This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Board of Regents of the
Filed June 14, 2005
Hennepin County District Court
File No. 04-3219
Mark B. Rotenberg, Jennifer L. Frisch, Office of the General Counsel, University of Minnesota, 360 McNamara Alumni Center, 200 Oak Street Southeast, Minneapolis, MN 55455 (for respondents)
Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Crippen, Judge.
Marshall Midden challenges the district court’s summary judgment in favor of
Appellant began working for the
Beginning in August 2000, appellant reported an alleged asthma disability associated with exposure to certain allergens in his working environment. After learning that his work site was contaminated with mold, appellant began to telecommute from home. In May 2001, the University notified appellant that he was to return to work at a building that was newly remodeled for his department. Appellant returned to work but soon experienced allergy symptoms at the new site.
Appellant was placed on medical leave early in July 2001. In a letter advising appellant that his leave would end in September, the University stated that appellant was expected to return to work on September 24. Appellant then wrote to request the “accommodation of telecommuting” or, if that option was unacceptable, “an alternative accommodation.” In an October letter, the University explained that his job required his physical presence, including some lab work in the newly remodeled building. The University requested that appellant return to work at the remodeled building on October 29, but stated that it was willing to assist in his return, including possible use of an office equipped with environmental controls.
Appellant responded on October 28, reminding the
University that his doctor had recommended that he not work in the new building
and requesting that he be allowed to work out of the Gateway building or some
other building that was not known to aggravate his asthma. The University replied on October 31, stating
that it believed it could accommodate appellant in the remodeled building, that
they were also willing to try another site at
In a letter dated November 1, appellant
stated that he wanted an accommodation, that the
We expect you to
report to work at
Appellant did not return to work as instructed
on November 8. Instead, he mailed
another letter, on November 12, indicating that working from 90
On November 21, 2002, appellant filed a charge of discrimination with the Minnesota Department of Human Rights (MDHR). Appellant asserted that the University failed to provide a reasonable accommodation by refusing to allow him to telecommute or the alternative of working at any building except the three in which he had experienced aggravation of his asthma.
MDHR dismissed appellant’s charges, stating that they were untimely and that there was insufficient evidence that appellant was a qualified disabled person. MDHR issued appellant a right-to-sue letter. Appellant filed suit on March 17, 2004, alleging that the University had violated the Minnesota Human Rights Act (the act) by refusing to reasonably accommodate his disability.
In a subsequent summary judgment motion, the University argued that the cause of action was barred by the statute of limitations and that appellant was not disabled. In response, appellant asked that the matter be continued, arguing that he needed “full and complete responses to the discovery previously served, depositions of key witnesses, . . . and follow[-]up written discovery in order to be able to fully respond” to the summary-judgment motion. The district court granted the University’s motion and by implication denied appellant’s request for a continuance. The court held that appellant’s claim was barred because he “did not timely file his [c]harge of [d]iscrimination with the MDHR[.]”
In so holding, the district court found that “[t]he University’s letter of November 8, 2001 was an unconditional[,] unequivocal notice that the University was not going to accommodate [appellant’s] alleged disability in the way [appellant] wanted.” The court held that because appellant acknowledged that he had received the letter without delay, appellant “had to file a claim with the MDHR or bring a civil action on or before November 13, 2002.” The court did not reach the issue of whether appellant was disabled within the meaning of the act.
appeal from summary judgment, we determine whether there are any genuine issues
of material fact and whether the district court erred in its application of
Appellant disputes the district court’s determination that the November 8 letter gave unequivocal notice that appellant was not going to be accommodated. He also suggests that the University’s alleged failure to accommodate him was part of a continuing course of conduct, thus tolling the statute of limitations.
Where summary judgment is granted
on statute-of-limitations grounds, a reviewing court “must determine (1) whether
the statute of limitations has run and (2) whether there exists a genuine
issue of material fact as to when the plaintiff’s cause of action
Under the act, “it is an unfair employment practice for an
employer to discharge or otherwise discriminate against an employee because of
the employee’s disability.”
employment-discrimination claims, the statute of limitations begins to run when
the allegedly discriminatory employment decision is made and communicated to
the employee. Delaware State Coll. v. Ricks, 449 U.S. 250, 258, 101 S. Ct.
498, 504 (1980); Henderson v. Ford Motor
Co., 403 F.3d 1026, 1032 (8th Cir. 2005); see also Turner v. IDS Fin. Servs., Inc., 471 N.W.2d 105, 108
(Minn. 1991) (stating that it is the notice of termination, rather than the
termination date, that triggers the running of the statute of
limitations). “The limitations periods
begin to run even if the employee is not aware of the discriminatory effect or
the employer’s discriminatory motivation in taking the adverse employment
The district court found that the running of the statute of limitations was triggered on November 12, 2001—the date appellant received the University’s November 8 letter.
Appellant first argues that the November 8 letter was “not significant” because it was no different from the University’s previous denials of accommodation. But the district court’s conclusion is sustained by observing that the letter denied appellant’s last suggestion for accommodation, noting that there was no space in the Gateway building, and unequivocally confirmed that appellant would be considered to have resigned if he did not return to work by November 15, 2001.
