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NICHOLS v. ACME MKTS.

May 10, 1989

ANDRA NICHOLS
v.
ACME MARKETS, INC.



The opinion of the court was delivered by: KATZ

 MARVIN KATZ, UNITED STATES DISTRICT JUDGE.

 Andra Nichols is a former cashier at one of defendant's supermarkets. She is black. On the afternoon of February 5, 1987, Nichols was working the express aisle when an elderly white woman came to her register. Nichols rang up the customer's goods but refused to accept payment because the customer had offered to pay with a single $ 5.00 food stamp and store policy dictated that food stamps above $ 1.00 denominations could not be accepted unless presented in "book form." The customer used a racial slur and slapped Nichols across the face. Nichols then stepped out from beyond her counter and punched the customer in the mouth. She was immediately suspended. Shortly thereafter she was fired.

 Nichols has instituted this employment discrimination action here pursuant to 42 U.S.C. § 1981, also asserting pendent state claims of "negligence, defamation, and intentional and negligent infliction of emotional distress." Complaint para. 21. Defendant has moved for summary judgment and asks for attorney's fees. On the record before me, consisting largely of conflicting deposition and affidavit testimony, I find that plaintiff has established a prima facie section 1981 case and has demonstrated the existence of a genuine issue of material fact on the question of whether Acme's decision to fire Nichols was impermissibly based on the fact that she is black. For that reason, summary judgment will be denied on the employment discrimination claim and the matter will proceed to trial. Summary judgment will be granted, however, in favor of defendant on the pendent state claims. Defendant's request for attorney's fees will be denied on the ground that such a request is premature, with leave to renew the request at the close of trial.

 I. THE FACTUAL RECORD

 Viewed in the light most favorable to the non-moving party, and resolving any doubts against the entry of judgment, Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977), the facts on the summary judgment record are as follows:

 A. The incident involving plaintiff

 Nichols had worked for Acme since 1979 and at the time of the incident was an employee of good-standing with Acme. She had never been subject to disciplinary action or proceedings. She was generally well-liked by her co-workers and customers.

 Agatha Bosch, the customer who became involved in the altercation with Nichols, was between the ages of sixty-five and seventy, mentally unbalanced, and subject to epileptic fits for which she had recently sought and received medical treatment. She was a regular customer in the store. Nichols herself had waited on her once or twice before, although she had never had any problems with her. According to another customer who knew Bosch fairly well, Bosch was a "confrontational" person who on the day of the incident came into the store with "a chip on her shoulder."

 When Nichols refused to accept for payment her loose $ 5.00 food stamp, Bosch made a racially prejudiced statement ("What do you think I am, like you people?"), snatched back the $ 5.00 stamp and handed Nichols three loose $ 1.00 food stamps, which Nichols accepted. Nichols turned towards the register, expecting further payment, and Bosch reached into her handbag. Then, while Nichols was still turned away, Bosch slapped Nichols hard across the face.

 Nichols shouted: "Don't you ever put your hands in my face again." Another cashier yelled up to the nearby office that the manager should come down because "the lady just slapped Andra in the face." Nichols shouted again at Bosch to keep her hands out of her face. The manager of the store, Mike Bowes, and the District Produce Supervisor, Joseph Landy, who was present in the office with Bowes at the time, hurried down to the express checkout lane to see what was happening.

 By that time Nichols and Bosch were arguing loudly. Nichols was still yelling that Bosch had no right to hit her in the face because of food stamps. Bosch retorted angrily: "You all act alike." Bowes attempted to calm Nichols down and tried to get her to leave her register. Nichols said to Bowes, the store manager: "She shouldn't have slapped me." Bowes and Landy, talking to both Nichols and Bosch, attempted to defuse the situation, but everybody was talking at once and the tension increased. This is the point at which Nichols walked around to where Bosch was standing. The old woman had her hands at her sides. Nichols cocked her fist and punched Bosch in the mouth.

 Landy grabbed Nichols by the shoulder and told her she was suspended. Nichols tried to explain that the woman had just slapped her for no good reason. Landy responded by repeating that she was suspended indefinitely and ordering her to leave the store immediately. He also recommended that she call her union representative.

 Bosch was bleeding from the mouth but declined medical treatment offered by Landy. She also declined his offer of a ride home. Some time later she accepted a settlement offered her by Acme, and Acme obtained a release from her.

 Nichols spoke to her union representative, Hank Alston, the following day, February 6. A series of grievance meetings were subsequently held between Nichols, Alston, Bowes, Landy, and William Young, the Acme official responsible for all personnel functions within the region and the person authorized to make the decision concerning Nichols' future with the company. At the first meeting, Young told Nichols that company policy dictated that she should be fired. His ultimate decision to fire her, made in March, was based principally on the statements of Landy and Bowes, who testified that Nichols had not been hit by Bosch. Two witnesses, cashiers working the registers immediately adjacent to the express lane at the time of the incident and who later testified at deposition that Nichols was hit, were not present at either meeting. They were invited but were unable to attend. Young apparently did not consider it necessary to order continuances to accommodate them.

 The union pursued the matter through arbitration pursuant to its collective bargaining agreement with Acme. Nichols was represented by counsel at the arbitration hearing and gave testimony. The arbitrator denied the grievance, concluding that "hitting a customer under the circumstances present in this case is an act that, ...


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