposes of Section 1981 claims in the commercial context,”
with the recognition that “customers may not always have available to them the type of
comparator data that is available in the employment context, since their claims will often arise
from limited, one-off interactions with service-industry establishments.” Bonner v. S-Fer Int’l,
Inc., 207 F. Supp. 3d 19, 24–25 (D.D.C. 2016); see also Banks v. Bank of Am., N.A., 505 F.
Supp. 2d 159, 167 (D.D.C. 2007) (adopting the Callwood test to “evaluat[e] a § 1981 claim in
the context of interactions in a commercial establishment”).
Regardless, the Callwood test is not any more favorable to Defendants. Again, Mr.
Jackson testified that white customers routinely took items off the counter without being accused
of shoplifting, Jackson Dep. Tr. 125:17–19, 209:6–8, in other words, that “similarly situated
persons outside the protected class were not deprived of . . . services” in similar circumstances,
Callwood, 98 F. Supp. 2d at 707. Defendants’ focus on similarly situated comparators also
largely misses the point that such a showing is a sufficient, but not necessary, way to satisfy the
Callwood test. Indeed, there is evidence that Mr. Jackson was treated in “a markedly hostile
manner and in a manner which a reasonable person would find objectively unreasonable,” the
15
alternative method for satisfying the Callwood test. See id. Specifically, he testified that the
cashier said “Hey, you” in a loud voice and condescendingly accused him of stealing, Jackson
Dep. Tr. 261:10–20, and it is undisputed following discovery that he was told that he had to
leave the store and “shoved” when he refused to leave, see Pl.’s Fact Resp. ¶¶ 18–19.
In short, Mr. Jackson has at this stage collected evidence that corroborates the same
allegations that were enough to support a reasonable inference of discrimination at the motion to
dismiss stage. See Jackson, 2021 WL 1317883, at *9. Starbucks has also collected contrary
evidence, and it is not the proper moment to weigh the competing evidence. A reasonable
factfinder may not ultimately draw an inference of discrimination, but there is enough evidence
with which it could. “In Title VII cases, courts must view summary judgment with special
caution because discriminatory intent and proof of disparate treatment are difficult to establish.”
Hastie, 121 F. Supp. 2d at 77.
b. Defendants’ Asserted Legitimate, Nondiscriminatory Reasons
In the alternative, Defendants assert two related non-discriminatory reasons for Mr.
Jackson’s treatment. First, with respect to the cashier’s accusation that Mr. Jackson was stealing,
Defendants suggest that she simply made a mistake, and that Mr. Jackson’s “belligerent”
reaction was a non-discriminatory reason to ask him to leave the store. Defs.’ Reply at 5–8.
There is testimony that would support this version of events. For instance, another employee
testified that the store had received customer complaints about rude interactions with that
cashier, Ward Dep. Tr. 44:6–13, and multiple witnesses testified that Mr. Jackson was verbally
confrontational and threatening toward the cashier, see id. at 40:17–22 (“I just felt like at that
moment . . . when that man was wailing on Chelsea like that—because it looked like if he had
16
got—kept on arguing, if he kept on getting closer to Chelsea, he may have hit Chelsea.”); White-
Hunt Dep. Tr. at 254:8–9 (“They were shouting and there was profanity.”).
The Court assumes for the sake of argument that both articulated reasons are legitimate
and nondiscriminatory. 6 But Mr. Jackson is correct that Defendants’ non-discriminatory reasons
depend in part on disputed material facts: primarily, whether the cashier had a discriminatory
intent in making the accusation that Mr. Jackson was stealing, and whether Mr. Jackson’s
reaction was even belligerent at all—something his testimony, and to some extent the video
footage, suggest may not have been the case. See Jackson Dep. Tr. at 245:14–17 (“Q So just so
I'm clear on the picture, you were standing in line in a non-threatening way; is that correct? A
Yes.”); see generally Ex. 5 of Defs.’ Mot. at 12:08:53–09:12.
