Blount v. Whole Foods Market Downtown Nashville

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ALIVIA BLOUNT,
Plaintiff,
v.
WHOLE FOODS MARKET
DOWNTOWN NASHVILLE,
Defendant.
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No. 3:23-cv-00343
MEMORANDUM OPINION
Before the Court is the Magistrate Judge’s Report and Recommendation (“R&R”) (Doc.
No. 155) recommending that the Court deny Defendant Whole Foods Market Downtown
Nashville’s (“Whole Foods”) Motion for Summary Judgment (Doc. No. 120), Plaintiff Alivia
Blount’s (“Blount”) Motion for Summary Judgment (Doc. No. 125), and Whole Foods’s Motion
to Strike (Doc. No. 154). Both Blount and Whole Foods have filed objections to the Magistrate
Judge’s R&R. (Doc. Nos. 156, 172). For the following reasons, the Court rules as follows: Whole
Foods’s objections (Doc. No. 172) will be sustained in part and overruled as moot in part; Blount’s
objections (Doc. No. 156) will be overruled as moot; and the R&R (Doc. No. 155) will not be
accepted.
I. 	BACKGROUND1
Blount initiated this 42 U.S.C. § 1981 (“§ 1981” or “Section 1981”) action against Whole
Foods on April 13, 2023, alleging that Whole Foods discriminated against her based on her race
when it denied her the opportunity to purchase self-serve acai in a manner that a reasonable person
1 The R&R provides ample factual and procedural background on the parties’ pending motions.
(See Doc. No. 155 at 2–5). 	Accordingly, the Court will only detail the issues relevant to the
resolution of the parties’ objections here.
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could find discriminatory. 	(See Doc. Nos. 1, 11, 13). 	It is on this claim that both parties seek
summary judgment in their favor. (Doc. Nos. 120, 125).
In short, the undisputed facts are as follows:2 Blount, an African American woman, entered
Whole Foods on March 13, 2023. (Doc. No. 134 ¶ 2). She filled a cup that she brought in with
her to the store with acai from Whole Foods’s self-serve acai machine. (Id. ¶ 6). Whole Foods’s
self-serve acai is ordinarily used by filling a Whole Foods disposable cup, pricing that cup by
weight for purchase, and immediately thereafter paying for the acai. (Doc. No. 133-4 ¶¶ 4–5; Doc.
No. 134 ¶¶ 4–6).
After filling her personal cup with acai, Blount walked around the store while she waited
for her parents to send her money to purchase the acai. (Doc. No. 123-2; Doc. No. 133-2 ¶¶ 1, 3,
32). While walking through the Whole Foods aisles, Whole Foods Security Guard Abdullah Al-
Marof (“Al-Marof”) approached Blount. (Doc. Nos. 123-2, 123-3; Doc. No. 133-2 ¶¶ 1–2, 12–13;
Doc. No. 133-3 ¶¶ 9, 15). 	A conflict between the two ensued: Al-Marof suspected Blount was
shoplifting her acai, took her cup from her, and alerted Whole Foods Store Manager Joe Rudat
(“Rudat”) of the suspected theft. (Doc. No. 133-2 ¶ 23; Doc. No. 133-3 ¶¶ 9, 13; Doc. No. 134 ¶¶
9–12). 	Rudat then approached Blount and Al-Marof, instructed Al-Marof to return Blount’s
personal cup to her, and asked Blount to pour out the acai from her cup and leave the store. 	(Doc.
No. 123-2; Doc. No. 133-2 ¶¶ 12, 15, 19; Doc. No. 134 ¶¶ 13–17). 	Blount did so, taking her
2 The undisputed facts in this section are drawn from the undisputed portions of the responses to
the statement of facts (Doc. Nos. 132, 134), the exhibits and depositions submitted in connection
with the summary judgment briefing, and portions of the Amended Complaint (Doc. No. 13) that
are not contradicted by the evidence in the record. To the extent that a party failed to dispute a
proposed statement of undisputed material fact with a proper citation to the record, the Court
considers that fact undisputed. See Fed. R. Civ. P. 56(c); see also M.D. Tenn. L.R. 56.01(e).
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personal cup with her. (Doc. No. 133-2 ¶ 15). According to Blount, following this interaction,
Al-Marof wrote the following note (“Note”) in his cell phone:
March 13 –
African American female, approximately 25 years of age, known to engage in a
recurring self-checkout scam with her family, visited the store unaccompanied and
began wandering through the aisles while singing loudly. Subsequently, she alerted
a team member, creating a scene and requesting the security officer (myself) to
inspect the women’s public restroom due to an alleged presence of a “naked woman
running around.” Upon inspection, the restroom was found to be unoccupied, and
statements from witnesses did not support the claim of a naked woman.
