This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






John A. Hunt,







Bergstrom Jewelers, Inc.,





Filed July 11, 2000


Toussaint, Chief Judge


Hennepin County District Court

 File No. 988702


Maureen Williams, Law Office of Maureen Williams, P.O. Box 913, Lakeville, MN 55044-0913  (for appellant)


Christopher John Harristhal, C. Erik Hawes, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Avenue South, Bloomington, MN 55431-1194 (for respondent)


            Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and Foley, Judge.*


U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge

            Appellant John A. Hunt challenges the district court’s judgment granting respondent Bergstrom Jewelers’s motion for summary judgment in appellant’s defamation and disability discrimination actions.  Appellant claims he was: (1) defamed when he was accused of dishonesty and (2) fired because he is disabled.  Because the evidence shows appellant was dishonest, we affirm the district court’s grant of summary judgment on the defamation and disability discrimination claims.



            On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact; and (2) whether the district court erred in their application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). 

A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.  On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted. 


Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).


[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.


DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).


            “[T]he party resisting summary judgment must do more than rest on mere averments.”  Id.  “[A] ‘genuine issue’ of material fact for trial ‘must be established by substantial evidence’.”  Id. at 69-70 (quoting Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976)).



Appellant claims that the district court erred in granting respondent’s motion for summary judgment on the defamation claim.  In order for a statement to be defamatory it must: (1) be false; (2) be communicated to a third party; and (3) result in harm to the plaintiff's reputation and standing in the community.  Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980).  On appeal, appellant claims he was defamed when Robert Zagaros, Bergstrom’s manager, told John Layman, the store’s controller, and Richard Nordstrom, a member of the board of directors, that appellant was fired because he was dishonest. 

Finding that Zagaros’s statement was true, the district court concluded that appellant failed to establish an essential element of the claim and dismissed appellant’s defamation claim.  We agree.  Where the party with the burden of proof fails to establish an essential element of his claim, summary judgment is mandatory.  Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994).  Here, the record shows that while on June 27 appellant asked for June 30 and July 1 off from work in order to prepare for his wedding, including attending his last marital counseling session, he actually attended a court proceeding as a plaintiff.  Appellant claims that it was not until the evening of June 27, after he had asked for the time off from work to prepare for his wedding, that he first learned he had to attend the court hearing on June 30 and July 1.  But, according to Pastor Steven L. Gartland, he met with appellant and his fiancé on June 26, 1997 for their first marital-counseling session and scheduled their next marital counseling meeting for July 14, 1997.  Even if appellant did not know about his court appearance when he spoke to Zagaros on June 27, he knew that he did not have to attend a marital counseling session until July 14.  Therefore, appellant was dishonest with Zagaros about why he needed to take time off from work on June 30 and July 1.

            In addition, appellant was dishonest when he refused to admit that he was at the court proceeding.  According to Zagaros, when Layman told him that a Minneapolis city attorney called to warn him that he might be called as a witness in appellant’s trial on June 30 and July 1, he and Bergstrom decided to question appellant about his whereabouts.  When Zagaros and Bergstrom asked appellant about his whereabouts on June 30 and July 1, he responded that he went to marital counseling.  Bergstrom further asked appellant whether he was in court for some different matter and appellant said “No,” but later told the truth.  Therefore, even when directly asked about his whereabouts on June 30 and July 1, appellant was initially dishonest with respondent.

            Because appellant lied to Zagaros about the reason why he needed to take two days off from work, respondent did not make a false statement when he described appellant as “dishonest,” and therefore, the district court properly granted summary judgment.  Lloyd, 523 N.W.2d at 3 (stating that summary judgment must be entered “against a party who fails to establish an essential element of that claim, if that party had the burden of proof, because this failure renders all other facts immaterial”); Lindgren v. Harmon Glass Co., 489 N.W.2d 804, 811 (Minn. App. 1992) (stating “[t]ruth offers a complete defense, and true statements, however disparaging, are not actionable”), review denied (Minn. Oct. 20, 1992).


Disability Discrimination

            Appellant, who claims he was fired because he is disabled, argues the district court erred in granting summary judgment for respondent on the disability discrimination claim.  In order to show a prima facie case of disability discrimination under the Minnesota Human Rights Act (MHRA), appellant has the burden of proving he is disabled.  Miller v. Centennial State Bank, 472 N.W.2d 349, 351 (Minn. App. 1991).  The MHRA defines a disabled person as


any person who (1) has a physical, sensory, or mental impairment which materially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. 


Minn. Stat. § 363.01, subd. 13 (1996).  Appellant claims that because his dyslexia affects his ability to read and write, it is a sensory impairment that materially limits one or more major life activities.  Because there was insufficient evidence in the record to support appellant’s claim that his dyslexia materially limited his ability to work at Bergstrom Jewelers, appellant did not show he was “disabled,” and the district court properly granted summary judgment in favor of respondent on the disability discrimination claim.  Instead, the evidence in the record shows that appellant was fired because he was dishonest about why he needed to take two unscheduled days off from work. 



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.