Walgreens accused of negligently misidentifying customer as shoplifter

Employee allegedly reported customer to police because of race and 'cultural blindness'

BY Bernise Carolino 28 Aug 2023

In a recent case where a store employee reported a suspected shoplifter to police, the Fourteenth Court of Appeals of Texas found that the employer owed no duty to refrain from negligently misidentifying a customer as a shoplifter.

The plaintiff alleged that the following events occurred while she was shopping in Walgreens in July 2019. A Walgreens’s employee called the police, asked them to arrest the plaintiff, and falsely told them that she had committed crimes in the store earlier that day and in the past.

Two police officers approached the plaintiff, asked to speak to her in front of other customers, and informed her that she was suspected of previously committing crimes in the store. The officers reviewed video security footage of the earlier suspect, saw that she looked nothing like the plaintiff, and immediately let her leave.

The plaintiff sued Walgreens with claims of intentional infliction of emotional distress, negligence, and gross negligence. She made the following allegations:

Walgreens and the accusing employee were negligent and grossly negligent in handling the investigation that led to the officers detaining her
Walgreens was liable for direct negligence in hiring, training, and supervising the employee
The employee, despite being told by fellow workers that he misidentified her, called the police due to her race and due to his “cultural blindness”
The plaintiff was wrongfully deprived of her freedom when the employee falsely accused her of theft
She felt shock, humiliation, shame, anxiety, discomfort, and embarrassment because of her traumatizing experience
She experienced depression, anxiety, panic, sleepiness, fear, anger, and a sense of isolation after the incident

Walgreens filed a motion to dismiss. It cited the Texas Citizens Participation Act (TCPA), which aimed to protect citizens, who have free speech rights, from retaliatory lawsuits seeking to silence or to intimidate them on matters of public concern.

Walgreens argued that all of the plaintiff’s claims related to the police report about the suspected crime. Previous court rulings found that reporting an alleged crime to police was a matter of public concern under the TCPA.

The trial court denied the motion to dismiss. Walgreens appealed.

Walgreens partly succeeds

In the case of Walgreens v. Pamela McKenzie, the Fourteenth Court of Appeals of Texas partly affirmed and reversed the trial court’s decision.

The appellate court ruled that the trial court correctly refused to dismiss the plaintiff’s claims for negligent hiring, training, and supervision but wrongly denied Walgreens’s motion to dismiss her claims for intentional infliction of emotional distress, negligence, and gross negligence.

Walgreens was able to show that the TCPA applied to some of the plaintiff’s claims, the appellate court held. First, the appellate court found that the trial court should have dismissed the plaintiff’s claims for intentional infliction of emotional distress, negligence, and gross negligence.

These claims were based on or were in response to the exercise of the employee’s free speech rights because these claims directly responded to the employee’s actions in notifying police about a suspected shoplifter, the appellate court said.

The appellate court accepted that it was embarrassing and humiliating to be misidentified as a shoplifter but found that the plaintiff failed to present the evidence of extreme and outrageous conduct that she needed to show.

However, the appellate court decided that the plaintiff’s claims for negligent hiring, training, and supervision should not be dismissed because these claims were not entirely based on or were not in response to the employee’s exercise of free speech rights. The hiring, training, and supervision of the employee happened before the incident, the appellate court noted.