A Matter of Principle

Mary Fletcher says this store cost her a Cash4Life jackpot
Craig Lassig

Experience has taught Mary Fletcher to take nothing for granted. She lived through years of violence and upheaval in her native Liberia. She left for the United States in 1987 after she was told her husband, a political prisoner, had been killed. She tried to make a life for herself and her children here, sending money back home to relatives who were enduring civil war. Years later she was reunited with her husband, who in fact was still alive.

After all that, you'd expect her to remain unfazed by the little indignities we all face in the course of a day. But Fletcher's struggles have made her all the more aware of the principles at stake every time you leave those slights, however small they may seem, unchecked. Perhaps that explains why she's gone so far over the past three years to fight back against the affront she says she experienced on May 28, 1998.

That evening, according to court papers, Fletcher and her daughter Jean Teamah drove to the Tom Thumb convenience store on the corner of 30th Street and Central Avenue in northeast Minneapolis, which is near their home. Because Fletcher has difficulty walking, she asked her daughter to go into the store and buy her $20 worth of lottery tickets. Fletcher gave her daughter pre-marked computer cards for five tickets with the numbers she had chosen for the Cash4Life and Daily 3 lottery games. She expected the transaction to take only a few minutes.

As the sales clerk ran the computer cards through the lottery machine, however, it issued only four of the five tickets, and the clerk, a black man, tried to figure out what had gone wrong. Concerned that the transaction was taking such a long time, Fletcher eventually went into the store to ask what the problem was. At that point, the store's assistant manager, Lisa Marcy, who is white, told Fletcher she should buy lottery tickets when the store was not so busy. Fletcher said she hadn't known the store was busy, and asked again to buy the tickets. Marcy refused to sell Fletcher the four tickets that had been issued.

Fletcher and Teamah complained that Marcy was refusing to serve them because they were black, and told Marcy she was a racist. Marcy then told the two to get out, and called 911, asking the operator to send the police because customers were acting unruly. The operator asked the race of the customers, and said she would send a squad. When the police arrived, one officer asked Marcy whom she wanted removed from the store, and then told Fletcher and Teamah to leave. Fletcher protested that it was unfair that the police officers didn't ask for her side of the story before they ejected her from the store. Plus, she still wanted to buy her lottery tickets. The officers were unmoved, however, and told Fletcher and Teamah that they would be arrested if they entered the store again.

And here's the kicker: Fletcher says she kept the computer cards she had used to select her lottery numbers. The next day, she discovered that one of them had been the winning ticket in the Cash4Life game, which would have guaranteed her $1,000 a week for life. Though it seems more like a Hollywood contrivance than real life, Fletcher insists that the story, no matter how farfetched, is true.

Fletcher and her daughter have filed a lawsuit against Tom Thumb Food Markets Inc. and the City of Minneapolis in U.S. District Court. In their lawsuit, the two women allege that Tom Thumb discriminated against them because of their race, and that the City of Minneapolis aided in that discrimination by failing to independently investigate their claims of prejudice. Moreover, the lawsuit claims that Tom Thumb makes a practice of calling the police to get rid of customers they don't wish to serve--often for racially biased reasons. For Fletcher, the suit argues, the discrimination means she lost out on lottery winnings that her attorneys calculate would have totaled more than $800,000.

Attorneys for Tom Thumb and the City of Minneapolis, however, say the case is frivolous. They say that Fletcher and Teamah are simply opportunists out to make a fast and easy buck.

"This was never about that," declares Jill Waite, one of Fletcher's lawyers. "This was about being wronged and not wanting this to happen to other people." They are asking to be compensated for lost lottery winnings, but they are more interested in fighting for the underlying principle. This case, they say, is no less important than the racial profiling issues that have recently garnered so much local and national attention.

Fletcher claims that the lottery incident on May 28 was not the first time she had experienced discrimination by Lisa Marcy. Earlier that month Fletcher asked to use the restroom, only to be told there was no public restroom in the store. A few days later, Fletcher watched as a white man made the same request to Marcy and was given a key to the facility. On another occasion, Fletcher recalls, she tried to buy lottery tickets using loose change, but Marcy told her she would not accept the pile of pennies, nickels, and dimes.  

"She said, 'Take your pennies and go,'" Fletcher remembers. Given those earlier run-ins, Fletcher says, she felt Marcy's behavior during the lottery episode was racially motivated, "Because I show my face in there, she came over and started to act up."

Statements by two former Tom Thumb employees, including Curtis Silbernagel, the clerk who originally waited on Teamah, back up the women's claims. "Lisa Marcy became irate and started to swear at the women buying the tickets," Silbernagel swore in an affidavit. "She yelled, called them niggers, told them she would not continue with issuing the tickets, and told them to leave or she would call the police."

Another affidavit, this one from Kelly Moeller, a white woman who says she had worked with Marcy at the Central Avenue Tom Thumb in 1997, states, "Lisa Marcy regularly called the Minneapolis police when she wanted a customer out of the store in furtherance of her own racist motives. In my experience, the police just took them out because Marcy wanted them to. They didn't seem to care about what the black person was telling them."

