HARRISBURG – Dollar Tree is seeking the plaintiffs’ medical records in litigation from a Harrisburg woman who claimed that her 13-year-old son was racially targeted by management at a local branch and falsely accused of shoplifting, nearly being arrested by police who responded to the scene.
Belinda Toney and her minor son, M.G. of Harrisburg first filed suit in the U.S. District Court for the Middle District of Pennsylvania on Dec. 2 versus Dollar Tree, Inc. of Chesapeake, Va. and Dollar Tree Store No. 781, of Harrisburg.
“On Aug. 31, 2020, M.G. was 13 years old. M.G. suffers from Post-Traumatic Stress Disorder (PTSD). At approximately 8:30 p.m. on Aug. 31, 2020, Belinda Toney gave M.G. permission to go to the nearby Dollar Tree No. 781 with two friends. DT No. 781 is located in Uptown Plaza in Harrisburg,” the suit said.
“That evening, M.G. wore a mask as a precaution against COVID-19, but his two friends did not wear a mask. It is a short walk from Toney’s home to DT No. 781. About 10 minutes after the boys left, M.G.'s friends came rushing into Toney’s house saying that the men at DT No. 781 would not let M.G. leave. Toney immediately ran to the store. When Toney got there, she saw Harrisburg Police cars in the parking lot. The doors to DT #781 were locked. Toney knocked urgently and repeatedly for someone to open the door. Toney could see M.G. inside the store. His clothes were disheveled, and he looked distressed.”
Toney continued that eventually, the police unlocked the door and let her inside. Toney explained that M.G. was her son, that he has PTSD and that she had to speak to him.
When Toney asked her son what happened, M.G. said that he wanted to buy pencils and Hershey Kisses but did not have enough money. M.G. added that he put the Hershey Kisses back on the shelf and then walked to the counter to pay for the pencils, according to the suit.
“M.G. recounted that the Store Manager and another male (both Caucasian) stopped M.G., accused him of stealing, locked the store, shook him and pushed him up against the wall. M.G. was terrified. Toney saw M.G.’s pencils still lying on the counter by the register, which was consistent with what her son had just told her. M.G. did not have any stolen items. The Store Manager told Toney that M.G. was stealing and that he caught it on camera. Toney asked to see the footage, but the Store Manager refused her,” the suit stated.
“Instead, the Store Manager and Police Officer Brent Roadcap went in a back room to view the footage, where they were for over 30 minutes. When they came back into the store, Toney asked what was on the footage. Officer Roadcap said that he simply saw M.G. walking around the store. The Store Manager insisted that M.G. stole from the store. Even though the Store Manager and Officer Roadcap watched the video for over 30 minutes, the Store Manager claimed that he did not queue up the portion of the video that showed M.G. stealing.”
Toney offered that the only African-American employee at DT No. 781 told her that he “was not getting involved” in the matter, before Officer Roadcap told her that the store would not press charges against M.G., but that M.G. was no longer permitted in the store – and warned that if M.G. tries to enter DT No. 781 again, he would be “trespassing.”
Counsel for Dollar Store filed a dismissal motion for failure to state a claim on Feb. 4, arguing that the plaintiff’s civil rights claims lodged under Title VII are not applicable to the matter at hand.
“Plaintiffs’ Title VII claim must be dismissed because plaintiffs cannot establish M.G. was denied any attempt to exercise the right to full benefits and enjoyment of a place of public accommodation because Dollar Tree is not a place of public accommodation. In order to state a valid claim under 42 U.S.C. Section 2000(a), a plaintiff must assert and show that he or she (1) is a member of a protected class; (2) attempted to exercise the right to full benefits and enjoyment of a place of public accommodation; (3) was denied those benefits and enjoyment; and (4) was treated less favorably than similarly situated persons who are not members of the protected class,” the motion to dismiss stated.
“Retail establishments are not places of public accommodation within the meaning of Section 2000(a). As Dollar Tree is a retail establishment not covered by the statute, plaintiffs’ claim under Count II should be dismissed with prejudice. As plaintiffs fail to state a claim under Section 2000, any claim under Section 2000(a)-2 fails as well. Accordingly, plaintiffs’ Title II claim should be dismissed in its entirety.”
