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Villareal v. Buckle, Inc.

United States District Court, E.D. Michigan, Southern Division

September 28, 2017

THE BUCKLE, INC., Defendant.




         The parties agree that in 2015, Plaintiff Shana Villareal was shopping at a Buckle clothing store with her five children, the store's security alarm sounded around the time Villareal was leaving the store, Buckle staff searched Villareal and her children, no merchandise was found, Villareal left the store, and she returned a few minutes later to get The Buckle's corporate number. Beyond that, their versions of what happened diverge.

         Defendant The Buckle Inc. seeks summary judgment relying on its evidence that Villareal set off the alarm when she crossed the sensor gate at the store's exit and that the manner in which Buckle staff searched Villareal was reasonable. But this overlooks that, on summary judgment, the facts must be taken in the light most favorable to the non-moving party, Villareal. And Villareal has testified that the store's alarm sounded before she ever crossed the sensor gate and that the search was conducted in an unreasonable fashion.

         Villareal also seeks summary judgment and, to a lesser extent, also fails to fully embrace her opposition's account of what happened. Villareal says that every reasonable jury would find that the store manager defamed her because, by the time she came back to the store, she had already been searched, Buckle staff had found no merchandise, and she did not trigger the alarm. But Villareal does not give adequate consideration to The Buckle's evidence that, when Villareal was in the fitting room, Buckle staff heard sensors being removed, that the search for stolen merchandise was not exhaustive, and that, at least by the time Villareal returned to the store, Buckle staff had found broken sensors in the fitting room.

         Taking the facts in the light most favorable to the party opposing summary judgment, the Court finds that Villareal is not entitled to summary judgment and The Buckle is entitled to summary judgment on only one of Villareal's three claims.



         In the late afternoon of November 29, 2015, Villareal and her five young children took a trip to the mall. (R. 24, PID 410, 423.) They started with a family portrait at JCPenny's. (R. 24, PID 413; R. 20, PID 176.) Then they went shopping at a Buckle store. (R. 24, PID 412.)

         According to the company's website, The Buckle “is a leading retailer of medium to better-priced casual apparel, footwear, and accessories for fashion-conscious young men and women.” As it was the holiday season, and her husband was not with her, Villareal wanted to get her husband a Christmas present. (R. 24, PID 412.) Villareal soon found him a pair of pants, a shirt, and some cologne. (R. 24, PID 414.)

         Villareal then decided to look for some jeans for herself (over the prior few years, she had bought 14 pairs from the Buckle). (R. 24, PID 412, 414.) Villareal found three “Rock Revival” jeans that she wanted to try on. (R. 24, PID 414.) After a Buckle sales associate hung the jeans in a fitting room, Villareal went in. Along with her came her three-year-old daughter in a stroller, her nine-year-old daughter, NNB, and her five-year-old daughter. (R. 24, PID 415.) Villareal's two other children, her eight-year-old son and twelve-year-old daughter, stayed in the store. (R. 24, PID 415.) NNB was holding the pants, shirt, and cologne for Villareal's husband as they went into the fitting room. (R. 24, PID 415.) Villareal would later testify, “I went to go and give it to the sales associate and [NNB] wouldn't let it go, and I'm like she's autistic, I promise you she'll bring it back out, can she just hold onto it[?]” (R. 24, PID 415.) While Villareal was trying on the three pairs of jeans, her twelve-year-old daughter brought her two shirts to try on. (R. 24, PID 415.) Villareal sent one shirt back, took the other to try on, and gave her twelve-year-old one of the jeans. (R. 24, PID 415.) Villareal recalls that the clothes did not work for her and that she gave them back to the sales associate. (R. 24, PID 416.)

         Villareal then decided to try on a different brand of jean, “Miss Me, ” that a sales associate had suggested earlier. (R. 24, PID 417.) The associate assisting Villareal picked out two, and Villareal returned to the fitting room. (R. 24, PID 417.) After trying on one pair of the Miss Me jeans, Villareal's son, who has a medical condition that requires him to use the bathroom immediately, came to the fitting-room door and stated, “mommy, gotta go right now.” (R. 24, PID 427.) So Villareal put her pants back on without trying on the second pair of Miss Me jeans. (Id.)