In legal documents, Tom Thumb executives deny the allegations of racial discrimination. So does Lisa Marcy, who explains in her affidavit that one of the women buying lottery tickets had become extremely irate and rude to both her and Silbernagel, even going so far as to shout racial epithets at them (a charge Fletcher denies). "She was still screaming at me," Marcy states. "I then told her I was calling the police. I was on the phone with the 911 operator when the police showed up. They escorted them from the store and told them to leave the property. All the while she continued raising a ruckus and refusing to leave. She told the officers that she was a good Christian lady and that I was not a very good cashier."

Neither Marcy nor Tom Thumb's executives commented for this story, but Joseph Sokolowski, the attorney representing Tom Thumb, denies that the May 28 incident had anything to do with civil rights. "There were no racial terms, no racial content to this instance," he says. "We think the plaintiffs are trying to win the lottery." He dismisses Silbernagel and Moeller's statements as the words of disgruntled former employees. "To suggest that there's a practice of excluding those sorts of people, it's simply untrue," he says. "It's belied by the racial makeup of the employees and belied by the racial makeup of the people who come into the store day in and day out."

Sokolowski says that calling the police in the event of a customer disturbance is far from discriminatory; rather it's a policy used throughout the Tom Thumb chain. "The nature of the incident and the manager's discretion determine when the police are called," he says. "We tell our employees to call the police, don't take matters into their own hands. Call the police and let them decide what to do."

But the fact that police oblige such a policy only adds to the potential for discrimination, Fletcher's attorneys say. By failing to listen to Fletcher and Teamah at the scene before removing them from the store, they explain, the officers violated the women's rights. They want the Minneapolis Police Department to address this on a policy level.

Assistant City Attorney Jim Moore says that judging from a tape of Marcy's call to 911, the officers acted appropriately. First, he objects to the idea that the emergency operator was racist when she asked Lisa Marcy about the customers' race. The inquiry was made for identification purposes, he explains, adding that there is a list of other questions the operator would have asked if Marcy had not interrupted the questions as she spoke to someone in the store. "She asked one or two questions, and the caller interrupted," Moore says. "It truncated the questioning."

Once they were sent to the scene, the police acted appropriately, Moore continues. "The police did what they were supposed to do," he says. "They didn't abuse rights in any way." To have committed an illegal act, he adds, the officers would have had to knowingly disobey department policy--something that couldn't have happened, because the city doesn't have policies outlining how police officers should handle every single type of call that comes in. "Officers are given training, but you can't have training on every permutation," he explains. "Every situation is different. Officers have to exercise their discretion in dealing with the situation."  

But neglecting to have a policy that would require police to investigate at the scene of, say, an altercation in a convenience store, is precisely the problem, according to Fletcher's other attorney, Jill Clark. She says police should have to do more than simply take the word of the store manager that a customer was unruly. "You can either have bad policy, or you can fail to have a policy where you should have one," she says. "You have to have a way of dealing with people at the scene who are saying, 'My constitutional rights are being abused.'"

In this kind of case, two laws may come into conflict, says Eric Janus, a professor at William Mitchell College of Law. If a store manager tells a customer to leave and the customer refuses, it's trespassing. But if the manager is banning that customer for racial reasons, it violates civil-rights law. "The trespassing is clear, whereas the discrimination is a much more complex and subtle offense," Janus says, adding that it could be difficult for police officers to substantiate a discrimination claim if they did not witness the incident. "There are two aspects of law here. There is no reason why one should be preferenced over the other."

That's especially true, he continues, because of the history of civil-rights abuses in the United States, not just by store owners but by law-enforcement officials. Up until the mid-Sixties, businesses were allowed to choose whom they did and did not wish to serve, Janus explains. But with the civil-rights movement came new laws that made it illegal to refuse service based on race. "You don't have that right," he says. "That becomes a public matter."

Refusing to serve people because of their race is a misdemeanor. Still, even though it might make sense for police officers to inquire about a situation, civil-rights abuses are usually dealt with as a civil matter, not a criminal one, Janus says.

Moore agrees, adding that police officers' hands would be tied in the face of such an accusation. "Would the officers have had probable cause to make an arrest? Certainly not." He, too, stresses that any discriminatory behavior on the part of the store would best be taken up between the plaintiffs and Tom Thumb in a civil action.

At the moment, both sides are waiting for a ruling from U.S. District Court Judge Donovan Frank, who is considering requests by the City of Minneapolis and by Tom Thumb that he dismiss the case. Clark and Waite, Fletcher's attorneys, say they hope he will allow a trial so that they can present their side of the story. "The jury will either believe [Fletcher] or not," Clark says. "We're just saying, let us go to the jury with this."

As she waits, Fletcher has ample time to hope for justice--and to envision what she would have done if she had been able to buy that winning lottery ticket. "If I had won the money? Oh, my," she says, pausing to consider. She would pay bills. Bring the rest of her kids over from Liberia. Give some to charity. She smiles as she thinks about the possibilities. But even though she could use the money, it's much less significant than her wish to live in a world free of too-often-overlooked prejudices. "We are all human," she says. "We need to live together."

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