This opinion will be unpublished and

may not be cited except as provided by

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




Johnson Afolayan,



Moorhead State University,


Filed November 17, 1998

Reversed and remanded

Shumaker, Judge

Clay County District Court

File No. C0-97-1106

Brian C. Smith, Keith L. Miller, Miller, Norman & Associates, Ltd., 403 Center Avenue, Suite 201, P.O. Box 1066, Moorhead, MN 56561-1066 (for appellant)

Hubert H. Humphrey, III, Attorney General, Timothy D. Webb, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2128 (for respondent)

Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Klaphake, Judge.



In this human rights act lawsuit, appellant, Johnson Afolayan, alleges that he was discharged from his employment as a tenured state university professor because of racial discrimination. The district court granted summary judgment in favor of respondent Moorhead State University on the ground that the applicable statute of limitations had expired before appellant commenced the action. Contending that the statute of limitations had been tolled during grievance and arbitration proceedings, appellant argues that the district court erred in granting summary judgment. We reverse and remand.


On appeal from summary judgment, this court must determine whether there exists any genuine issue of material fact and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). A material fact is one that will affect the outcome of the case depending on its resolution. Rathbun v. W. T. Grant Co., 300 Minn. 223, 229, 219 N.W.2d 641, 646 (1974). Inferences and conclusions that may be drawn by a fact-finder are fact issues and any doubt as to the existence of fact issues must be resolved in favor of finding such existence. Id. at 230, 219 N.W.2d at 646. A genuine issue of material fact can exist even if it appears that the party opposing summary judgment will not likely prevail at trial. City of Coon Rapids v. Suburban Engineering, Inc., 283 Minn. 151, 157, 167 N.W.2d 493, 497 (1969).

One of appellant's students alleged that he had sexually harassed her. The university suspended appellant, and, after grievance proceedings, discharged him. An arbitrator found that there had been no just cause for the discharge and reversed the university's decision.

Appellant sued the university on the ground of racial discrimination and sought damages for losses relating to his period of suspension and to his academic standing. Respondent moved to dismiss or, in the alternative, for summary judgment. The district court denied the motion. Respondent brought a second motion that the court characterized as a motion for reconsideration. The premise of this motion was that the applicable statute of limitations had expired prior to the commencement of appellant's lawsuit. The court granted summary judgment in favor of respondent on that ground.

Appellant argues that the statute of limitations was tolled during grievance and arbitration proceedings and that extended the time for commencing suit. He contends that his action was commenced within the extended time and, therefore, was not time-barred. Appellant brought the claim at issue under the Minnesota Human Rights Act. That act allows a claim to be brought as a civil action within one year after the occurrence of the discrimination. Minn. Stat. § 363.06, subd. 3 (1996). One provision of the act states:

The running of the one-year limitation period is suspended during the time a potential charging party and respondent are voluntarily engaged in a dispute resolution process involving a claim of unlawful discrimination under this chapter, including arbitration, * * * pursuant to a collective bargaining agreement * * * or other employment system * * *.


The grievance process began, and the alleged discrimination occurred, on September 8, 1995, when the university suspended appellant, and ended with the arbitrator's decision on July 28, 1996. Appellant started his lawsuit on June 20, 1997. Only if the one-year statute of limitations was tolled, as appellant contends, was appellant's action timely.

Respondent contends that the statute of limitations was not tolled because appellant's discrimination claim was not part of the grievance and arbitration proceedings. Respondent contends further that such a claim could not have been part of the arbitration because the arbitrator had no jurisdiction over discrimination claims.

Preliminarily, we note that discovery had not been completed at the time of summary judgment.[1] Some of appellant's discovery requests were outstanding. As to some of the requests, respondent had asserted a data privacy basis for its refusal to permit discovery. Among the items requested was a transcript of the university's closing argument in the arbitration. Apparently neither appellant nor his attorney was permitted to be present for this segment of the arbitration.

Appellant filed two grievances under the applicable collective bargaining agreement, both of which were sparse in detail as to their factual bases. The first cited a violation of Article 2 and the second a violation of Article 2, Section A, of the agreement. Article 2 is entitled "Non-Discrimination." Section A states the university's agreement to ensure equal opportunity regardless of a person's race. In neither grievance does appellant specifically state that the university discriminated against him, but his invocation of Article 2, Section A, could support an inference that his grievance in part involved issues of discrimination.

During an early, investigative stage of the grievance process, a university official invited the attorneys for appellant and the complaining student to submit questions that the official might ask at a hearing. Appellant's attorney submitted questions about the student's "relationships with and attitudes towards members of minority groups." The official declined to ask the questions. The submission of such questions could support an inference that appellant intended to make the racial discrimination issue part of the proceedings.

Despite the fact that the arbitrator in his "Opinion and Award" recited that the parties had stipulated to limit the issue to whether appellant had been discharged for just cause, there are references in the proceeding to the issue of discrimination. Specifically, appellant's attorney informed the arbitrator that he had subpoenaed information "that would basically allow us * * * to make a comparison between the university's approach to discipline with Dr. Afolayan and similar cases * * *." The arbitrator asked the attorney if he wanted that information for "the purpose of exploring a disparate treatment type of approach?" The attorney said, "Yes." In his Opinion and Award, the arbitrator set forth the university's positions including that the "discharge did not constitute disparate treatment." These arbitration references could support an inference that racial discrimination was part of the proceeding. Unanswered discovery will likely resolve the question.

The tolling statute operates only if the parties were truly "engaged in a dispute resolution process involving a claim of unlawful discrimination." Minn. Stat. § 363.06, subd. 3. It would not be sufficient merely to allude to such a claim without actually actively using the process in an effort to resolve the claim. This is a close case, but the several references to disparate treatment issues, coupled with the lack of complete discovery, compel the resolution of any doubt in favor of the existence of a material fact issue.

Respondent's second argument is that the arbitrator had no authority to arbitrate a discrimination claim, and, therefore, such a claim could not have been part of the arbitration proceeding. Article 2, Section C, of the collective bargaining agreement does provide that "final jurisdiction for resolving claims of discrimination * * * is vested solely" in other tribunals. The qualifier "final" suggests that the arbitrator might have some preliminary jurisdiction to assist with the efforts to resolve such claims even though the arbitrator would lack authority to make a final, binding decision. The language is such that it does not clearly preclude the situation alleged by appellant.

Reversed and remanded.

[1] In fairness to the trial court, it should be noted that the parties submitted the matter for summary judgment on the record that existed. Appellant did not request an additional opportunity to complete discovery. We, nevertheless, note that had the motion or ruling been postponed until all discovery requests had been answered, this appeal likely would have been unnecessary.