               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0776n.06

                                            No. 14-5157

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

BRIDGETTE SNYDER,                                                               FILED
                                                                           Oct 10, 2014
       Plaintiff-Appellant,                                           DEBORAH S. HUNT, Clerk
v.
                                                     ON APPEAL FROM THE UNITED
KOHL’S DEPARTMENT STORES,                            STATES DISTRICT COURT FOR THE
INC.,                                                EASTERN DISTRICT OF KENTUCKY

       Defendant-Appellee.




BEFORE:        GUY and CLAY, Circuit Judges.*

       CLAY, Circuit Judge. Plaintiff Bridgette Snyder appeals from the district court’s grant

of summary judgment to Defendant Kohl’s Department Stores, Inc. (“Kohl’s”) on her claims for

false imprisonment and intentional infliction of emotional distress. For the reasons that follow,

we AFFIRM the district court’s grant of summary judgment on Plaintiff’s claim for intentional

infliction of emotional distress, but REVERSE and REMAND her false imprisonment claim for

proceedings consistent with this opinion.


                                       BACKGROUND


       Plaintiff was detained by Defendant’s personnel for suspected shoplifting at a

Georgetown, Kentucky store on the evening of March 1, 2012, but, after a thirty or forty minute

       *
         After this appeal was submitted on the briefs, Judge Helene N. White recused herself
because of a potential conflict of interest.
                                                    No. 14-5157


detention and a strip search conducted by a Kohl’s employee at the direction of a police officer,

she was ultimately found not to have taken anything. Following the incident, she brought suit

against Kohl’s, the police officer, and the City of Georgetown.† She separately settled her claims

against the police officer and the City of Georgetown. Although the settlement eliminated the

federal claims from the case, the district court proceeded to resolve Kohl’s outstanding summary

judgment motion on Plaintiff’s state law claims of false imprisonment and intentional infliction

of emotional distress. The district court’s jurisdiction was proper under 28 U.S.C. § 1367.


         The district court granted summary judgment to Defendant on the false imprisonment

claim after concluding that the undisputed facts established that Defendant met the requirements

of the “shopkeeper’s privilege,” an affirmative defense set out at KY. REV. STAT. ANN. § 433.236

(West 2014).


         The district court held that the undisputed facts established that Defendant had probable

cause for detaining Plaintiff, and that the detention was reasonable in length and manner. The

district court listed these purportedly undisputed facts as supporting probable cause:


                 Kohl’s Loss Prevention Supervisor Michael Pittman (“Pittman”) observed
                  Snyder in a high-theft area of the store moving rapidly and picking up
                  items without regard to size or price.
                 Based on his initial observations and concerns, Pittman requested that
                  Kohl’s Loss Prevention Officer Michael Tam Lung (“Tam Lung”) focus
                  the store’s closed circuit cameras on Snyder.
                 During their observations, Pittman and Tam Lung observed other
                  suspicious behavior by another patron consistent with being a look-out for
                  Snyder or an accomplice.
                 Pittman and Tam Lung observed Snyder enter a fitting room with a
                  number of items of clothing. And while Pittman did not enter the fitting
                  room with the plaintiff, he noted the specific fitting room that was used.

         †
          Plaintiff originally filed suit in state court. All Defendants removed to the United States District Court for
the Eastern District of Kentucky, invoking federal question removal jurisdiction under 28 U.S.C. §§ 1331 and
1441(b) (2012) based on the § 1983 claim Plaintiff brought against the government defendants.

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                                           No. 14-5157


              While Snyder was inside the fitting room, Pittman overheard popping
               sounds which were consistent with security tags being removed from
               merchandise.
              Pittman and Tam Lung observed Snyder exit the fitting room with no
               merchandise in her hands. After exiting, Snyder walked fast toward the
               store’s exit.
              Pittman quickly checked the stall that Snyder had used but did not find
               any of the merchandise that had been taken into the fitting room.


(R. 51, Mem. Op. and Order, Page ID# 951-52.)            Additionally, the court noted that after

Plaintiff’s detention and eventual departure, “Pittman discovered several items of merchandise

several stalls from the one Snyder had used” and that “[a]ccording to the defendant, the security

tag had been ripped off one pair of jean shorts, damaging the shorts.” (Id. at Page ID# 952.) The

district court acknowledged that “this additional information is not relevant to whether Kohl’s

had probable cause to detain Snyder under the statute,” but nonetheless remarked that “it is

consistent with the observations of Kohl’s employees” that it had previously cited as evidence of

probable cause. (Id.)


