Aromashodu v. Swarovski N. Am. Ltd.

981 N.W.2d 791

Mariam AROMASHODU, Appellant,

v.SWAROVSKI NORTH AMERICA LIMITED, et al., Defendants,Airport Retail Group, LLC, et al., Respondents.

A22-0248

Court of Appeals of Minnesota.

Filed October 31, 2022

Jeffrey S. Storms, Newmark Storms Dworak LLC, Minneapolis, Minnesota; and Jeffrey M. Montpetit, SiebenCarey, P.A., Minneapolis, Minnesota (for appellant)

Pablo Orozco, Chelsea J. Bodin, Christopher T. Ruska, Nilan Johnson Lewis PA, Minneapolis, Minnesota (for respondents)

Considered and decided by Frisch, Presiding Judge; Segal, Chief Judge; and Connolly, Judge.

FRISCH, Judge

Following the summary-judgment dismissal of her discrimination, defamation, and negligent-infliction-of-emotional-distress claims against an airport retailer, appellant argues that she produced record evidence sufficient to prove a prima facie case of discrimination, that the retailer's explanation for its action is a pretext for discrimination, that the retailer is not protected by a qualified privilege if its defamatory per se statement was motivated by discriminatory animus, and that she sustained sufficient damages to support her tort claim. Because we conclude that genuine issues of disputed fact exist as to the discrimination and defamation claims, we reverse in part and remand for trial on those claims. But because the record shows that appellant failed to produce evidence of severe emotional distress with attendant physical manifestations, we affirm summary judgment on the negligent-infliction-of-emotional-distress claim.

FACTS

We set forth the following facts in the light most favorable to appellant as the nonmoving party.

On July 31, 2019, appellant Mariam Aromashodu was shopping at a Swarovski jewelry store at the Minneapolis-St. Paul International Airport. The store is owned and managed by respondents Stellar Partners and Airport Retail Group, LLC (ARG). Aromashodu is a black, Muslim woman, and she was wearing a scarf covering on her head at the time. Respondent Laura Wilkins managed the store and was the only employee present at the time. Two other customers, both white, were in the store at the same time as Aromashodu.

The store is relatively small at approximately 440 square feet. The store displays most products in a locked case. Some items are displayed in the front of the store and outside of the locked case. These products are located on a "self-service spinner," which allowed customers to "pop out a box" to examine an item.

Aromashodu sought assistance from Wilkins to purchase earrings for her daughter. Wilkins showed Aromashodu three sets of earrings from the self-service spinner and placed the earrings on a store counter. Wilkins also showed Aromashodu the location of the spinner if Aromashodu wanted to look at other products.

Aromashodu made several trips between the spinner and the counter where Wilkins had placed the three sets of earrings. Eventually, Aromashodu decided to purchase one pair of earrings, and she returned the other two pairs to the spinner, where she encountered one of the two white customers standing next to the spinner. During this time, Wilkins assisted the third customer. Wilkins then turned her attention to Aromashodu to complete the purchase of the earrings. Aromashodu left the store to run some additional errands before boarding her flight.

After Aromashodu left the store, Wilkins noticed that earrings were missing from the self-service spinner. Wilkins contacted airport police to report a theft. She informed airport police that Aromashodu stole the missing earrings. By the time airport police had located Aromashodu, she had already boarded her flight and settled into her seat. Airport police boarded the flight, removed Aromashodu and her belongings from the plane, searched the surrounding area on the plane, and then questioned her about the missing earrings. Aromashodu denied stealing the earrings. After searching Aromashodu and the surrounding area on the plane, police did not discover any stolen items but did find the earrings that Aromashodu purchased, along with the receipt for the purchase from the store.

Airport police brought Aromashodu back to the store to discuss the situation with Wilkins. By that time, Wilkins's manager and another supervisor had also arrived at the store. After some discussion, police identified several inconsistencies in Wilkins's report and determined that Aromashodu likely did not steal anything. Wilkins's manager assisted Aromashodu with finding and paying for a new flight home. After she returned home, Aromashodu reported feelings of mental distress and attended three counseling sessions to address her concerns. The missing earrings were never recovered.

