This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1792

 

 

Marshall Midden,

Appellant,

 

vs.

 

Board of Regents of the

University of Minnesota, et al.,

Respondents.

 

 

Filed June 14, 2005

Affirmed

Crippen, Judge*

 

Hennepin County District Court

File No. 04-3219

 

 

Judith K. Schermer, Judith K. Schermer PLLC, 700 Lumber Exchange Building, 10 South 5th Street, Minneapolis, MN 55402 (for appellant)

 

Mark B. Rotenberg, Jennifer L. Frisch, Office of the General Counsel, University of Minnesota, 360 McNamara Alumni Center, 200 Oak Street Southeast, Minneapolis, MN 55455 (for respondents)

 

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

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

Appellant Marshall Midden challenges the district court’s summary judgment in favor of respondent University of Minnesota.  The court dismissed appellant’s suit premised on his failure to file a claim within the applicable statute of limitations.  Appellant contends that the statute did not commence to run until December 2001, which was within 12 months of the time he first sought relief in late November 2002.  Because the record confirms the district court’s judgment that the final alleged act of discrimination occurred on or about November 8, 2001, we affirm.

FACTS

            Appellant began working for the University of Minnesota in 1981.  He held a number of positions at the University, most recently as a network support engineer in the networking and telecommunication services department. 

            Beginning in August 2000, appellant reported an alleged asthma disability associated with exposure to certain allergens in his working environment.  After learning that his work site was contaminated with mold, appellant began to telecommute from home.  In May 2001, the University notified appellant that he was to return to work at a building that was newly remodeled for his department.  Appellant returned to work but soon experienced allergy symptoms at the new site. 

Appellant was placed on medical leave early in July 2001.  In a letter advising appellant that his leave would end in September, the University stated that appellant was expected to return to work on September 24.  Appellant then wrote to request the “accommodation of telecommuting” or, if that option was unacceptable, “an alternative accommodation.”  In an October letter, the University explained that his job required his physical presence, including some lab work in the newly remodeled building.  The University requested that appellant return to work at the remodeled building on October 29, but stated that it was willing to assist in his return, including possible use of an office equipped with environmental controls.

            Appellant responded on October 28, reminding the University that his doctor had recommended that he not work in the new building and requesting that he be allowed to work out of the Gateway building or some other building that was not known to aggravate his asthma.  The University replied on October 31, stating that it believed it could accommodate appellant in the remodeled building, that they were also willing to try another site at 90 Church Street, and that appellant should report to that site on the business day following receipt of the letter.  

           In a letter dated November 1, appellant stated that he wanted an accommodation, that the Church Street site would not work for him, and that the University had not responded to his request to work at the Gateway building.  The University responded in a letter dated November 8, 2001, which was received by appellant on November 10.  This letter informed appellant that no office space was available in the Gateway building, explained that his worksite would be 90 Church, and repeated its demand that appellant return to work.[1]  The letter closed by stating:

We expect you to report to work at 90 Church Street the business day following your receipt of this letter [November 12, 2001].  Should you not return to work, you will be considered absent without authorization.  . . .  Should you continue to be absent without authorization for three days, we will consider that a resignation of your University employment. 

 

           Appellant did not return to work as instructed on November 8.  Instead, he mailed another letter, on November 12, indicating that working from 90 Church was unacceptable because the last time he worked there, he became ill.  In this response, appellant acknowledged his understanding that the University “refuse[d] to allow [appellant] an accommodation that would enable [him] to perform [his] job.”  In mid-December 2001, the University confirmed to appellant that his refusal to return to work was “considered a resignation.” 

On November 21, 2002, appellant filed a charge of discrimination with the Minnesota Department of Human Rights (MDHR).  Appellant asserted that the University failed to provide a reasonable accommodation by refusing to allow him to telecommute or the alternative of working at any building except the three in which he had experienced aggravation of his asthma. 

            MDHR dismissed appellant’s charges, stating that they were untimely and that there was insufficient evidence that appellant was a qualified disabled person. MDHR issued appellant a right-to-sue letter.  Appellant filed suit on March 17, 2004, alleging that the University had violated the Minnesota Human Rights Act (the act) by refusing to reasonably accommodate his disability. 

In a subsequent summary judgment motion, the University argued that the cause of action was barred by the statute of limitations and that appellant was not disabled.  In response, appellant asked that the matter be continued, arguing that he needed “full and complete responses to the discovery previously served, depositions of key witnesses, . . . and follow[-]up written discovery in order to be able to fully respond” to the summary-judgment motion.  The district court granted the University’s motion and by implication denied appellant’s request for a continuance.  The court held that appellant’s claim was barred because he “did not timely file his [c]harge of [d]iscrimination with the MDHR[.]”