I maintained close surveillance of the woman due to her increasingly peculiar
behavior. She continued singing loudly and making customers uncomfortable.
Notably, she used the Smoothie machine to fill her personal cup, took it to the cafe
without payment, and consumed the smoothie for approximately 15 minutes. A
team member advised me to approach her, as the smoothies are sold by weight, and
she had not paid before consumption.
I confronted the individual and informed her that she needed to weigh the smoothie
at the register and make payment before consumption. In response, she began to
shout, accused me of racism, and ridiculed my appearance. Her continued outbursts
caused significant discomfort to other customers. After several minutes of
attempting to defuse the situation, I informed her that she would have to leave the
store unless she calmed down. She requested a manager, and I radioed for Joe to
intervene. Joe successfully diffused the situation, and the woman retrieved her cup
from the cafe before exiting the store.
(Doc. No. 125-1 at 17).
After considering these undisputed facts and the remainder of the evidence in the record,
the Magistrate Judge issued the October 31, 2025 R&R. 	(Doc. No. 155). 	In the R&R, the
Magistrate Judge recommends: (1) denying Whole Foods’s Motion for Summary Judgment (Doc.
No. 120) because disputes of fact exist on Blount’s § 1981 race discrimination claim; (2) denying
Blount’s Motion for Summary Judgment (Doc. No. 125) as untimely; and (3) denying Whole
Food’s Motion to Strike (Doc. No. 154) as moot. (Doc. No. 155 at 24).
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II. 	STANDARD OF REVIEW
Both parties raise objections to the R&R. Before addressing the parties’ objections to the
R&R, it is worth emphasizing that the Federal Rules of Civil Procedure and this Court’s Local
Rules provide that only “specific written objections” to the magistrate judge’s proposed factual
findings and legal conclusions are considered “proper” for the district court’s consideration. Fed.
R. Civ. P. 72(b)(2). Proper objections also “must state with particularity the specific portions of
the Magistrate Judge’s report or proposed findings or recommendations to which an objection is
made . . . to apprise the District Judge of the bases for the objections.” M.D. Tenn. L.R. 72.02(a).
“The district judge must determine de novo any part of the magistrate judge’s disposition [on a
dispositive motion] that has been properly objected to.” Fed. R. Civ. P. 72(b)(2) (emphasis added).
In doing so, “[t]he district judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge with instructions.” Id.; see
also 28 U.S.C. § 636(b)(1)(C).
The rules distinguish between proper objections that deserve de novo review, and “vague,
general, or conclusory objections,” which do “not meet the requirement of specific objections and
[are] tantamount to a complete failure to object.” Cole v. Yukins, 7 F. App’x 354, 356 (6th Cir.
2001) (citing Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)). Indeed, “an ‘objection’ that does
nothing more than state a disagreement with a magistrate’s suggested resolution, or simply
summarizes what has been presented before, is not an ‘objection’ as that term is used in this
context.” 	VanDriver v. Martin, 304 F. Supp. 2d 934, 938 (E.D. Mich. 2004) (citations and
quotations omitted). Further, arguments raised for the first time to the district court on objection
are not normally properly before the district court for consideration, as arguments are usually
waived when not first presented to the magistrate judge. See Murr v. United States, 200 F.3d 895,
902 n.1 (6th Cir. 2000) (party procedurally barred from raising claim not raised before the
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magistrate judge); The Glidden Co. v. Kinsella, 386 F. App’x. 535, 544 (6th Cir. 2010) (declining
to review an issue that the district judge did not consider because it was not presented to
the magistrate judge).
Whether objections are properly raised is of great import, as an improper objection amounts
to a “failure to properly, specifically, and timely object to a report and recommendation,” which
“releases the Court from its duty to independently review the matter.” Lawhorn v. Buy Buy Baby,
Inc., 2021 WL 1063075, at *1 (M.D. Tenn. Mar. 19, 2021). 	When a litigant makes improper
objections, “[t]he district court’s attention is not focused on any specific issues for review, thereby
making the initial reference to the magistrate [judge] useless.” 	Howard v. Sec’y of Health and
Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Under these circumstances, “[t]he functions of
the district court are effectively duplicated as both the magistrate [judge] and the district court
perform identical tasks,” and “[t]his duplication of time and effort wastes judicial resources rather
than sav[es] them, and runs contrary to the purposes of the Magistrates Act.” 	Id. 	With these
standards in mind, the Court now turns to whether the parties’ objections are proper or meritorious.
