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Spencer v. Bloomingdale's King of Prussia

United States District Court, E.D. Pennsylvania

December 21, 2017



          Bartle, J.

         Plaintiff Jerome Justin Spencer brings this action against defendants Bloomingdale's King of Prussia and Macy's, Inc. for violation of his civil rights under 42 U.S.C. §§ 1981, 1982, and 1985. Before the court is the motion of defendants to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure.


         When deciding a Rule 12(b)(6) motion, the court must accept as true all factual allegations in the complaint and draw all inferences in the light most favorable to the plaintiff. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008); Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 64 (3d Cir. 2008). We must then determine whether the pleading at issue “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim must do more than raise a “mere possibility of misconduct.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 679). Under this standard, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. On a motion under Rule 12(b)(6), the court may consider “allegations contained in the complaint, exhibits attached to the complaint, and matters of public record.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citing 5A Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed. 1990)).


         The following facts are taken from the complaint and are treated as true for present purposes. Spencer, who is African-American, alleges that he was subjected to racial profiling and discrimination on multiple occasions while shopping at the Bloomingdale's store in King of Prussia, Pennsylvania. In summary, Spencer states that he is a frequent customer of Bloomingdale's and that on at least eight occasions since November 2016 he has been subjected to overzealous scrutiny by Bloomingdale's employees. As a result, he has been harassed and humiliated.

         On November 5, 2016, Spencer made several purchases at Bloomingdale's. On that day Spencer was followed throughout the men's department by a member of Bloomingdale's loss prevention team. He also was monitored closely by a sales associate at the cash register who watched Spencer but otherwise failed to offer any assistance.

         On November 26, 2016, Spencer was again monitored by a Bloomingdale's employee while shopping. When purchasing an item at the cash register, a sales associate informed Spencer that the price marked on that item was incorrect and that the computer system showed a higher price. After several minutes of discussion, the sales associate acknowledged the ticketed price and Spencer made his purchase. Spencer then was followed by two other employees as he made several other purchases throughout the store. Later that day, Spencer returned to the store all the items he had purchased. He then re-purchased the same items using a 20% discount coupon that the previous sales associate “refused to discuss or even offer” to him.

         Following this experience, Spencer completed a Bloomingdale's online customer satisfaction survey. In that survey Spencer reported that he had been the victim of racial profiling on several occasions at the King of Prussia store. Several days later Spencer received a call from a sales associate in response to the survey. Spencer states that the sales associate was unhelpful and dismissive of Spencer's complaints.

         On December 5, 2016, Spencer made another visit to Bloomingdale's. While there he returned several items and also made various purchases. A sales associate arrived to watch Spencer return items. Simultaneously another associate came onto the sales floor and observed Spencer for the duration of his time in the store. Thereafter, on December 26, 2016, Spencer made several more purchases at Bloomingdale's. During that shopping trip Spencer was followed into the fitting room area by several employees.

         On December 28, 2016 Spencer again made purchases at Bloomingdale's. During this trip Spencer was followed by multiple employees. On December 30, 2016, Spencer made several returns at Bloomingdale's. Although Spencer had a receipt and intact labels for all items, his returns were scrutinized for several minutes and he was questioned by a sales associate. In contrast, a Caucasian customer was able to return items without scrutiny. Spencer was again followed and closely monitored by an employee while at the store on January 10, 2017.

         While shopping at Bloomingdale's on January 13, 2017, Spencer was trailed by a loss prevention employee posing as a customer. That day Spencer spoke with an African-American sales associate who confirmed that the man following Spencer was indeed a loss prevention employee. She stated “it's a shame you are being followed, you're always in here buying stuff” and recommended that Spencer complain to management. Following this experience Spencer again completed an online survey to report ongoing racial profiling at the store. Thereafter on January 17, 2017, Spencer decided to complete several returns at a Bloomingdale's store in Willow Grove, Pennsylvania to avoid the frustration he felt while shopping at the King of Prussia location.

         On January 26, 2017, Spencer received a telephone call from the general manager of the King of Prussia store regarding his complaints of racial profiling. The manager advised Spencer that the loss prevention manager had been terminated and that “[t]here is someone new in place now and you shouldn't feel uncomfortable anymore.” She further stated “I know” or “I agree” in response to Spencer's complaints of discrimination.

         According to the complaint, Macy's is the parent company of Bloomingdale's. Spencer alleges that Macy's was the subject of a 2005 consent decree in the Southern District of New York regarding allegations of racial profiling.[1] Spencer also states that in 2014 Macy's entered into a settlement agreement with the New York State Attorney General's Office regarding similar conduct. He further alleges that both Bloomingdale's and Macy's have a policy or practice whereby non-Caucasian ...

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