Even if Mr. Jackson’s testimony was entirely uncorroborated at this stage, “it is up to the
jury, not the district court, to assess the validity of plaintiff’s uncorroborated version of events.”
Robinson v. Pezzat, 818 F.3d 1, 9 (D.C. Cir. 2016) (quotations omitted). This is not one of the
rare cases in which a plaintiff’s testimony is so undermined by other evidence in the record that
the Court can set it aside at the summary judgment stage. Id. at 10 (“Evidence satisfying this
standard, such as a video tape that ‘quite clearly’ demonstrates the falsity of the plaintiff’s
statement, rarely exists.”). Resolving the dispute about what happened would require the Court
to weigh evidence and make credibility determinations—functions that it must not undertake at
the summary judgment stage. See Czekalski, 475 F.3d at 363 (courts must “eschew making
6
The case Defendants cite for the possibility that a mistake can be legitimate,
nondiscriminatory reason, Williams v. Staples, Inc., 372 F.3d 662 (4th Cir. 2004), does not
actually so hold. There, the court assumed without deciding that the sales clerk’s “mistake”
about the store’s check policy was a legitimate, nondiscriminatory reason for having refused to
serve a black customer, id. at 668–69, before ultimately deciding that there was sufficient
evidence to conclude that such a proffered reason was pretextual, id. at 669.
17
credibility determinations or weighing the evidence” at the summary judgment stage). “Because
genuine issues of material fact exist on the § 1981 claim, summary judgment would be
inappropriate, particularly since liability would turn on the discriminatory intent of the
defendant.” Mitchell, 274 F. Supp. 2d at 47; see also Banks, 505 F. Supp. 2d at 168 (denying
summary judgment where “there [was] no support among the undisputed facts” to support
defendant’s articulated nondiscriminatory reason).
2. DCHRA (Count III)
The DCHRA makes it unlawful in the District of Columbia to “deny, directly or
indirectly, any person the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, and accommodations of any place of public accommodations” either “wholly or
partially” on the basis of, inter alia, “race, color, [or] personal appearance.” D.C. Code § 2-
1402.31(a)(1). “The legal standards applicable to race discrimination are the same under the
DCHRA and [Section] 1981.” Lemmons v. Georgetown Univ. Hosp., 431 F. Supp. 2d 76, 86
(D.D.C. 2006) (quoting Fox v. Giaccia, 424 F. Supp. 2d 1, 6–7 (D.D.C. 2006)). The Court’s
reasoning with respect to racial discrimination under § 1981 accordingly applies to Mr. Jackson’s
DCHRA claim, as well.
The DCHRA also prohibits a denial of services on the basis of personal appearance,
which the Court must address separately. Personal appearance is defined for purposes of the
DCHRA as “the outward appearance of any person, irrespective of sex, with regard to bodily
condition or characteristics, manner or style of dress, and manner or style of personal grooming,
including, but not limited to, hair style and beards.” D.C. Code § 2-1401.02(22). The DCHRA’s
definition contains only a few limited exceptions, including “the requirement of cleanliness,
uniforms, or prescribed standards, when uniformly applied for admittance to a public
18
accommodation.” Id. Defendants do not argue that there was any uniformly applied prescribed
standard of appearance for admission to Starbucks that Mr. Jackson failed to meet. Rather, they
argue only that there is not enough evidence from which a factfinder could reasonably infer that
Mr. Jackson was discriminated against on this basis. The Court disagrees.
There is ample testimonial and video evidence that Mr. Jackson was not well-dressed that
day. See Jackson Dep. Tr. 225:9–14 (“[A]t the time I had just got into my apartment and my
clothes situation wasn’t all that great at the time. So, yes, I probably had on some jeans probably
was too big for me and, you know, the shirt probably was wrinkled or whatever that be. I wasn’t
dressed up to my best potential.”); Ward Dep. Tr. 225:1–5 (“Mr. Jackson has a look, like he’s a
drug user or that he abuses drugs. He has that look. I don’t think he had any teeth in his mouth,
and if he did, he didn’t have the top ones.”); Ex. 4 of Defs.’ Opp’n at 12:08:34 (video footage
showing Mr. Jackson’s personal appearance on that day). A jury could credit any of that
evidence despite the fact that Mr. Jackson does not specifically recall what he was wearing that
day. See Defs.’ Reply at 4 (pointing to testimony that “Mr. Jackson has no recollection of the
clothing that he was wearing on April 24, 2018”).
