A23-0484 Andrea Anderson v. Aitkin Pharmacy Services, LLC dba Thrifty White Pharmacy, George ...

• Court: Court of Appeals of Minnesota
• Decided: March 18, 2024
• Docket: a230374
• Status: Published

Opinion

STATE OF MINNESOTA IN COURT OF APPEALS A23-0374 A23-0484

Andrea Anderson, Appellant,

vs.

Aitkin Pharmacy Services, LLC dba Thrifty White Pharmacy, Respondent,

George Badeaux, Respondent.

Filed March 18, 2024 Affirmed in part, reversed in part, and remanded Cochran, Judge

Aitkin County District Court File No. 01-CV-19-1198

Jess Braverman, Christy L. Hall, Gender Justice, St. Paul, Minnesota; and

Rachel A. Kitze Collins, Lockridge Grindal Nauen P.L.L.P., Minneapolis, Minnesota (for appellant)

Ranelle Leier, Fox Rothschild LLP, Minneapolis, Minnesota (for respondent Aitkin Pharmacy Services, LLC dba Thrifty White Pharmacy)

Charles Shreffler, Shreffler Law Ltd., Lakeville, Minnesota; and

Rory T. Gray (pro hac vice), Alliance Defending Freedom, Lawrenceville, Georgia (for respondent George Badeaux)

Keith Ellison, Attorney General, Elizabeth Johnston, Rachel Bell-Munger, Assistant Attorneys General, St. Paul, Minnesota (for amicus curiae Commissioner of the Minnesota Department of Human Rights)

Keith Ellison, Attorney General, Liz Kramer, Solicitor General, Anna Veit-Carter, Assistant Attorney General, St. Paul, Minnesota (for amicus curiae Minnesota Attorney General) Ava Marie M. Cavaco, Nigh Goldenberg Raso & Vaughn, Minneapolis, Minnesota (for amicus curiae National Women’s Law Center)

Brian T. Rochel, Kitzer Rochel, PLLP, Minneapolis, Minnesota; and

Christopher J. Moreland, MJSB Employment Justice, LLP, Minneapolis, Minnesota; and

Laura A. Farley, Nichols Kaster, PLLP, Minneapolis, Minnesota (for amicus curiae Minnesota Chapter of the National Employment Lawyers Association)

Celeste E. Culberth, Leslie L. Lienemann, Culberth and Lienemann, LLP, St. Paul, Minnesota (for amicus curiae Employee Lawyers Association of the Upper Midwest)

Katherine S. Barrett Wiik, Saul Ewing LLP, Minneapolis, Minnesota; and

Amy E. Edwall, Michelina C. Lucia, Standpoint, St. Paul, Minnesota (for amicus curiae Standpoint)

James V.F. Dickey, Douglas P. Seaton, Upper Midwest Law Center, Golden Valley, Minnesota (for amicus curiae Upper Midwest Law Center)

Jason Adkins, Minnesota Catholic Conference, St. Paul, Minnesota (for amicus curiae Minnesota Catholic Conference)

Renee K. Carlson, True North Legal, St. Paul, Minnesota (for amici curiae Minnesota Family Council and True North Legal)

Considered and decided by Larson, Presiding Judge; Cochran, Judge; and

Slieter, Judge.

SYLLABUS

1. A pharmacist engages in business discrimination within the meaning of

Minnesota Statutes section 363A.17(3) (2018), when the pharmacist intentionally refuses

to dispense a valid prescription for emergency contraception to a customer because the

medication may interfere with a pregnancy.

2 2. A district court errs by instructing a jury that the plaintiff must show a

“material disadvantage” or “tangible change in conditions” to succeed on a

public-accommodations claim under Minnesota Statutes section 363A.11 (2018).

OPINION

COCHRAN, Judge

A woman brought sex-discrimination claims under the Minnesota Human Rights

Act (MHRA), Minn. Stat. §§ 363A.01-.50 (2018), 1 against a pharmacy and one of its

pharmacists after the pharmacist called her and informed her that he would not dispense

her prescription for emergency contraception. At trial, the pharmacist asserted that he

refused to dispense emergency contraception based on his conscientious objection, but

neither the pharmacist nor the pharmacy asserted a constitutional defense. Following a

jury verdict in favor of the defendants, the district court denied the woman’s posttrial

motions for judgment as a matter of law or a new trial and entered judgments for the

pharmacy and the pharmacist on each of the woman’s claims: business discrimination

against the pharmacy and pharmacist; public-accommodations discrimination against the

pharmacy; and aiding and abetting violations of the MHRA against the pharmacist.

We conclude that the district court erred in denying judgment as a matter of law on

the woman’s business-discrimination claim against the pharmacist. We also conclude that

the district court erred in denying a new trial for the woman’s public-accommodations

1 The MHRA was amended during the 2023 Legislative Session. See 2023 Minn. Laws ch. 3, § 1, at 23; ch. 52, art. 3, § 3, at 845-47, art. 19, §§ 45-72, at 1149-62. We apply the version of the act in effect at the time of the underlying events.

3 claim against the pharmacy and the related aiding-and-abetting claim against the

pharmacist. But we conclude that the district court did not err in denying judgment as a

matter of law or a new trial on the woman’s business-discrimination claim against the

pharmacy. We therefore affirm in part, reverse in part, and remand for further proceedings

consistent with this opinion.

FACTS

This lawsuit arises from appellant Andrea Anderson’s attempt to obtain emergency-

contraception medication from respondent Aitkin Pharmacy 2 and from the refusal of

respondent George Badeaux—Aitkin Pharmacy’s pharmacist-in-charge—to dispense that

medication. The following facts are based on the evidence presented at trial, viewed in the

light most favorable to the jury’s verdict.

Anderson’s Attempt to Obtain Emergency Contraception

On January 21, 2019, Anderson obtained a valid prescription for a medication called

ella, a type of emergency contraception available only by prescription. The prescription

was sent to Aitkin Pharmacy’s store in McGregor, where Anderson lived. Anderson called

the pharmacy and spoke with a pharmacy technician. The technician informed Anderson

that the pharmacy did not have ella in stock, but the pharmacy would order ella to fill her

prescription.

Badeaux, the pharmacist on duty on January 21, learned about Anderson’s

prescription for ella. Unfamiliar with ella, Badeaux reviewed its Food and Drug

2 For consistency with Aitkin Pharmacy’s briefing, we use “Aitkin Pharmacy” to refer to respondent Aitkin Pharmacy Services LLC dba Thrifty White Pharmacy.

4 Administration (FDA) label, which describes a medication’s mechanisms of action.

According to the label, ella is a medication “for prevention of pregnancy” that works by

either (1) preventing the release of an egg from an ovary or (2) inhibiting the implantation

of a fertilized egg into the uterus. Badeaux does not refuse to dispense medication that

operates by the first mechanism. However, Badeaux refuses to dispense any emergency

contraception, including ella, that works by inhibiting the implantation of a fertilized egg

because doing so may cause the fertilized egg to “die,” meaning a “new life will cease to

exist.” Badeaux considers his refusal to dispense emergency contraception to be a

“conscientious objection.”

Badeaux was scheduled to work the next day, January 22, when Anderson planned

to pick up the prescription. Another pharmacist was also scheduled to work that day.

Badeaux knew that the other pharmacist was willing to fill prescriptions for emergency

contraception. But Badeaux also knew that there was a possibility of a snowstorm the next

day that might make it difficult for the other pharmacist to make it to work.

Because of the weather forecast, Badeaux called Anderson to inform her of the

situation. During the call, Badeaux told Anderson that the pharmacy had received her

prescription for ella. He also told her that he “was not willing to participate in the

dispensing of the prescription” due to “[his] beliefs.” Badeaux informed Anderson that

another pharmacist was scheduled to work on January 22 who was willing to dispense the

prescription, but the other pharmacist might not make it in to work because of the

forecasted storm. When Anderson asked what she should do, Badeaux said she could have

her prescription filled at a pharmacy in Aitkin but that she might “run into trouble” at the

5 Shopko there. Anderson became angry with Badeaux and hung up before Badeaux finished

discussing Anderson’s options for obtaining her prescription. Badeaux did not make any

changes to Aitkin Pharmacy’s order for ella at that time. Nor did Badeaux tell Anderson

that she could not get her prescription filled by Aitkin Pharmacy.

After her conversation with Badeaux, Anderson called other nearby pharmacies to

see if she could transfer her prescription. After Anderson learned that she could not fill the

prescription at CVS—the only pharmacy, other than Shopko, that she was aware of in

Aitkin—Anderson called the Walgreens in Brainerd, which was located more than an hour

away from her house. The Walgreens employee told her that the prescription could be

ordered and would be available the next day, and Anderson transferred her prescription.

Badeaux participated in the transfer of the prescription and then removed ella from Aitkin

Pharmacy’s order. The next day, January 22, Anderson drove to Brainerd and obtained her

prescription. The other Aitkin Pharmacy pharmacist—who would have dispensed

Anderson’s prescription—also showed up to work on January 22.

