This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
City of Minneapolis, et al.,
Hennepin County District Court
File No. EM012195
Pamela Marie Miller, William J. Mavity, Mavity & Associates, 5200 Willson Road, Suite 150, Minneapolis, MN 55424 (for appellant)
Jay M. Heffern, City Attorney, Timothy S. Skarda, Assistant City Attorney, 333 South Seventh Street, 300 Metropolitan Centre, Minneapolis, MN 55402-2453 (for respondents)
Considered and decided by Minge, Presiding Judge, Toussaint, Chief Judge, Klaphake, Judge.
Appellant, a former Minneapolis police officer, brought actions against the City of Minneapolis and two Minneapolis police officers under the Minnesota Human Rights Act, the Minneapolis Civil Rights Ordinance, Title VII of the Civil Rights Act of 1964, and 42 U.S.C. §§ 1983 and 1985. The district court granted summary judgment for respondents, holding that appellant’s first three claims were barred by their respective statutes of limitation and that she failed to state a claim under sections 1983 and 1985. Appellant argues that the court erred in its determinations that statutes of limitations barred her claims and that she did not have a valid section 1983 claim. She did not appeal the dismissal of her section 1985 claim. We affirm in part, reverse in part, and remand.
Appellant, a citizen whose national origin is Korean, began her employment as an officer with the Minneapolis Police Department in 1983 and was promoted to sergeant in 1988. In March 1994, appellant took the department’s promotional examination for lieutenant. She did well on the test and ranked second on the list of eligible candidates, but failed the performance evaluation. The police chief told appellant that an unacceptable performance rating by Lieutenant Christine Morris and a pending discipline proceeding precluded her promotion to lieutenant. Instead, the department promoted two other candidates to the position of lieutenant; one was a woman who ranked first on the list of candidates, and the other was a man who ranked third, after appellant. Appellant then moved to first on the promotional list.
As to the then pending discipline proceeding, appellant was suspended in 1993 for allegedly lying when she denied writing a letter containing racial slurs. Appellant was ultimately exonerated of that charge in 1995 by an arbitrator after a grievance proceeding.
As to the unacceptable performance rating by Morris, appellant had been transferred to the domestic assault unit in 1992. She was supervised by Morris until May 1994, when Morris was transferred to a precinct position. Appellant claims that Morris had requested that appellant be transferred to the domestic assault unit and that shortly before she was to start work with that unit, Morris made a sexual advance towards her, which appellant rejected, stating that she was not a lesbian. Appellant further claims that she contacted the unit commander requesting that her pending transfer be cancelled, but that the unit commander denied her request. Appellant asserts that Morris gave her the adverse performance evaluation because of the rejected overture. In December 1994, appellant filed a complaint with the Minneapolis Civil Rights Department, based on Morris’s adverse evaluation, contending she had been subjected to unlawful discrimination based on gender, race, marital status and sexual preference.
Appellant had another conflict with the department in January 1995, when the dress code was changed and her wardrobe was not in compliance. She claimed she could not afford to purchase new clothing and asked her supervisor for extra time to comply. Respondent William Jones, deputy police chief, noticed her failure to comply and directed her supervisor to impose appropriate discipline. Claiming that the dress code discriminated against female officers and that Jones unfairly criticized her, appellant filed an internal sex discrimination complaint against Jones. The acting police chief resolved her complaint by allowing appellant to receive an advance on her clothing allowance to purchase new outfits.
The next conflict arose from the department’s decision not to retain appellant in the position of acting lieutenant in the domestic assault unit. In 1995, appellant received a “superior” evaluation in the domestic assault unit. When the lieutenant position became vacant in late December 1995, appellant was named acting lieutenant. In late January 1996, Jones replaced her with a male police officer who, appellant was told, was not on the list of eligible candidates for promotion.
Another conflict occurred when the department again did not promote appellant on June 24, 1996, while the promotion list from the 1994 test was still in effect. Although the department made eight promotions to lieutenant during this time, appellant was not among those promoted. Appellant claimed to be at the top of the list and stated that personnel office staff told her that, in their experience, she was the first eligible candidate to be bypassed in favor of lower ranking candidates. The eight officers who were promoted included three white males, three white females, one Hispanic male, and one African-American female.
