Scott Peterson, Roger Smith v. City of Minneapolis, Minnesota , 878 N.W.2d 521 ( 2016 )

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1711
Scott Peterson,
Appellant,
Roger Smith,
Plaintiff,
vs.
City of Minneapolis, Minnesota,
Respondent.
Filed May 2, 2016
Reversed and remanded
Ross, Judge
Hennepin County District Court
File No. 27-CV-14-4488
Erik F. Hansen, Burns & Hansen, P.A., Minneapolis, Minnesota (for appellant)
Susan L. Segal, Minneapolis City Attorney, Andrea K. Naef, Assistant City Attorney,
Darla J. Boggs, Assistant City Attorney, Minneapolis, Minnesota (for respondent)
Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Smith, Tracy,
Judge.
SYLLABUS
A human resources complaint process may qualify as a “dispute resolution process”
under Minnesota Statutes section 363A.28, subdivision 3 (2014) and toll the running of the
Minnesota Human Rights Act’s one-year statute of limitations.
OPINION
ROSS, Judge
The Minneapolis Police Department transferred 54-year-old, 24-year veteran police
officer Scott Peterson from the department’s violent offender task force to the department’s
licensing unit. Peterson filed an age-discrimination complaint with the Minneapolis
Department of Human Resources, and a year later the city determined that the transfer was
not motivated by Peterson’s age. Peterson sued the city claiming age discrimination under
the Minnesota Human Rights Act. But the district court held Peterson’s claim to be time-
barred under the act’s one-year statute of limitations. We reverse the summary judgment
order and remand for further proceedings because we hold that the investigation triggered
by Peterson’s human resources complaint constitutes a deadline-tolling “dispute resolution
process” under Minnesota Statutes section 363A.28.
FACTS
Scott Peterson served as a Minneapolis police officer from 1987 to 2012. According
to Peterson, he heard negative comments about his age during the last decade of his service.
In October 2011, when Peterson was 54 years old, the police department transferred him
out of the violent offender task force to the less prestigious licensing unit. Peterson says
that a superior told him that the transfer was “for the betterment of the department.” And
he asserts that four other officers who also were older than age 40 were transferred out of
the task force around the same time. One of those officers is Roger Smith.
Peterson and Smith filed complaints with the city’s department of human resources
in November 2011, alleging that the police department transferred them because of their
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age, violating the city’s Respect in the Workplace Policy. That policy prohibits age
discrimination, among other things. It encourages employees to report possible
discrimination to their supervisors or to the human resources department. According to the
city, although the policy states that workplace discrimination may also constitute a
violation of the Minnesota Human Rights Act (MHRA), the department does not
investigate complaints for the purpose of determining whether there has been a violation
of the act but to determine only whether there has been a violation of the city’s workplace-
respect policy.
The human resources department investigated Peterson’s and Smith’s complaints
and in January 2013 concluded that Peterson’s transfer was not based on his age. The record
does not show why it took the department so long to complete the investigation. Both
officers then filed discrimination complaints with the Minnesota Department of Human
Rights. They eventually withdrew these complaints and filed a lawsuit against the city in
March 2014, alleging, among other things, that their transfers constituted age
discrimination in violation of the MHRA. The city moved for partial summary judgment.
The district court granted summary judgment on Peterson’s MHRA claim after holding the
claim to be untimely under the act’s one-year statute of limitations. The lawsuit proceeded
solely on Smith’s remaining claims, which the district court dismissed in July 2015.
Peterson (but not Smith) appealed. This court dismissed the appeal because a final
judgment had not yet been entered. The district court entered a final judgment in September
2015, and Peterson has renewed his appeal.
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ISSUE
Did Peterson’s filing a human resources age-discrimination complaint with the city
render the parties to be “voluntarily engaged in a dispute resolution process involving a
claim of unlawful discrimination” under Minnesota Statutes section 363A.28, subdivision
3, so as to toll the running of the statute of limitations on Peterson’s right to sue under the
Minnesota Human Rights Act?
ANALYSIS
Peterson asks us to reverse the district court’s summary judgment decision. We
review summary judgment decisions based on evidence construed in the light most
favorable to the nonmoving party, and we determine whether a disputed issue of material
fact or a district court legal error prevents judgment as a matter of law. McIntosh Cty. Bank
v. Dorsey & Whitney, LLP, 745 N.W.2d 538, 544–45 (Minn. 2008). The facts that bear on
the district court’s legal holding are not in substantial dispute for the purposes of the
summary judgment decision, which rests mostly on the district court’s interpretation of the
tolling provision in the MHRA’s statute of limitations. We review the application of
statutes of limitation de novo. State Farm Fire & Cas. v. Aquila Inc., 718 N.W.2d 879, 883
(Minn. 2006).