Aitkin Pharmacy’s Plan for Dispensing Emergency Contraception

Aitkin Pharmacy has a plan for dispensing emergency contraception to customers,

which was developed in 2015 in response to Badeaux’s refusal to dispense emergency

contraception. Aitkin Pharmacy’s owner first learned about Badeaux’s refusal to dispense

emergency contraception in 2015, after Badeaux refused to dispense Plan B (another type

of emergency contraception) to a woman seeking the medication. Badeaux informed the

woman about his beliefs about emergency contraception, and she changed her mind about

obtaining the medication. The customer’s mother complained to Aitkin Pharmacy’s owner.

6 After the complaint, Badeaux and Aitkin Pharmacy’s owner verbally agreed to a

plan for dispensing emergency contraception when Badeaux was working whereby either

(1) another pharmacist would come in to fill the prescription the same day or the next day

or (2) the prescription would be transferred elsewhere. The owner told Badeaux that he

wanted the prescriptions to be filled at Aitkin Pharmacy. He also knew that Badeaux would

continue to refuse to dispense emergency contraception. The record reflects that Aitkin

Pharmacy dispensed emergency contraception while Badeaux was employed as the

pharmacist-in-charge.

District Court Proceedings

Anderson sued Aitkin Pharmacy and Badeaux under the MHRA for sex

discrimination based on Badeaux’s refusal to dispense her prescription and Aitkin

Pharmacy’s plan for dispensing emergency contraception. Anderson alleged

public-accommodations discrimination, business discrimination, and aiding and abetting

public-accommodations discrimination and business discrimination. 3

Although Badeaux had refused to fill Anderson’s prescription on the basis of his

conscientious objection, neither Badeaux nor Aitkin Pharmacy pleaded a constitutional

defense in district court. Prior to trial, Anderson filed motions in limine seeking to preclude

Badeaux and Aitkin Pharmacy from presenting evidence or argument related to a

constitutional defense. In response to the motions and again at the hearing regarding the

3 Anderson also sued Grand St. Paul CVS LLC, CVS Health Corporation, and CVS Pharmacy Inc. in her initial complaint. The CVS defendants settled with Anderson before trial and are not parties to this appeal.

7 motions in limine, Badeaux disclaimed any challenge to the constitutionality of the MHRA

or reliance on constitutional arguments. The district court granted Anderson’s motion in

limine excluding evidence and argument related to a constitutional defense.

After a five-day trial, the jury returned a special verdict finding that Anderson failed

to prove: (1) that Aitkin Pharmacy denied her full and equal enjoyment in goods or services

because of sex; (2) that Aitkin Pharmacy intentionally refused to do business with her

because of sex; (3) that Badeaux intentionally refused to do business with her because of

sex; and (4) that Badeaux intentionally aided and abetted Aitkin Pharmacy to engage in

public-accommodations discrimination or business discrimination. Instructed to answer

damages questions even if it found no liability, the jury also found that Anderson “is

entitled to damages against [Badeaux] for emotional harm” and that $25,000 would

adequately compensate her. But the jury found that Anderson did not prove that she is

entitled to damages against Aitkin Pharmacy for emotional harm.

Anderson moved for judgment as a matter of law under Minnesota Rule of Civil

Procedure 50.02(a) on her claim of public-accommodations discrimination against Aitkin

Pharmacy, her claims of business discrimination against Badeaux and Aitkin Pharmacy,

and her claim of aiding and abetting discrimination against Badeaux. She argued that the

undisputed facts demonstrated that Aitkin Pharmacy and Badeaux committed sex

discrimination. In the alternative, Anderson moved for a new trial under Minnesota Rule

of Civil Procedure 59. Anderson alleged numerous errors, including that the verdict was

not supported by the evidence, that the district court erred in instructing the jury, and that

the district court erred in its evidentiary rulings related to Aitkin Pharmacy’s updated

8 emergency-contraception plan and Anderson’s therapy records. The district court denied

Anderson’s posttrial motions.

The district court then issued its findings of fact and conclusions of law determining,

based on the special verdict, that (1) Aitkin Pharmacy was not liable for public-

accommodations discrimination on the basis of sex under Minnesota Statutes

section 363A.11; (2) Aitkin Pharmacy was not liable for business discrimination on the

basis of sex under Minnesota Statutes section 363A.17; (3) Badeaux was not liable for

business discrimination on the basis of sex under section 363A.17; and (4) Badeaux was

not liable for aiding and abetting violations of the MHRA under section 363A.14. Because

there was no finding of liability under the MHRA, the district court also concluded that

Anderson was not entitled to the $25,000 award of damages. The district court entered

judgment for Aitkin Pharmacy and Badeaux.

Anderson appeals.

ISSUES

I. Did the district court err in denying Anderson judgment as a matter of law on her business-discrimination claim against Badeaux?

II. Did the district court err in denying Anderson judgment as a matter of law or a new trial on her business-discrimination claim against Aitkin Pharmacy?

III. Did the district court err in denying Anderson judgment as a matter of law or a new trial on her public-accommodations claim against Aitkin Pharmacy?

IV. Did the district court err in denying Anderson judgment as a matter of law or a new trial on her aiding-and-abetting claim against Badeaux?

9 ANALYSIS

Anderson challenges the denial of her posttrial motions for judgment as a matter of

law, or in the alternative, a new trial on her MHRA claims. “We review the district court’s

denial of a motion for judgment as a matter of law de novo, viewing the evidence in the

light most favorable to [the nonmoving party].” Vermillion State Bank v. Tennis

Sanitation, LLC, 969 N.W.2d 610, 618 (Minn. 2022). “We affirm the denial of a motion

for judgment as a matter of law unless no reasonable theory supports the verdict,” which

“means that to reverse, the evidence must be so overwhelming on one side that reasonable

minds cannot differ as to the proper outcome.” Id. at 618-19 (quotations omitted).

We review the district court’s denial of a motion for a new trial for an abuse of

discretion. Christie v. Est. of Christie, 911 N.W.2d 833, 838 (Minn. 2018). “A district

court may grant a new trial for ‘[e]rrors of law occurring at the trial’ or when ‘[t]he

verdict . . . is not justified by the evidence, or is contrary to law.’” Id. (alterations in

original) (quoting Minn. R. Civ. P. 59.01). When considering whether the evidence

justifies the verdict, we consider “whether the verdict is so contrary to the preponderance

of the evidence as to imply that the jury failed to consider all the evidence, or acted under

some mistake.” Clifford v. Geritom Med, Inc., 681 N.W.2d 680, 687 (Minn. 2004)

(quotation omitted). “This is a demanding standard, but it is less rigorous than the standard

for granting [judgment as a matter of law].” Id.

The purpose of the MHRA is “to secure for persons in this state, freedom from

discrimination.” Minn. Stat. § 363A.02, subd. 1. In furtherance of this purpose, the MHRA

provides for civil liability when a defendant engages in an “unfair discriminatory practice.”

10 See Minn. Stat. §§ 363A.08-.19, .33; see also Minn. Stat. § 363A.03, subd. 48 (defining

“[u]nfair discriminatory practice” for purposes of the MHRA). As relevant to this appeal,

the MHRA prohibits: (1) business discrimination, defined as “to intentionally refuse to do

business with [a person] . . . because of a person’s . . . sex . . . unless the alleged refusal or

discrimination is because of a legitimate business purpose,” Minn. Stat. § 363A.17(3);

(2) public-accommodations discrimination, defined as “to deny any person the full and

equal enjoyment of the goods, services, facilities, privileges, advantages, and

accommodations of a place of public accommodation because of . . . sex,” Minn. Stat.

§ 363A.11, subd. 1(a)(1); and (3) aiding and abetting, defined as “intentionally to aid, abet,

incite, compel, or coerce a person to engage in any of the practices forbidden by [the

MHRA],” Minn. Stat. § 363A.14(1).

To the extent that Anderson’s arguments require this court to interpret the MHRA,

“[c]onstruction of the [MHRA’s] provisions is an issue of statutory interpretation which

we review de novo.” Abel v. Abbott Nw. Hosp., 947 N.W.2d 58, 68 (Minn. 2020). “The

provisions of [the MHRA] shall be construed liberally for the accomplishment of the

purposes thereof.” Minn. Stat. § 363A.04.

On appeal, Anderson argues that she is entitled to judgment in her favor or a new

trial on each of her claims—business discrimination against Badeaux, business

discrimination against Aitkin Pharmacy, public-accommodations discrimination against

Aitkin Pharmacy, and aiding and abetting business discrimination and

public-accommodations discrimination against Badeaux. We address each claim in turn.

11 I. Business-Discrimination Claim Against Badeaux

Anderson argues that she is entitled to judgment as a matter of law on her

business-discrimination claim against Badeaux because of the undisputed evidence that

Badeaux refused to dispense her prescription for ella. We conclude that the district court

erred by denying Anderson judgment as a matter of law on this claim. 4

The business-discrimination provision of the MHRA provides that, “for a person

engaged in a trade or business or in the provision of a service,” it is an unfair discriminatory

practice “[1] to intentionally refuse to do business with [a person] . . . [2] because of a

person’s . . . sex . . . [3] unless the alleged refusal or discrimination is because of a

legitimate business purpose.” Minn. Stat. § 363A.17(3). The jury did not find, and

Badeaux does not argue, that he had a legitimate business purpose for the challenged

conduct. Accordingly, Anderson must prove that Badeaux “intentionally refuse[d] to do

business with” Anderson and that refusal was “because of” Anderson’s sex.