For the same reasons it would be reasonable for a jury to infer that Mr. Jackson’s race
played a role in the accusation that he was stealing and the subsequent demand that he leave the
store, it would be reasonable for a jury to infer that Mr. Jackson’s personal appearance, dressed
in a manner that some might interpret as indigent, also played a role in the actions of the
Starbucks employees that day. Discrimination on the basis of race and discrimination on the
basis of personal appearance are not mutually exclusive, and in some instances may in fact
reinforce each other. See McManus v. MCI Commc’ns Corp., 748 A.2d 949, 957 (D.C. 2000)
(acknowledging the cognizability of an argument that “because of [a plaintiff’s] choice of
19
clothing and hairstyle, she represents a subset of African–Americans whose claim of
discrimination based on race, coupled with personal appearance, cannot be defeated by hiring to
replace her an African–American whose dress more typically reflects corporate America”).
Once again, weighing the credibility of the evidence and drawing inferences about
discriminatory intent are the province of the jury. Mitchell, 274 F. Supp. 2d at 47. A jury may
or may not credit this evidence or draw an inference that Mr. Jackson was discriminated against
on the basis of his personal appearance, but Mr. Jackson is entitled to present his evidence on the
DCHRA claim to a jury and allow them to reach that ultimate conclusion.
D. Tort Claims
In addition, Mr. Jackson asserts claims for general negligence, negligent supervision, and
battery against both Starbucks and Mr. White-Hunt, seeking to hold both vicariously liable for
Mr. Washington’s actions in shoving and ultimately injuring Mr. Jackson. The Court will grant
summary judgment to Starbucks on the issue of vicarious liability for Mr. Washington’s alleged
negligence, but it will allow the negligent supervision claim to proceed against Mr. White-Hunt
and against Starbucks under a theory of vicarious liability.
1. Negligence and Negligent Supervision (Count I)
At the outset, the Court finds it useful to clarify exactly what theories of negligence Mr.
Jackson asserts and against whom. See Am. Compl. ¶¶ 64–70 (discussing both vicarious liability
for negligence and negligent supervision under Count I). Count I of the Amended Complaint
alleges that Mr. Washington’s actions meet the standard for negligence, see id. ¶ 66, and that Mr.
White-Hunt’s actions meet the standard for negligent supervision, id. ¶¶ 67–68. It then alleges
that “Starbucks is vicariously liable for Washington’s and White-Hunt’s actions.” Id. ¶ 69. Put
another way, the Court understands Count I to encompass three related negligence claims: 1) that
20
Starbucks is vicariously liable for the negligence of Mr. Washington (who is not a party to this
action), 2) that Mr. White-Hunt is liable for negligent supervision, and 3) that Starbucks is
vicariously liable for Mr. White-Hunt’s negligent supervision.
“In a traditional negligence action, a plaintiff must prove the existence of a duty of care
owed by the defendant to him . . . a breach of that duty by the defendant, and damage to the
interests of the plaintiff, proximately caused by the breach.” Griffin v. Acacia Life Ins. Co., 925
A.2d 564, 575 (D.C. 2007). In contrast, “[t]he cause of action for negligent supervision, derived
from this standard negligence tort, recognizes that an employer owes specific duties to third
persons based on the conduct of its employees.” Id. “[A] common law claim of negligent
supervision may be predicated only on common law causes of action or duties otherwise
imposed by the common law.” Id. at 576. An employer is generally liable for an employee’s
tortious conduct only if the employee was acting “within the scope of their employment.”