       The district court did not specifically identify its reasons for concluding that Plaintiff’s

detention was reasonable in time and manner, but it did state that she “offered to remove items of

clothing in an effort to convince Kohl’s employees that she had not stolen merchandise” and that

her participation in the strip search constituted “voluntary conduct.” (Id. at Page ID# 952-53.)


       Not all of these facts are undisputed. Plaintiff testified in her deposition that she left all

of the clothes that she tried on in the fitting room where she tried them on. She testified that she

did not know that any of the tags were removed. Plaintiff testified that she did not seek to

remove her sweatshirt in order to demonstrate that she did not have anything on her, but rather

because she was getting hot. Additionally, Plaintiff testified that she “complied” with the



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                                           No. 14-5157


officer’s direction that she submit to a strip search because “he’s a police officer.” (R. 35-3,

Snyder’s Dep. Testimony. at Page ID# 788.)


       Some additional facts not highlighted by the district court are also relevant to this appeal.

First, Plaintiff described her selection of clothes to try on that day in a manner that diverges from

the description by Defendant and the lower court. She testified in her deposition that she

browsed the women’s and junior’s section and may have looked at shoes as well. She testified

that she was looking for particular items: professional clothing to wear to nursing school and

shorts because it was getting warm. She estimated that she looked around for no more than thirty

or forty minutes. She selected approximately six items to try on. Plaintiff testified that she did

not have a bag or a purse, and that all she had with her as she was leaving the store was her

wallet, cell phone, and keys, which she was carrying in her hand. She pointed this out to the

store employees while she was detained in the loss prevention room. Georgetown Police Officer

Christopher Bayer Mirandized her shortly after he arrived at the store. Plaintiff testified that the

police officer directed the search after he had been questioning her for a while and Plaintiff “said

something along the lines of what now, because we had been sitting there for a while just with no

– with nothing happening.” (Id. at Page ID# 788.) After she was strip searched she returned to

the loss prevention room and was kept there for another ten minutes. (Id. at Page ID# 789.)

While she was there, the Kohl’s employee who stopped her came in and said to her, “I’m sorry.

I’m going to get fired.” (Id.) She also testified that the police officer said, perhaps to make light

of the situation, “[a]pparently, you just looked guilty.” (Id. at Page ID# 790.) The police officer

testified that he reviewed the surveillance video more fully after Plaintiff was allowed to leave

and stated that he did not see anything on the video that would have established probable cause




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                                             No. 14-5157


for him to believe Plaintiff had shoplifted anything. (R. 33-5, Officer Bayer’s Dep. Testimony,

Page ID# 690.)


                                         DISCUSSION


   I.      Standard of Review
        Whether a district court properly granted summary judgment is a question of law that is

reviewed de novo. Beck-Wilson v. Principi, 441 F.3d 353, 359 (6th Cir. 2006). Judgment may

only be affirmed if the moving party has shown that “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56. A

genuine factual dispute exists where evidence would allow “a reasonable jury [to] return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).


        In deciding a summary judgment motion, the evidence “must be viewed in the light most

favorable to the party opposing the motion.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574 (1986). Likewise, “the burden of establishing the nonexistence of a material

factual dispute always rests with the movant.” Smith v. Hudson, 600 F.2d 60, 65 (6th Cir. 1979).


        “[T]he substantive law will identify which facts are material,” Anderson, 477 U.S. at 248,

as well the allocation of the burden to produce evidence, Celotex v. Catrett, 477 U.S. 317, 322-

25 (1986). Where a defendant seeks summary judgment on an affirmative defense on which it

will bear the ultimate burden of proof at trial, summary judgment is proper “‘only if the record

shows that [the defendant] established the defense so clearly that no rational jury could have

found to the contrary.’” Beck-Wilson, 441 F.3d at 365 (quoting Buntin v. Breathitt Cnty. Bd. of

Educ., 134 F.3d 796, 800 (6th Cir. 1998)).




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                                             No. 14-5157


         A court impermissibly invades the province of the jury it if it attempts to “resolve[] issues

of credibility and other conflicting evidence.” Regal Cinemas, Inc. v. W&M Props., 234 F.3d

1269, at *3 (6th Cir. 2000) (table disposition). See also Anderson, 377 U.S. at 249 (“at the

summary judgment stage the judge’s function is not himself to weigh the evidence and determine

the truth of the matter but to determine whether there is a genuine issue for trial.”).