A. Badeaux intentionally refused to do business with Anderson by refusing to dispense her prescription for ella.

To determine whether the district court erred when it denied Anderson’s motion for

judgment as a matter of law on this claim, we first assess whether the evidence, viewed in

the light most favorable to the verdict, supports a reasonable theory of the evidence that

Badeaux did not intentionally refuse to do business with Anderson. See Vermillion State

4 Anderson argues in the alternative that she is entitled to a new trial based on the evidence, erroneous jury instructions, and certain evidentiary rulings. Because we conclude that Anderson is entitled to judgment as a matter of law, we do not reach her other assignments of error in relation to this claim.

12 Bank, 969 N.W.2d at 618-19. Anderson argues, and the undisputed evidence at trial

establishes, that Badeaux informed Anderson that he was not willing to dispense

Anderson’s prescription for ella. Badeaux argues that the evidence shows that he did not

intentionally refuse to do business with Anderson because his “conscientious objection did

not affect Anderson’s opportunity to do business with [Aitkin Pharmacy].” We conclude

that the sole reasonable theory of the evidence is that Badeaux intentionally refused to do

business with Anderson.

We begin our analysis by examining the undisputed evidence. At trial, Badeaux

testified that he informed Anderson that he was unwilling to dispense her prescription for

ella to her. He also testified that he was sincere in his refusal to dispense the prescription.

Badeaux does not dispute that the business-discrimination provision, which applies to “a

person engaged in a trade or business,” governs his conduct as the pharmacist-in-charge at

Aitkin Pharmacy. See Minn. Stat. § 363A.17. Accordingly, neither Badeaux’s willingness

to have another Aitkin Pharmacy pharmacist dispense Anderson’s prescription nor his

willingness to transfer Anderson’s prescription to a different pharmacy negate the

undisputed evidence that Badeaux informed Anderson that he was unwilling to dispense

her prescription for ella to her. As a result, reasonable minds cannot disagree that Badeaux

intentionally refused to do business with Anderson by informing her that he was unwilling

to dispense her prescription for ella.

13 B. Badeaux’s refusal to dispense emergency contraception because it may interfere with a pregnancy is sex discrimination.

Because we conclude that the evidence establishes that Badeaux “intentionally

refuse[d] to do business with” Anderson within the meaning of section 363A.17(3), we

now turn to the crux of the parties’ dispute: whether Badeaux’s refusal to dispense ella to

Anderson is sex discrimination under the MHRA.

The MHRA defines “sex” as follows: “‘Sex’ includes, but is not limited to,

pregnancy, childbirth, and disabilities related to pregnancy or childbirth.” Minn. Stat.

§ 363A.03, subd. 42. Accordingly, pregnancy discrimination is sex discrimination under

the MHRA. Id.; see, e.g., Minn. Mining & Mfg. Co. v. State, 289 N.W.2d 396, 397

(Minn. 1979) (3M) (holding that “the exclusion of pregnancy-related absences from an

otherwise comprehensive income maintenance plan is per se sex discrimination within the

meaning of the Minnesota Human Rights Act”). A plaintiff proves her disparate-treatment

claim under the MHRA if she shows that the protected trait “actually motivated” the

challenged decision. LaPoint v. Fam. Orthodontics, P.A., 892 N.W.2d 506, 514 (Minn.

2017) (quotation omitted). 5 With regard to pregnancy, a plaintiff satisfies this requirement

5 We note that LaPoint arises under the MHRA’s employment provision, not the business-discrimination provision. 892 N.W.2d at 513. But because the operative language regarding protected traits is consistent across the MHRA’s provisions, LaPoint controls our analysis here. See Minn. Stat. §§ 363A.08 (“because of . . . sex”), .11 (same), .17 (“because of a person’s . . . sex”); see also LaPoint, 892 N.W.2d at 507 (syllabus of the court) (“A plaintiff asserting a pregnancy discrimination claim under the Minnesota Human Rights Act under a disparate-treatment theory proves her claim if she shows that pregnancy ‘actually motivated’ the challenged decision.”). And, as discussed further below, we likewise look to federal employment-discrimination caselaw arising under Title VII of the Civil Rights Act of 1964. See Henry v. Indep. Sch. Dist. No. 625, 988 N.W.2d 868, 880 (Minn. 2023) (“In construing the Human Rights Act, we look to both Minnesota case law

14 if she can demonstrate that pregnancy was “a substantial causative factor” motivating the

challenged conduct. Id. (quotation omitted).

We conclude that the evidence at trial unequivocally demonstrates that Badeaux’s

refusal to dispense ella was “actually motivated” by pregnancy. See id. The undisputed

evidence is that Badeaux refuses to dispense any emergency-contraception medication that

may interfere with a fertilized egg, including ella. Badeaux testified that he believes each

fertilized egg is a “new life.” And, he testified that he “do[es] not want to participate in

anything that might cause a fertilized egg to die.” In other words, as he explains in his

briefing, “Badeaux’s reason for not dispensing ella is clear: he does not wish to participate

in the death of a brand new human life.” Badeaux’s refusal to dispense emergency

contraception is therefore based on the possibility that the person taking the medication

may be pregnant. Accordingly, as Anderson argues, Badeaux refused to dispense

Anderson’s valid prescription because Badeaux believed she may have been pregnant.

Thus, pregnancy was a substantial causative factor in Badeaux’s refusal to dispense ella.

Badeaux does not identify a reason for declining to dispense the medication to

Anderson other than pregnancy. Badeaux’s contrary assertion that he was motivated by

the possibility that the medication might interfere with a pregnancy, not because Anderson

was pregnant, is a distinction without a difference. It is not logically possible to separate

Badeaux’s stated reason for refusing to dispense ella from Anderson’s potential pregnancy.

Concern about interfering with a potential pregnancy is necessarily a concern about

and federal case law arising under similar federal statutes . . . .”); 42 U.S.C. § 2000e-2(a) (2018) (prohibiting discrimination in employment “because of such individual’s . . . sex”).

15 pregnancy. In other words, pregnancy was “a substantial causative factor” in Badeaux’s

decision to refuse to dispense ella to Anderson. See id. at 514 (quotation omitted).

Badeaux’s framing of his motivation does not change that pregnancy “actually motivated”

his refusal to dispense ella to Anderson. See id. (quotation omitted).

We are not persuaded otherwise by Badeaux’s argument that he cannot have

discriminated against Anderson because his goal—protecting unborn life—is not based on

prejudice against women. In LaPoint, the supreme court held that “[a] plaintiff asserting a

pregnancy discrimination claim under the [MHRA] under a disparate-treatment theory

proves her claim if she shows that pregnancy ‘actually motivated’ the challenged decision.”

Id. at 507 (syllabus of the court). And the supreme court underscored that the plaintiff

“was not required to prove that [the defendant’s owner] was hostile to [the plaintiff’s]

pregnancy in order for her to prevail.” Id. at 517. Because animus, in the sense of dislike

or hostility, is not necessary for a protected characteristic to motivate a decision, id.,

Badeaux’s lack of hostility to pregnancy or Anderson does not alter that he was actually

motivated by pregnancy when he refused to dispense Anderson’s prescription. 6

Our conclusion that Badeaux’s refusal to dispense emergency contraception is sex

discrimination under the MHRA is reinforced by federal caselaw. In construing the

MHRA, our supreme court has looked to federal caselaw interpreting similar statutes

involving sex discrimination, including Title VII of the 1964 Civil Rights Act. Henry,

6 We emphasize that our decision is limited to the narrow legal question before us— whether pregnancy, a protected trait under the MHRA, “actually motivated” Badeaux’s conduct. See LaPoint, 892 N.W.2d at 514. We do not express any opinion about Badeaux’s personal beliefs.

16 988 N.W.2d at 880. “Federal case law, however, does not bind Minnesota courts in the

application of the [MHRA].” Id. (quotation omitted). “Historically, the [MHRA] has

provided more expansive protections to Minnesotans than federal law.” Id. (quotation

omitted).

Relevant to the sex-discrimination issue before us, the United States Supreme Court

has explained that liability under Title VII, which prohibits sex discrimination in

employment, does not “turn[] on the employer’s labels or any further intentions (or

motivations) for its conduct beyond sex discrimination.” Bostock v. Clayton County,

140 S. Ct. 1731, 1745-46 (2020). Thus, an employer’s decision to implement a

fetal-protection policy and exclude all female employees “who are pregnant or who are

capable of bearing children” from positions that involved lead exposure was unlawful sex

discrimination, even though the policy was intended to protect fetuses (or potential

fetuses), not discriminate against female employees. Int’l Union, United Auto., Aerospace

& Agric. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 190,

192, 197, 199, 211 (1991) (noting that “[c]oncern for a woman’s existing or potential

offspring historically has been the excuse for denying women equal employment

opportunities”).

Badeaux argues that Bostock and Johnson Controls should not govern our analysis

and instead directs this court to In re Union Pacific Railroad Employment Practices

Litigation, 479 F.3d 936 (8th Cir. 2007). Badeaux argues that, under Union Pacific,

refusing to dispense emergency contraception cannot be sex or pregnancy discrimination.