Boykin v. District of Columbia, 484 A.2d 560, 561 (D.C. 1984).
a. Mutual Exclusivity of Battery and Negligence Claims
Defendants first argue that Mr. Jackson’s general negligence claim is duplicative of its
battery claim, as both are premised on Mr. Washington’s intentional action of shoving Mr.
Jackson. Defs.’ Mot. at 9. Under D.C. law, “both negligence and battery claims, in order to go
to the jury, must be separate and distinct from each other.” District of Columbia v. Chinn, 839
A.2d 701, 707 (D.C. 2003). The case Defendants cite, Chinn, does not rigidly prohibit a plaintiff
from bringing both negligence and intentional tort claims in the same action; rather, it instructs
the court to “look to the particular facts and circumstances of the case to properly characterize
the action” and not allow plaintiffs to “bootstrap from the battery proof alone” without separately
establishing the elements of negligence. Id. at 710. In Chinn, a plaintiff alleged only an
21
intentional use of excessive force by arresting officers, but without any separate allegations that
would support a negligence theory, such as if “the officers mistakenly or negligently thought
Chinn was armed” or “the officers misperceived him as a threat.” Id. at 711; see also Rice v.
District of Columbia, 774 F. Supp. 2d 25, 32 (D.D.C. 2011) (allowing a negligence claim to
proceed as an alternative theory to the excessive force claim where the pleadings alleged
negligent handling and discharge of a weapon).
With respect to the negligent supervision claim against Mr. White-Hunt, it is clear that
the basis of this claim is predicated on facts apart from Mr. Washington’s actions; principally,
Mr. White-Hunt’s failure to intervene or prevent Mr. Washington’s actions. The court in Spicer
v. District of Columbia allowed a claim for negligent supervision to proceed against a
supervising officer who was allegedly “negligent in failing to adequately supervise the other
officers” who then intentionally attacked an inmate, but granted judgment on the pleadings with
respect to the negligence claim against the officers who allegedly committed the intentional
battery. Spicer v. District of Columbia, 916 F. Supp. 2d 1, 3 (D.D.C. 2013). This case has a
similar structure. The negligent supervision claim against Mr. White-Hunt, and Starbucks’s
vicarious liability for that negligent supervision, are theoretically separate from the underlying
physical altercation between Mr. Washington and Mr. Jackson, and Chinn does not preclude Mr.
Jackson from pursuing them as a matter of law.
Starbucks’s liability for Mr. Washington’s actions presents a more difficult question.
There is some evidence from which a jury could find that Mr. Washington acted negligently
rather than intentionally in pushing Mr. Jackson. See Ward Dep. Tr. at 32:20–33:16 (“I believe
[Mr. Washington was] trying to usher the man out . . . I believe the man may have hit [Mr.
Washington]” but “[Mr. Washington]’s body stance was so solid that it caused the man to fall.”);
22
id. at 34:15–16 (“[Mr. Washington] was a gentle giant. He was like a Teddy Bear.”). A
reasonable jury could choose to credit this testimony and determine that Mr. Washington was
negligent, as opposed to intentional, and thus that Starbucks could be vicariously liable for
negligence rather than battery.
The problem is that this is not what Mr. Jackson has pleaded. The Amended Complaint
alleges that Mr. Washington “failed to exercise reasonable care by coming out from behind the
counter, stalking towards Mr. Jackson in a threatening manner, escalating the situation through
physical proximity and threatening demeanor, and twice pushing Mr. Jackson.” Am. Compl.
¶ 66. But the listed actions are intentional and materially indistinguishable from the battery
claim, and “[a] plaintiff cannot distinguish his two claims merely by adding words like ‘standard
of care. . . .’” Elshazli v. District of Columbia, 415 F. Supp. 3d 20, 27 (D.D.C. 2019). In fact,
Mr. Jackson has consistently maintained throughout his pleadings and briefing that Mr.
Washington’s actions were intentional. See, e.g., Pl.’s Opp’n to Defs.’ Mot. Summ. J. (“Pl.’s
Opp’n”) at 27, ECF No. 50.
