This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-192

 

Michael Harrington,
Appellant,

vs.

Northwest Airlines, Inc.,
Respondent.

 

Filed August 26, 2003

Affirmed

Peterson, Judge

 

Dakota County District Court

File No. C2028053

 

Michael Harrington, 842 46th Street, Brooklyn, New York, 11220 (pro se appellant)

 

Andre T. Hanson, Dorsey & Whitney, LLP, Suite 1500, 50 South Sixth Street, Minneapolis, MN  55402-1498 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this pro se appeal from a summary judgment dismissing appellant Michael Harrington’s discrimination claim against respondent Northwest Airlines, Inc., Harrington alleges that flight attendants ignored and shunned him based on his sexual orientation, and argues that (1) he sufficiently established a prima facie case of discrimination by showing that he is a member of a protected class and that he was ignored by flight attendants during a Northwest flight, (2) Northwest did not establish a legitimate non-discriminatory reason for its flight attendants’ conduct, and (3) a genuine issue of material fact remains as to whether the flight attendants knew that he was homosexual and whether they refused to serve him because of his sexual orientation.  We affirm.

FACTS

            Harrington was a first-class passenger on Northwest flight 552 from Los Angeles to Memphis.  Harrington boarded the flight about 30 minutes before the flight was due to depart.  Harrington was seated in the window seat in the last row of first class.  Before takeoff, while coach passengers were boarding, Harrington told the person seated in the aisle seat next to him that he is gay and has a husband.  Harrington testified in a deposition that he only mentioned being gay that one time and that he “was speaking in a regular tone.”  When Harrington made the statement about being gay, a flight attendant was serving a passenger in the row across the aisle from Harrington.  The flight attendant was not facing Harrington; he was facing the plane’s coach section.  Harrington testified at his disposition that he is a “flamboyant” gay, meaning that he gestures with his hands when speaking, sits with his legs crossed, holds his hand in a downward position from the wrist, and wears tight shirts and pants.

            While coach passengers were boarding, flight attendants served drinks in first class.  Harrington testified that the flight attendants offered drinks to the other first-class passengers but did not offer one to him.  Harrington testified that after requesting a drink and being ignored, he raised his voice and requested a drink a second time, but the flight attendant continued to ignore him.  The flight attendant did not change his facial expression or otherwise react to Harrington’s request. 

            Later during the flight, flight attendants offered cookies and crackers to other passengers but not to Harrington.  Harrington testified:

            Q.  So there was another incident where somebody else was offered a cracker?

 

            A.  Yeah, they were walking around with crackers to people, crackers they had on a little tray, cookies and crackers.  They were saying to people, cookie, cracker, cookie, cracker.  “Cookie, cracker” never got said to me.

 

            Q.  Was it said to your seatmate?

 

            A.  Yes, it was.

 

            Q.  Did he respond when they didn’t offer one to you?

 

            A.  No, he didn’t say anything.

 

            Q.  Did you ask at that time for a cracker?

 

            A.  I didn’t even bother, no.

 

Harrington testified that, other than ignoring him, none of the flight attendants made any statements or gestures or indicated in any manner that they disliked him.

            For purposes of summary judgment, the district court assumed that an actionable claim of discrimination could be based on receiving poor service during an airline flight.  The district court granted summary judgment to respondent based on alternative conclusions that (1) the evidence was insufficient to prove that the flight attendants knew that Harrington is gay; and (2) even if the evidence were sufficient to support a finding that the flight attendants believed that Harrington is gay, the evidence was insufficient to prove a link between his sexual orientation and the alleged poor service.

D E C I S I O N

            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).

            The district court’s function on a motion for summary judgment is not to decide issues of fact, but solely to determine whether genuine factual issues exist.  We reiterate that the court must not weigh the evidence on a motion for summary judgment.  However, when determining whether a genuine issue of material fact for trial exists, the court is not required to ignore its conclusion that a particular piece of evidence may have no probative value, such that reasonable persons could not draw different conclusions from the evidence presented.

 

DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997) (citations omitted).  “[T]he party resisting summary judgment must do more than rest on mere averments.”  Id. at 71.

[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.

 

Id.

            Because the failure to give Harrington a drink occurred in California, the district court applied California law.[1]  The district court did not determine whether California law applied to the failure to give Harrington crackers, which may or may not have occurred over California airspace, but determined that the cracker incident could be considered as evidence in determining whether the beverage incident was discriminatory.[2]  Harrington makes no objections regarding the district court’s application of California law.

            California’s public-accommodation anti-discrimination statute does not expressly prohibit discrimination based on sexual orientation.  Unruh Civil Rights Act, Calif. Civil Code § 51 (2002).  But California courts have interpreted the statute to prohibit discrimination based on sexual orientation.  See, e.g., Rolon v. Kulwitzky, 200 Cal. Rptr. 217, 218 (Cal. Ct. App. 1984).  California applies the three-part McDonnell Douglas burden-shifting analysis to assess a discrimination claim.  See, e.g., Green v. Rancho Santa Margarita Mortgage Co., 33 Cal. Rptr. 2d 706, 711-712 (Cal. Ct. App. 1994).  See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 935 S. Ct. 1817 (1973) (establishing test). 