Appellant asserts that she was not promoted because Morris and Jones gave her negative evaluations in April 1996. Appellant first argues that consideration of their evaluations was not consistent with department policy, under which all supervisors who had directly overseen work of an applicant for promotion for a period of 90 days or more in the previous two years were to provide evaluations. Appellant asserts that neither Morris nor Jones fell into this category and that their negative evaluations were based on discriminatory and retaliatory motives. Appellant also claims that there was a basic lack of integrity in the evaluation process because, with one exception, her immediate supervisors failed to provide evaluations. Appellant points out that the supervisor who did complete an evaluation checked the “recommended” category; Morris and Jones checked the “not recommended” category. (No one checked the “highly recommended” category.) Finally, appellant challenges Jones’s participation in discussions with the chief of police on promotions and his recommendation against her advancement to lieutenant.
Respondent City of Minneapolis points out that other women and minorities were appointed to the rank of lieutenant at the time appellant was not. The city contends that although neither Morris nor Jones had supervised appellant for 90 days within the relevant two-year period, both had contact with her, and their opinions as supervisors were relevant to the promotion decision. The city’s evidence indicates that Morris’s evaluations of appellant criticized her job performance for lack of focus, procrastination, poor judgment in investigation, poor writing skills, inconsistency in completing paperwork, poor acceptance of feedback, lack of objectivity, lack of attention to detail, absence from work without permission, insubordination, failure to work well with prosecutors, inadequate interview techniques, and additional matters. The city also states that Morris indicated that appellant had some positive qualities, including a good attitude toward her work, working well with the community, a good knowledge of the policies and the criminal law, and good problem-solving and initiative-taking qualities.
On June 27, 1996, appellant filed discrimination complaints with the Minneapolis Civil Rights Department and with the Federal Equal Employment Opportunity Commission (EEOC), claiming unlawful discrimination based on gender, race, and sexual preference because of the refusal of the city to promote her to lieutenant and the poor recommendations she received from Morris and Jones.
On March 15, 1999, the Minneapolis Commission on Civil Rights issued a determination of no probable cause as to both the 1994 and the 1996 claims. Appellant served her civil complaint on May 3, 1999. On May 28, 1999, the EEOC issued a determination of no discrimination. Appellant filed suit in district court on February 9, 2001.
In September 2001, respondents moved for summary judgment. At the summary judgment hearing, the court ruled that appellant’s claims under the Minnesota Human Rights Act, the Minneapolis Civil Rights Ordinance, and Title VII were time-barred; it did not reach the merits of those claims. As to the section 1983 discriminatory failure-to-promote claim and the section 1985 conspiracy claim, the district court ruled that appellant failed to state a claim. This appeal followed.
In an appeal from summary judgment, we ask (1) whether there are any genuine issues of material fact; and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). No genuine issue of material fact exists where the record as a whole could not lead a rational trier of fact to find for the nonmoving party. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). But “summary judgment is inappropriate when reasonable persons might draw different conclusions from the evidence presented.” Id. (citation and footnote omitted).
Appellant argues that the district court erroneously determined her claims were time-barred under the Minnesota Human Rights Act, the Minneapolis Civil Rights Ordinance, and Title VII. Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey,584 N.W.2d 390, 393 (Minn. 1998). The interpretation of an existing ordinance is a question of law for the court. Frank’s Nursery Sales, Inc. v. City of Roseville,295 N.W.2d 604, 608 (Minn. 1980). In addition, the construction and applicability of a statute of limitations is a question of law, reviewed de novo. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn. 1998).
The Minnesota Human Rights Act provides three options to individuals who wish to file discrimination charges. Minn. Stat. § 363.06, subd. 3 (2000); Kohn v. City of Minneapolis Fire Dep’t, 583 N.W.2d 7, 11 (Minn. App. 1998), review denied (Minn. Oct. 20, 1998). Within one year after the alleged discriminatory practice, an individual may file a discrimination claim with: (1) the district court, (2) a local commission, or (3) the Commissioner of Human Rights. Minn. Stat. § 363.06, subd. 3; Kohn, 583 N.W.2d at 11. If a complainant files a complaint with a local commission and that commission dismisses the charge, the complainant may then bring a civil action within 45 days “after receipt of notice that the local commission has determined that there is no probable cause.” Minn. Stat. § 363.117(a) (2000).
Here, the district court held that a complainant must file a claim in district court within one year after the alleged discriminatory act. See Minn. Stat. § 363.06, subd. 3. Because the acts occurred in 1994 and 1996, and because appellant filed her suit in district court on February 9, 2001, the court found the statute of limitations barred the action.
