Case 3:12-cv-01385-PK Document 1 Filed 08/01/12 Page 1 of 11 Page ID#: 1 Rick Klingbeil, OSB No. 933326 Rick Klingbeil, P.C. 2300 SW First Avenue, Ste. 101 Portland, Oregon 97201 Phone: 503-473-8565 E-Mail Address: rick@klingbeil-law.com Of Attorneys for Simon Williams as Guardian Ad Litem for Malcom Williams IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION SIMON WILLIAMS as Guardian Ad Litem for MALCOM WILLIAMS, an individual, v. Plaintiff, Civil No. 3:12-cv-1385 COMPLAINT (42 USC 1981, 42 USC 1982, ORS 659A.406, False Imprisonment, Intentional Infliction of Emotional Distress) KOHL S DEPARTMENT STORES, INC., a business corporation; JOHN DOE, an individual; and JANE DOE, an individual, Defendants. JURY TRIAL DEMANDED NATURE OF THE CASE 1. This is an action under federal and state law brought on behalf of a 13 year old African American male alleging racial profiling and discrimination, discrimination in Page 1 - COMPLAINT
Case 3:12-cv-01385-PK Document 1 Filed 08/01/12 Page 2 of 11 Page ID#: 2 public accommodations and the right to make and enforce contracts, false imprisonment, and intentional infliction of emotional distress. Plaintiff demands a trial by jury for all issues so triable. Plaintiff PARTIES 2. Plaintiff Malcom Williams is 13 year old African American male. His father, Simon Williams has applied to the court to serve as his Guardian Ad Litem. 3. Malcom and his younger brother are being raised by Simon Williams in a single parent household. Malcom is an award-winning student at the SEI Academy, maintains a 3.0 grade point average, and is an active and successful participant in extra-curricular school activities, including the football team. Defendants 4. Defendants Kohl s Department Stores, Inc. ( Kohl s ) is a nationwide chain of retail stores that sells clothing, footwear, bedding, furniture, jewelry, beauty products, electronics, and housewares. Kohl s has a total sales revenue of over $18 billion dollars per year, and has 1,067 store locations in 49 states. 5. Kohl s claims its mission is to offer: merchandise to the customer in an environment that is convenient, friendly and exciting. It also claims its commitment to customer service extends to every aspect of your shopping experience, including our special services like Kohl's Charge Card, Gift Cards and our hassle-free Return & Exchange Policy. 6. Kohl's claims its return policy is a: No Questions Asked - Hassle-Free return policy. Return any item, anytime, for any reason. You have two return options available for your Page 2 - COMPLAINT
Case 3:12-cv-01385-PK Document 1 Filed 08/01/12 Page 3 of 11 Page ID#: 3 online order; in-store or by mail. To return merchandise in-store, simply bring the item you would like to return and your receipt to the Customer Service Desk of any Kohl's store near you. 7. At its website, Kohl s describes the various return or exchange options available for its products: Return or exchange my online purchase At a Store To return or exchange an item purchased online, bring the item and your packing slip to the Customer Service Desk of any Kohl's store near you. ***** Return or exchange a gift At a Store To return or exchange a gift bring it with your gift receipt to the Customer Service Desk of any Kohl's store near you. ***** Return or exchange an item without a receipt No receipt? No problem. Just bring the item you'd like to return or exchange to the Customer Service Desk of any Kohl's store near you, and we'll take care of the rest. ***** Without a receipt you'll receive*: A full refund on your original tender if you paid with a Kohl's Charge or any other major credit card An even exchange A Kohl's Merchandise Credit based on the lowest 13-week sale price A corporate-issued refund * Purchases that earn Kohl's Cash coupons or purchases in which Kohl's Cash coupons were tendered will result in an adjusted refund amount and/or decreased coupon value. With a receipt you'll receive*: A cash or credit refund based on your method of payment An even exchange Page 3 - COMPLAINT
Case 3:12-cv-01385-PK Document 1 Filed 08/01/12 Page 4 of 11 Page ID#: 4 A Kohl's Merchandise Credit A corporate-issued refund * Purchases that earn Kohl's Cash coupons or purchases in which Kohl's Cash coupons were tendered will result in an adjusted refund amount and/or decreased coupon value. With a gift receipt you'll receive: A Kohl's Merchandise Credit An even exchange A corporate-issued refund. 8. Defendant Jane Doe is a security guard employed by Kohl s to function as an undercover / plainclothes security guard. At all material times, Jane Doe was working within the course and scope of her employment and/or agency with Defendant Kohl s. 9. Defendant John Doe is a security guard employed by Kohl s to function as an undercover / plainclothes security guard. At all material times, John Doe was working within the course and scope of his employment and/or agency with Defendant Kohl s. RELEVANT FACTS 10. In June, 2012, Malcom s academic, behavioral, and athletic achievements at SEI Academy were recognized at an award ceremony. There, he was awarded a pair of new Converse Chuck Taylor shoes ( shoes ), and a gift / online purchase receipt showing that the shoes had been purchased online from Kohl s. 11. While he appreciated the shoes, Malcom wanted a different color, and decided to exchange them at the Kohl s store located in Clackamas, Oregon. 12. Malcom s father is attempting to raise his sons to be successful and self-sufficient Page 4 - COMPLAINT