            Under the McDonnell Douglas analysis, (1) the plaintiff must establish a prima facie case of discrimination; (2) the public accommodation must offer a legitimate reason for its actions; and (3) the plaintiff must prove that the reason was a pretext to mask an illegal motive.  See Sada v. Robert F. Kennedy Med. Ctr., 65 Cal. Rptr. 2d 112, 118 (Cal. Ct. App. 1997) (applying McDonnell Douglas analysis to employment-discrimination claim).    This three-part test applies to motions for summary judgment; if the plaintiff fails to meet his burden of proof at the first or third stage of the test, summary judgment is appropriate.  Rademacher v. FMC Corp., 431 N.W.2d 879, 882 (Minn. App. 1988).  See Hoover v. Norwest Private Mortg. Banking, 632 N.W.2d 534, 542-46 (Minn. 2001) (applying test in reviewing summary judgment).

To establish a prima facie case of discrimination in public accommodations, (1) the plaintiff must show that he is a member of a protected class; (2) the public accommodation engaged in discriminatory conduct; and (3) the discriminatory conduct was based on the plaintiff’s membership in the protected class.  Potter v. LaSalle Sports & Health Club, 368 N.W.2d 413, 416 (Minn. App. 1985), aff’d, 384 N.W.2d 873 (Minn. 1986).  Although knowledge of a plaintiff’s membership in a protected class is insufficient by itself to support a discrimination claim, it is a necessary prerequisite to an ultimate finding of discriminatory intent.  Hedges v. Poletis, 177 F.3d 1071, 1076 (8th Cir. 1999).

            Harrington argues that the flight attendants knew that he is gay because of his statement to his seatmate that he is gay and his flamboyant behavior.  However, the district court concluded:

There is insufficient evidence in the record before this Court to permit a rational jury to find that Northwest’s flight attendant knew that Mr. Harrington is gay.

 

We agree.  Harrington testified that while seated in a window seat as other passengers boarding the flight walked by in the aisle, he told the person seated next to him in the aisle seat that he is gay.  At the time, a flight attendant was standing in the aisle adjacent to Harrington’s row facing the plane’s coach section while serving a passenger seated across the aisle from Harrington.  Harrington testified that he spoke in a regular tone, that the flight attendant did not react to his statement, and that he did not hear the conversations of other first-class passengers.  This testimony is not sufficiently probative to permit reasonable persons to conclude that the flight attendant heard the statement and, therefore, knew that Harrington is gay. 

            Harrington also testified that he crossed his legs when seated, gestured with his hands while speaking, held his hand in a downward position from the wrist, and wore tight blue jeans, a tight black shirt, and boots.  Harrington argues that Northwest personnel knew that he is gay because of this flamboyant behavior.  But, as the district court concluded, presenting to the jury the issue of the flight attendants’ knowledge of Harrington’s sexual orientation based on flamboyant behavior and dress “would not be an effort to have a jury make a reasonable inference from evidence, but rather an invitation to engage in stereotyping.”  The evidence of flamboyant behavior is not sufficiently probative to permit reasonable persons to conclude that the flight attendants knew that Harrington is gay.

            The district court also concluded that even if the evidence were sufficient to raise a fact issue regarding whether the flight attendants knew that Harrington is gay, it was insufficient to raise a fact issue regarding a causal link between Harrington’s sexual orientation and the alleged discriminatory conduct.  Harrington testified that none of the flight attendants made any statements or gestures or indicated in any manner other than ignoring him that they disliked him.  This evidence is not sufficiently probative to permit reasonable persons to conclude that the flight attendants ignored Harrington because he is gay.  Harrington argues that the flight attendants must have been homophobic, but no evidence in the record supports that argument. 

            Viewing the evidence in the light most favorable to Harrington, findings that the flight attendants knew that Harrington is gay and that there was a causal link between Harrington’s sexual orientation and the allegedly poor service he received would be purely speculative.

            Affirmed.



[1] As the district court explained, the Minnesota Human Rights Act (MHRA) expressly applies only to “persons in this state.”  Minn. Stat. § 363.12, subd. 1 (2002) (stating “[i]t is the public policy of this state to secure for persons in this state, freedom from discrimination”).  Interpreting the MHRA to apply only to persons in this state is consistent with the presumption against a state statute having extraterritorial application.  See In re Pratt, 219 Minn. 414, 423 18 N.W.2d 147, 152 (1945) (discussing jurisdiction of court to appoint guardian for child residing in Minnesota but domiciled in Tennessee).

[2]Harrington was served a bagel during the flight.  On appeal, he contends that other passengers were served a full bacon-and-eggs breakfast, but he cites no evidence in the record supporting that contention.  In his deposition, Harrington testified that the only incidents of alleged discrimination were the drink and cracker incidents:

            Q.  No other incident [of being shunned]?  It was those two incidents, somebody was handing out crackers, and during boarding you asked for a drink?

            A.  Correct.

Because Harrington did not raise the breakfast incident in the district court, the district court did not determine whether California law applied to the failure to serve a bacon-and-eggs breakfast.