In so holding, the district court found that “[t]he University’s letter of November 8, 2001 was an unconditional[,] unequivocal notice that the University was not going to accommodate [appellant’s] alleged disability in the way [appellant] wanted.”  The court held that because appellant acknowledged that he had received the letter without delay, appellant “had to file a claim with the MDHR or bring a civil action on or before November 13, 2002.”  The court did not reach the issue of whether appellant was disabled within the meaning of the act. 

D E C I S I O N

            In an appeal from summary judgment, we determine whether there are any genuine issues of material fact and whether the district court erred in its application of law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  We review the evidence in the light most favorable to the party against whom summary judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).[2]

Appellant disputes the district court’s determination that the November 8 letter gave unequivocal notice that appellant was not going to be accommodated.  He also suggests that the University’s alleged failure to accommodate him was part of a continuing course of conduct, thus tolling the statute of limitations. 

             Where summary judgment is granted on statute-of-limitations grounds, a reviewing court “must determine (1) whether the statute of limitations has run and (2) whether there exists a genuine issue of material fact as to when the plaintiff’s cause of action accrued.”  Campbell v. Grand Trunk W. R.R. Co., 238 F.3d 772, 775 (6th Cir. 2001).  If the defendant meets its initial burden to show that the statute has run, the burden shifts to the plaintiff to establish an exception to the limitations period.  Id.

Under the act, “it is an unfair employment practice for an employer to discharge or otherwise discriminate against an employee because of the employee’s disability.”  Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 542 (Minn. 2001).  “[I]t is an unfair employment practice for an employer . . . not to make reasonable accommodation to the known disability of a qualified disabled person . . . .”  Minn. Stat. § 363A.08, subd. 6 (2004).  Claims under the act must be brought “within one year after the occurrence of the practice.”  Minn. Stat. § 363A.28, subd. 3 (2004).  In construing the occurrence of the practice, courts are to focus on the discriminatory act rather than the discriminatory effects.  Diez v. Minn. Mining & Mfg. Co., 564 N.W.2d 575, 578 (Minn. App. 1997), review denied (Minn. Aug. 21, 1997).

In employment-discrimination claims, the statute of limitations begins to run when the allegedly discriminatory employment decision is made and communicated to the employee.  Delaware State Coll. v. Ricks, 449 U.S. 250, 258, 101 S. Ct. 498, 504 (1980); Henderson v. Ford Motor Co., 403 F.3d 1026, 1032 (8th Cir. 2005); see also Turner v. IDS Fin. Servs., Inc., 471 N.W.2d 105, 108 (Minn. 1991) (stating that it is the notice of termination, rather than the termination date, that triggers the running of the statute of limitations).  “The limitations periods begin to run even if the employee is not aware of the discriminatory effect or the employer’s discriminatory motivation in taking the adverse employment action.”  Henderson, 403 F.3d at 1032.  Appellant has noted that this is not a claim for discriminatory termination; it is “a failure to accommodate claim.”[3] 

The district court found that the running of the statute of limitations was triggered on November 12, 2001—the date appellant received the University’s November 8 letter.

1.

            Appellant first argues that the November 8 letter was “not significant” because it was no different from the University’s previous denials of accommodation.  But the district court’s conclusion is sustained by observing that the letter denied appellant’s last suggestion for accommodation, noting that there was no space in the Gateway building, and unequivocally confirmed that appellant would be considered to have resigned if he did not return to work by November 15, 2001.

Appellant argues that the University’s earlier letters made demands without any adverse consequences.  But a review of the correspondence reveals that in no prior letter had the University indicated that a failure to return to work would be considered a resignation.  This letter communicated to appellant that the University would make no further attempts at accommodation. 

2.

Appellant next suggests that the November 8 letter does not represent the University’s last failure to accommodate.  He argues that a more final failure occurred when he was actually terminated by the University in December 2001.

Appellant asserts that the November 8 letter lacks “finality.”  But on its face, the document speaks unconditionally of the date on which appellant’s termination would occur, and it closed off the only remaining topic of accommodation—an office in the Gateway building.  For the very reasons that the letter was significant, it was unequivocal and final.

Appellant argues that his claim is nonetheless timely because the “back and forth” between appellant and the University continued until appellant was actually terminated.  In fact, the actions after November 8 were steps taken by appellant or irrelevant responses thereto.