Case 3:12-cv-01385-PK Document 1 Filed 08/01/12 Page 5 of 11 Page ID#: 5 young men. Toward that, he often encourages Malcom to complete shopping or other errands on his own, using public transportation to travel to and from various locations throughout Portland. 13. On June 8, 2012 Malcom decided to visit the Clackamas Kohl s store with a friend near his own age, and deal with the store employees there to make an exchange of the shoes. 14. Upon entering the Kohl s store, Malcom approached the service counter. There, he told the Kohl s employee that he wanted to exchange the shoes for another color. He showed the Kohl s employee the shoes, and the gift receipt provided to him by his school. The employee directed Malcom toward the appropriate area in the store to find replacement shoes. 15. While moving throughout the store, Malcom noticed an adult male following and closely observing him. Neither Malcom nor his friend had engaged in any improper or inappropriate conduct to warrant such surveillance. Instead, Malcom was almost immediately profiled and followed throughout the Kohl s store by its agent because he was a young African American male, accompanied by another young African America male. 16. Although Malcom at first thought he wanted replacement shoes of the same brand, but in a different color, he saw other merchandise that he would prefer to have in exchange. He brought these other items back to the counter where he had initially contacted the Kohl s employee. A different Kohl s employee was present, and told Malcom that because of the type of transaction that resulted in him Page 5 - COMPLAINT
Case 3:12-cv-01385-PK Document 1 Filed 08/01/12 Page 6 of 11 Page ID#: 6 receiving the shoes, and because of the type of receipt he had for the shoes, he could only exchange the shoes for other Converse Chuck Taylor shoes. 17. The Kohl s employee s statement to Malcom was in conflict with Kohl s return policy, which states that in all circumstances, even absent any receipt, merchandise can also be returned for a Kohl s Merchandise Credit, which would have allowed Malcom to apply the purchase price of the shoes toward the other items he wanted to obtain. 18. After being told he could only exchange the Converse shoes for a different color shoe of the same brand, Malcom returned the other items to the area where he had obtained them, and asked his friend to get a pair of red Converse Chuck Taylor shoes. 19. Malcom and the Kohl s employee completed the exchange of shoes. With the exchange completed, the new shoes in hand, and the original shoes left with the Kohl s employee, Malcom and his friend began to exit the store. 20. As they did so, Malcom was approached by two plainclothes Kohl s security guards. Without making any inquiry of the Kohl s employees at the exchange desk who had dealt with Malcom, or absent any discussion with Malcom about any of their suspicions, they required Malcom to accompany them to a back room at the store. The male security guard was the same person who had earlier racially profiled and followed Malcom and his friend throughout the Kohl s store. 21. The male plainclothes guard kept Malcom in the back room for approximately 45 minutes, repeatedly accusing him of exchange fraud, preventing him from Page 6 - COMPLAINT
Case 3:12-cv-01385-PK Document 1 Filed 08/01/12 Page 7 of 11 Page ID#: 7 leaving the room, and unlawfully and unreasonably detaining him. Even though Malcom was only 13 years old, at no time during the unlawful detention did the security officer suggest or offer to allow time for Malcom to make a telephone call to a parent or guardian, or attempt to contact Malcom s parent or guardian. 22. After 45 minutes, Malcom was released from the back room and allowed to leave the store. Upon releasing Malcom, defendants commented, this tactic usually works. 23. Because of the misconduct, consumer racial profiling, unlawful detention, and other actions by Kohl s and its security guards, what should have been a positive and enjoyable learning experience for Malcom was instead a humiliating, frightening, and traumatic event. 24. Victims of consumer racial profiling bear a psychological burden as a result of overt and subconscious discrimination. The repetitive nature of everyday consumer discrimination has a cumulative debilitating effect over the course of a person s lifetime. Specifically, victims experience an erosion in their selfconfidence, as well as physical consequences such as stress-related illnesses. The exclusion and alienation that targeted individuals experience result not only in individual harm but in societal harm. Frustrated by conduct that indicates that they do not belong in a particular segment of society, some minority youths further distance themselves from the society that rejects them through deviant or other inappropriate behaviors that they would not have engaged in absent the discriminatory treatment. Page 7 - COMPLAINT