         Villareal recalls that after exiting the fitting room she gave all the clothing, including the items that NNB had been holding, to a Buckle sales associate: “I knew her name at the time because I called her Miss Whatever, because that's the only way that [NNB] will let someone near her is if she has the name. So I ended up giving her all the stuff, I said look, I will be right back to purchase this. I need to take my son to the bathroom.” (R. 24, PID 418, 427.)

         Over the course of Villareal's visit to the Buckle, Buckle employees had become suspicious of her conduct. According to Cassandra Evanish, an assistant manager working that day, “[another staff member] let me know that she [had] heard sensors being popped off inside of the fitting room, as well as she [had] seen the children that were with the young lady in the fitting room running around and had found sensors where they had been running, like defeated, broken sensors where they had been running around.” (R. 24, PID 449.) Evanish further recalled, “They had already tried using recovery statements, and then the individual in the fitting room was acting even more suspicious, and the children were running around, putting the clothes back and grabbing more clothes and then continuing the cycle.” (R. 24, PID 449.)

         According to Evanish, “recovery statements” are attempts to recover merchandise from a customer through veiled questioning. As an example, an associate might say this to recover a shirt: “Hey, I found a pair of jeans that would really go with that shirt that you were trying on. Would you help me find [that shirt] really quick so we can see if they match at all?” (R. 24, PID 445-46.) As for the “sensors” Evanish referenced, they are familiar to most shoppers: devices attached to clothes that set off a store's alarm when they cross a sensor gate located at the store's exit. (See R. 24, PID 415-16.)

         At her deposition, Villareal testified that she had no device that could remove the sensors. (R. 24, PID 416.) In the context of discussing her first trip to the fitting room, Villareal testified that she did not dismantle any sensors. (R. 24, PID 415.) She also stated that she did not remove any sensors from the Miss Me jeans (and neither did her kids) and that she never saw broken sensors on the floor of the fitting room that she used. (R. 24, PID 428, 432, 437.) When asked whether the pants she had picked out for her husband had sensors, Villareal testified: “I don't know. I didn't even unfold the pair of pants for my husband.” (R. 24, PID 416.)

         Even if Villareal or her children did not remove any sensors, Buckle staff apparently thought she had: they called mall security “to let them know that we were going to be doing a stop.” (R. 24, PID 449; see also R. 24, PID 452.) Mall security dispatched Amanda Eickholt. (R. 24, PID 467.) Eickholt testified that when she arrived at the Buckle store, “I met with one of the employees . . . . They informed me that the kids were handing [a female in the fitting room] merchandise underneath the door, which is not Buckle's policy. . . . The employee that I spoke with told me that they could hear sensors hitting the floor like they were being cut, so I just stayed in the store until she came out of the fitting room and then exited.” (R. 24, PID 469.)

         According to surveillance video from the store, Eickholt was not the only security present. The video shows a uniformed mall security officer, a uniformed Flint police officer (or perhaps another mall security officer), and Eickholt, in plain-clothes, all inside the store as Villareal was about to leave. (Video at 19:38:42; see also R. 24, PID 449, 475.) Evanish recalled one mall security guard inside the store and two right outside in the mall. (R. 24, PID 449.) “They were already in place just in case we needed them.” (R. 24, PID 449.) Evanish positioned herself at the front of the store. (See R. 24, PID 449, 455.)

         What happened next depends on who you ask.

         Both Evanish and Eickholt testified that Villareal passed through the sensor gate at the front of the store and the store's alarm went off. (R. 24, PID 451-52, 469, 482.) In particular, Evanish testified as follows: “Q. You watched [Villareal] exit through the entrance of The Buckle? A. Yes . . . . Q. . . [I]f you recall, when Ms. Villareal was leaving, was anybody else leaving at the same time? A. No.” (R. 24, PID 449, 451.) And when asked, “Do you know or do you recall if there was another individual either from Security or an employee standing by the alarm and maybe moving merchandise that accidentally set it off at the same time she was walking out?, ” Evanish responded, “No, there was not.” (R. 24, PID 451.) Eickholt recalled things similarly: “Q. Do you know if anybody else was exiting at the same time [Villareal] was? . . . . A. There was not. . . . Q. And you definitely watched her walk out of The Buckle and the door alarm went off? A. Yes.” (R. 24, PID 469, 482.) (Based on the surveillance video, it is not clear how Eickholt saw Villareal exit: the video shows Eickholt at the back of the store at the time. (See Video at 19:39.)) Eickholt also testified that aside from a sensor crossing the gate, she had never seen another way to trigger the door alarm. (R. 24, PID 482.)

