This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1996).




Cyril I. Aburime,



Minnesota Correctional Facility - OPH, et al.,


Filed October 14, 1997


Toussaint, Chief Judge

Washington County District Court

File No. C7-96-5545

Cyril I. Aburime, Box 21862, Eagan, MN 55121 (pro se appellant)

Hubert H. Humphrey III, Attorney General, Kurt J. Erickson, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondents)

Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Willis, Judge.


TOUSSAINT, Chief Judge

Appellant Cyril I. Aburime argues that the district court erred in granting dismissal and summary judgment on his discrimination claim under the Minnesota Human Rights Act and his defamation claims. Because the district court properly concluded that appellant's discrimination and defamation claims are barred by the statute of limitations, we affirm.


In reviewing a district court's grant of summary judgment, there are two pertinent questions: (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).

In March 1994, Aburime began a probationary period as a facility information center analyst at the Minnesota Correctional Facility (Corrections) in Oak Park Heights. On September 16, 1994, Aburime received notice of his "non-certification" for the analyst position and was returned to the position of corrections officer. Aburime contends that his "non-certification" was the result of unlawful discrimination under the Minnesota Human Rights Act (MHRA), Minn. Stat. §§ 363.01-20(1994). The district court concluded that Aburime's claim was barred by the statute of limitations because he filed his charge of discrimination with the Minnesota Department of Human Rights (the department) on September 18, 1995, more than one year after the allegedly discriminatory act of non-certification. See Minn. Stat. § 363.06, subd. 3 (claim of unfair discriminatory practice must be filed with commissioner within one year of occurrence of practice).

Aburime contends that he went to file his charge at the department on Friday, September 15, 1995, and was told that, because September 16, 1995, fell on a Saturday, the statute of limitations would extend to the next business day, Monday, September 18, 1995. On September 18, Aburime returned to the department and filed his charge. Thus, Aburime contends the district court erred in concluding that the charge was not filed timely. Because Aburime's claim is barred by Minn. Stat. § 363.14, subd. 1(1), we do not reach this issue.

The district court found that the Minnesota Department of Human Rights mailed notice to Aburime on September 17, 1996, informing him that his charge was being dismissed because he had failed to file a rebuttal to the employer's claim that he was not certified due to poor performance. Aburime was required to "bring a civil action" within 45 days after he received notice from the department that it had dismissed his charge. Minn. Stat. § 363,14, subd. 1(1). The district court held that, for purposes of determining whether Aburime timely commenced a civil action against the defendants, proper and effective service of the summons and complaint was required.

The district court found that Aburime (1) never served defendant Charles Jakway with the summons and complaint, (2) attempted to serve defendant Leanne Phinney with the summons and complaint on December 3, 1996, but was unsuccessful, and (3) attempted to serve his employer on December 5, 1996, by having the summons and complaint delivered to an employee, who was not authorized to accept service of process. Aburime argues that the district court erred in finding that he failed to serve these defendants properly.

Even if Jakway and Phinney were properly served, however, they must be dismissed from this action because a discrimination claim may only be brought against the employer. See Minn. Stat. §§ 363.03, subd. 1(2)(c) (proscribing race discrimination by employers), 363.01, subd. 17 (defining employer). Likewise, even if delivery to the employee constituted service on the employer, occurred on December 5, 1996, more than 45 days after dismissal of the charge.

Aburime contends that dismissal is improper because he filed his complaint with the district court within 45 days, on November 1, 1996. The district court concluded that proper commencement under Minn. R. Civ. P. 3.01(a) occurs when proper and effective service of the summons and complaint is made on the defendants. We agree.

Aburime argues that the 45-day period for service should be tolled. See Jones v. Consolidated Freightways Corp., 364 N.W.2d 426, 429-30 (Minn. App. 1985) (holding that statute of limitations under Minnesota Human Rights Act is subject to equitable tolling, but concluding that plaintiff's innocent inadvertence is not sufficient to toll statute). But Aburime did not establish a basis for equitable tolling and the district court did not err.

Aburime also claimed that the "non-certification" and accompanying poor performance evaluation constituted defamation. The district court found that the alleged defamatory statements were made and initially published on or before September 16, 1994, when the letter of non-certification was created. Aburime served defendants Skon, Bruton, and Karasch with the summons and complaint on December 3, 1996, more than two years after the statements were made. The district court properly concluded that the defamation claims are barred by the statute of limitations. See Minn. Stat. § 541.07(1) (1994) (defamation claim must be commenced within two years).

Aburime argues that defamation was ongoing and the employer's conduct constitutes a single, continuous act under the "continuing violation" doctrine. See Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 441 n.11 (Minn. 1983) (under "continuing violation" doctrine, statute of limitations is tolled when employer's discriminatory conduct "indicates a systematic repetition of the same policy and constitutes a sufficiently integrated pattern to form, in effect, a single discriminatory act"). Notably, Hubbard discusses the continuing violation doctrine with respect to an alleged violation of the MHRA, and not in the context of a claim for defamation. Id. at 440; see Flotech, Inc. v. E.I. DuPont de Nemours Co., 627 F. Supp. 358, 363-64 (D. Mass. 1985), aff'd, 814 F.2d 775 (1st Cir. 1987) (holding that continuing violation doctrine does not apply to defamation claim). Furthermore, Aburime failed to establish any "systematic repetition" of the allegedly defamatory conduct. Therefore, the district court did not err in concluding that Aburime's defamation claims were barred by the statute of limitations.