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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 took the Shoplifter into custody.

ANSWER: Defendant admits that certain employees, including Plaintiff, pursued the shoplifter outside of apprehension boundaries, where the shoplifter was restrained until the police arrived and took him into custody. Defendant denies the remaining allegations in Paragraph 8 of Plaintiff's Complaint.

9. After returning to the Store, the Plaintiff prepared and filed a report concerning the incident pursuant to company policy.

ANSWER: Defendant admits that Plaintiff prepared and filed an incomplete report concerning the incident. Defendant denies the remaining allegations in Paragraph 9 of Plaintiff's Complaint.

10. Within several days following the incident, Foster and the District Loss Prevention Manager began an investigation into the incident and the Plaintiff's role in it.

ANSWER: Defendant admits that within several days following the incident, the District Loss Prevention Manager began an investigation into the incident and Plaintiff's role in it, and that Mr. Foster participated in the investigation. Defendant denies the remaining allegations in Paragraph 10 of Plaintiff's Complaint.

11. Following the investigation, the Defendants terminated the Plaintiff's employment, but did not terminate the employment of any of the Others. Upon information and belief Sears did not even discipline any of the Others for their actions and conduct relating to the incident.

ANSWER: Defendant admits that it terminated Plaintiff's employment following the investigation, and did not terminate the employment of any other employees as a result of the investigation. Defendant denies the remaining allegations in Paragraph 11 of Plaintiff's Complaint. 2012, constituted disparate treatment in that he was severely disciplined while other similarly situated employees received no discipline at all.

ANSWER: Defendant denies the allegations in Paragraph 12 of Plaintiff's Complaint.

13. Since the time that Foster was the general manager at the Store, he profiled African-American shoppers through the use of the Store's video equipment and followed them through the store with the video cameras. The monitoring of shoppers was not part of Foster's job duties. Foster did not similarly profile white shoppers. Foster also used the video equipment to monitor the conduct of African-American Store employees, which he did not do so for the white Store employees.

ANSWER: Defendant denies the allegations in Paragraph 13 of Plaintiff's Complaint.

14. Foster profiled African-American customers who attempted to return the Store's merchandise by presuming that these customers had stolen the merchandise. He did not profile and make such a presumption about white customers.

ANSWER: Defendant denies the allegations in Paragraph 14 of Plaintiff's Complaint.

15. Foster engaged in the use of racially derogatory terms with respect to an African-American employee of Sears, while he did not do so with any white employees.

ANSWER: Defendant denies the allegations in Paragraph 15 of Plaintiff's Complaint. employment are inconsistent, not credible and a pretense for the action reason for the termination of the Plaintiff's employment - his race.

ANSWER: Defendant denies the allegations in Paragraph 16 of Plaintiff's Complaint.

17. The Defendants' termination of the Plaintiff's employment on account of his race was done willfully, wantonly with malice and in knowing or reckless disregard of the Plaintiff's federal statutory rights.

ANSWER: Defendant denies the allegations in Paragraph 17 of Plaintiff's Complaint.

FIRST CLAIM FOR RELIEF: VIOLATION OF TITLE VII

18. The Plaintiff incorporates paragraph 1 through 17 above as if set forth fully here.

ANSWER: Defendant adopts and incorporates its answers and responses to Paragraphs 1-17 as though set forth here in full.

19. The Defendants' termination of the Plaintiff's employment was on account of his race. The Defendants' disparate treatment of the Plaintiff based upon his race violated his rights under Title VII of the Civil Rights Act of 1964.

ANSWER: Defendant denies the allegations in Paragraph 19 of Plaintiff's Complaint.

20. The Defendants' termination of the Plaintiff's employment caused him economic loss, emotional distress, embarrassment and humiliation.

ANSWER: Defendant denies the allegations in Paragraph 20 of Plaintiff's Complaint.

WHEREFORE, Defendant denies that Plaintiff is entitled to any relief requested in the Complaint, prays that the Court dismiss the Complaint in its entirety with prejudice, award Defendant its costs and fees, and for any further relief the Court deems just and proper.

SECOND CLAIM FOR RELIEF: VIOLATION OF 42 U.S.C. § 1981

21. The Plaintiff incorporates paragraphs 1 through 17 above as if set forth fully here.

ANSWER: Defendant adopts and incorporates its answers and responses to Paragraphs 1-17 as though set forth here in full.

22. The Defendants' termination of the Plaintiff's employment on account of his race violated the Plaintiff's rights under 42 U.S.C. § 1981 with regard to his ability to make and enforce contracts.

ANSWER: Defendant denies the allegations in Paragraph 22 of Plaintiff's Complaint.

23. The Defendants' termination of the Plaintiff's employment caused him economic loss, emotional distress, embarrassment and humiliation.

ANSWER: Defendant denies the allegations in Paragraph 23 of Plaintiff's Complaint.

WHEREFORE, Defendant denies that Plaintiff is entitled to any relief requested in the Complaint, prays that the Court dismiss the Complaint in its entirety with prejudice, award Defendant its costs and fees, and for any further relief the Court deems just and proper.

Defendant denies all allegations not expressly admitted herein.

DEFENSES AND AFFIRMATIVE DEFENSES

1. Some or all Counts of Plaintiff's Complaint fail to state a claim or cause of action for which relief may be granted.

2. Some or all Counts of Plaintiff's Complaint are barred because Defendant's actions were made in good faith and with reasonable grounds to believe its conduct was in full compliance with the relevant laws.

3. Some or all Counts of Plaintiff's Complaint are barred in whole or in part to the extent Plaintiff seeks to recover damages in excess of the type and amounts allowed or provided by law.

4. Some or all Counts of Plaintiff's Complaint are barred because the alleged actions of Defendant, which are denied, were not intentional, malicious, willful or reckless.

5. Count I of Plaintiff's Complaint is barred in whole or in part to the extent it contains allegations or seeks relief that exceeds the scope of any administrative charges.

6. All employment actions taken by Defendant were taken for legitimate, non-discriminatory business reasons unrelated to any protected status of Plaintiff.

7. Plaintiff is not entitled to relief to the extent he failed to mitigate his damages.

8. Plaintiff's claims for punitive damages are barred because the request seeks damages in violation of the due process, equal protection, and cruel and unusual punishment provisions of the United States Constitution.

9. Plaintiff's claims for punitive damages are barred because the request seeks damages in violation of the Constitution of the State of Kansas.

10. Defendant is not liable for punitive damages because it has at all times made a good faith effort to comply with the laws and any action by an employee contrary to these efforts is in violation of Defendant's policies and procedures.

11. Some or all Counts of Plaintiff's Complaint against Defendant, which Defendant denies, are too speculative to permit recovery and are not of the nature or extent alleged in the Complaint.

12. Defendant denies that any of its employees or agents, acting within the course and scope of their employment or agency, violated any statute or caused any damage or injury to Plaintiff.

13. Defendant would have made the same decisions due to legitimate, non-discriminatory reasons.

14. Plaintiff is not entitled to any award for lost back wages for any period during which he was unable to work.

15. Defendant reserves the right to amend its answer to add defenses which may become known during the course of this action, including the defense of after-acquired evidence.


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