III. 	DISCUSSION
The Court need only address Whole Foods’s objections, as they are dispositive. 	Whole
Foods contends the Magistrate Judge erred in denying its motion for summary judgment in five
ways: (1) improperly shifting the burden of demonstrating admissibility of the Note onto Whole
Foods; (2) failing to analyze properly Blount’s proof on the second prima facie factor; (3) making
an improper inference of racial animus not supported by relevant authority; (4) failing to apply the
entire “markedly hostile” test in its analysis; and (5) misapplying the pretext framework. 	(See
generally Doc. No. 173). 	The Court will only address Whole Foods’s second objection, as it
controls.
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A. Legal Standard
Whole Foods’s second objection to the R&R’s analysis of Blount’s prima facie case of
racial discrimination is proper, because it is specific and includes citations to the record that alerts
the Court on what Whole Foods contends is the legal error in the R&R. M.D. Tenn. L.R. 72.02(a)
(a valid objection must “state with particularity the specific portions of the Magistrate Judge’s
report . . . and must be accompanied by sufficient documentation”). 	Accordingly, the Court
reviews that issue de novo. Fed. R. Civ. P. 72(b)(2). 	In doing so, it applies the same summary
judgment standard that the Magistrate Judge did in the R&R. (Doc. No. 155 at 7–8).
Summary judgment is appropriate only where there is “no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A
genuine dispute of material fact exists ‘if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.’” Peffer v. Stephens, 880 F.3d 256, 262 (6th Cir. 2018) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “The party bringing the summary
judgment motion has the initial burden of informing the Court of the basis for its motion and
identifying portions of the record that demonstrate the absence of a genuine dispute over material
facts.” Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003) (citation omitted). “The moving party
may satisfy this burden by presenting affirmative evidence that negates an element of the non-
moving party’s claim or by demonstrating an absence of evidence to support the non-moving
party’s case.” Id. (citation and quotations omitted). “In response, the nonmoving party must present
‘significant probative evidence’ that will reveal that there is more than ‘some metaphysical doubt
as to the material facts.’” Miller v. Maddox, 866 F.3d 386, 389 (6th Cir. 2017) (quoting Moore v.
Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993)).
In deciding a motion for summary judgment, the Court must review all the evidence, facts,
and inferences in the light most favorable to the party opposing the motion. 	Matsushita Elec.
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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). The Court does
not, however, weigh the evidence, judge the credibility of witnesses, or determine the truth of the
matter. See Anderson, 477 U.S. at 249. The mere existence of a scintilla of evidence in support
of the non-moving party’s position will be insufficient to survive summary judgment; rather, there
must be evidence on which a trier of fact could reasonably find for the non-moving party. 	See
Rodgers, 344 F.3d at 595.
B. Analysis
The Court turns to the merits of Whole Foods’s second objection on Blount’s § 1981 race
discrimination claim. 	(See Doc. No. 173 at 9–14). 	“Section 1981 prohibits intentional race
discrimination 	in 	the 	making 	and 	enforcing 	of 	contracts 	with 	both 	public 	and 	private
actors.” Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 867–68 (6th Cir. 2001). To establish a
§ 1981 race discrimination claim relying on circumstantial evidence, as Blount does here, “a
plaintiff must meet the burden-shifting standard of proof for Title VII cases established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Gray v. AutoZoners, LLC, 2022 WL
16942609, at *4 (6th Cir. Nov. 15, 2022) (citing Christian, 252 F.3d at 868). McDonnell Doulgas
“requires a plaintiff to ‘first establish a prima facie case of discrimination.’” Id. (quoting Christian,
252 F.3d at 868). 	If Blount can do so, “the burden then shifts to [Whole Foods] to produce a
legitimate, non-discriminatory reason for the adverse treatment.” Id. (citing Christian, 252 F.3d at
868). If Whole Foods does so, Blount “must establish that the nondiscriminatory reason proffered
by [Whole Foods] is a pretext for discrimination.” Id. (citing Christian, 252 F.3d at 868).
As the Magistrate Judge accurately explained in the R&R, because Blount’s § 1981 claim
arises in the commercial establishment context, she must show the following to establish a prima
facie case of race discrimination: (1) she is a member of a protected class; (2) she “sought to make
or enforce a contract for services ordinarily provided” by Whole Foods; and (3) she was “denied
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the right to enter into or enjoy the benefits or privileges of the contractual relationship[,]” in that
she was either “deprived of services while similarly situated persons outside the protected class
were not and/or” she “received services in a markedly hostile manner and in a manner which a
reasonable person would find objectively discriminatory.” 	Christian, 252 F.3d at 872. 	Whole
Foods’s objection challenges whether Blount satisfied the second element of this test.3 (See Doc.