Case 3:12-cv-01385-PK Document 1 Filed 08/01/12 Page 8 of 11 Page ID#: 8 25. As a result of defendants conduct, Malcom has suffered depression, distress, embarrassment, and now has ongoing problems and fears associated with shopping, entering or transacting business in retail stores, and interacting in public places. He also fears racial discrimination, profiling, and unfounded race-based accusations during social and consumer interactions. JURISDICTION AND VENUE 26. This Court has federal question jurisdiction over this matter pursuant to 28 U.S.C. 1331. Plaintiff's state law claims are so closely related to plaintiff's federal claims that it is part of the same case or controversy under Article III of the United States Constitution. Because the federal claims predominate, jurisdiction over the state claims is proper under the doctrine of supplemental jurisdiction. 28 U.S.C. 1367(a) 27. This court is a proper venue pursuant to 28 U.S.C. 1391. FIRST CLAIM FOR RELIEF 42 U.S.C. 1981 - Equal Rights Under The Law (All Defendants) 28. Plaintiff realleges paragraphs 1 through 27, and further alleges: 29. Defendants conduct denied Malcom Williams the right to make and enforce contracts and/or the right to enjoy the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white persons, in violation of 42 U.S.C. 1981. SECOND CLAIM FOR RELIEF Page 8 - COMPLAINT
Case 3:12-cv-01385-PK Document 1 Filed 08/01/12 Page 9 of 11 Page ID#: 9 42 U.S.C. 1982 -Property Rights of Citizens (All Defendants) 30. Plaintiff realleges paragraphs 1 through 27, and further alleges: 31. Defendants conduct denied Malcom Williams the same right, as is enjoyed by white citizens to purchase, hold, or convey personal property, in violation of 42 U.S.C. 1982. THIRD CLAIM FOR RELIEF ORS 659A.403 - Discrimination in Place of Public Accommodation (All Defendants) 32. Plaintiff realleges paragraphs 1 through 27, and further alleges: 33. Defendants conduct denied Malcom Williams the right to full and equal accommodations, advantages, facilities and privileges of any place of public accommodation without distinction, discrimination, or restriction on account of his race, in violation of ORS 659A.403. FOURTH CLAIM FOR RELIEF COMMON LAW FALSE IMPRISONMENT (All Defendants) 34. Plaintiff realleges paragraphs 1 through 27, and further alleges: 35. Defendants intentionally and unlawfully confined Malcom Williams against his will, committing the tort of false imprisonment. FIFTH CLAIM FOR RELIEF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Page 9 - COMPLAINT
Case 3:12-cv-01385-PK Document 1 Filed 08/01/12 Page 10 of 11 Page ID#: 10 (All Defendants) 36. Plaintiff realleges paragraphs 1 through 27, and further alleges: 37. Defendants racially profiled, followed and surveilled, then intentionally and unlawfully accused and arrested Malcom Williams in public, confined him in a closed room against his will for over 45 minutes where they berated him, falsely accused him of committing a crime when they had no evidence for such accusations, but instead had easy and ready access to information showing that he had at all times engaged in no unlawful act, and failed to suggest or provide time or opportunity for him to call or contact a parent or guardian, all without reason or justification. Defendants conduct was, by their own admission, a tactic that they planned and executed against Malcom Williams. As a part of defendants wrongful and discriminatory course of conduct, they also denied Malcom the benefits of the Kohl s return policy based on his race. 38. Defendants conduct was intended to, and did cause Malcom to suffer severe emotional distress, embarrassment, and lasting and potentially permanent psychological and emotional injury. 39. Defendants acts constitute the tort of intentional infliction of emotional distress. WHEREFORE, plaintiff asks for judgment as follows: On plaintiff s First, Second, and Third Claims for Relief against all defendants for: a. Economic damages in an amount estimated to be $5,000.00, and subject to amendment of this complaint to conform with the Page 10 - COMPLAINT
Case 3:12-cv-01385-PK Document 1 Filed 08/01/12 Page 11 of 11 Page ID#: 11 evidence before submission to the jury; b. Non-economic damages in an amount to be determined by the jury, but not to exceed $150,000.00; c. Attorney fees and costs; d. Punitive damages in an amount to be determined by the jury as sufficient to punish defendants for their conduct, and to curtail defendants from engaging in such activity in the future. On plaintiff s Fourth and Fifth Claims for Relief against all defendants for: a. Economic damages in an amount estimated to be $5,000.00, and subject to amendment of this complaint to conform with the evidence before submission to the jury; b. Non-economic damages in an amount to be determined by the jury, but not to exceed $150,000.00; c. Punitive damages in an amount to be determined by the jury as sufficient to punish defendants for their conduct, and to curtail defendants from engaging in such activity in the future. DATED: July 28, 2012. RICK KLINGBEIL, P.C. Rick Klingbeil, OSB #933326 of Attorneys for Plaintiff Page 11 - COMPLAINT