         Additionally, in reviewing summary judgment decisions this Court has observed that

certain substantive elements, like reasonableness or probable cause, are so fact bound that they

should normally be reserved for the jury “unless there is only one reasonable determination

possible” based on the evidence produced by the parties. Gardenhire v. Schubert, 205 F.3d 303,

315 (6th Cir. 2000) (the existence of probable cause typically presents a question for the jury);

accord McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984) (“in a § 1983 action the factual

matters underlying the judgment of reasonableness generally mean that probable cause is a

question for the jury”). See also Hatch v. Durocher Dock & Dredge, Inc., 33 F.3d 545, 547 (6th

Cir. 1994) (“the question of seaman status is a mixed question of fact and law and, as such, ‘[i]f

reasonable persons, applying the proper legal standard, could differ as to whether the employee

was . . . [a seaman], it is a question for the jury.’”) (editing in original) (quoting McDermott Int’l,

Inc. v. Wilander, 498 U.S. 337, 356 (1991)); Niemi v. NHK Spring Co., Ltd., 543 F.3d 294 (6th

Cir. 2008) (the reasonableness of efforts to maintain secrecy of a trade secret “ordinarily

represents a question for the jury” and “only in an extreme case can what is a ‘reasonable’

precaution be determined as a matter of law”).


   II.      Analysis

         In light of the conflicting testimony about factual matters material to whether Defendant

had reason to suspect Plaintiff of shoplifting and whether Plaintiff’s detention was reasonable in

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                                           No. 14-5157


time and manner, we conclude that the decision to grant summary judgment to Defendant on the

false imprisonment claim was improper. However, because Plaintiff failed to establish that she

suffered “severe” emotional distress, we affirm dismissal of the claim for intentional infliction of

emotional distress.

       1. The District Court Erred in Granting Summary Judgment on Plaintiff’s Claim
          for False Imprisonment
       Kentucky law protects a retailer and its employees from liability for false imprisonment

based on the detention of a suspected shoplifter if three requirements are met: (1) the employee

has “probable cause” to believe the individual is shoplifting; (2) the person is detained “in a

reasonable manner for a reasonable length of time”; and (3) the detention is effected for one of

five legitimate purposes, such as making reasonable inquiry into whether the person has

unpurchased merchandise, recovering those goods, or informing law enforcement of the

detention of the person. KY. REV. STAT. ANN. § 433.236(1) (West 2014).


       In order to affirm the district court’s grant of summary judgment to Defendant based on

this privilege, this Court must find that Defendant has put forward evidence establishing each of

these three elements “so clearly that no rational jury could have found to the contrary.” Beck-

Wilson, 441 F.3d at 365. Although the first requirement of probable cause and the second

requirement that the detention be reasonable in both time and manner are normally questions for

the jury, the Defendant may succeed in establishing those elements if the evidence before the

court allows “only one reasonable determination.” Gardenhire, 205 F.3d at 315. Defendant did

not meet that burden.


       The district court failed to comply with summary judgment standards in granting

judgment to Defendant on the basis of the “shopkeeper’s privilege” affirmative defense.


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                                           No. 14-5157


               a. The District Court Failed to View the Evidence in the Light Most
                  Favorable to the Plaintiff
       The district court adopted Defendant’s version of the facts in determining that there was

probable cause. It accepted Defendant’s characterization that Plaintiff was “moving rapidly and

picking up items without regard to size or price,” (R. 51, Mem. Op. and Order, Page ID# 951),

and ignored Plaintiff’s testimony that she was browsing at Kohl’s for about thirty or forty

minutes, picking out clothes for particular purposes. The district court credited testimony that

Pittman heard popping noises consistent with the tags being removed from clothing while

Plaintiff was in the dressing room, when Plaintiff testified that she did not know that any of the

tags were removed. Additionally, Plaintiff’s testimony that Pittman expressed concern about

being fired permits the inference that Pittman may have had a motive to subsequently pop the

tags himself and then lie about doing so. A jury would not have been required to believe

Pittman’s testimony about the popping noises, and it was error for the district court to rely on

that testimony to buttress its probable cause finding. The district court also failed to mention

other evidence favorable to Plaintiff, as discussed further below.