But Union Pacific is persuasive to show that Badeaux’s refusal to dispense emergency

17 contraception is motivated by pregnancy. In that case, the United States Court of Appeals

for the Eighth Circuit considered an argument that an employee health-insurance plan

qualified as pregnancy discrimination under Title VII, as amended by the Pregnancy

Discrimination Act (PDA), because the plan excluded contraception from coverage. Union

Pacific, 479 F.3d at 938-39. The Eighth Circuit explained that “[c]ontraception, like

infertility treatments, is a treatment that is only indicated prior to pregnancy,” and the plan

excluded all contraception, whether for men or women. Id. at 943. The Eighth Circuit

therefore held that the exclusion of contraception was not pregnancy discrimination within

the meaning of the PDA. Id. Here, by contrast, Badeaux’s refusal to dispense ella and

other emergency contraception is explicitly motivated by his desire to not interfere with

pregnancy. Accordingly, both the United States Supreme Court’s Title VII caselaw and

Union Pacific are consistent with our conclusion that Badeaux’s refusal to dispense ella is

sex discrimination under section 363A.17 of the MHRA. 7

7 Badeaux argues that our analysis should follow the federal caselaw considering pregnancy and abortion under the Equal Protection Clause. Because we are concerned with whether pregnancy “actually motivated” the challenged conduct, not whether the challenged conduct is the product of animus against women, those cases are neither relevant nor instructive. See, e.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2246 (2022) (explaining that “the goal of preventing abortion does not constitute invidiously discriminatory animus against women” such that abortion restrictions are a sex- based classification under the Equal Protection Clause (quotation omitted)). We also note that the reasoning in this line of caselaw has been rejected by Minnesota courts interpreting the MHRA. Compare 3M, 289 N.W.2d at 397 (“Excluding only pregnancy-related disabilities from an otherwise comprehensive income maintenance plan is per se sex discrimination.”) with Geduldig v. Aiello, 417 U.S. 484, 497 (1974) (holding that the exclusion of pregnancy-related disabilities from a state disability-benefits scheme is not sex discrimination), superseded by statute, 42 U.S.C. § 2000e(k) (Supp. V 1981).

18 Finally, Badeaux argues that interpreting the MHRA as we do is inconsistent with

the doctrine of constitutional avoidance. As an initial matter, we clarify what Badeaux

does not argue. Badeaux did not assert a constitutional defense in district court and does

not argue that the MHRA actually violates his constitutional rights. Instead, he argues on

appeal that the sex-discrimination language in the MHRA should be interpreted to avoid a

constitutional conflict. And he contends that interpreting the MHRA to define sex

discrimination as including the refusal to dispense emergency contraception that may

interfere with a pregnancy poses a potential conflict with article I, section 16 of the

Minnesota Constitution and the First Amendment of the United States Constitution. These

provisions protect an individual’s right to freely exercise their religion without government

interference. U.S. Const. amend. I; Minn. Const. art. I, § 16. Badeaux’s argument is

unavailing.

“The constitutional-avoidance canon provides a presumption . . . that a statute is

constitutional, and we are required to place a construction on the statute that will find it

so if at all possible.” Leiendecker v. Asian Women United of Minn., 848 N.W.2d 224, 232

(Minn. 2014) (quotation omitted). But we do not apply the constitutional-avoidance canon

to a party’s proposed interpretation of a statute if the interpretation is contrary to the plain

language of the statute. See id.; see also State v. Fugalli, 967 N.W.2d 74, 79-80 (Minn.

2021) (“We do not apply constitutional avoidance statutory interpretation principles when,

as here, we have found a statute to be unambiguous.”). In other words, it is not “possible”

to adopt an interpretation of a statute that is contrary to its plain language. See Leiendecker,

848 N.W.2d at 232-33(quotation omitted). Yet that is in essence what Badeaux is asking

19 this court to do. Badeaux asks us to read a statutory exemption into the MHRA for a person

who refuses to do business with others based on the person’s beliefs about pregnancy and

when a new life begins. Because the plain language of the MHRA does not support such

an exemption, we decline Badeaux’s invitation to interpret the MHRA in this manner.

The MHRA contains a statutory exemption based on religious beliefs, but it is not

the exemption that Badeaux suggests we should adopt. The legislature has exempted

nonprofit religious associations (and educational institutions organized by such religious

associations) from the application of the MHRA “with respect to the provision of goods,

services, facilities, or accommodations directly related to the solemnization or celebration

of a civil marriage that is in violation of its religious beliefs.” Minn. Stat. § 363A.26(3).

Thus, the legislature has created a narrow exception from liability under the MHRA for

certain religious entities that refuse to provide goods or services “directly related” to a

specific type of conduct—marriage in violation of the entities’ religious beliefs. The

legislature has not, however, included a corresponding religious exemption from the

application of the MHRA for people or entities who refuse to dispense emergency

contraception. See Minn. Stat. §§ 363A.20-.26 (providing exemptions from the MHRA).

“When the Legislature uses limiting or modifying language in one part of a statute, but

omits it in another, we regard that omission as intentional and will not add those same

words of limitation or modification to parts of the statute where they were not used.” Gen.

Mills, Inc. v. Comm’r of Rev., 931 N.W.2d 791, 800 (Minn. 2019); see also Minn. Stat.

§ 645.19 (2022) (“Exceptions expressed in a law shall be construed to exclude all others.”).

Accordingly, we cannot interpret the MHRA’s scope to exclude dispensing a valid

20 prescription for emergency contraception, regardless of whether the provision of such

medication violates a person’s religious beliefs.

The potential for conflict between the mandates of an anti-discrimination law and

an individual’s religious beliefs or conscience is not unique to this case. 8 But conduct may

violate the MHRA even if it is constitutionally protected. Under those circumstances, a

person may seek a constitutional exemption from the application of an anti-discrimination

law by showing that the statute’s enforcement infringes upon the individual’s constitutional

rights. See, e.g., State by Cooper v. French, 460 N.W.2d 2, 8-11 (Minn. 1990) (Yetka, J.,

plurality) (concluding that a landlord was entitled to a constitutional exemption from the

MHRA); Rasmussen v. Glass, 498 N.W.2d 508, 516 (Minn. App. 1993) (holding that,

“even if [relator’s] conduct did constitute a violation of the Minneapolis Civil Rights

Ordinance, such conduct is protected under article I, section 16 of the Minnesota

8 For example, in State by McClure v. Sports & Health Club, Inc., the Minnesota Supreme Court held that an employer, a secular fitness club, was liable for employment discrimination under the MHRA even though the MHRA “as applied [in that case] infringe[d] upon sincerely held religious beliefs and impose[d] upon the free exercise thereof” because of “[t]he state’s overriding compelling interest of eliminating discrimination based upon sex, race, marital status, or religion.” 370 N.W.2d 844, 853 (Minn. 1985), appeal dismissed, 478 U.S. 1015 (1986). And, as discussed above, in recognition of the potential conflict between anti-discrimination laws and the beliefs of churches and other religious organizations, the legislature has created narrow exemptions for religious associations and associated educational institutions from the application of the MHRA. See Minn. Stat. § 363A.26. The United States Supreme Court has similarly recognized an affirmative defense, the “ministerial exception,” to claims of employment discrimination against religious organizations based on decisions regarding ministerial— but not non-ministerial—employees. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 188, 195 n.4 (2012); see also Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2055, 2066 (2020) (holding that the ministerial exception barred two Catholic teachers’ employment-discrimination claims).

21 Constitution”), rev. granted (Minn. June 9, 1993), appeal dismissed, (Minn. July 14, 1993).

Because Badeaux does not argue that the MHRA violates his constitutional rights and did

not raise a constitutional defense in district court, we do not consider Badeaux’s potential

entitlement to a constitutional exemption. 9 Cf. Leiendecker, 848 N.W.2d at 232 (declining

to address statutes’ constitutionality when respondents “disclaim[ed] any argument that the

[disputed] statutes actually violate their jury-trial right” and neither the petition for review

nor respondents’ petition for cross-review raised such a claim).

In sum, even viewing the evidence in the light most favorable to Badeaux,

reasonable minds cannot disagree that Badeaux’s refusal to dispense ella to Anderson was

“actually motivated” by her potential pregnancy. See Vermillion State Bank, 969 N.W.2d

at 618-19; LaPoint, 892 N.W.2d at 514 (quotation omitted). As a result, Anderson

established that Badeaux intentionally refused to do business with her because of her sex

9 When a person invokes constitutional protections from the application of a statute on religious grounds, Minnesota courts utilize a four-prong test to determine whether the person is entitled to a state constitutional exemption: “[1] whether the objector’s belief is sincerely held; [2] whether the state regulation burdens the exercise of religious beliefs; [3] whether the state interest in the regulation is overriding or compelling; and [4] whether the state regulation uses the least restrictive means.” Hill-Murray Fed’n of Tchrs. v. Hill- Murray High Sch., 487 N.W.2d 857, 865 (Minn. 1992); see also McClure, 370 N.W.2d at 853. Neither the parties nor the district court considered this test, and thus the record on the four prongs was not developed in district court. As such, the district court did not address the question of whether Badeaux could satisfy the four-prong test for a constitutional exemption. Therefore, while Badeaux may have had a valid state constitutional defense, the issue is not properly before this court, and we express no opinion as to whether such a defense would have been successful. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (“A reviewing court must generally consider only those issues that the record shows were presented [to] and considered by the [district] court in deciding the matter before it.” (quotation omitted)). Similarly, we decline to consider Badeaux’s letter filed after oral argument pursuant to rule 128.05 of the Minnesota Rules of Civil Appellate Procedure because it presents a new argument and therefore fails to comply with the rule.

