This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-96-2227

Boyd Barrott,

Appellant,

vs.

The County of Anoka,

a/k/a the Anoka County Department

of Parks and Recreation, et al.,

Respondents.

Filed April 29, 1997

Affirmed

Crippen, Judge

Anoka County District Court

File No. C0-96-2177

Robert A. Hill, Robert Hill & Associates, Ltd., Suite 2485, Center Village Offices, 431 South Seventh Street, Minneapolis, MN 55415 (for Appellant)

Robert M.A. Johnson, Anoka County Attorney, M. Katherine Doty, Anthony C. Palumbo, Assistant Anoka County Attorneys, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303-2265 (for Respondents)

Considered and decided by Crippen, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

CRIPPEN, Judge

This appeal questions the trial court's application of the statute of limitations to dismiss appellant's whistleblower claim. We affirm.

FACTS

Appellant Boyd Barrott's seasonal job as a golf course groundskeeper for Anoka County ended on October 14, 1993. In February 1996, appellant brought this whistleblower suit. Pertinent to the applicable statute of limitations, the suit was commenced more than two years after the 1993 season ended, but less than two years after the 1994 season began.

Before appellant accepted the job early in 1993, the county promised him a full-time job following the completion of the golf season. But during the summer, appellant reported to the police that David Torkildson, then director of the county parks and recreation department, was using a stolen golf cart. In September 1993, two county employees, on behalf of Torkildson, offered appellant a full-time position if he would drop the criminal complaint, but appellant refused. In October 1993, Torkildson pleaded guilty to misdemeanor theft.

When appellant completed his seasonal job in October, the county did not offer him a full-time position. At that time, Torkildson and another official apparently made public statements that appellant would never work for the county again.

In March and April 1994, appellant sent the county two letters inquiring about his seasonal employment status. In May, the county sent appellant a letter informing him that it had no immediate openings.

When appellant brought his suit in 1996, the county moved to dismiss for failure to state a plausible claim under Minn. R. Civ. P. 12.02(e). Finding that the two-year statute of limitations had expired in October 1995, the trial court dismissed the case.

D E C I S I O N

After a Rule 12.02(e) dismissal, the only question before the reviewing court is whether the complaint sets forth a legally sufficient claim for relief. Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980). The appellate court need not defer to a trial court's assessment or interpretation of a complaint. Pederson v. American Lutheran Church, 404 N.W.2d 887, 888 (Minn. App. 1987), review denied (Minn. June 30, 1987).

A decision under Minn. R. Civ. P. 12.02(e) is generally confined to the contents of the pleadings and "all assumptions made and inferences drawn must favor the party against whom dismissal is sought." Id. (citing Northern States Power Co. v. Franklin, 265 Minn. 391, 122 N.W.2d 26 (1963)). A trial court properly dismisses a claim under Rule 12.02(e) "if it clearly and unequivocally appears from the face of the complaint that the statute of limitations has run" and the complaint contains no facts allowing the court to toll the limitations period. Id. at 889.

The parties do not dispute that a two-year statute of limitations governs appellant's whistleblower action under Minn. Stat. § 181.932 (1992). See Larson v. New Richland Care Ctr., 538 N.W.2d 915, 921 (Minn. App. 1995) (classifying whistleblower actions as tort claims subject to two-year statute of limitations under Minn. Stat. § 541.07(1)), review denied (Minn. Mar. 4, 1997). Although no reported cases in Minnesota have determined when the statute of limitations commences in a whistleblower case, we conclude that we must employ the applicable limitations period in the related area of employment discrimination law, a period that "begins to run when the discriminatory act occurs, not when the consequences of the act become painful." Biltz v. Northwest Airlines, Inc., 363 N.W.2d 94, 96-97 (Minn. App. 1985) (holding employment discrimination action time-barred where the limitations period began to run when denial of sick and medical leave occurred); accord Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S. Ct. 498, 504 (1980) (finding limitations period began to run when college notified professor that it denied him tenure instead of when his one-year "terminal" employment contract actually expired and refusing to apply continuing violation doctrine).

Appellant asserts that the trial court incorrectly found that the statute of limitations began to run on October 14, 1993. In the alternative, appellant argues that the trial court should have tolled the limitations period under the continuing violations doctrine. The trial court found that the facts, as pleaded, failed to establish a continuing violation so as to toll the statute of limitations.

Appellant's complaint provides in pertinent part:

7. Prior to accepting employment as a seasonal groundskeeper at [the golf course], [appellant] was promised full-time employment with Anoka County following completion of the 1993 golf season.

