This opinion will be unpublished and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

A05-2103

 

Rozlon Thomas,
Appellant,

vs.

Minneapolis Public School District,
Respondent.

 

Filed September 19, 2006

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. 05-10735

 

Rozlon Thomas, 3431 26th Avenue South, Minneapolis, MN  55406 (pro se appellant)

 

Toni M. Jackson, Jeffrey A. Hassan, P.L.C., 9130 Telford Crossing, Brooklyn Park, MN  55443 (for respondent)

 

            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from an order dismissing her complaint against respondent Minneapolis Public School District, pro se appellant Rozlon Thomas argues that she was denied due process.  Because the district court did not err in concluding that appellant filed her complaint after the applicable statute of limitations had run, we affirm.

FACTS

            Appellant was employed by respondent from November 30, 1998, until November 13, 2002.  After she was discharged from her employment, appellant filed a complaint against respondent with the Minneapolis Department of Civil Rights (MDCR), alleging discrimination on the basis of race and retaliation.  The MDCR investigated the complaint, and on September 27, 2004, the director made a determination of “no probable cause” to support the allegations of discrimination.  Appellant appealed the determination to the Minneapolis Commission on Civil Rights.  A review committee of the commission conducted an independent review of the record on February 10, 2005.  The review committee determined that the director’s determination of no probable cause was supported by the evidence and was not clearly erroneous and sustained the determination of no probable cause.

            On February 14, 2005, the commission notified appellant about the February 10 decision.  The notice to appellant included a statement that the Minneapolis Civil Rights Ordinance “gives a complainant certain rights to private action through Minnesota District Court.”  The notice then quoted the relevant portions of the ordinance.  One of the quoted ordinance provisions states, “A complainant may bring a civil action at the following times: (1) Within forty-five (45) days after the director, a review committee or a hearing committee has dismissed a complaint for reasons other than a conciliation or mediation agreement to which the complainant is a signatory[.]”  Minneapolis, Minn., Code of Ordinances § 141.60(a) (1991 & Dec. 29, 1995).  Another quoted ordinance provision states, “Any person aggrieved by a final decision of a hearing committee or a review committee in a contested case, reached after a hearing held pursuant to section 141.50, may seek judicial review in accordance with Chapter 14 of Minnesota Statutes.”  Id. § 141.60(b).

            In March 2005, appellant attempted to file an appeal from the review committee’s decision with the Minnesota Court of Appeals.  The clerk of appellate courts notified appellant by letter that her appeal could not be accepted for filing because the February 10 decision does not constitute a final adjudication.  The letter states, “As the commission’s letter indicates, the finding of no probable cause does not constitute a final or binding determination on your discrimination claims, and it does not preclude you from bringing suit in district court.”  (Emphasis added.)  Appellant resubmitted her appeal to this court and was again notified that her appeal could not be accepted.  She then filed a formal motion to accept her appeal, which this court denied.   Appellant then filed a petition for review with the Minnesota Supreme Court, which was denied on July 19, 2005. 

            On July 29, 2005, appellant filed a complaint in district court.  The school district filed a motion to dismiss, and on September 27, 2005, the district court granted the school district’s motion, finding that the complaint was filed after the statute of limitations had run.  This appeal followed.

D E C I S I O N

            Dismissal is proper when “it clearly and unequivocally appears from the face of the complaint that the statute of limitations has run and . . . the complaint contains no facts to toll that running.”  Pederson v. Am. Lutheran Church, 404 N.W.2d 887, 889 (Minn. App. 1987), review denied (Minn. June 30, 1987).

            Appellant argues that the district court erred by concluding that her action is barred by the statute of limitations.  It appears that appellant believes that her case before the commission on civil rights was a contested case and that her appeal from that decision is governed by the provision in the ordinance that states, “Any person aggrieved by a final decision of a hearing committee or a review committee in a contested case, reached after a hearing held pursuant to section 141.50, may seek judicial review in accordance with Chapter 14 of Minnesota Statutes.”[1]  Minneapolis, Minn., Code of Ordinances § 141.60(b) (1991 & Dec. 29, 1995).  But the review committee’s February 10, 2005 decision sustaining the director’s determination of no probable cause was not a final decision in a contested case, reached after a hearing held pursuant to section 141.50.

            Minneapolis, Minn., Code of Ordinances § 141.50(a) (1991 & June 16, 2006) provides that any person who believes that discrimination has occurred may file with the director of the department of civil rights a written complaint stating the name and address of each person complained against and the pertinent facts known to the complainant.  If the director makes a finding of no probable cause, the complainant may file an appeal to have the director’s determination reviewed by a review committee.  Minneapolis, Minn., Code of Ordinances § 141.50(e).

            If the review committee makes a determination of probable cause and the director is unable to eliminate the acts or practices complained of, the director shall refer the complaint to the commission on civil rights.  Id. § 141.50(f).  Following the referral, a hearing procedure is followed, which includes a public hearing before a hearing committee of three members conducted in accordance with chapter 14 of the Minnesota Statutes.  Id. § 141.50(i)-(l).  The hearing committee then makes a decision.  Id. § 141.50(m).  Under ordinance section 141.60(b), the complainant may seek judicial review of the hearing committee’s decision in accordance with chapter 14 of the Minnesota Statutes. 

            In appellant’s case, there was no decision by a hearing committee because the review committee did not make a determination of probable cause, and, therefore, the director did not refer the complaint to the commission on civil rights.  Instead, the review committee sustained the director’s determination of no probable cause.  Under these circumstances, appellant had a right under ordinance section 141.60(a) to bring a civil action, but under section 141.60(a) (1), appellant needed to bring the action within 45 days after the review committee dismissed her complaint.  See also Minn. Stat. § 363A.07, subd. 4(a) (2004) (stating that “[n]otwithstanding the provisions of any law or ordinance to the contrary, a person who has filed a charge with a local commission may bring a civil action . . . [w]ithin 45 days after receipt of notice that the local commission has determined that there is no probable cause to credit the allegations contained in the charge”).  Rather than bringing a civil action, appellant erroneously sought judicial review in this court under Minn. Stat. ch. 14.  When appellant finally brought a civil action in the district court, the 45-day limitations period had expired.  Therefore, the district court did not err by dismissing appellant’s complaint.

            Affirmed.