22 in violation of Minnesota Statutes section 363A.17(3). We therefore reverse the district

court’s denial of judgment as a matter of law on this claim. 10

II. Business-Discrimination Claim Against Aitkin Pharmacy

We next consider Anderson’s argument that the district court erred when it

concluded that she is not entitled to judgment as a matter of law on her

business-discrimination claim against Aitkin Pharmacy. In the alternative, Anderson

argues that the district court should have granted a new trial on this business-discrimination

claim. As with her business-discrimination claim against Badeaux, Anderson’s claim

required her to prove that Aitkin Pharmacy intentionally refused to do business with her

because of her sex. Minn. Stat. § 363A.17(3); see also Minn. Stat. § 363A.03, subd. 30

(defining “[p]erson” to include a corporation or association). We first address Anderson’s

argument regarding judgment as a matter of law before addressing her arguments in support

of a new trial.

A. There is a reasonable theory of the evidence that supports the jury verdict on Anderson’s business-discrimination claim against Aitkin Pharmacy.

Anderson argues that she is entitled to judgment as a matter of law because Aitkin

Pharmacy intentionally refused to do business with her within the meaning of

section 363A.17(3) by implementing a plan for dispensing emergency contraception that

allowed Badeaux to refuse to fill Anderson’s prescription for ella. We are not persuaded.

10 We clarify that the jury’s finding of $25,000 is not tied to Badeaux’s liability for business discrimination or Anderson’s other discrimination claims. As a result, that finding does not support the entry of judgment of $25,000 against Badeaux. Instead, Anderson is entitled to a trial regarding compensatory damages related to this claim.

23 Viewed in the light most favorable to the verdict, we conclude that there is adequate

evidence to show that Aitkin Pharmacy did not refuse to do business with Anderson and

therefore to sustain the jury’s verdict on this claim. See Vermillion State Bank, 969 N.W.2d

at 618-19. The evidence shows that Aitkin Pharmacy wanted to fill all valid prescriptions

and had a pharmacist on staff who was willing to dispense emergency contraception. The

evidence also shows that, when Badeaux called Anderson on January 21, he communicated

both that he was unwilling to dispense ella and that there was another pharmacist scheduled

to work who was willing to dispense her prescription. The record also reflects that

Anderson, not Badeaux, ended the phone call. And it is undisputed that the other

pharmacist was working and available to dispense Anderson’s prescription on January 22,

but that Anderson decided to transfer her prescription for ella to another pharmacy.

Because the record shows that Aitkin Pharmacy was willing and able to dispense ella to

Anderson, we conclude that there is a reasonable theory of the evidence to support the

verdict that Aitkin Pharmacy did not intentionally refuse to do business with Anderson

within the meaning of section 363A.17(3).

Anderson asserts that “Badeaux’s actions were taken on behalf of [Aitkin

Pharmacy] and in full accordance with [Aitkin Pharmacy’s] policy” and thus “a refusal by

[Badeaux] is a refusal by [Aitkin Pharmacy].” 11 We disagree. Under Aitkin Pharmacy’s

11 To the extent that Anderson argues that this court should adopt a theory of strict liability—that is, that Badeaux’s refusal to do business with Anderson necessarily means that Aitkin Pharmacy is liable—we decline to do so. Anderson does not cite authority to support the assertion that a business is strictly liable for business discrimination if one of its employees engages in business discrimination, and Minnesota courts have previously rejected the application of strict liability for MHRA claims. See, e.g., Frieler v. Carlson

24 plan, another Aitkin Pharmacy pharmacist would fill the prescription that day or the

following day, or Badeaux would transfer the prescription to another pharmacy at the

customer’s request. The plan did not require Badeaux or other Aitkin Pharmacy

pharmacists to refuse to dispense emergency contraception. Nor did the plan require

Badeaux to call Anderson and inform her that he would not dispense her prescription. The

record reflects that Badeaux contacted Anderson because of the possibility of the

snowstorm—not because contact was required by the plan. As a result, there is a

reasonable theory of the evidence that, even though Badeaux refused to dispense ella to

Anderson, Aitkin Pharmacy did not refuse to dispense that prescription and would have

dispensed it if Anderson had not transferred her prescription. The district court therefore

did not err by denying Anderson judgment as a matter of law on this claim. 12 See id.

B. The district court did not abuse its discretion in denying Anderson a new trial based on the jury instructions defining “intentionally.”

We next turn to Anderson’s argument that she is entitled to a new trial on her

business-discrimination claim because the district court erred in instructing the jury on the

meaning of “intentionally” as used in section 363A.17(3). “We review the denial of a

Mktg. Grp., Inc., 751 N.W.2d 558, 567-68 (Minn. 2008) (sexual harassment in employment); Brisson v. State, 994 N.W.2d 920, 927 (Minn. App. 2023) (sexual harassment in public services), rev. granted (Nov. 28, 2023). 12 Anderson also asserts, under a similar theory, that the evidence related to Aitkin Pharmacy’s emergency-contraception plan entitles her to a new trial. For the reasons outlined above, we discern no abuse of discretion in the district court’s determination that there was sufficient evidence to justify the jury’s verdict. See Clifford, 681 N.W.2d at 687 (“A district court is in a better position than an appellate court to assess whether the evidence justifies the verdict and we usually defer to that court’s exercise of the authority to grant a new trial.”).

25 motion for a new trial based on an erroneous jury instruction for an abuse of discretion.”

Vermillion State Bank, 969 N.W.2d at 619. Therefore, “we will not reverse where jury

instructions overall fairly and correctly state the applicable law.” Id. at 629 (quotation

omitted). “But a new trial is required if the jury instruction was erroneous and such error

was prejudicial to the objecting party or if the instruction was erroneous and its effect

cannot be determined.” Christie, 911 N.W.2d at 838 (quotation omitted). “A jury

instruction is erroneous if, when read as a whole, the instruction materially misstates the

law, or is apt to confuse and mislead the jury.” Domagala v. Rolland, 805 N.W.2d 14, 29

(Minn. 2011) (quotation and citations omitted). We conclude that Anderson has not shown

that the challenged jury instruction is erroneous.

The business-discrimination provision at issue requires a plaintiff to show that the

defendant “intentionally refuse[d] to do business.” Minn. Stat. § 363A.17(3). The MHRA

does not define “intentionally.” See id.; Minn. Stat. § 363A.03. The district court

instructed the jury that, for purposes of the business-discrimination claim, the phrase

“intentionally” means “a person: (a) wants to cause the consequences of his or her acts, or

(b) knows that his or her acts are substantially certain to cause those consequences.”

Anderson argues that this instruction erroneously relies on the definition of intent

from the Restatement (Second) of Torts section 8A. She contends that the instruction is

improper because the MHRA does not require “the actor to intend both the act itself and

the consequences of the act.” Citing LaPoint, she argues that the MHRA only requires a

plaintiff to show “that there is a link between the protected class and the action alleged to

be discriminatory.” We are unpersuaded.

26 In LaPoint, as discussed above, the supreme court considered the standard to

establish that the challenged conduct—employment discrimination with respect to hiring—

was because of the plaintiff’s pregnancy. 892 N.W.2d at 514. The supreme court

explained that the plaintiff would succeed on her MHRA employment-discrimination claim

if she showed her pregnancy “actually motivated,” or “was a substantial causative factor

in,” the employer’s decision not to hire her. Id. (quotations omitted). But the MHRA

employment provision, unlike the MHRA business-discrimination provision, does not

require that an employer must “intentionally” discriminate with respect to hiring. Compare

Minn. Stat. § 363A.08, subd. 2(3), with Minn. Stat. § 363A.17(3). As a result, the supreme

court’s analysis in LaPoint does not address what the term “intentionally” means for the

business-discrimination provision at issue here.

Because Anderson has not identified binding caselaw interpreting “intentionally” in

the context of the MHRA business-discrimination provision, we turn to other established

methods of statutory interpretation to determine whether the district court’s definition of

“intent” or “intentionally” misstated the law. This court has previously relied on the

Restatement (Second) of Torts when interpreting the MHRA. See Matthews v. Eichorn

Motors, Inc., 800 N.W.2d 823, 830 (Minn. App. 2011) (concluding that the legal standard

from the Restatement (Second) of Torts applies to aiding-and-abetting claims under the

MHRA). And Anderson does not identify a material difference between the Restatement’s

definition of “intent” and dictionary definitions of “intentional,” which include “[d]one

deliberately” or “intended.” The American Heritage Dictionary of the English Language

912 (5th ed. 2011). As a result, Anderson has not established that the district court’s use

27 of the definition of “intentionally” from the Restatement (Second) of Torts materially

misstated the law. See Domagala, 805 N.W.2d at 29. We therefore discern no abuse of

discretion in the district court’s denial of a new trial for the business-discrimination claim

against Aitkin Pharmacy on this basis. See Vermillion State Bank, 969 N.W.2d at 629

(“[W]e will not reverse where jury instructions overall fairly and correctly state the

applicable law.” (quotation omitted)).