               b. The District Court Improperly Shifted the Burden to Plaintiff to Refute
                  the Affirmative Defense
       The district court misapprehended the application of summary judgment law to an

affirmative defense. It did not require Defendant to establish each element of the shopkeeper’s

privilege “so clearly that no rational jury could have found to the contrary.” Beck-Wilson, 441

F.3d at 365. Instead, it placed the burden on Defendant only to establish probable cause, writing

that the dispute over the prima facie case would “not be dispositive” if Defendant established

that it “had probable cause to believe that Snyder had taken merchandise from the Georgetown

store.” (R. 51, Mem. Op. and Order, Page ID# 950-51.) In fact, Defendant must also have


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                                          No. 14-5157


established—so clearly that no rational fact finder could disagree—that its detention of Plaintiff

was reasonable in both time and manner, and that the detention was effected for one of the

statutory purposes.


       The district court pointed to no evidence that would establish the reasonableness of

Defendant’s detention of Plaintiff, concluding without explanation that “the alleged detention

was reasonable (both in length and in the manner in which it was conducted).” (See id. at Page

ID# 952.) Instead, it briefly rejected Plaintiff’s allegations of unreasonableness based on an

acceptance of Defendant’s version of the facts, including Defendant’s contention that Plaintiff

“offered to remove items of clothing in an effort to convince Kohl’s employees that she had not

stolen merchandise.” (See id.) In fact, Plaintiff testified that she only sought to remove her

sweatshirt because she was hot and that she never suggested a strip search. The district court

further characterized her participation in the strip search as “voluntary conduct,” even though

Plaintiff testified that she had only allowed herself to be strip searched in compliance with the

direction of the police officer who Mirandized her. (See id. at Page ID# 952-53.) Nonetheless,

the district court wrote that “Kohl’s agreement and participation in this voluntary conduct by

Snyder does not render its actions unreasonable.” (Id.) In requiring Plaintiff to show the

unreasonableness of Defendant’s conduct, the court impermissibly shifted the burden to her to

refute the affirmative defense. In doing so, it violated both summary judgment procedure

requiring the moving party to establish the absence of dispute as to a genuine issue of material

fact, and the underlying substantive law that places the burden of proving an affirmative defense

on the defendant. See FED. R. CIV. P. 56; Beck-Wilson, 441 F.3d at 365. There is no evidence

that the district court considered the sufficiency of Defendant’s affirmative showing with regard

to reasonableness.


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                                            No. 14-5157


        Finally, there is no evidence that the district court considered whether Plaintiff’s

detention was effected for one of the statutory purposes. Even if the detention fell within one of

those categories, however, the disputes of fact as to probable cause and reasonableness preclude

summary judgment.


               c. Summary Judgment was Improper on the Record in this Case
       When summary judgment standards are correctly applied to the evidence before the

district court in this case, it is clear that the Defendant is not entitled to judgment as a matter of

law.


       Defendant has failed to establish the existence of probable cause “so clearly that no

rational jury could have found to the contrary.” Beck-Wilson, 441 F.3d at 365. In its single

decision interpreting KY. REV. STAT. ANN. § 433.236 (West 2014), the Kentucky Supreme Court

did not articulate a standard for probable cause, though it held that the evidence permitted a

finding of probable cause in that case. See Consol. Sales Co. v. Malone, 530 S.W.2d 680, 682

(Ky. 1975) (jury could have found probable cause where the store employee observed the

plaintiff repeatedly carry items from the baby department to where another plaintiff was

shopping in the shoe department, and emerge without the items, and the items were not found in

the shoe department).       Under the federal Constitution, probable cause is found where,

considering the totality of the circumstances, the facts available to the person detaining an

individual “would warrant a person of reasonable caution in the belief that contraband or

evidence of a crime is present.” Florida v. Harris, 133 S. Ct. 1050, 1056 (2013); see also

Maryland v. Pringle, 540 U.S. 366, 370 (“the substance of all the definitions of probable cause is

a reasonable ground for belief of guilt”). Due to the fact-intensive nature of the probable cause




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                                           No. 14-5157


inquiry, the issue typically “presents a jury question, unless there is only one reasonable

determination.” Gardenhire, 205 F.3d at 315.


