Whether Pep Boys violated Section 1981 when its employee purportedly told a black couple “I’m not doing sh*t for you n*****s” after they brought their car in to have the front tire plugged will be up to a jury to decide, a federal court in Pennsylvania determined, denying summary judgment on the couple’s race discrimination claim. Because they sought to contract for a service—the repair of their tire—and not for real or personal property, their Section 1982 claim failed, however, as did their bid for $7,000,000 in punitive damages. In refusing to hold Pep Boys vicariously liable for the employee’s actions, the court cited the company’s “good-faith efforts to prevent the kind of intolerable racial animus alleged” (Pinckney v. The Pep Boys – Manny Moe & Jack, October 30, 2018, Jones, C., II).
You people don’t listen. Seeking to have the front right tire of his car plugged because it was losing air, the husband brought his car to a Pep Boys in North Charleston, Pennsylvania. When the husband pulled his car into a service bay, rather than up to the bay as the service manager had directed, the service manager allegedly said “You people don’t listen.” Told he would be notified when the car was ready, the husband walked to his wife’s workplace, which was just a couple of minutes away.
Not there for new tires. The couple returned to Pep Boys later that evening, at which time the service manager allegedly said “Oh it’s you again.” Directed at that time to examine the tire, a service technician found it was punctured and could not be inflated. Because both front tires were also low on tread, he recommended replacing them. The service manager then purportedly told the couple they needed four new tires. When the wife replied that they weren’t there for new tires, the service manager allegedly responded “I don’t need any f*****g attitude,” and “I’m not doing sh*t for n*****s.” He then told the tech to “drop [the car] and get [that] sh** out of here.” The tech purportedly filled the tire with air, put a plug in it, and drove it out of the service bay. After the wife asked for the complaint hotline phone number, the couple got in their car and left. They never paid for any service that day from Pep Boys.
Complaint. Later that evening, the wife called the hotline to report their encounter with the service manager but after exchanging several voice mails with the area director, the complaint was ultimately closed for inactivity. At some point, however, the service manager accessed Pep Boy’s electronic complaint filing system and falsely accused the couple of threatening to kill him. The couple subsequently sued Pep Boys, alleging that it was liable for the service manager’s racially discriminatory behavior because it interfered with their right to make and enforce contracts in violation of 42 U.S.C. §§ 1981 and 1982. In moving for summary judgment, Pep Boys argued that it serviced the couple’s car so their right to contract was not denied and thus their race discrimination claims failed as a matter of law.
Section 1981. While the elements of Sections 1981 and 1982 claims are similar, Section 1981, the court noted, “does not limit itself, or even refer, to employment contracts but embraces all contracts and therefore includes contracts by which…[one]… provides service to another.” At issue here was whether the couple’s protected right to contract was infringed. Pep Boys argued that the couple’s tire could not hold air when it was in the service bay; the tech plugged the tire; the tire then held air; the couple drove their car home without having to inflate the tire on the way; they did not replace the tire for 45 days; and the wife told a coworker that Pep Boys plugged the tire.
For their part, the couple argued that the tire was not plugged; they had to put air in it at least once before they replaced it 45 days later; the service manager said he wouldn’t “[d]o sh*t” for them; and Pep Boys could not provide a transaction record showing the tire was repaired. Because a reasonable juror could find the couple drove away from Pep Boys with their tire in the same condition it was in before they arrived at Pep Boys, a material fact issue existed as to whether they received service from Pep Boys and whether their protected right to contract was infringed, said the court, denying summary judgment on this claim.
Section 1982. Their Section 1982 claim, however, failed as a matter of law. This provision, the court explained, protects the right of all citizens to deal in “real and personal property,” and here the couple sought to contract for a service. Indeed, the court pointed out, the wife stated that they were not there for new tires. Because they at no time sought to contract with Pep Boys for real or personal property, summary judgment against this claim was appropriate.
Punitive damages. Finally, the court rejected the couple’s contention that they were entitled to $7,000,000 in punitive damages against Pep Boys, which they argued was vicariously liable for its employee’s conduct. Citing to Kolstad v. Am. Dental Ass’n, in which the Supreme Court considered an employer’s good faith efforts at compliance with federal anti-discrimination laws to be evidence that an employer never acted with reckless disregard of federally protected rights, the court found the undisputed facts here showed that Pep Boys made good faith efforts to conform to applicable federal law. Specifically, it maintains a Code of Conduct requiring respect and courtesy on the part of all employees, requires its employees to complete various customer service trainings, which review its policies against harassment and discrimination, has a system in place for reporting grievances, and encourages directors and managers to report all incidents of discrimination and harassment. In light of these good faith efforts, it could not be held vicariously liable for the service manager’s actions.
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