PhotoOne of the dirty little secrets of retailing is "shrinkage." It refers to the loss of inventory through theft and the general party line is that it's the customers who are stealing the loot, while in truth, a great deal of the theft is commited by employees, vendors and other "insiders."

But that doesn't stop retailers -- even cutesy ones like Trader Joe's -- from harassing, intimidating and falsely accusing their customers of theft, even when the alleged theft is so minuscule that it would be laughed out of any court.

Take the case of Evelyn, a 73-year-old Los Angeles shopper and Vietnam widow whose doctor had just told her she had breast cancer. Evelyn was understandably upset and didn't want to call her family while still in a state of shock. So, as she tells it, she stopped by the Whole Foods at 3rd and LaBrea and, after buying a few items there, went on to her other regular destination, the Trader Joe's at 3rd and Fairfax.

"It was afternoon and I hadn't eaten," Evelyn told ConsumerAffairs. "I took a banana that I had purchased at Whole Foods and ate it on my way into Trader Joe's. I finished and threw the peeling in a barrel inside the store."

The trouble began ...

Trader Joe's Dec. 3, 2013, 5:09 p.m.
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Evelyn said she then browsed the Trader's and bought $48 worth of food, pausing to visit with a neighbor who was also in the store. The trouble began as she left the store after checking out.

"I was stopped before stepping outside by an employee holding up a banana peel telling me I had taken the banana from the store without paying for the banana. I was devastated. I have never stolen anything in my entire life." Evelyn said. "The employee insisted I walk back to the adjoining parking lot and show him my receipt from Whole Foods. I did this with my neighbor following me. When I showed the employee the rest of the bananas and my receipt."

At this point, one would expect an abject apology from the employee and perhaps a small token of some kind from the store manager -- a dozen roses or maybe a loaf of some of the Trader's more inedible bread.


But instead: "The employee told me he didn't like my attitude because I asked him what the F--- was he talking about when he accused me of stealing. Had I been in my right mind after being diagnosed with cancer I would have called the police before going to my car. I know he didn't have any business stopping me in the store at which time he was loud and rude."

Evelyn said she finally recovered enough to call the police.

"They were incensed," she said. "They told me they could not do anything but write a report but they both insisted I take Trader Joe's to court. I haven't yet, because I am still dealing with cancer."

Evelyn later telephoned her son, a doctor in Boston, and her daughter, an attorney in New York. Both insisted she sue the store. She still hasn't done so, saying she is too busy dealing with her cancer treatment. 

See you in court

PhotoEvelyn's children and the LAPD are not the only ones who think she should take legal action. We asked Virginia attorney Joan E. Lisante, a former New York City prosecutor, what she thought of the incident.

"It sounds as though Evelyn could bring a valid action for false arrest, if she wants to," Lisante said, emphasizing that she was speaking informally and not offering legal advice to Evelyn and had not confirmed the specifics of the case. "Many people think 'arrest' has to mean being held in some sort of jail cell, but that's not true. The key to 'arrest' is: am I free to leave?  If you're in a situation where the answer is 'no,' you are under arrest."

Lisante said it appears from Evelyn's story that the Trader Joe's employee acted without any evidence to back up his accusation. He didn't see Evelyn steal a banana from the produce department, obviously, since she had purchased it from another store.  He may have seen her deposit the peel in the trash and leaped to the conclusion that she stole the item.  

"The employee detained Evelyn outside the store and made her show a receipt before she was free to go -- an 'arrest' situation," Lisante asid. "The tide turned when Evelyn was able to come up with the receipt showing that no theft had occurred."

Lisante said the way the incident was mishandled seems to beef up Evelyn's case.  In most jurisdictions, she said, a person can sue for false arrest if he/she can show that damages are justified.  Courts typically award "nomimal" damages for the harm brought by the incident, but can also award "punitive" damages when the circumstances dictate.  

"Here, Evelyn was humiliated by being accused in public, was detained and taken outside to show 'proof' that the item wasn't stolen, and was verbally abused by the employee.  This seems to indicate that she suffered emotional damage and damage to her reputation as an honest person," Lisante said. "'Punitive' damages are meant to act as a deterrent -- awarded in more outrageous circumstances to prevent the situation from happening again. Evelyn might have grounds for both types of damages, as she was in a fragile emotional state due to her cancer diagnosis delivered just before the shopping trip."

The U.S. Constitution outlaws depriving a person of liberty without due process of law and Lisante said that seems to be what happened here: "An employee's over-zealous defense of the banana supply was reckless in its execution and resulted in an innocent woman being harassed and humiliated in public -- a good start for a false arrest claim."

We emailed Trader Joe's headquarters about Evelyn's case but so far have received nothing but an annoyingly cheerful email saying the company would respond as soon as humanly possible -- adding, "That’s because a few humans are busily reading and responding to ALL of the great customer feedback." 

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