Although Chinn does not explicitly foreclose the possibility of pleading battery and
negligence as alternative theories of recovery, “the weight of the caselaw” suggests that both this
district and the D.C. courts have routinely applied Chinn at the motion to dismiss and summary
judgment stages. Harris v. U.S. Dep’t of Veterans Affs., 776 F.3d 907, 916 (D.C. Cir. 2015)
(affirming a grant of summary judgment on a negligent infliction of emotional distress claim that
did not “distinguish between negligent and intentional acts” as required by Chinn); Elshazli, 415
F. Supp. 3d at 28 (collecting cases applying Chinn at the motion to dismiss stage); Kenley v.
District of Columbia, 83 F. Supp. 3d 20, 46 (D.D.C. 2015) (same); see also Blair v. District of
Columbia, 190 A.3d 212, 223–24 (D.C. 2018) (acknowledging that dual instructions may be
23
appropriate where “the evidence . . . might be interpreted to tell two, fundamentally different
stories” but affirming a grant of summary judgment because the “allegations [did] not rely on a
factual scenario different from” the alleged assault and the plaintiff “claim[ed] no injury
traceable to [the defendant]’s ‘negligent’ actions that were ‘separate and distinct’ from [the]
assaultive conduct”). Mr. Jackson chose to pursue an intentional tort claim of battery on these
facts that, as alleged, is inconsistent with negligence. He cannot belatedly rely on otherwise
unfavorable testimony to salvage negligence as an alternative theory of recovery. 7 Accordingly,
the Court will grant summary judgment to Starbucks on the issue of its vicarious liability for Mr.
Washington’s negligence. 8
b. Liability of Mr. White-Hunt for Negligent Supervision
The tort of negligent supervision “allows a plaintiff to hold employers directly liable for
their failure to properly supervise their personnel.” James v. District of Columbia, 869 F. Supp.
2d 119, 121 (D.D.C. 2012); Griffin, 925 A.2d at 575. “[A]n action for negligent supervision . . .
requires proof that the employer breached a duty to plaintiff to use reasonable care in the
supervision . . . of an employee which proximately caused harm to plaintiff.” Phelan v. City of
Mount Rainier, 805 A.2d 930, 940 (D.C. 2002). “This requires that the plaintiff show ‘(1) that
7
Moreover, the Court considers this portion of the testimony from Ms. Ward, who
admitted that she “really [doesn’t] know how [the altercation] happened,” see Pl.’s Fact Resp.
¶ 19 (quoting Ward Dep. Tr. at 38:7–10), to be too speculative and otherwise uncorroborated to
preclude summary judgment, see Anderson, 477 U.S. at 249–50 (“If the evidence is merely
colorable, or is not significantly probative, summary judgment may be granted.” (citations
omitted)).
8
The Court does not understand Mr. Jackson to be raising a claim that Mr. White-Hunt is
also vicariously liable for Mr. Washington’s negligence rather than for his own negligent
supervision, but to the extent he is, that claim is foreclosed by the same reasoning. The Court
also need not reach Defendant’s argument about the standard of care as it relates to Mr.
Washington’s actions or whether Mr. Washington breached that standard of care. See Defs.’
Mot. at 10.
24
Defendants knew or should have known its employees behaved in a dangerous or otherwise
incompetent manner, and (2) that Defendants, armed with that actual or constructive knowledge,
failed to adequately supervise its employees.’” Jackson v. Starbucks Corp., 2021 WL 1317883,
at *3 (quoting Daisley v. Riggs Bank, N.A., 372 F. Supp. 2d 61, 79 (D.D.C. 2005) (cleaned up)).
As it was at the motion to dismiss stage, Mr. White-Hunt’s primary argument is that he
could not have foreseen Mr. Washington’s actions, and thus lacked any actual or constructive
knowledge that Mr. Washington would behave in a dangerous manner. Id. at *4. Now at the
summary judgment stage, the Court finds that there is evidence from which a reasonable
factfinder could find that those elements have been met. Mr. White-Hunt himself testified that a
manager would “ideally” be the best person to confront a disruptive customer, but that a
subordinate could do so “if they feel comfortable.” White-Hunt Dep. Tr. 152:14–153:11.