C. The district court did not abuse its discretion in denying Anderson a new trial based on evidentiary rulings.

Anderson’s final argument related to a new trial for her business-discrimination

claim against Aitkin Pharmacy challenges two evidentiary rulings—(1) the district court’s

exclusion of a February 2019 email discussing Aitkin Pharmacy’s revised plan regarding

the dispensing of emergency contraception, and (2) the admission of her therapy records.

“Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the

complaining party’s ability to demonstrate prejudicial error.” Kedrowski v. Lycoming

Engines, 933 N.W.2d 45, 62 (Minn. 2019) (quotation omitted). “We afford the district

court broad discretion when ruling on evidentiary matters, and we will not reverse the

district court absent an abuse of that discretion.” Doe 136 v. Liebsch, 872 N.W.2d 875,

879 (Minn. 2015). Because we conclude that Anderson has not demonstrated prejudice

related to her business-discrimination claim against Aitkin Pharmacy based on these

evidentiary rulings, we conclude that the district court did not abuse its discretion in

denying a new trial for this claim on these grounds.

28 Anderson first challenges the district court’s exclusion of a February 2019 email

discussing Aitkin Pharmacy’s plan for dispensing emergency contraception. She argues

that the 2019 email establishes the viability of alternative plans for dealing with

prescriptions for emergency contraception, which she asserts is relevant to whether Aitkin

Pharmacy had a legitimate business purpose for allowing Badeaux to refuse to dispense

prescriptions. But the jury did not reach whether Aitkin Pharmacy had a legitimate

business purpose for allowing Badeaux to refuse to dispense prescriptions because the jury

found that Aitkin Pharmacy did not intentionally refuse to do business with her because of

her sex. And, given the undisputed evidence that Aitkin Pharmacy was willing to dispense

Anderson’s prescription to her, we are unpersuaded that additional evidence regarding the

scope of the plan would have affected the jury’s assessment of the business-discrimination

claim against Aitkin Pharmacy.

Anderson also challenges the admission of her therapy records. The therapy records

were relevant to damages, but Anderson does not explain how the therapy records affected

her ability to prove that Aitkin Pharmacy intentionally refused to do business with her

because of her sex. Accordingly, we conclude that the admission of the therapy records

did not prejudice Anderson’s business-discrimination claim.

In sum, Anderson has not demonstrated that she is entitled to judgment as a matter

of law on her business-discrimination claim against Aitkin Pharmacy or that the district

court abused its discretion in denying a new trial. Accordingly, we affirm the judgment in

Aitkin Pharmacy’s favor on that claim.

29 III. Public-Accommodations Claim Against Aitkin Pharmacy

Anderson argues that she is entitled to judgment as a matter of law or, in the

alternative, a new trial on her public-accommodations claim based on erroneous jury

instructions and erroneous evidentiary rulings. Because it is undisputed that Aitkin

Pharmacy is a place of public accommodation, Anderson’s claim against Aitkin Pharmacy

requires her to prove that she was “den[ied] . . . the full and equal enjoyment of [Aitkin

Pharmacy’s] goods, services, facilities, privileges, advantages, and accommodations” and

that denial was “because of . . . sex.” Minn. Stat. § 363A.11, subd. 1(a)(1). We address

Anderson’s arguments in support of judgment as a matter of law and then her arguments

in support of a new trial.

A. There is a reasonable theory of the evidence that supports the jury’s verdict that Aitkin Pharmacy did not deny Anderson full and equal enjoyment of its goods and services.

Anderson argues that the district court erred when it concluded that she is not

entitled to judgment as a matter of law on her public-accommodations claim. She contends

that, because Aitkin Pharmacy maintained a store “policy” that allowed Badeaux to refuse

to dispense prescriptions and because Badeaux informed her that he was unwilling to

dispense her prescription for ella, she is entitled to judgment on her public-

accommodations claim. Aitkin Pharmacy responds that Anderson received the same

options as any other customer who had a prescription that the pharmacy did not have in

stock—having the prescription filled when it was in stock at the pharmacy the following

day or transferring to another pharmacy of the patient’s choosing. We conclude that

Anderson has not demonstrated that the district court erred when it denied her judgment on

30 this claim because, viewing the evidence in the light most favorable to Aitkin Pharmacy,

there is a reasonable theory of the evidence upon which the jury could have concluded that

Anderson was not denied full and equal enjoyment of Aitkin Pharmacy’s goods and

services. See Vermillion State Bank, 969 N.W.2d at 618-19.

The jury heard evidence that Aitkin Pharmacy ordered Anderson’s prescription for

ella, that Badeaux did not delete ella from Aitkin Pharmacy’s order until Anderson decided

to transfer the prescription elsewhere, and that an Aitkin Pharmacy pharmacist who was

willing to dispense her prescription was on duty when the prescription would have arrived

at the store the next day. There was also evidence that Badeaux called Anderson because

of the forecasted snowstorm to discuss her options for obtaining her prescription the next

day. Badeaux did express to Anderson that he would not dispense the prescription because

of “[his] beliefs,” but he also told her that another pharmacist, who was scheduled to work

with Badeaux the next day, was willing to dispense the medication. And Badeaux did not

tell Anderson that she was acting wrongfully or immorally in obtaining her prescription.

Given this evidence, the jury could have reasonably believed that Anderson was not denied

full and equal enjoyment of Aitkin Pharmacy’s goods and services because she would have

obtained her prescription from Aitkin Pharmacy on January 22—the same day that she

obtained her prescription from the other pharmacy—if she had not decided to transfer her

We are not persuaded otherwise by Anderson’s argument that the jury’s verdict in

her favor on damages attributable to Badeaux shows that Anderson was denied full and

equal enjoyment of Aitkin Pharmacy’s goods and services. This argument is unpersuasive

31 for two reasons. First, the jury did not find that Aitkin Pharmacy caused Anderson

emotional harm and, as outlined above, the evidence shows that Anderson could have

received her prescription from Aitkin Pharmacy when the medication arrived. Second, and

more importantly, the question before us when considering the denial of judgment as a

matter of law is not whether the jury could have found in Anderson’s favor on the

public-accommodations claim against Aitkin Pharmacy. Rather, the question before us is

whether there is any reasonable theory of the evidence that supports the verdict for Aitkin

Pharmacy. See id. For the reasons set forth above, we conclude that Anderson has not met

the high bar needed to demonstrate that she is entitled to judgment as a matter of law on

this claim. 13

B. The district court abused its discretion in denying Anderson a new trial based on the jury instructions related to the public-accommodations claim.

Because we conclude that Anderson is not entitled to judgment as a matter of law

on her public-accommodations claim, we turn to Anderson’s arguments that she is entitled

to a new trial for this claim. Anderson argues that she is entitled to a new trial on three

grounds—erroneous jury instructions, the evidence at trial, and erroneous evidentiary

rulings. We reach only Anderson’s challenges to the jury instructions because we conclude

that Anderson is entitled to a new trial on that basis.

Anderson argues that the district court erred in instructing the jury regarding the

meaning of “full and equal enjoyment”; that the district court erred in denying her

13 We would reach this same conclusion even if, as discussed below, the district court had not given erroneous jury instructions on the public-accommodations claims.

32 requested agency instruction; and that the district court erred in its “protected class”

instructions. Consistent with our analysis of the district court’s business-discrimination

instructions, we must evaluate whether the challenged instructions, when read as a whole,

“materially misstate[] the law” or are “apt to confuse and mislead the jury.” Domagala,

805 N.W.2d at 29 (quotation omitted). We consider each challenged instruction in turn

before addressing Anderson’s entitlement to a new trial.

Full-and-Equal-Enjoyment Instructions

Anderson first challenges the district court’s instructions related to full and equal

enjoyment. Anderson argues that the district court’s instructions are contrary to the plain

language of the statute. She further contends that the district court’s instructions

improperly imposed a threshold that applies in the context of employment-discrimination

claims under the MHRA but not public-accommodations claims. We agree.

Minnesota Statutes section 363A.11 states that it is a discriminatory practice “to

deny any person the full and equal enjoyment of the goods, services, facilities, privileges,

advantages, and accommodations of a place of public accommodation because of . . . sex.”

Minn. Stat. § 363A.11, subd. 1(a)(1). The district court instructed the jury that “a violation

of ‘full and equal enjoyment’ in the goods and services” occurs if Anderson “received a

material disadvantage or a tangible change in conditions in the goods or services offered

to the public.” The district court further defined “material disadvantage” as “inferior

service” and “tangible change in condition” as “more than minor differences in service or

access to goods.” The language included in the district court’s instructions goes beyond

the plain language of the statute.

33 “When jury instructions contradict the plain language of the statute or an

interpretation of the statute previously adopted by [the Minnesota Supreme Court], they

are erroneous.” State v. Davis, 864 N.W.2d 171, 176 (Minn. 2015). To determine whether

the district court’s instructions are consistent with the statutory language, we turn to

Minnesota caselaw considering MHRA claims. See Henry, 988 N.W.2d at 880.