We find two problems with this decision. First, to determine whether a state claim is time-barred, a suit commences upon service of defendant. Minn. R. Civ. P. 3.01(a). Consequently, the date appellant commenced this suit was May 3, 1999, not February 9, 2001.
Second, the district court found that when appellant filed her case with the district court on February 9, 2001, she was not within the one-year statute of limitations provided in Minn. Stat. § 363.06, subd. 3, because the actions from which her claims arose occurred in 1994 and 1996. This would be the time limit if appellant had chosen the first option for filing claims provided in Minn. Stat. § 363.06, subd. 3. However, appellant chose to file her complaint with the local commission within one year after the alleged discriminatory practice. Having chosen this option, appellant had an additional 45 days after receiving notice of no probable cause from the commission to file a civil action. Minn. Stat. § 363.117(a). Appellant received notice of no probable cause from the Minneapolis Civil Rights Department on March 15, 1999. She then served her complaints on May 3, 1999, which was within the 45-day time limit under Minn. Stat. § 363.117(a). We reverse the district court’s determination that the statute of limitations barred appellant’s action based on the Minnesota Human Rights Act.
The court also examined a parallel limitations provision in the Minneapolis Civil Rights Ordinance and determined that time limits had run on this claim as well.
Any person believing discrimination has occurred may file with the director a verified written complaint * * * . A complaint may be filed only if the matter complained of occurred within one year prior to filing the complaint.
Minneapolis, Minn., Code of Ordinances § 141.50(a) (2000). But the city of Minneapolis likewise provides a 45-day time period in which a complainant may bring a civil action after receiving a notice of decision. Minneapolis, Minn., Code of Ordinances § 141.60(a) (2000). Appellant’s claim, therefore, was also within the Minneapolis ordinance’s time period.
We note that the respondent raised a new issue regarding late service of the complaint, claiming that it exceeded the 45-day period. This court struck the argument in an August 12, 2002, order because it was raised improperly for the first time on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding appellate court will not consider issues not raised to and considered by trial court). Appellant moved to supplement the record with documents pertaining to this argument. In the August 12 order, this court denied this motion because the documents had not been presented in the first instance to the district court. We note, however, that the statute presumes that five days are added to the date of mailing a notice to allow for delivery. See Minn. Stat. §§ 363.117(a), .14, subd. 1(a). The district court is the proper forum to consider and resolve the new factual allegations.
B. Title VII
The district court held that appellant’s Title VII claims were also barred by the statute of limitations. We disagree. The relevant provision of federal law allows for filing a claim with the EEOC as follows:
A charge under [Title VII] shall be filed within one hundred and eighty days after the alleged unlawful employment practice * * * except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier * * * .
42 U.S.C.A. § 2000e-5(e)(1). Under Title VII, court actions may be commenced as follows:
If a charge filed with the Commission * * * is dismissed by the Commission, * * * the Commission * * * shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge * * * by the person claiming to be aggrieved * * * by the alleged unlawful employment practice.
42 U.S.C. § 2000e-5(f)(1) (2000).
In this case, the last alleged discriminatory act occurred on June 24, 1996. On June 27, 1996, discrimination charges were filed with the Minneapolis Civil Rights Department and with the EEOC. Appellant received notice that no action would be taken on her claims from the Minneapolis Department of Human Rights on March 15, 1999, and from the EEOC on May 28, 1999. Appellant commenced her civil action at the earliest on May 3, 1999. We conclude that there was both a timely filing with the EEOC and a timely request for judicial review of the Title VII determination by the City. We note the action now on appeal was commenced 25 days before the EEOC determination. Such premature commencement of the lawsuit may be cured by the subsequently issued EEOC notice. See, e.g., Kane v. State of Iowa Dep’t of Human Serv., 955 F. Supp. 1117, 1136-39 (N.D. Iowa 1997). We disagree with the district court’s determination that appellant’s pursuit of the Title VII claims was untimely.
The parties discuss the merits of appellant’s claims under the Minnesota Human Rights Act, the Minneapolis Civil Rights Ordinance, and Title VII. Because the district court concluded that each claim was time-barred, it did not address the substance of these claims. This court will generally not consider matters not argued and considered in the district court. Thiele, 425 N.W.2d at 582.