Another employee testified that Mr. White-Hunt “avoided confrontation” and would “ignore or
not handle conflict situations.” Ward Dep. Tr. 40:4–17. The video footage shows when Mr.
Washington approached Mr. Jackson, Mr. White-Hunt was close behind. Ex. 5 of Defs.’ Mot. at
12:12:46–56. Moreover, Mr. Jackson testified that he was pushed by Mr. Washington not once
but twice, and that Mr. White-Hunt failed to intervene even after the first push. Jackson Dep. Tr.
246:6–14.
At minimum, this evidence is enough for a reasonable factfinder to conclude that Mr.
White-Hunt had actual knowledge as the conflict occurred that Mr. Washington was behaving in
a dangerous or otherwise incompetent manner and failed to intervene. As this Court pointed out
in its prior opinion, there are at least a few cases in the District of Columbia that have allowed a
negligent supervision claim to proceed solely on evidence of a supervisors’ “contemporaneous
notice of a subordinate’s dangerous or incompetent action.” Jackson v. Starbucks Corp., 2021
25
WL 1317883, at *5 (discussing Spicer, 916 F. Supp. 2d at 3 and Godfrey v. Iverson, 559 F.3d
569, 571 (D.C. Cir. 2009)).
Defendants are correct that Mr. Jackson also has the burden of proving the relevant
standard of care for the negligent supervision claim, and that the D.C. Court of Appeals has
trended toward requiring expert testimony in an increasingly wide number of situations, and
“even in those that might initially seem to fall within jurors’ common knowledge.” See Godfrey,
559 F.3d at 572. Still, Mr. Jackson contends that no expert testimony is required here, Pl.’s
Opp’n at 28, and the Court agrees.
Godfrey v. Iverson is directly on point. In that case, a nightclub patron sought to hold a
celebrity defendant liable for negligent supervision as a result of physical injuries inflicted by the
defendant’s personal bodyguard—in the defendant’s presence. Godfrey, 559 F.3d at 571. In
rejecting the argument that security issues usually require expert testimony on the standard of
care, the D.C. Circuit explained,
The key distinction . . . is that here the individual with the supervisory authority
(Iverson) was present when his employee (his personal bodyguard Kane)
committed the tortious acts. It was this fact, together with the duration of the melee,
that led the district court to believe that the jury could find that Iverson had the
ability to supervise or control Kane’s behavior that night, a mandatory element of
the negligent supervision tort. Iverson’s presence during the attack also affects the
standard of care. A jury may need the aid of expert testimony to evaluate how a
hotel should train and otherwise supervise its security guards to ensure that they do
not unreasonably use force on some future date. But it is a different thing altogether
to say such expert assistance is needed to establish the standard of care for an
individual who is present while his personal bodyguard, acting on his behalf in
clearing a room in a nightclub, beats a customer and causes significant injuries.
Id. at 573 (emphasis in original). Contrary to Defendants’ argument, it is entirely irrelevant
whether or not “it was Mr. White-Hunt’s duty to provide security at the store.” See Defs.’ Mot.
at 15. Surely Mr. Iverson did not have a duty to provide security at the nightclub, either, but the
court found that he had a common-sense duty not to stand by while his employee committed an
26
intentional tort. Here, too, it does not require expert testimony for a jury to conclude that Mr.
White-Hunt had a duty to not stand by while an employee under his direct supervision physically
attacked a customer.
In a related and final attempt to avoid liability for negligent supervision, Mr. White-Hunt
attempts to argue that he was not, in fact, Mr. Washington’s employer. Defs.’ Mot. at 11–12.