         Villareal described the circumstances of the alarm sounding very differently. She testified that the alarm went off when she was still “[f]ive” or “ten feet” away from the sensor gate: “I was nowhere near the door. And I've been to that store prior, you actually have to be going through that sensor because I've walked past the sensors like in the front when I've been shopping there since that incident and I didn't even set it off.” (R. 24, PID 420.) Indeed, Villareal said she was searched by Buckle staff before she ever walked through the sensor gate. (R. 24, PID 420.) She conceded, however, that some of her children were “three, four feet in front of [her].” (R. 24, PID 423.) When asked why she thought the alarm had sounded, she explained that staff near the store's entrance may have set it off. (R. 24, PID 430.) Villareal thought Buckle employees may have been “target[ing]” her: “I've got five small children, I'm young, I was by myself, you know, I'm white, [my children are] Mexican, you know. . . . And white employees were at the store. There was no dark colors at any means.” (R. 24, PID 430.)

         The parties' accounts of what happened after the alarm sounded also diverge.

         Evanish recalled that Villareal turned around to come back in the store and triggered the alarm a second time. (R. 24, PID 452, 460.) And, said Evanish: “[a]s soon as the alarm went off, [Villareal] shoved the stroller away from her, threw off her jacket and said, ‘I'm not stealing nothing. I didn't steal anything.'” (R. 24, PID 450.) Evanish further recalled:

I said, ‘Well, hang on. You know, nobody is saying that you did. I guess there's something that's setting off our alarm, so if you don't mind, you know, if you can take your jacket off, let me see; maybe lift the jacket down below the shoulder for me, just if you don't mind moving stuff around so I can see, ' and at that point her children were with her, and I said, ‘You know, if you don't mind, maybe ask the kids to open up their jackets for me, if you would, you know, If you can do that, ' and she continued to be, ‘I didn't steal anything, ' very defensive.

(R. 24, PID 450.) Evanish testified that she did not “personally touch [Villareal's] belongings or go through anything” and instead asked Villareal to open her purse and asked Villareal to have her children open up their jackets. (R. 24, PID 454-55.) Evanish testified (and all agree) that no Buckle merchandise was found. (R. 24, PID 458.)

         Villareal recalled things very differently. According to her, as soon as the alarm sounded, she was “swarm[ed]”: “[mall security] come running and stood right in front of the door and then two more employees blocked the door and two over here to the . . . right blocked the door and then I had another one behind me and my children and then I had two more by the sales table.” (R. 24, PID 428, 433.) Buckle staff did not ask Villareal to walk through the sensor gate to see if the alarm would sound again. (R. 24, PID 434.) Instead, staff asked if she had any unpaid items and, once she said no, they began searching. (R. 24, PID 424-25.) Villareal recalled,

They grabbed my purse, opened up my purse, grabbed that. They very loudly in front of the door asked-they said do I have anything on me and I said no I've got skin tight jeans on. Well, what's underneath your shirt? I'm like nothing. Well, you need to lift that up so we can see. I lifted it up. I had a tank top on. Is that our tank top? No, it's by a different company. And they need-they had checked that and clearly it was by a different company. They grabbed my coat and they kept saying we know you have something, you have something on you.