No. 173 at 9–14).
In the R&R, the Magistrate Judge recommends the Court find a genuine dispute of material
fact on the second element of Blount’s prima facie case, because there is evidence that Blount had
the means to purchase the acai before leaving Whole Foods such that she was ready to enter a
contract with Whole Foods for that purchase. (Doc. No. 155 at 14–15). Whole Foods objects to
this analysis, reasoning that the Magistrate Judge’s emphasis on whether Blount had the means to
purchase acai ignores binding Sixth Circuit authority that requires more. 	(Doc. No. 173 at 9).
According to Whole Foods, to establish the second element of her prima facie case, Blount must
show both that she had the means to complete the transaction and that she made herself “available
to receive and pay for services ordinarily provided by the defendant to all members of the public
in the manner in which they are ordinarily provided.” Christian, 252 F.3d at 871. Whole Foods
argues that because it is undisputed that Blount did not make herself available to receive and pay
for the acai in the manner ordinarily provided by Whole Foods—a fact that the R&R does not
adequately address—Blount cannot establish this element. (Doc. No. 173 at 9–14). Blount argues
in response, without citation to any evidence in support, that she followed ordinary procedure for
3 Given that the Whole Foods’s objection on the second prima facie element of Blount’s § 1981
claim is controlling, the Court need not grapple with the other McDonnell Douglas factors relevant
to Blount’s claim to conclude that summary judgment is warranted in Whole Foods’s favor.
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purchasing the acai because it was to be purchased at the front of the store, and Whole Foods
security and employees did not permit her to go there to purchase her item. (Doc. No. 174).
Upon review of the record and the legal authority, the Court finds Whole Foods’s objection
meritorious. 	As a threshold matter, neither the Court, nor Whole Foods, take issue with the
Magistrate Judge’s analysis on whether Blount had the means to purchase the acai. (See Doc. No.
155 at 14–15). If that analysis alone controlled the second element of Blount’s prima facie case,
the Magistrate Judge would be correct in her conclusion. However, the second element analysis
is not so simple.
In Christian, the Sixth Circuit explained what is required to satisfy the second element of
the prima facie case for a commercial establishment discrimination claim. Christian, 252 F.3d at
872. 	There, the Sixth Circuit adopted the articulation of the second element as described in
Callwood v. Dave & Buster’s, Inc., 98 F. Supp. 2d 694, 707 (D. Md. 2000). Id. Specifically, the
Callwood test requires a plaintiff like Blount to show that “‘she made herself available to receive
and pay for services ordinarily provided by the defendant to all members of the public in the
manner in which they are ordinarily provided[.]’” Id. at 871 (quoting Callwood, 98 F. Supp. 2d at
707). Applying that description to the second element of the prima facie case, the Christian court
determined the plaintiff in that case easily satisfied the second element because she “made herself
available to enter into a contractual relationship for services ordinarily provided by [the
defendant].” Id. at 874. Specifically, she “had selected merchandise to purchase, had the means
to complete the transaction, and would, in fact, have completed the transaction, and would, in fact,
have completed her purchase had she not been asked to leave the store.” Id.; see also Gray, 2022
WL 16942609, at *4 (6th Cir. Nov. 15, 2022) (applying Christian and Callwood standard to § 1981
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commercial establishment claim); Briscoe v. Jackson, 285 F. App’x 205, 208 (6th Cir. 2008)
(same).
Applying the test in Callwood and Christian here, the undisputed record evidence shows
that Blount did not make herself available to receive and pay for services ordinarily provided by
Whole Foods. Blount deviated from the manner in which Whole Foods ordinarily offers customers
the ability to serve and pay for acai. 	The record reflects that Whole Foods’s self-serve acai
machine is to be used by: (1) filling a Whole Foods disposable cup with acai; (2) weighing the cup
with the acai at that service station; and (3) immediately paying for the acai before leaving the self-
serve area. (Doc. No. 133-4 ¶¶ 4–5; Doc. No. 134 ¶¶ 5–6, 14). Instead of following that service
ordinarily provided for by Whole Foods, the parties agree that Blount: (1) filled her own personal
cup with acai; (2) did not weigh the cup with the acai; and (3) did not purchase the acai in the self-
serve area before walking around other aisles with the filled cup. 	(Doc. No. 133-2 ¶¶ 1, 3, 32;
Doc. No. 134 ¶¶ 5–6, 14). In doing so, Blount all but admits she attempted to engage in a service
that Whole Foods does not ordinarily provide its customers, see Christian, 252 F.3d at 871, 874,
dooming her claim.