The defense also sought to strike the plaintiffs’ seeking of compensatory and punitive damages against Dollar Tree since, under Section 2000a, “only injunctive and declaratory relief (and attorney’s fees) are available.”
After Dollar Tree Store No. 781 was dismissed as a defendant on March 1, its parent company and co-defendant Dollar Tree Stores, Inc. provided an answer to the complaint with affirmative defenses on March 15.
“Plaintiffs fail to state a claim upon which relief can be granted. Plaintiffs’ claims are barred by the doctrines of laches, estoppel, fraud, unclean hands and/or waiver. Plaintiffs’ claims are barred by the statute(s) of limitations and/or failure to exhaust administrative remedies. Plaintiffs’ claims fail because plaintiffs cannot demonstrate that defendant had the requisite intent for the claims alleged,” per the answer.
“Plaintiffs suffered no damages and/or any damages suffered by plaintiffs were a result of either plaintiffs’ own actions or the actions of third parties over whom defendant has no control. Plaintiffs have failed to mitigate their damages, if any. Subject to proof through discovery, plaintiffs’ alleged damage claims are barred in whole or in part by the after-acquired evidence doctrine. Plaintiffs fail to state a claim for punitive damages. Plaintiffs are not entitled to equitable relief as a matter of law. Plaintiffs are not entitled to attorneys’ fees or costs.”
According to the defendant, it violated no duty to the plaintiffs and recovery is barred, in whole or in part, by the contributory and comparative negligence of the plaintiffs.
“Plaintiffs fail to state a claim of respondeat superior such that defendant incurs liability. Defendant is entitled to immunity of liability under Pennsylvania’s Retail Theft Statute, 18 Pa.C.S. Section 3929(d). Defendant’s employees acted in self-defense,” the defenses stated.
“Defendant’s employees acted in defense of its property. Plaintiffs have not suffered emotional distress, if any emotional distress was suffered, that is sufficiently substantial to sustain a claim. At all relevant times, defendant acted in compliance with all applicable laws, rules, regulations, and standards. Defendant reserves the right to supplement these affirmative defenses upon the completion of discovery.”
UPDATE
On June 9, defense counsel Therese M. Taraschi wrote a letter to U.S. Magistrate Judge Martin C. Carlson, explaining that a discovery dispute would need to postpone a then-upcoming mediation session.
“This matter is currently scheduled for mediation with Your Honor on June 13, 2022. In our communications with Your Honor’s courtroom deputy, the parties advised that they could only proceed with mediation on this date if they received plaintiffs’ medical records prior to the mediation. Upon receipt of plaintiffs’ executed HIPAA authorizations, counsel for defendant promptly issued subpoenas for plaintiffs’ medical records and has followed up with their medical provider on multiple occasions,” Taraschi stated.
“However, to date, despite these diligent efforts, we have not received plaintiffs’ medical records. The parties have conferred and agree that they cannot have a fruitful mediation without these records and the exchange of their respective written discovery responses. As such, the parties respectfully request that the June 13, 2022 mediation be adjourned to afford the parties additional time to obtain plaintiffs’ medical records and serve their respective written discovery responses. The parties will provide their availability to reschedule the mediation upon receipt of plaintiffs’ medical records.”
Subsequent to receiving Taraschi’s letter, Carlson issued a judicial order the same day to reschedule the mediation session for an as-yet-unknown date, providing defense counsel its requested additional time to secure the plaintiffs’ medical records. By July 11, the parties are to report to the Court where matters stand, so that a firm date for mediation can then be chosen.
For counts of civil rights violations, violation of Title VII of the Civil Rights Act of 1964, violation of the Pennsylvania Human Relations Act, false imprisonment, assault and battery and intentional infliction of emotional distress, the plaintiffs are seeking compensatory damages, punitive damages, reasonable attorneys’ fees and costs, declaratory, injunctive and other equitable relief, such other and further relief as may appear just and appropriate, in addition to a trial by jury.
The plaintiffs are represented by Alexandria Lappas and Leticia C. Chavez-Freed of the Chavez-Freed Law Office, in Harrisburg.
The defendant is represented by Joseph M. Garemore, Kathleen E. Dohn, Therese Taraschi and Carmen Y. Day of Brown & Connery, in Woodbury, N.J. and Westmont, N.J.
U.S. District Court for the Middle District of Pennsylvania case 1:21-cv-02026
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com