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Murry v. Sears, Roebuck and Co.

United States District Court, D. Kansas

February 14, 2014

MAURICE MURRY, Plaintiff,
v.
SEARS, ROEBUCK AND CO., and KERRY FOSTER, Defendants.

Stacy M. Bunck, #20531, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Kansas City, MO, Attorney for Defendant.

ANSWER OF SEARS, ROEBUCK AND CO.

COMES NOW Sears, Roebuck and Co. ("Defendant") and responds to Plaintiff's Complaint as follows:

Jurisdiction and Venue

1. The Court has jurisdiction over this matter which arises under the statutes of the United States, specifically, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and 42 U.S.C. § 1981, pursuant to 28 U.S.C. § 1331. Venue is proper under 28 U.S.C. § 1391(b).

ANSWER: Defendant admits this Court has jurisdiction over this lawsuit, and that venue is proper in this Court. Defendant denies the remaining allegations in Paragraph 1 of Plaintiff's Complaint, including any implication that Defendant violated Title VII of the Civil Rights Act of 1964 or 42 U.S.C. § 1981.

Parties

2. Maurice Murry ("the Plaintiff") is an individual who was employed by the Defendant Sears, Roebuck and Co. for approximately fifteen years prior to the defendants' termination of his employment on or about July 2, 2012. The Plaintiff is African-American.

ANSWER: Defendant admits that Plaintiff, an African-American, was employed by Defendant prior to his termination on July 2, 2012. Defendant denies the remaining allegations in Paragraph 2 of Plaintiff's Complaint.

3. Defendant Sears, Roebuck and Co. ("Sears") is a retailer of apparel, home and automotive products and services. Sears owns and operates a store at 9701 Metcalf Avenue in Overland Park, Kansas ("the Store"). The Store is located in a shopping mall known as Metcalf South. Sears employed the Plaintiff at the Store throughout his employment with the company and at the time that the Defendants terminated the Plaintiff's employment.

ANSWER: Defendant admits that it is a retailer of apparel, home and automotive products and services, and that it owns and operates a store at 9701 Metcalf Avenue in Overland Park, Kansas, which is located in a shopping mall known as Metcalf South. Defendant further admits that it employed Plaintiff at the Store throughout his employment with Defendant and at the time that Defendant terminated Plaintiff's employment. Defendant denies the remaining allegations in Paragraph 3 of Plaintiff's Complaint.

4. Defendant Kerry Foster ("Foster") was the manager of the Store from approximately May 2011 through, at least, the date that the Defendants terminated the Plaintiff's employment. Collectively, Sears and Foster will be referred to as the Defendants.

ANSWER: Defendant admits that Mr. Foster was the manager of the store from approximately August 2011 through at least July 2, 2012. Defendant denies the remaining allegations in Paragraph 4 of Plaintiff's Complaint.

5. Plaintiff has fulfilled all conditions precedent to the institution of this action. Plaintiff timely filed a charge of illegal race-based discrimination on July 26, 2012, with the Kansas Human Rights Commission (Docket No. 35799-13). This Charge was cross-filed with the Equal Employment Opportunity Commission on July 26, 2012 (Charge No. 28D-2012-00794). On July 29, 2013, a Dismissal and Notice of Rights was mailed to Plaintiff from the Equal Employment Opportunity Commission and he has filed this action within 90 days of his receipt of that Notice.

ANSWER: Paragraph 5 of Plaintiff's Complaint states legal conclusions to which Defendant believes no response is required. To the extent a response is required, Defendant admits that Plaintiff filed a charge of race discrimination on July 26, 2012, with the Kansas Human Rights Commission (Docket No. 35799-13), which was cross-filed with the Equal Employment Opportunity Commission on July 26, 2012 (Charge No. 28D-2012-00794). Upon information and belief, a Dismissal and Notice of Rights dated July 29, 2013, was mailed to the parties from the Equal Employment Opportunity Commission. Defendant is without sufficient information to admit or deny the remaining allegations in Paragraph 5 of Plaintiff's Complaint, and therefore denies same.

Facts Common to Claims for Relief

6. At the time of his termination, the Plaintiff's job position with Sears was that of Loss Prevention Manager for the Store.

ANSWER: Defendant admits the allegations in Paragraph 6 of Plaintiff's Complaint.

7. On or about June 26, 2012, the Plaintiff and several other managers ("the Others") within the Store attempted to apprehend or have apprehended a suspected shoplifter ("the Shoplifter") at the Store. The Plaintiff and the Others followed the Shoplifter out of the Store and onto an adjoining parking lot in order to effect his apprehension. The Plaintiff, per store policy, called 911 to request that the Overland Park Police respond to the situation, which they did. The Plaintiff stepped off of the sidewalk surrounding the shopping mall in order to monitor the movement and report the same to the Overland Park Police, and did so monitor and report, by cell phone, until the Police arrived and arrested the shoplifter. Plaintiff did not pursue the shoplifter. Plaintiff's conduct in monitoring the movement of this shoplifter was consistent with his past practice, taken in literally hundreds of similar events, and his past practice was known to Defendants. One or more of the Others, specifically, Joseph Walker, Kevin Brandon, John Paul and Randal Cole, did pursue the Shoplifter, and did so without Plaintiff's direction or control.

ANSWER: Defendant admits that on June 26, 2012, Plaintiff attempted to apprehend or have apprehended a suspected shoplifter at the store. Defendant further admits that Plaintiff and other employees followed the shoplifter out of the store and onto an adjoining parking lot in order to effect his apprehension. Defendant further admits upon information and belief and per store policy, Plaintiff called 911 to request that the Overland Park Police respond to the situation, which they did. Defendant further admits that Plaintiff stepped outside of apprehension boundaries, as clearly defined by store policy. Defendant admits that other employees pursued the shoplifter at Plaintiff's direction. Defendant is without sufficient information or belief to admit or deny whether Plaintiff acted consistently with his past practice on June 26, 2012. Defendant denies the remaining allegations in Paragraph 7 of Plaintiff's Complaint.

8. The Others pursued the Shoplifter across the parking lot, where they restrained him until the police arrived and ...


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