Specifically, he claims that because “Mr. Washington was employed as a barista” and not to
“protect partners from disruptive customers,” that “the relationship between Mr. White-Hunt and
Mr. Washington lacked the hallmarks of an employer-employee relationship.” Id. at 12. This
reasoning appears to conflate the issue of whether Mr. Washington was acting within the scope
of his employment with negligent supervision, which is a distinct theory of liability. See Brown
v. Argenbright Sec., Inc., 782 A.2d 752, 760 (D.C. 2001) (“[Defendant’s] duty to supervise is not
merely to be judged by the concept of respondeat superior.” (quotations omitted)). In Brown v.
Argenbright, the D.C. Court of Appeals affirmed a grant of summary judgment on the issue of
negligent supervision where “[t]he only evidence arguably supporting the theory that [the store]
was negligent in supervising [the alleged tortfeasor] was that [another] employee may have been
present at the time of the alleged assault” but “there was no evidence indicating that [the other]
employee had either the power to control [the alleged tortfeasor]’s conduct or the opportunity to
alert someone who did have that power in time to prevent the harm.” Id. Similarly, the
Restatement of Agency makes clear that a principal may be liable for harm resulting from an
agent’s conduct if the principal was “negligent or reckless . . . in permitting, or failing to prevent,
negligent or other tortious conduct by persons, whether or not his servants or agents, upon
premises or with instrumentalities under his control.” Restatement (Second) of Agency § 213
(1958).
27
The question is therefore whether Mr. White-Hunt had the authority and opportunity to
prevent Mr. Washington’s conduct. It is undisputed that Mr. White-Hunt was the store manager.
See Defs.’ SUMF ¶ 19; White-Hunt Dep. Tr. at 30:12–15 (“What are your job responsibilities as
a store manager? A To oversee the day-to-day runnings of the business.”). A reasonable jury
could infer from that position that Mr. White-Hunt had the authority to intervene and stop Mr.
Washington’s actions. In fact, Mr. White-Hunt’s testimony—although disputed—suggests that
he tried to do so. White-Hunt Dep. Tr. at 279:12–16 (stating that he “tried to get in the way” to
“remove” Mr. Washington from the situation). Accordingly, the negligent supervision claim
against Mr. White-Hunt may proceed.
c. Vicarious Liability of Starbucks for Mr. White-Hunt’s Negligent Supervision
The only remaining negligence question, then, is whether Starbucks may be held
vicariously liable for Mr. White-Hunt’s alleged negligent supervision. The briefing is
lamentably unclear on this issue, instead focusing on the issue of vicarious liability for Mr.
Washington’s negligence, which the Court need not consider. See Pl.’s Opp’n at 24–25; Defs.’
Reply at 14. Nor does either party cite a case in which a company has been held vicariously
liable for a mid-level manager’s negligent supervision of an employee. As with vicarious
liability for any type of negligence, however, “an employer may be held liable for the acts of his
employees committed within the scope of their employment.” Boykin, 484 A.2d at 561. An
employer is subject to liability when employees negligently discharge responsibilities within the
scope of their employment, Restatement (Second) of Agency § 243 (1958), and the Court has not
located any authority suggesting that the general principle would be any less applicable where
the relevant responsibility is supervision of another.
28
There is enough evidence in the record from which a jury could determine that Mr.
White-Hunt was acting within the scope of his employment when he was negligent in the
supervision of Mr. Washington. Again, Mr. White-Hunt was Mr. Washington’s supervisor and
had primary responsibility for the store. See Defs.’ SUMF ¶ 19. Nor is there any suggestion that
Mr. White-Hunt was acting out of any personal motivations during the incident; to the contrary,
he claimed that he attempted to deescalate the situation “to maintain the safety of my partners
and customers at the same time” and that he acted out of a “responsibility to jump in and take
over.” White-Hunt Dep. Tr. at 280:17–22. Mr. White-Hunt was also in charge of taking
corrective action for employees who violated Starbucks policy, and in fact issued a final written
warning to Mr. Washington for his actions in this incident. Ex. E of Hudnall Decl., Ex. 1 of
Defs.’ Mot., ECF No. 46-3. Thus, a reasonable jury could conclude that supervision of Mr.
Washington was within the scope of Mr. White-Hunt’s employment, and this claim may proceed.