(R. 24, PID 431.) Villareal also testified that Buckle staff “moved the hood [of] my stroller up as well to check that, they removed my child's blanket.” (R. 24, PID 419.) Further, staff searched “every single one” of her children's coats. (R. 24, PID 419.) Villareal recalled, “They made my son lift up his stuff, his shirt and whatnot, and he ended up peeing his pants right in their store.” (R. 24, PID 419.) She also remembered Buckle staff “patt[ing] him down like a police officer would do.” (R. 24, PID 428.) And, said Villareal, “my [daughter], who was already in one of her autistic modes, they ended up trying to grab her and take her coat from her, se[n]t her into a crying rage.” (R. 24, PID 419.) In particular, Villareal recalled a lady in a “flower[]” shirt grabbing NNB's “left arm to get her to stand up.” (R. 24, PID 422; see also R. 24, PID 419.) The lady in the flower shirt was the manager of that Buckle store, Kristen Aldrich. (See R. 24, PID 419, 448, 451-52.) Villareal testified that she and her children were asked to walk through the sensor gate and none of them set off the store alarm. (R. 24, PID 431.)

         Eickholt (the plain-clothes, mall-security officer) recalled the search as being rather mundane: “The Buckle employees approached [Villareal], asked her to come back into the store, which she did so willingly. There was no incident. They checked the bottom of her stroller to see if there was merchandise in there. They spoke with her and then she left the store. No merchandise was located at that time.” (R. 24, PID 470.) She recalled, “There was no kind of disagreement or anybody being irritated with anybody.” (R. 24, PID 477.) Eickholt remembered Buckle staff “physically pulling the coats out of the undercarriage of the stroller” (R. 24, PID 479), but could not remember if anyone checked Villareal's purse or diaper bag (R. 24, PID 479).

         After the search was complete, Villareal asked if she could take her son to the bathroom. (R. 24, PID 419.) She recalled, “[T]hey said well, you set our sensors off and I said how is that possible when you just searched everything including my children's articles and they said well, we know you have something, you set our sensors off.” (Id.) From Villareal's perspective, “They were kind of rude about it, they said whatever, leave, we just know you have something.” (R. 24, PID 432.) When Villareal left the store, the alarm did not sound again. (R. 24, PID 452, 460.)

         According to Eickholt, the whole incident was “[l]ess than five minutes.” (R. 24, PID 470.) Eickholt's testimony is backed by the video. It shows Villareal speaking with Aldrich (identifiable by her flower shirt) before heading to the front of the store, Aldrich then going to the front of the store and out of view, and then Aldrich returning to the picture about four minutes later when, apparently, the incident was over. (Video at 19:38:48 to 19:42:48.)

         After leaving the Buckle, Villareal called her husband. Her husband recommended that she “go back in and grab a card.” (R. 24, PID 419.)

         So about three or four minutes after leaving, Villareal returned to the Buckle. (See Video at 19:45:47.) She went to the register area and spoke with Aldrich. (See Video at 19:45:47 to 19:47:13.) Villareal testified, “[Aldrich] made an accusation when I c[a]me back to grab the number for corporate saying that I had something to cut this stuff off because they found [sensors] in [the dressing room]. And I said how is that possible? She goes you probably disposed of it.” (R. 24, PID 434.) Villareal also recalled, “[Aldrich] grabbed a book off the counter, wrote down a number on the card and told me never to come back and I said I didn't take anything, you guys have proven that I didn't take anything and they said well, we know you did. You disposed of it prior to coming back.” (R. 24, PID 432.) The video shows that when Aldrich was speaking with Villareal, there were other Buckle employees nearby. (See Video at 19:45:47 to 19:47:13.)

         After leaving the Buckle for the second time, Villareal went back to JCPenny's. Eickholt testified that mall security radioed (or called) JCPenny's and asked JCPenny's to notify them if Villareal attempted to go back into the mall. (R. 24, PID 472.) Demond Johnson had video-surveillance duties for JCPenny's that day. (See R. 25, PID 560-61.) He testified, “I told [mall security] that she was fiddling around underneath the stroller. . . . And I'm pretty sure that fiddling around was getting her kids' coats and stuff out to put on and maybe to head on outside.” (R. 25, PID 562.) Johnson also testified that JCPenny's does not have sensor gates at its doors. (R. 25, PID 559.) Eickholt said the same. (R. 24, PID 481.) Despite Johnson and Eickholt's testimony, a report completed by the Buckle about the incident provides the following: “About 25 minutes after the last time [Villareal] was in the Buckle she set off the alarm at ...

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