* * * *

13. Following completion of his seasonal employment as a groundskeeper at [the golf course], [appellant] was not offered a full-time position with Anoka County as he had been promised. In fact, Torkildson publicly stated that [appellant] would never again work in any capacity for Anoka County.

* * * *

15. Since October 14, 1993 and continuing to the present, [appellant] has repeatedly applied for employment with the Anoka County. All of [appellant's] employment applications have been denied, despite the fact that [appellant] is eminently qualified for the positions he sought with Anoka County.

Appellant now asserts that the county's denial of employment lacked finality in October 1993 because (a) the county's promise of employment as a full-time groundskeeper was not to take effect until a vacancy occurred and (b) the county orally assured him that the next expected vacancy would not occur until sometime in summer 1994. But appellant has not alleged either fact in his complaint. Rather, the complaint asserts, with singularity, that the county offered him full-time employment to begin at the end of the 1993 golf season and that he did not receive a full-time position at that time. The complaint also fails to state any expectation of appellant that he would have a seasonal job in 1994 in the event that he was denied a permanent position at the end of the 1993 season.

On a motion to dismiss under Rule 12.02(e), we only consider the pleadings to determine whether appellant has adequately stated a cause of action. In re Hennepin County 1986 Recycling Bond Litig., 540 N.W.2d 494, 497 (Minn. 1995); Pederson, 404 N.W.2d at 888. Because "it clearly and unequivocally appears from the face of the complaint that the statute of limitations has run," we conclude that the trial court properly dismissed appellant's whistleblower claim. Pederson, 404 N.W.2d at 889. We also note that appellant did not attempt to amend his pleadings to add supportive claims that might have cured defects in his complaint.[1]

The trial court dismissal is further warranted because appellant's complaint otherwise suggests that the county broke its alleged promise in October 1993. He alleges that in October 1993, both Torkildson and the Chairman of the Anoka County Board of Commissioners, who called appellant "that bag of warts," publicly stated that appellant would never work for the county again. Nowhere in appellant's complaint does he contend, as he does now, that he did not learn of these statements until much later.

In addition, appellant does not plead sufficient facts to determine whether the continuing violation doctrine should toll the statute of limitations, because his complaint neither indicates a "systematic repetition of the same policy" nor constitutes "a sufficiently integrated pattern to form, in effect, a single discriminatory act." Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 441 n.11 (Minn. 1983).[2]

Appellant also asserts that the trial court erred by not considering the letters he submitted with his memorandum in opposition to the county's motion to dismiss.[3] But this contention does not affect the disposition of this appeal because we find that the letters neither alter nor contradict the assertion in appellant's complaint that the county assured him of full-time employment after the 1993 golf season. See Pederson, 404 N.W.2d at 888 (interpreting documentary evidence de novo and finding no reversible error where trial court considered affidavit yet failed to convert motion to dismiss into a summary judgment motion).

Affirmed.

[ ]1In fact, appellant, in his memorandum in opposition to the county's motion to dismiss, stated an intention to bring a motion to amend his complaint, yet he apparently never brought such a motion.

[ ]2Once again, appellant, in opposing the county's motion to dismiss, expressed an intent to amend his pleadings to add specific facts establishing a continuing violation, but he neglected to amend his complaint.

[ ]3 See In re Hennepin County 1986 Recycling Bond Litig., 540 N.W.2d 494, 497 (Minn. 1995) ("Generally, the court may not consider extrinsic evidence on a motion to dismiss pursuant to Minn. R. Civ. P. 12.02(e)."); 1 David F. Herr & Roger S. Haydock, Minnesota Practice § 12.9 (1985) ("The trial court may not go outside the pleadings, but must examine only the claim as stated by the party asserting it."). According to Rule 12, if matters outside the pleading "are presented to and not excluded by the court," the court must treat the motion as one for summary judgment under Rule 56 and give all parties a reasonable opportunity to present all pertinent materials. Minn. R. Civ. P. 12.02; Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (treating motion to dismiss as summary judgment motion where trial court considered deposition of witness). But the trial court need not consider extraneous evidence if it finds lawful cause to take action on the pleadings, and the court is not required to treat the motion as one for summary judgment where it decides the case without considering matters extraneous to the pleadings. Hennepin County 1986 Recycling Bond Litig., 540 N.W.2d at 497 (refusing to treat motion to dismiss as motion for summary judgment where trial court did not consider expert affidavit and other extrinsic evidence); 1 Herr & Haydock, supra § 12.9 (Supp. 1996) ("[C]onversion does not occur merely by a party's placing extraneous factual material before the court.").