Although the parties have not identified any binding authority related to the required

showing for a public-accommodations claim, we find persuasive this court’s

nonprecedential opinion declining to set a threshold level of adverse conduct to sustain a

public-accommodations claim. Bray v. Starbucks Corp., No. A17-0823, 2017 WL

6567695, at *8 (Minn. App. 2017), rev. denied (Minn. Mar. 20, 2018). In that case, a

customer alleged that Starbucks employees treated him poorly because of his transgender

status, including delayed service, rude treatment, and sexual comments. Id. at *1-2. The

district court relied on hostile-work-environment cases to grant summary judgment against

the plaintiff on the public-accommodations claim on the basis that “the conduct at issue in

this case does not rise to the level of discrimination as contemplated by the MHRA.” Id.

at *7. We reversed, rejecting the business’s arguments that the plaintiff was required to

allege “objectively offensive conduct” and to show a denial of service. Id. at 7-8. We

noted “the broad ‘full and equal enjoyment’ language” of the public-accommodations

provision and concluded that “the plain language of the MHRA allows claims based on

denial of equal enjoyment even if service was provided.” Id. at *7 (quoting Minn.

Stat. § 363A.11, subd. 1(a)(1)). We also rejected the business’s argument for application

of hostile-work-environment caselaw. Id. at *8. As a result, we concluded that, although

34 “[the plaintiff’s] claim of adverse treatment is less severe than those in cases involving

complete denial of access to goods or services from a place of public accommodation,” we

could not say “that the alleged conduct in this case does not rise to the level of public-

accommodations discrimination contemplated by the MHRA.” Id.

Badeaux’s reliance on Bilal v. Northwest Airlines, Inc., 537 N.W.2d 614

(Minn. 1995), to argue that a plaintiff must show a threshold level of adverse conduct to

sustain a public-accommodations claim is unavailing. In Bilal, an airline employee

informed a passenger, a Muslim woman, that she was violating the dress code and that she

“should dress as if [she] were going to church.” 537 N.W.2d at 615. In evaluating whether

the plaintiff proved that the employee “possessed a discriminatory motive and intended to

discriminate against [the plaintiff] because of her religion,” the supreme court noted that

the use of the word “church” “was not a normative evaluation of [the plaintiff’s] religious

affiliation or beliefs” and “does not possess the inherently derogatory qualities of an

epithet.” Id. at 619. The supreme court ultimately concluded that the plaintiff failed to

prove that the employee possessed the requisite discriminatory motive when informing the

plaintiff that she violated the dress code because the employee did not know she was

Muslim and instead believed she was Christian. Id.

We do not read Bilal to impose a minimum threshold of adverse conduct to succeed

on a public-accommodations claim. To the contrary, Bilal suggests that, if the employee

enforced the dress code against the plaintiff and used the word “church” because the

plaintiff was Muslim, the plaintiff may have established her claim of religious

35 discrimination. See id. Accordingly, Bilal does not require a minimum level of adverse

conduct, much less a “material disadvantage” or “tangible change in conditions.”

The phrases “material disadvantage” and “tangible change in conditions” included

in the jury instructions are instead derived from the Minnesota Supreme Court’s decision

in Bahr v. Capella University, which considered what qualifies as an unfair discriminatory

practice in employment under section 363A.08, subdivision 2(3), of the MHRA.

788 N.W.2d 76, 82-83 (Minn. 2010). In Bahr, the supreme court noted that, “in order for

there to be racial discrimination that constitutes an unlawful employment practice, there

must be some adverse employment action.” Id. at 83. Then, relying on Title VII caselaw,

the supreme court explained that “[a]n adverse employment action must include some

tangible change in duties or working conditions” and that “[t]here must be some material

employment disadvantage; minor changes in working conditions are insufficient.” Id. The

supreme court further quoted the Eighth Circuit’s language that “[n]ot everything that

makes an employee unhappy is an actionable adverse employment action.” Id. (quoting

LaCroix v. Sears, Roebuck, & Co., 240 F.3d 688, 691 (8th Cir. 2001)).

We disagree that the language from Bahr regarding an adverse employment action

is applicable in the context of a public-accommodations claim. The language governing

public-accommodations discrimination is distinct from the language governing unfair

employment practices. Section 363A.08 provides, in relevant part, that “it is an unfair

employment practice” to “discriminate against a person with respect to hiring, tenure,

compensation, terms, upgrading, conditions, facilities, or privileges of employment.”

Minn. Stat. § 363A.08, subd. 2(3). “Discriminate,” as defined by the MHRA, “includes

36 segregate or separate and, for purposes of discrimination based on sex, it includes sexual

harassment.” Minn. Stat. § 363A.03, subd. 13. By contrast, section 363A.11 provides that

“[i]t is an unfair discriminatory practice . . . to deny any person the full and equal

enjoyment of the goods, services, facilities, privileges, advantages, and accommodations

of a place of public accommodation.” Minn. Stat. § 363A.11, subd. 1(a)(1) (emphasis

added). And dictionary definitions of the words “full” and “equal”—which we look to in

the absence of a statutory definition—respectively include “[c]ontaining all that is normal

or possible” and “[h]aving the same quantity, measure, or value as another.” American

Heritage, supra, at 709 (defining “full”), 601 (defining “equal”); see Lagasse v. Horton,

982 N.W.2d 189, 198 (Minn. 2022) (“When a term is not defined by statute, we may use

dictionary definitions.”). The legislature could have defined a violation of the public-

accommodations provision as to “discriminate” in goods, services, facilities, privileges,

advantages, or accommodations. But the legislature instead defined a violation of the

public-accommodations provision as “to deny . . . full and equal enjoyment of” goods and

services. Minn. Stat. § 363A.11, subd. 1(a)(1). In short, the legislature used different—

and broader—language in the public-accommodations provision than it did in the

employment-discrimination provision. Cf. N.H. v. Anoka-Hennepin Sch. Dist. No. 11,

950 N.W.2d 553, 560 (Minn. App. 2020) (“The plain language of the MHRA education

provision differs from and provides a much broader prohibition against discrimination than

the MHRA employment provision.”).

Furthermore, as Anderson notes, requiring a threshold showing of a material

disadvantage or a tangible change in condition to prove a public-accommodations claim is

37 not only inconsistent with the broader language of section 363A.11 but also inconsistent

with the dignitary harms that public-accommodations laws are intended to guard against.

See Roberts v. U.S. Jaycees, 468 U.S. 609, 625-26 (1984) (explaining, in interpreting the

MHRA, that the “fundamental object [of Title II of the Civil Rights Act of 1964] was to

vindicate the deprivation of personal dignity that surely accompanies denials of equal

access to public establishments” (quotation omitted)). Thus, absent binding authority to

the contrary, 14 there is no basis for incorporating the framework for the showing required

for an adverse employment action into the jury instructions for a public-accommodations

claim. See N.H., 950 N.W.2d at 560-61 (concluding that a prior interpretation of the

MHRA employment provision is not binding authority for the MHRA education provision

because the provisions differ in scope and have different language).

In sum, the district court’s instructions defining a “violation of ‘full and equal

enjoyment’” are inconsistent with the plain language of the public-accommodations

provision and are not supported by caselaw interpreting that provision. We therefore hold

that the district court materially misstated the law by instructing the jury that a denial of

“full and equal enjoyment” required Anderson to prove that she experienced a material

14 Badeaux and Aitkin Pharmacy direct us to a federal district court case, Rumble v. Fairview Health Services, applying the standard from Bahr to a public-accommodations claim. No. 14-CV-2037 (SRN/FLN), 2015 WL 1197415, at *19 (D. Minn. Mar. 16, 2015). “[F]ederal court interpretations of state law are not binding on state courts.” State by Hatch v. Emps. Ins. of Wausau, 644 N.W.2d 820, 828 (Minn. App. 2002). Moreover, the Rumble opinion does not explain why the standard to prove a claim under section 363A.08 applies to a claim under section 363A.11, and thus we do not find the opinion to be of persuasive value. See Rumble, 2015 WL 1197415, at *19.

38 disadvantage or tangible change in conditions in the goods or services offered to the public.

See Davis, 864 N.W.2d at 176; Domagala, 805 N.W.2d at 29.

Agency Instruction

Anderson next challenges the district court’s denial of her requested agency

instruction on her public-accommodations claim against Aitkin Pharmacy. The district

court’s instructions included a “Multiple Defendants” instruction, which stated:

There are two defendants in this lawsuit. Answer the questions for each defendant as though the lawsuits were being tried separately. Each defendant must be judged separately. Do not let your judgment about one defendant influence your judgment about the other. View these instructions separately as they apply to [Aitkin Pharmacy] and George Badeaux.

In addition, the public-accommodations instructions stated:

To prevail on her claim of discrimination in public accommodation as to [Aitkin Pharmacy], Plaintiff Andrea Anderson must prove by a greater weight of the evidence that: 1. She is a member of a protected class, and, 2. That [Aitkin Pharmacy] denied her full and equal enjoyment in goods or services because of her sex.

Anderson objected to these instructions and requested that the district court instruct the

jury that Aitkin Pharmacy is a corporation that can only act through its employees and that

an employee’s conduct, if within the scope of employment, is the corporation’s conduct.

The district court denied that request.

