may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Roger Setterberg, et. al,
Shirley Setterberg, et. al,
Filed May 19, 1998
Eileen Klinghagen, P.O. Box 462, Renville, MN 56284, pro se appellant
Gregory R. Anderson, Anderson, Larson, Hanson & Saunders, 331 Professional Plaza, 331 SW Third Street, Box 130, Willmar, MN 56201 (for respondents Roger Setterberg, et. al)
David J. Hoekstra, Jardine, Logan & O'Brien, 2100 Piper Jaffery Plaza, 444 Cedar Street, St. Paul, MN 55101 (for respondents Shirley Setterberg, et. al)
Considered and decided by Willis, Presiding Judge, Randall, Judge, and Klaphake, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the district court's grant of summary judgment to the respondents on her sexual harassment, unpaid wages and defamation claims. She also argues that the district court erred in denying her motion for additional discovery. The district court determined that the applicable statutes of limitations barred the appellant's claims. The court also denied her motion for additional discovery. We affirm.
On January 4, 1996, Klinghagen filed a complaint against the Setterbergs in district court alleging sexual harassment, unpaid wages and defamation. She asserted that these events occurred when she was employed by Setterberg between December 1992 and March 1993. Mr. and Mrs. Setterberg were served on February 2, 1996. The respondents filed motions for summary judgment and the district court determined that Klinghagen's claims were barred by the relevant statutes of limitations and denied her additional discovery motions. This appeal follows.
D E C I S I O N
As an initial matter, Klinghagen raises a number of constitutional issues in her brief and reply, but does not support them with facts or legal authority. In Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971), the supreme court stated:
An assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.
We find Schoepke dispositive of Klinghagen's constitutional claims. Here, because there are not any obvious errors resulting in prejudice, and in absence of any supporting facts or arguments, Klinghagen's constitutional claims are meritless and waived.
Klinghagen argues that the district court erred in concluding that the relevant statutes of limitations barred her claims of sexual harassment, unpaid wages, and defamation. We disagree. We address each issue in turn.
Sexual harassment claims must be brought within one year after the occurrence of the alleged events giving rise to the claims. Minn. Stat. § 363.06, subd. 3 (1996). If a claim of sexual harassment is filed with the MDHR and the claim is dismissed because it is frivolous or meritless, the party who filed the claim has 45 days from dismissal to file suit in district court. Minn. Stat. § 363.14, subd. 1(a)(1) (1996). A party may request reconsideration of the determination. Minn. R. 5000.0700, subpt. 1 (1998). If the MDHR reaffirms a dismissed claim on reconsideration of a no probable cause determination, the party who filed the claim has 45 days from the reconsideration decision to file suit. Minn. Stat. § 363.14, subd. 1(a)(2) (1996).
Here, the record shows that the MDHR denied Klinghagen's request for reconsideration by letter dated November 20, 1995. Allowing five days for service by mail as provided in statute, Minn. Stat. § 363.14, subd. 1(a) (1996), Klinghagen needed to serve the summons and complaint on Setterberg by January 9, 1996. See Minn. R. Civ. P. 3.01(a) (suit is commenced when defendants are served with summons). Klinghagen, however, did not serve the Setterbergs until February 2, 1996. Accordingly, the district court correctly concluded that Klinghagen's sexual harassment claim is barred by the statute of limitations.
Klinghagen argues that she had 45 days from a letter from the MDHR, included in her appendix, dated December 28, 1995. However, this letter was not filed with the district court and is not properly before this court. See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (documents not filed in district court are not properly before reviewing court). The following language fits the present case.
When an appellant acts as attorney pro se, appellate courts are disposed to disregard defects in the brief, but that does not relieve appellants of the necessity of providing an adequate record and preserving it in a way that will permit review.
Thorp Loan and Thrift Co. v. Morse, 451 N.W.2d 361, 363 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990).
The MDHR noted that Klinghagen's sexual harassment claim was weak from the outset. The MDHR specifically determined that: "(t)heir investigative findings led to the conclusion that it is more probable, than not, that the Charging Party did not let it be known to the Respondent that his behavior was unwelcome;" "evidence is sufficient to indicate that sexual advances by the Respondent were not unwelcome to the Charging Party;" and "(i)t is highly unlikely that further investigation will produce sufficient evidence to determine probable cause of a discriminatory act in this matter."
Unpaid Wages Claim
There is a two-year statute of limitations on claims for the recovery of wages. Minn. Stat. § 541.07(5) (1996). If, however, the non-payment is "willful and not the result of mistake or inadvertence," the statute of limitations is three years. Id. Here, Klinghagen stopped working for the Setterbergs on March 29, 1993, but did not serve the Setterbergs until February 2, 1996. While Klinghagen maintains that she still may be employed by Setterberg Jewelers, she does not present any genuine issue of material fact as to whether she worked after March 1993. In Levin v. C.O.M.B. Co., 441 N.W.2d 801, 805 (Minn. 1989), the supreme court interpreted the meaning of "willful" in this statute. There, the court stated "(w)e are of the opinion that in this context `willful' means the intentional and deliberate breach of an obligation to pay agreed upon wages." Id. Here, Klinghagen does not offer any evidence establishing an obligation for a specific amount of wages owed beyond her own assertion that she is owed over $2,000. She does not present evidence that Setterberg "willfully" intended not to pay her. Klinghagen cannot establish that the three-year limitations period applies and the district court correctly determined that her claim was barred by the two-year statute of limitations, which expired on March 29, 1995.
There is a two-year statute of limitations on defamation claims. Minn. Stat. § 541.07(1) (1996). In her original complaint, Klinghagen stated that "(t)his action is a result from the employment relationship between the parties." The record shows that her employment ended on March 29, 1993. The alleged defamatory statement occurred on that date at the latest. Klinghagen did not serve the Setterbergs until February 2, 1996, approximately ten months after the statute of limitations expired on March 29, 1995. Accordingly, we affirm the district court's grant of summary judgment against Klinghagen on this issue.
Klinghagen argues on appeal that the district court should have permitted her to conduct additional discovery. District court discovery orders are generally not disturbed absent a clear abuse of discretion. Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn.1987). Allowing further discovery would not affect the running of the applicable statutes of limitations. Thus, the district court acted properly in denying Klinghagen's motion to continue discovery.