On November 12, appellant renewed his request for accommodation, speaking again of telecommuting or working at the Gateway building.  He asked for a letter stating that the University could give him no accommodation.  This conduct on appellant’s part is insufficient to toll the limitations period.  Allowing an employee to toll the limitations period by renewing a previous request for accommodation would “effectively emasculate[]” the statute of limitations.  Sigurdson v. Isanti County, 448 N.W.2d 62, 67 (Minn. 1999).  And an employer’s refusal to undo a decision is not a “fresh act of discrimination.”  See Lever v. Northwestern Univ., 979 F.2d 552, 556 (7th Cir. 1992) (noting that an employee could otherwise avoid the statute of limitations “by filing a series of appeals or fresh requests”). 

The Supreme Court has “held that the pendency of a grievance or some other method of collateral review of an employment decision, does not toll the running of the limitations periods.”  Delaware State Coll., 449 U.S. at 261, 101 S. Ct. at 506 (citing Elec. Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97 S. Ct. 441 (1976)).  Thus, an internal University meeting to discuss “options” relating to appellant’s situation does not toll the statute of limitations.

For the same reason, the communications between the University and appellant’s doctor regarding appellant’s medical information do not serve to toll the limitations period.  Delaware State Coll., 449 U.S. at 261, 101 S. Ct. at 506.  Moreover, these communications simply served to follow up on outstanding information requests instituted prior to the November 8 letter. 

Appellant particularly asserts that two communications constitute an “interactive process” sufficient to toll the statute of limitations—a December 4 internal memo from disability services to appellant’s supervisor and a December 12 letter from the University notifying appellant that he had been terminated. 

The December 4 letter was an internal document sent to appellant’s supervisor discussing documentation for disability coverage purposes.  Appellant has presented no evidence that he received this letter.  See Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853, 855 (Minn. 1986) (stating that the burden on the party opposing summary judgment is to “provide the court with specific facts indicating that there is a genuine issue of fact”).  Moreover, the letter did not request additional documentation, nor does the letter provide any evidence that the decision to terminate appellant was reconsidered.

The December 12 letter merely confirmed that appellant’s conduct was considered a resignation[4] and provided appellant with COBRA documents.  In this letter, the University noted that it had “already addressed” the accommodation options suggested, and it reiterated its refusal to make the requested accommodation.  The November 8 letter, in contrast, states the occurrence of the resignation and the reason for it. 

On this record, the district court did not abuse its discretion by concluding that the statute of limitations began to run on November 12, 2001, and that appellant’s claim was time-barred.

3.

Appellant also argues that the district court erred in failing to grant his motion to continue discovery.  The district court implicitly denied the motion by granting the University’s motion for summary judgment.

We review a district court’s decision to deny a motion for a continuance to conduct discovery under an abuse-of-discretion standard.  Cherne Contracting Corp. v. Wausau Ins. Cos., 572 N.W.2d 339, 346 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998).  Because no transcript was provided, we are limited to a review of whether the findings support the district court’s conclusions of law.  Alliance for Metro. Stability v. Metro. Council, 671 N.W.2d 905, 919 (Minn. App. 2003). 

            A continuance affidavit must specify “the evidence expected, the source of discovery necessary to obtain the evidence, and the reasons for the failure to complete discovery to date.”  Id.  A grant of summary judgment before completion of discovery is not premature when additional discovery would not have aided in determining whether material fact issues existed or changed the result of the summary judgment motion.  See McCormick v. Custom Pools, Inc., 376 N.W.2d 471, 477 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985); see also Holmes v. Winners Entm’t, Inc., 531 N.W.2d 502, 505-06 (Minn. App. 1995) (denying continuance because “[t]here [was] little likelihood that additional discovery would supply evidence to support [plaintiff’s] claim”).

The discovery sought by appellant in an affidavit is general rather than specific.  See Alliance for Metro. Stability, 671 N.W.2d at 919 (noting that a continuance affidavit must be “specific about the evidence expected”).  Pressed during oral argument to suggest specific discovery desired, appellant suggested that he needed to know what happened in internal meetings of University officials and access other related documents to determine exactly when the officials subjectively decided to terminate him.  But this discovery is not relevant to the notice of non-accommodation provided to appellant. 

Because we affirm the district court’s rationale, we need not address the University’s contention that appellant was not disabled.  Additionally, because appellant’s stated retaliation claim was not presented in the complaint he filed with the MDHR in November 2002, we do not consider it here.

            Affirmed.