“A party is entitled to a specific jury instruction if evidence exists at trial to support

the instruction.” Daly v. McFarland, 812 N.W.2d 113, 122 (Minn. 2012) (quotation

omitted). Principles of agency apply to MHRA claims brought against an employer for the

discriminatory conduct of an employee. See Bilal, 537 N.W.2d at 619 (explaining that

39 plaintiff could have been successful had she shown discrimination “on the part of NWA or

its employees”); Potter v. LaSalle Sports & Health Club, 368 N.W.2d 413, 416 (Minn.

App. 1985) (concluding that an employee’s enforcement of a company policy against

plaintiff supported a prima facie case of public-accommodations discrimination by the

company); cf. Brisson, 994 N.W.2d at 927 (concluding “it is appropriate to consider

concepts of agency in determining whether vicarious liability applies to claims for sexual

harassment in public services under the MHRA”). As a result, a business may be liable to

a plaintiff for the discriminatory conduct of its employee when the employee is acting as

an agent of the employer. See Bilal, 537 N.W.2d at 619; Potter, 368 N.W.2d at 416.

We conclude that there was evidence at trial that Badeaux was acting within the

scope of his employment when he called Anderson such that Anderson was entitled to the

requested agency instruction regarding Aitkin Pharmacy’s liability for its employees’

conduct. Aitkin Pharmacy’s owner testified that Badeaux’s treatment of Anderson’s

prescription was within the scope of his employment and consistent with Aitkin

Pharmacy’s emergency-contraception plan, and it is undisputed that Badeaux was the

pharmacist-in-charge and on duty at the time of the phone call. Moreover, without the

requested agency instruction, the multiple-defendants instruction informed the jury that

Badeaux’s and Aitkin Pharmacy’s conduct should be considered separately. Thus, even

though an employee’s conduct may be considered when evaluating whether a plaintiff was

denied full and equal enjoyment, see Bilal, 537 N.W.2d at 619, the instructions suggested

that Badeaux’s conduct could not be considered when evaluating Anderson’s public-

accommodations claim against Aitkin Pharmacy.

40 Our conclusion that the instructions did not fairly state the law is reinforced by the

closing arguments. Anderson’s counsel argued to the jury, “If you find that [Aitkin

Pharmacy’s] pharmacist-in-charge, [Badeaux], discriminated in his official employment

following [Aitkin Pharmacy’s] policies, you must also find that [Aitkin Pharmacy]

discriminated.” During Aitkin Pharmacy’s closing, however, its counsel identified the

multiple-defendants instruction and argued that “[t]his instruction says nothing about

George Badeaux’s actions being the actions of [Aitkin Pharmacy]. You need to read the

instructions and follow what the judge tells you.” Given this record, the district court’s

denial of the requested agency instruction meant that the jury instructions, considered as a

whole, materially misstated the law and were “apt to confuse and mislead the jury.” See

Domagala, 805 N.W.2d at 29 (quotation omitted).

Protected-Class Instruction

Anderson’s final challenge is to the district court’s decision to instruct the jury that

it had to find that Anderson is a member of a protected class. She argues that the district

court should have instructed the jury that “sex is a protected class.”

When considered as a whole, we conclude that the jury instructions do not

materially misstate the law by suggesting that sex is not a protected class. The jury

instructions asked the jury to determine whether “[Anderson] is a member of a protected

class” and whether “[Aitkin Pharmacy] denied her full and equal enjoyment in goods or

services because of her sex.” And the instructions defined sex as “includ[ing], but is not

limited to, pregnancy, childbirth, and disabilities related to pregnancy or childbirth. The

ability to become pregnant is also included under the term ‘sex.’” We recognize that the

41 jury instructions do not specifically inform the jury that sex is a protected class. But we

are satisfied that the instructions, taken as a whole, would not lead the jury to believe that

sex or pregnancy are not protected traits under the MHRA. Accordingly, we conclude that

the jury instructions on protected class do not materially misstate the law and would not

confuse or mislead the jury. 15 See id.

Entitlement to a New Trial

Because we conclude that the district court erred in instructing the jury regarding

the standard for “full and equal enjoyment” and erred in denying the requested agency

instruction, we must consider whether those errors entitle Anderson to a new trial. “[A]

new trial is required if the jury instruction was erroneous and such error was prejudicial to

the objecting party or if the instruction was erroneous and its effect cannot be determined.”

Christie, 911 N.W.2d at 838 (quotation omitted). Here, the jury found that Anderson

proved she is entitled to damages of $25,000 from Badeaux for emotional harm but that

Anderson did not prove she is entitled to damages from Aitkin Pharmacy. The jury also

found that Anderson did not prove any of her MHRA claims against Badeaux or Aitkin

Pharmacy. Thus, it is unclear on what basis the jury concluded that Anderson was entitled

to damages against Badeaux and whether the jury would have evaluated the

public-accommodations claim against Aitkin Pharmacy differently if the jury had received

an agency instruction or accurate instructions related to “full and equal enjoyment.”

15 Our conclusion that the instruction does not materially misstate the law is based on the instructions as a whole here. Our conclusion does not bind the selection of jury instructions related to protected class on remand.

42 Consequently, we cannot discern the effect that either of the jury-instruction errors may

have had on the verdict. We therefore conclude that Anderson is entitled to a new trial on

her public-accommodations claim against Aitkin Pharmacy. See id.

IV. Aiding-and-Abetting Claim Against Badeaux

Finally, Anderson argues that she is entitled to judgment as a matter of law or a new

trial on her aiding-and-abetting claim against Badeaux. To succeed on her aiding-and-

abetting claim under the MHRA, Anderson must prove that (1) Aitkin Pharmacy’s conduct

violated the MHRA and (2) Badeaux knew that Aitkin Pharmacy’s conduct constituted a

violation of the act and gave substantial assistance or encouragement to that conduct. See

Matthews, 800 N.W.2d at 830.

Here, our conclusion that the district court properly denied Anderson’s motion for

judgment as a matter of law and motion for a new trial related to the

business-discrimination claim against Aitkin Pharmacy compels the conclusion that

Anderson cannot succeed on an aiding-and-abetting claim premised on business

discrimination. See id. But, because we conclude that Anderson is entitled to a new trial

on her public-accommodations claim against Aitkin Pharmacy, Anderson is likewise

entitled to a new trial on an aiding-and-abetting public-accommodations discrimination

claim against Badeaux. On this record, we cannot discern the effect of the jury instructions

on Anderson’s public-accommodations claim against Aitkin Pharmacy and therefore

cannot discern the effect that the instructions had on a claim against Badeaux premised on

aiding and abetting public-accommodation discrimination. The appropriate remedy in

these circumstances is a new trial. See Christie, 911 N.W.2d at 838.

43 We are not persuaded that we can affirm the judgment in Badeaux’s favor on the

aiding-and-abetting claim based on his argument that he cannot, as a matter of law, be

liable for aiding and abetting Aitkin Pharmacy’s discrimination. Badeaux asserts that he

is the “only alleged discriminator” and that, based on the supreme court’s decision in

Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790 (Minn. 2013), he cannot be liable

for aiding and abetting. In Rasmussen, the sole owner of two businesses was the only

individual accused of sexual harassment, and the plaintiffs brought claims under the

MHRA against both businesses for sexual harassment and against the owner for aiding and

abetting that harassment. 832 N.W.2d at 791-92. The supreme court held that, under those

circumstances, the owner could not be held liable as an aider and abettor. Id. at 801. In

doing so, the supreme court explained that the businesses were liable only under a theory

of vicarious liability and that recognizing the owner’s liability as an aider and abettor would

“create a strange and confusing circularity where the person who has directly perpetrated

the harassment only becomes liable through the employer whose liability in turn hinges on

the conduct of the direct perpetrator.” Id. (quotation omitted).

Here, however, Aitkin Pharmacy’s liability to Anderson is not premised solely on

vicarious liability for Badeaux’s actions but rather on its independent conduct—

maintaining an allegedly discriminatory plan for dispensing emergency contraception—as

well as Badeaux’s conduct. We therefore conclude that Rasmussen does not preclude a

new trial on Anderson’s aiding-and-abetting claim against Badeaux premised on aiding

and abetting public-accommodations discrimination.

44 DECISION

Because reasonable minds cannot disagree that Badeaux intentionally refused to

dispense Anderson’s prescription for emergency contraception to her in violation of the

MHRA, we reverse the denial of Anderson’s motion for judgment as a matter of law on

her claim for business discrimination against Badeaux and remand for entry of judgment

in her favor on that claim. Anderson is entitled to a trial on both compensatory damages

and punitive damages related to the business-discrimination claim against Badeaux. We

also reverse the denial of Anderson’s motion for a new trial on her public-accommodations

claim against Aitkin Pharmacy and her aiding-and-abetting claim against Badeaux based

on erroneous jury instructions, but we affirm the district court’s denial of Anderson’s

motion for judgment as a matter of law on those same two claims. Finally, we affirm the

district court’s entry of judgment on the business-discrimination claim against Aitkin

Pharmacy. Accordingly, we remand for further proceedings consistent with this opinion.

Our conclusion that the challenged evidentiary rulings did not prejudice Anderson’s ability

to prove her business-discrimination claim against Aitkin Pharmacy does not preclude the

district court from revisiting those rulings on remand with regard to Anderson’s public-

accommodations and aiding-and-abetting claims.

Affirmed in part, reversed in part, and remanded.