Appellant argues that the University’s earlier letters made demands without any adverse consequences. But a review of the correspondence reveals that in no prior letter had the University indicated that a failure to return to work would be considered a resignation. This letter communicated to appellant that the University would make no further attempts at accommodation.
Appellant next suggests that the November 8 letter does not represent the University’s last failure to accommodate. He argues that a more final failure occurred when he was actually terminated by the University in December 2001.
Appellant asserts that the November 8 letter lacks “finality.” But on its face, the document speaks unconditionally of the date on which appellant’s termination would occur, and it closed off the only remaining topic of accommodation—an office in the Gateway building. For the very reasons that the letter was significant, it was unequivocal and final.
Appellant argues that his claim is nonetheless timely because the “back and forth” between appellant and the University continued until appellant was actually terminated. In fact, the actions after November 8 were steps taken by appellant or irrelevant responses thereto.
12, appellant renewed his request for accommodation, speaking again of
telecommuting or working at the Gateway building. He asked for a letter stating that the
University could give him no accommodation.
This conduct on appellant’s part is insufficient to toll the limitations
period. Allowing an employee to toll the
limitations period by renewing a previous request for accommodation would
“effectively emasculate” the statute of limitations. Sigurdson
Supreme Court has “held that the pendency of a grievance or some other method
of collateral review of an employment decision, does not toll the running of
the limitations periods.” Delaware State Coll., 449
For the same
reason, the communications between the University and appellant’s doctor
regarding appellant’s medical information do not serve to toll the limitations
Appellant particularly asserts that two communications constitute an “interactive process” sufficient to toll the statute of limitations—a December 4 internal memo from disability services to appellant’s supervisor and a December 12 letter from the University notifying appellant that he had been terminated.
4 letter was an internal document sent to appellant’s supervisor discussing
documentation for disability coverage purposes.
Appellant has presented no evidence that he received this letter. See
Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853, 855 (
The December 12 letter merely confirmed that appellant’s conduct was considered a resignation and provided appellant with COBRA documents. In this letter, the University noted that it had “already addressed” the accommodation options suggested, and it reiterated its refusal to make the requested accommodation. The November 8 letter, in contrast, states the occurrence of the resignation and the reason for it.
On this record, the district court did not abuse its discretion by concluding that the statute of limitations began to run on November 12, 2001, and that appellant’s claim was time-barred.
Appellant also argues that the district court erred in failing to grant his motion to continue discovery. The district court implicitly denied the motion by granting the University’s motion for summary judgment.
a district court’s decision to deny a motion for a continuance to conduct
discovery under an abuse-of-discretion standard. Cherne
Contracting Corp. v. Wausau Ins. Cos., 572 N.W.2d 339, 346 (Minn. App.
1997), review denied (Minn. Feb. 19,
1998). Because no transcript was
provided, we are limited to a review of whether the findings support the
district court’s conclusions of law.
continuance affidavit must specify “the evidence expected, the source of
discovery necessary to obtain the evidence, and the reasons for the failure to
complete discovery to date.”
discovery sought by appellant in an affidavit is general rather than
Because we affirm the district court’s rationale, we need not address the University’s contention that appellant was not disabled. Additionally, because appellant’s stated retaliation claim was not presented in the complaint he filed with the MDHR in November 2002, we do not consider it here.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The November 8 letter recited that “[t]here is no documentation of your having a problem with your allergies in [the 90 Church] building.” Appellant complained in his responsive letter that the University’s demand that he return to work made it “difficult” to provide immediate documentation. We note that the University did not request such documentation in its November 8 letter nor is it evident that appellant raised this issue for any reason other than obtaining disability benefits.
 In their respective briefs, appellant and the University argue that portions of the other party’s brief be stricken, but neither appellant nor the University filed a motion to strike. Therefore, we do not address the request. See Minn. R. Civ. App. P. 127 (“[A]n application for an order or other relief shall be made by serving and filing a written motion for the order or relief.”).
 In his memorandum in opposition to summary judgment, appellant also asserted that the case included “a claim of retaliation for pursuing rights under the [act].” But his charge of discrimination filed with the MDHR makes no mention of a retaliation claim; it addresses only the alleged refusal to provide reasonable accommodations. In his charge of discrimination, appellant alleges violation of Minn. Stat. § 363.03, subd. 1(2)(b)-(c), (6) (2002)) (repealed and renumbered at Minn. Stat. § 363A.08 (2004); retaliation was prohibited by Minn. Stat. § 363.03, subd. 7 (2002) (repealed and renumbered at Minn. Stat. § 363A.15 (2004)).
 We have considered the significance of the fact that resignation under the terms of the November 8 letter occurred on November 15. We also note that administrative records of appellant’s termination were entered on or after December 15, 2001. None of the administrative steps taken by the University were communicated to appellant. On the contrary, notice of the consequences of appellant’s failure to return to work by November 15 was singularly communicated by the November 8 letter.