2. Battery (Count II)
Finally, Starbucks moves for summary judgment on Count II, which seeks to hold it
vicariously liable for battery on the part of Mr. Washington. Defs.’ Mot. at 13–14. 9 An
employer may be liable for the torts of its employees if they were committed while the employee
was “acting in the scope of their employment.” Restatement 2d of Agency § 219(a). “[I]f the
employee acts in part to serve his employer’s interest, the employer will be held liable for the
intentional torts of his employee even if prompted partially by personal motives, such as
revenge.” Hechinger Co. v. Johnson, 761 A.2d 15, 24 (D.C. 2000).
9
The Amended Complaint likewise sought to hold Mr. White-Hunt liable for aiding-and-
abetting battery, but this Court dismissed that claim as untimely in its prior decision. Jackson v.
Starbucks Corp., 2021 WL 1317883, at *7.
29
Although “generally an intentional tort is regarded as falling outside the scope of
employment,” the analysis of whether it is turns on the employee’s motivations and how far
outside the authorized activities it falls. Kimbro v. Velten, 30 F.3d 1501, 1505 (D.C. Cir. 1994).
Starbucks naturally focuses on the requirement that intentional force be “not unexpectable,” id.(quoting Restatement (Second) of Agency § 228(d) (1958)), but a violent action is not
“unexpectable” merely because it is technically disapproved. Of course, most employers do not
authorize intentional torts, so allowing a company to escape vicarious liability by arguing that
any unauthorized act is “unexpected” would swallow the rule entirely. Instead, an employer may
be liable even for an action that “was in excess of the authority conferred by the employer upon”
them so long as it “was committed in the course of the discharge of his duties and in furtherance
of the work of the employer’s business.” Jamison v. Encarnacion, 281 U.S. 635, 641 (1930). In
a remarkably similar case, the D.C. Court of Appeals upheld the sufficiency of the evidence for a
store’s vicarious liability in a case where an employee struck a client, stating that “[i]t was
reasonable for the jury to conclude that the man’s actions were motivated by a desire to require
[the plaintiff] to pay for . . . the property of his employer” and that he acted “to resolve a job-
related dispute.” Hechinger, 761 A.2d at 25.
Here, there is evidence from which a reasonable jury could conclude that Mr.
Washington was attempting to serve Starbucks’s interests when he pushed Mr. Jackson, even if
he exceeded the scope of his authority in doing so. See, e.g., Ward Dep. Tr. at 176:1–2
(describing how Mr. Jackson was “holding up the line while all this is going on”); id. at 177:3–5
(describing Mr. Washington as saying “like, sir, come on, you need to leave the store. You need
to exit now. You can’t keep disrespecting the staff.”); White-Hunt Dep. Tr. at 153:1, 18–19
30
(testifying that if a Starbucks employee feels comfortable, they should physically confront a
verbally disruptive customer, and that any employee could do so because “we’re all one team”).
Defendants’ alternative characterizations for Mr. Washington’s motivations are nothing
more than yet another disputed issue of fact. See Defs.’ Mot. at 14 (suggesting that Mr.
Washington may have acted in “self defense”); Defs.’ Reply at 9 (suggesting, based on Mr.
Jackson’s recollection, that Mr. Washington was motivated by “chivalry” to protect Ms.
Robinson). “[W]hether an employee is acting within the scope of his employment is a question
of fact for the jury.” Brown, 782 A.2d at 757. Accordingly, the Court reiterates, once again, that
it will be up to the jury to resolve the competing characterizations of the events in this case, and
it denies summary judgment on the issue of Starbucks’s liability for battery.
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment (ECF No. 46) is
GRANTED IN PART AND DENIED IN PART, Defendant Starbucks’s Motion for Leave to
File Under Seal Certain Exhibits (ECF No. 48) is GRANTED IN PART AND DENIED IN
PART, and Plaintiff’s Motion for Leave to File a Surreply (ECF No. 55) is GRANTED. An
order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: March 25, 2022 RUDOLPH CONTRERAS
United States District Judge
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