In October 2020, Aromashodu filed a complaint against Stellar Partners, ARG, and Wilkins, alleging race and religious discrimination in a public accommodation under the Minnesota Human Rights Act (MHRA), defamation per se, and negligent infliction of emotional distress.¹ After discovery, all respondents moved for summary judgment on all claims, which the district court granted. Relevant to this appeal, the district court concluded that Aromashodu had failed to establish a prima facie case of discrimination, that the record did not contain evidence of pretext, that Wilkins's statement to police was protected by a qualified privilege, and that Aromashodu could not establish that she was in the zone of danger to satisfy the first element of her claim for negligent infliction of emotional distress. Aromashodu appeals.

ISSUES

I. Do genuine issues of disputed fact preclude summary judgment on Aromashodu's MHRA claim?

II. Do genuine issues of disputed fact preclude summary judgment on Aromashodu's defamation per se claim?

III. Do genuine issues of disputed fact preclude summary judgment on Aromashodu's negligent-infliction-of-emotional-distress claim?

ANALYSIS

Summary judgment is appropriate if "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Minn. R. Civ. P. 56.01. "A genuine issue of material fact exists if a rational trier of fact, considering the record as a whole, could find for the nonmoving party." Leeco, Inc. v. Cornerstone Bank , 898 N.W.2d 653, 657 (Minn. App. 2017), rev. denied (Minn. Sept. 27, 2017). A material fact is one that will affect the outcome or result of a case. O'Malley v. Ulland Bros. , 549 N.W.2d 889, 892 (Minn. 1996). We review a grant of summary judgment de novo, viewing "the evidence in the light most favorable to the nonmoving party and resolv[ing] all doubts and factual inferences against the moving part[y]." Maethner v. Someplace Safe, Inc. , 929 N.W.2d 868, 874 (Minn. 2019) (quotation omitted).

I. Genuine issues of disputed fact preclude summary judgment on Aromashodu's MHRA claim.

Aromashodu argues that her MHRA claim is not susceptible to resolution at the summary-judgment stage because material, disputed facts exist as to whether respondents discriminated against her due to her protected status. We agree.

The MHRA prohibits discrimination in a place of public accommodation on the basis of race or religion. Minn. Stat. § 363A.11, subd. 1(a)(1) (2020). A party may establish a discrimination claim under the MHRA using one of two evidentiary frameworks, either based on direct or circumstantial evidence.

Goins v. W. Grp. , 635 N.W.2d 717, 722-24 (Minn. 2001) ; Friend v. Gopher Co. , 771 N.W.2d 33, 37 (Minn. App. 2009). The parties agree that Aromashodu's discrimination claim is based on circumstantial evidence. A party may establish a discrimination claim based on circumstantial evidence using the three-part framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Goins , 635 N.W.2d at 724 ; Hubbard v. United Press Int'l, Inc. , 330 N.W.2d 428, 441-42 (Minn. 1983).

Under the McDonnell-Douglas framework, a party must first establish, by a preponderance of the evidence, a prima facie case of discrimination. Dietrich v. Canadian Pac. Ltd. , 536 N.W.2d 319, 323 (Minn. 1995). To establish a prima facie case of public-accommodation discrimination under the MHRA, a party must demonstrate that (1) the party is a member of a protected class, (2) the place of public accommodation treated the party differently, and (3) the different treatment was because of the party's membership in a protected class. Monson v. Rochester Athletic Club , 759 N.W.2d 60, 63 (Minn. App. 2009), rev. denied (Minn. Mar. 17, 2009).

If the party establishes a prima facie case of discrimination, the second part of the McDonnell-Douglas framework applies, and the burden shifts to the place of public accommodation to articulate a legitimate, nondiscriminatory reason for its actions. Dietrich , 536 N.W.2d at 323. If the place of public accommodation carries its burden, the third part of the McDonnell-Douglas framework applies, and the party must then prove, by a preponderance of the evidence, that the stated reasons for the actions of the place of public accommodation were not true reasons but instead amount to a pretext for discrimination. Id. Ultimately, whether discrimination occurred is a question of fact. LaPoint v. Fam. Orthodontics, P.A. , 892 N.W.2d 506, 514 (Minn. 2017).

A. Aromashodu established a prima facie case of discrimination.

Respondents do not dispute that Aromashodu is a member of a protected class and that she was treated differently than the two white customers in the store. Respondents argue that the district court properly entered summary judgment because the record is devoid of evidence that any disparate treatment of Aromashodu was motivated by her membership in a protected class. We disagree.

We emphasize that the evidence needed for a complainant to shift the burden to an alleged discriminator is not onerous. See Dietrich , 536 N.W.2d at 323. A party may establish the presence of a discriminatory motive through indirect evidence. Minneapolis Police Dep't v....