       Viewed in the light most favorable to Plaintiff, the evidence relevant to probable cause

that would have been available to Defendant’s employees when they stopped her includes that

she was shopping in Kohl’s for thirty or forty minutes; that she selected about six items to try on,

including a blazer and jean shorts; and that when she left the fitting room the only items she was

carrying were her phone, wallet and keys. It is undisputed that she was wearing a sweatshirt, but

it is nonetheless difficult to imagine how Kohl’s employees, if they were persons of reasonable

caution, could have believed that she was carrying out of the store all six items (since Pittman

claims none were in her fitting room) under her sweatshirt. Additionally, even if Defendant’s

(and the district court’s) version of the facts were undisputed, their description does not rise to

the level of indisputable probable cause that has previously supported judgment as a matter of

law under KY. REV. STAT. ANN. § 433.236 (West 2014). Compare Messer v. Robinson, 250

S.W.3d 344, 346-47 (Ky. Ct. App. 2008) (“objective probable cause to stop Robinson” existed

when “the security alarm sounded as she passed through the security device”) (ordering directed

verdict for defendants); Taylor Drugstores, Inc. v. Story; 760 S.W.2d 102, 103 (Ky. Ct. App.

1988) (plaintiff was observed placing two items in her purse) (ordering entry of judgment in

favor of defendant); Pennington v. Dollar Tree Stores, Inc., 28 F. App’x 482 (6th Cir. 2002)

(where Plaintiff had stipulated that employees had probable cause in related criminal plea deal,

that stipulation was conclusive as to probable cause in the civil case) (affirming summary

judgment).


       Defendant’s case faces additional trouble on the reasonableness prong. Viewed in the

light most favorable to Plaintiff, the evidence establishes that upon being taken to the back room

                                                11
                                           No. 14-5157


she informed the store employees that the only items she had were her phone, wallet, and keys;

that during her detention no employee returned to the fitting room to verify whether there had

been a mistake; that a Kohl’s employee participated in a strip search of Plaintiff; and that she

was detained for thirty or forty minutes. In Birdsong v. Wal-Mart Stores, Inc., 74 S.W.3d 754

(Ky. Ct. App. 2001), the Kentucky Court of Appeals overturned a grant of summary judgment on

the shopkeeper’s privilege as inappropriate where the plaintiff “claim[ed] she was detained by

store employees for approximately 45 minutes” and “that she was subjected to humiliation” by

being made to sit on a bench near the front of the store with a shopping cart pushed in front of

her to block her from leaving. Id. at 758. In the case at bar, the amount of time Plaintiff was

detained is only somewhat less than the forty-five minutes at issue in Birdsong, but the strip

search she was subjected to could reasonably be found more humiliating than Birdsong’s

experience of being made to wait at the front of the store. See id.


       2. Summary Judgment on Plaintiff’s Claim for Intentional Infliction of Emotional
          Distress was Properly Granted
       Summary judgment on Snyder’s intentional infliction of emotional distress claim was

properly granted.    Under Kentucky law, “one who by extreme and outrageous conduct

intentionally or recklessly causes severe emotional distress to another is subject to liability for

such emotional distress[.]” Craft v. Rice, 671 S.W.2d 247, 251 (Ky. 1984) (quoting and adopting

RESTATEMENT (SECOND) OF TORTS § 46 (1965)). To sustain this claim Plaintiff must establish,

as one of the necessary elements, that she suffered “severe” emotional distress. In contrast to the

elements of probable cause or reasonableness in regard to the false imprisonment claim above,

the essentially factual question of whether the Plaintiff suffered “severe” emotional distress is

subject to gatekeeping by the court, which must determine “whether on the evidence severe

emotional distress can be found” before the jury may determine “whether, on the evidence, it has

                                                12
                                            No. 14-5157


in fact existed.” RESTATEMENT (SECOND) OF TORTS § 46, cmt. j (1965). Snyder claimed that she

is embarrassed because of her detention and that she no longer feels comfortable shopping.

Snyder’s embarrassment and discomfort do not rise to the level of severe emotional distress

required to submit her claim to the jury. See Wells v. Huish Detergents, Inc., 19 F. App’x 168,

179 (6th Cir. 2001); Benningfield v. Pettit Envtl., Inc., 183 S.W.3d 567, 572 (Ky. Ct. App. 2005).


                                          CONCLUSION


       For the foregoing reasons, we REVERSE the entry of judgment for Defendant on the

false imprisonment claim and REMAND the case for further proceedings consistent with this

opinion. We AFFIRM the grant of summary judgment to Defendant on Plaintiff’s claim for

intentional infliction of emotional distress.




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