may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Kenneth Olson, D.D.S.,
State of Minnesota, et al.,
Filed August 5, 1997
Ramsey County District Court
File No. C5962045
Hubert H. Humphrey, III, Attorney General, Steven M. Gunn, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2128 (for respondent)
Considered and decided by Lansing, Presiding Judge, Short, Judge, and Foley, Judge.[*]
U N P U B L I S H E D O P I N I O N
After being laid off by the Moose Lake Regional Treatment Center, Kenneth Olson, D.D.S., sought another dental position with the state pursuant to the state's Non-Managerial Unrepresented Employees Plan (plan). The plan provides that the state "shall act to minimize the necessity for layoff and the effects of layoff on individual employees," and also provides a specific grievance procedure for employees dissatisfied with the plan's implementation.
When Olson failed to obtain a permanent dental position or retain a similar temporary position, he brought suit against the state for age discrimination and breach of contract. The state moved the trial court to dismiss the case, arguing Olson failed to: (1) exhaust his administrative remedies under the plan; or (2) establish a prima facie case of age discrimination. After the trial court ordered summary judgment in favor of the state, Olson moved the trial court to reconsider. The trial court denied Olson's motion, but stated its original order was not intended to constitute a decision on the merits.
On appeal from the trial court's dismissal of the action, Olson argues the trial court erred in concluding he had failed to exhaust his administrative remedies under the plan. We interpret the trial court's combined orders as dismissing Olson's claims without prejudice, and affirm. See State Bd. of Med. Exam'rs v. Olson, 295 Minn. 379, 388, 206 N.W.2d 12, 18 (1973) (noting dismissal for failure to exhaust administrative remedies is inconsistent with dismissal on the merits).
D E C I S I O N
Generally, a plaintiff must exhaust his or her administrative remedies prior to filing suit in state district court. See City of Richfield v. Local No. 1215, Int'l Ass'n of Fire Fighters, 276 N.W.2d 42, 51 (Minn. 1979) (holding plaintiff must exhaust appropriate administrative remedies prior to judicial review of agency action). However, this requirement is not applicable where it would be futile to seek such redress. Id. The futility of administrative remedies is a question of law, which this court reviews de novo. Leaon v. Washington County, 397 N.W.2d 867, 874 (Minn. 1986).
Olson argues the trial court erred in concluding he failed to exhaust his administrative remedies under the plan. We disagree. While the record shows Olson was diligent in contacting and questioning certain state personnel regarding procedures under the plan and future employment prospects, Olson did not file a formal grievance with the state. Furthermore, Olson has not demonstrated how his pursuit of administrative remedies available under the plan would be futile. That the state may have been nonresponsive to some of Olson's inquiries does not itself warrant a determination of futility. Cf. In Re State Farm Mut. Auto. Ins. Co., 392 N.W.2d 558, 565 (Minn. App. 1986) (concluding it would be futile for plaintiff to seek additional administrative remedies where administrative decision maker had made his position against plaintiff's argument "very clear"). Under these circumstances, Olson failed to exhaust his administrative remedies prior to commencing this action, and the trial court properly dismissed Olson's claims without prejudice.
[ ] * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.