Appellant argues that the district court erred in granting summary judgment to respondents on her claims under 42 U.S.C. § 1983. A reviewing court is not bound by and need not give deference to a district court’s decision on a purely legal issue. Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).
An individual who brings an action under section 1983 must show that a state actor, acting under color of law, singled out and treated the claimant differently than other similarly situated persons for an impermissible reason. Ellebracht v. Police Bd. of Metro. Police Dep’t, 137 F.3d 563, 566 (8th Cir. 1998). Impermissible reasons include sex discrimination and sexual harassment in public employment in violation of the claimant’s equal protection rights under the Fourteenth Amendment. Cross v. Alabama, 49 F.3d 1490, 1507 (11th Cir. 1995). In analyzing a section 1983 claim, where, as here, there is no direct evidence of discriminatory treatment, the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S. Ct. 1817, 1824 (1973) applies. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 n.1, 113 S. Ct. 2742, 2746-47 n.1 (1993).
In this case, appellant’s section 1983 claims are confused and overlapping. At one time or another, appellant has claimed to be a victim of racial or ethnic discrimination, of sex or sexual preference discrimination, of retaliation for complaining about discriminatory actions of the supervisors, and of harassment. Further, the claims presented to and ruled upon by the district court are not consistent with the claims presented to this court. As an appellate court, we only review issues presented to and decided by the district court. Thiele, 425 N.W.2d at 582.
From the record, it appears that appellant primarily presented a section 1983 claim of discriminatory treatment to the district court. We note that although the district court refers to the section 1983 claim as one of sexual and racial harassment, the district court, in its order, analyzes this claim as a discriminatory failure-to-promote claim. On appeal, appellant also mentioned harassment, but appellant did not develop or adequately present the harassment claim for this court’s consideration. Therefore, we do not address the harassment/hostile work environment claims in this appeal. See Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987) (holding that issues not argued or supported by authorities on appeal are deemed waived); see also Goins v. West Group, 635 N.W.2d 717, 725 (Minn. 2001) (addressing the proof needed to establish a harassment claim).
To show a discriminatory failure to promote, the plaintiff must make a prima facie showing
(1) that she is a member of a protected group; (2) that she was qualified and applied for a promotion to a position for which the employer was seeking applicants; (3) that despite her qualifications, she was rejected; and (4) that other employees of similar qualifications who were not members of a protected group were promoted at the time plaintiff’s request for promotion was denied.
Lyoch v. Anheuser-Busch Cos., 139 F.3d 612, 614 (8th Cir. 1998) (analyzing Title VII claim). In granting summary judgment, the district court ruled that the appellant had failed to make a prima facie showing on this claim. Here appellant does not argue on appeal that she established a prima facie failure-to-promote section 1983 case.
Instead, appellant contends that she established a prima facie case that Jones and Morris retaliated against her after she filed discrimination complaints, blocking her promotion in violation of section 1983. To show a prima facie case of retaliation, the plaintiff must show that (a) she was engaged in a protected activity of which the employer was aware; (b) the employer took adverse action; and (c) there was a causal connection between the plaintiff’s protected activity and the adverse action taken by the employer. Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993) (analyzing Title VII retaliation claim). Appellant did not present to the district court and the district court did not rule on a section 1983 retaliation in promotion issue. Because retaliation claims were not presented to and ruled on by the district court, this court does not address appellant’s section 1983 retaliation claim on appeal.
In these muddled circumstances, this court affirms the summary judgment ruling of the trial court on the section 1983 failure-to-promote claim. We note that the 1983 claim arises out of the same factual setting as the claims under the Title VII, the Minneapolis Civil Rights Ordinance and the Minnesota Human Rights Act, which we have remanded to the district court. Appellant may present her arguments on these latter claims, although we express no opinion as to whether appellant’s claims can withstand a motion for summary judgment.
We affirm the summary judgment as to the 42 U.S.C. § 1983 failure-to-promote claim, reverse the determinations that the Title VII claims and the Minnesota and Minneapolis human rights actions are time-barred, and remand to the district court for further proceedings.
Affirmed in part, reversed in part, and remanded.
 We note that neither the parties nor the district court cited or addressed 42 U.S.C. § 2000e-5(f)(1) but only relied on 42 U.S.C. § 2000e-5(e)(1). That provision deals with filing charges with the EEOC, not with the time limit for judicial proceedings.