Defense says no proof of racial profiling in Dillard's trial

Marilyn Tennissen Nov. 5, 2007, 1:51pm

Washington & Ernster

A defense lawyer for Dillard's told jurors that if they believed the plaintiffs' story about being assaulted at the department store by a security officer, then he had some swampland in Florida they might be interested in.

Three teens, Joseph McCarty, LaPrecious Powell and Kelly LaDay, have sued Dillard's, claiming the store has a policy of racial profiling.

The case went to trial on Oct. 31 and testimony concluded Monday, Nov. 5, in the 136th Jefferson County District Court of Judge Milton Shuffield.

The three plaintiffs are seeking damages of $5 million each, alleging that Dillard's treated them differently than other customers because they are black, and that the department store has a corporate philosophy of targeting minorities.

In March 2003, the teens say they were shopping at Dillard's in Parkdale Mall when a security guard falsely accused them of trying to shoplift, threatened them and shoved them out of the store. LaDay said the security guard, off-duty Beaumont police Sgt. Jay Waggoner, injured her shoulder as he forcibly removed the trio from the store.

Waggoner is not named as a defendant in the suit, filed in 2002. Among other allegations, plaintiffs argue that Waggoner was acting in the scope of his employment with Dillard's and that the department store is guilty of negligence for not properly supervising Waggoner.

In closing arguments Monday, defense attorney Brock Akers of Houston questioned the plaintiffs' claims of mental anguish from the incident.

"They say they have had many sleepless nights because of what happened," Akers said to jurors. "But these young people have had no trouble sleeping through the testimony in this trial. If they can't even stay awake then what are we doing here? You should be offended."

The plaintiffs are represented by Mickey Washington and Cletus Ernster of Houston. Washington is a Jefferson County native and former cornerback with the Washington Redskins. He was the featured cover story for the 2007 Texas Monthly Super Lawyers edition. The Washington & Ernster Web site said the firm is "Well known for our consumer racial profiling work against a large department store chain."

Washington told jurors that this case was a "jigsaw puzzle" that Dillard's does not want pieced together. He pointed out that the plaintiffs were not "thugs" or gang members, but responsible teens – an athlete and cheerleaders at Central High School – who were simply shopping for clothes for the school's Twirp Dance when they were confronted by Waggoner.

"This case is not about whether one person (Sgt. Waggoner) is a racist, it is about corporate practice of discrimination," Washington said in closing arguments. "This corporation turns its head. This is who Dillard's is."

He referred to testimony from African American employees who said that black customers accused of shop lifting were humiliated and paraded through the store in handcuffs.

But Akers said that the plaintiffs have not provided a preponderance of evidence that any racial profiling occurred. According to testimony, Akers said, Waggoner did not approach the teens until a black sales clerk alerted him that the group was acting suspiciously.

The jurors – made up of 10 whites and two blacks – must also sift through testimony of expert witnesses whose data either supports or discredits Dillard's history of racial profiling.

Plaintiffs' expert Jerome Williams, a professor from the University of Texas, testified that while around 23 percent of Dillard's shoppers were black, they made up about 97 percent of those stopped by security.

But defense expert psychologist Barbara Hart said the data was flawed, that no baseline has ever been established to determine if any law enforcement agency or any corporation is engaging in racial profiling.

Dillard's has been on the defense in racial discrimination and racial profiling suits dating back to the early 1990s, agreeing to large settlements and paying jury awards in several cases.

This is the second trial of its kind in Shuffield's court in Jefferson County. The current plaintiffs were severed from the original lawsuit of about 27 plaintiffs.

In the first trial, Shannon McDowell was awarded $350,000 in a jury trial after claiming he was falsely imprisoned for causing a scene while trying to exchange a pair of shoes at Dillard's.

Jury deliberations will continue Tuesday.

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