Blount’s argument to the contrary, that acai is purchased at the front checkout counters, is
unsupported by the record and her own previous representations. (See, e.g., Doc. No. 134 ¶¶ 3–5
(in response to Whole Food’s statement of undisputed material facts about acai self-serve
procedures, stating “[s]tores frequently accommodate customers who deviate from standard
procedure”)). 	In any event, this argument carries little weight considering Blount’s own
admissions that she: (1) brought her own cup to Whole Foods to fill with acai (Doc. No. 134 ¶ 6
(Blount not disputing that she brought her own cup to Whole Foods); and (2) either did not intend
to, or could not have, purchased the acai immediately after distributing it (at the counter or
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otherwise). (Doc. No. 13 at 1 (allegations stating that Blount “was waiting for my mother to send
me money for breakfast via cash app to pay for the acai”); Doc. No. 123-2 ¶ 2 (Blount stating that
she “did have money [at the time I poured the acai] but not the funds [she] intended to use for
breakfast”)). Because the record demonstrates that Blount did not seek to use the acai service in a
manner ordinarily provided by Whole Foods when she did not use a disposable Whole Foods cup
or pay for the acai before leaving the self-serve acai area, she cannot satisfy the second element of
her prima facie case.4 See Christian, 252 F.3d at 871, 874; cf. Morris v. Office Max, 89 F.3d 411,
414–15 (7th Cir. 1996) (no valid contract interest where plaintiffs did not “allege the actual loss of
a contract interest,” rather than “merely the possible loss of future contract opportunities”).
The Magistrate Judge’s ruling on this portion of the analysis of the second element of
Blount’s prima facie case is understandable, given Whole Foods’s argument on this point at
summary judgment failed to clearly indicate it invoked Christian and Callwood as controlling legal
authority. (See Doc. No. 155 at 17 n.3 (R&R dismissing Whole Foods’s argument on this point,
given its conclusion that Whole Foods “ha[d] not cited any authority to support this argument”));
but see Doc. No. 121 at 8–10 (Whole Foods discussing Christian’s and Callwood’s applicability
earlier in its second element analysis)). The problems with Whole Foods’s opening briefing aside,
however, Whole Foods ultimately did raise the argument it relies upon now in the first instance in
connection with a broader discussion of Blount’s inability to satisfy the Christian/Callwood
standard. 	(See Doc. No. 121 at 8–10 (citing evidence regarding ordinary procedures for
distributing and purchasing acai), 11 (arguing Blount’s “actions in now following the ordinary
procedure that other customers follow with payment for acai” was not the contract ordinarily
4 Because the undisputed facts demonstrate that Whole Foods requires customers to pay for acai
prior to leaving the dispensary area (Doc. No. 134 ¶¶ 4–6), Blount’s evidence that she later asked
how to pay for it after getting into an altercation with Al-Marof and Rudat matters little.
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provided because “the expectation was that a customer would use one of Whole Foods’ provided
disposable cups, dispense the product, immediately weigh it, and then pay for it prior to leaving
the area”)). 	Tellingly, Blount failed to respond to Whole Foods’s argument on this issue in its
briefing. 	(Doc. No. 124 at 2). 	Accordingly, Whole Foods’s unchallenged analysis invoking
Christian and Callwood, and a full reading of that authority, must be resolved. When doing so, a
different conclusion than the one the Magistrate Judge reaches in the R&R is warranted.
Given the foregoing, and viewing the record in Blount’s favor, the undisputed evidence
shows that Blount failed to distribute and purchase her acai in a manner ordinarily provided for by
Whole Foods. Because of this, Blount cannot establish the second element of her § 1981 claim.
Accordingly, Whole Foods’s first objection is well-taken, and the Court will not approve the R&R
and will grant summary judgment in Whole Foods’s favor.5
An appropriate order will enter.
____________________________________
WAVERLY D. CRENSHAW, JR.
UNITED STATES DISTRICT JUDGE
5 Among others, Whole Foods objects to the R&R on the basis that the Magistrate Judge
improperly analyzed the third prima facie factor because she failed to consider all of the Keck v.
Graham Hotel Sys., Inc. factors that inform whether a defendant acted in a “markedly hostile”
manner. 566 F.3d 634, 641 (6th Cir. 2009); (see Doc. No. 173 at 16–17). While Whole Foods’s
objection appears to have at least some merit, the Court need not address this issue in full given
that it has successfully demonstrated Blount cannot establish the second element of her prima facie
case.
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