The MHRA includes a one-year limitation period for the filing of discrimination
suits. Minn. Stat. § 363A.28, subd. 3. Peterson’s appeal focuses us on a qualifying phrase
in the statute’s tolling provision. The tolling provision in relevant part states as follows:
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
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a claim of unlawful discrimination under this chapter,
including arbitration, conciliation, mediation or grievance
procedures pursuant to a collective bargaining agreement or
statutory, charter, ordinance provisions for a civil service or
other employment system or a school board sexual harassment
or sexual violence policy.
Id. (emphasis added). Peterson argues that his human resources complaint tolled the statute
of limitations because it rendered the parties to be voluntarily engaged in a dispute
resolution process involving a claim of unlawful discrimination under the act. The city
urges us to reject the argument.
The primary point of disagreement is the term “dispute resolution process.” The
statute does not define the term. See Minn. Stat. § 363A.03 (2014). In the only case we
have found interpreting the term, a federal district court determined that the language
necessarily implies the presence of a third-party intermediary. Wussow v. Andor Tech., No.
12-614, 2012 WL 5199528, at *4 (D. Minn. Oct. 22, 2012). The district court here came to
a different conclusion, holding that a third-party neutral might not be necessary, but that
the process must at least provide a “formal forum” to resolve disputes, and it must have as
its primary purpose the resolution of an unlawful discrimination claim under the MHRA.
The district court held that the complaint process under the city’s policy fails to meet all of
those elements. For the following reasons, we agree with Peterson that the district court
interpreted the term too narrowly.
We first consider what effect, if any, the phrase “including arbitration, conciliation,
mediation or grievance procedures” might have on the meaning of “dispute resolution
process.” Either of two canons of construction arguably applies. The first of these is the
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canon, expressio unius est exclusio alterius, which informs us that the inclusion of some
items in a statute may imply the exclusion of all unlisted items. State v. Caldwell, 803
N.W.2d 373, 383 (Minn. 2011). If we apply it here, this canon could suggest that by
specifically listing the dispute resolution processes of “arbitration, conciliation, mediation
or grievance procedures,” the legislature intended to restrict the types of limitations-tolling
procedures to these or at least to procedures exactly like them. But we will not apply that
canon here because of the introductory word, “including,” which by definition is not
exclusive. It is true that the legislature could have been more descriptive to establish
certainly that it intended the list to be inclusive rather than exclusive or defining. For
instance, it could have instead used the preface “including, but not limited to,” or “such
as,” or “for example,” as it has in various other statutes.
But we believe the language is clear enough to demonstrate inclusion. A more
appropriate canon—one that simply follows the meaning of the word “including”—applies
here. Caselaw advises that the word “includes” or “including” should be read as inclusive,
not exclusive. It is a term of enlargement, not restriction. See, e.g., LaMont v. Indep. Sch.
Dist. No. 728, 814 N.W.2d 14, 19 (Minn. 2012) (“The use of the word ‘includes’ does not
narrow claims of discrimination based on sex to claims of sexual harassment. The word
‘includes’ is not exhaustive or exclusive.”). This plain-language approach finds ample
support in the secondary sources as well. See, e.g., 2A Norman J. Singer & Shambie Singer,
Sutherland Statutory Construction § 47.25, at 444 (7th ed. 2014) (“The word ‘include’ in
a statute generally signals that entities not specifically enumerated are not excluded.”); see
also Garner’s Dictionary of Legal Usage 439 (3d ed. 2011) (cautioning that “including”
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“should not be used to introduce an exhaustive list, for it implies that the list is only
partial”). For these reasons, we hold that the statutory list of “arbitration, conciliation,
mediation or grievance procedures” represents some but not necessarily all of the dispute
resolution procedures that toll the statute of limitations. The statutory list does not therefore
imply that the city’s unlisted respect-in-the-workplace complaint process is excluded as a
tolling dispute resolution process.
Understanding that the statute’s list of dispute resolution procedures is not
exhaustive, we turn to the term “voluntarily” to consider whether a process that is initiated
unilaterally by one party can constitute a process that both parties are “voluntarily engaged
in.” We are satisfied that the answer is yes. It is true that some forms of dispute resolution,
like arbitration and mediation, might indeed be characterized as voluntary at every stage
because the parties generally enter those processes on their express agreement to resolve
their specific dispute. But other dispute resolution procedures, like, for example, one of
those listed in the statute (“grievance procedures pursuant to a collective bargaining
agreement”), are “voluntary” only because the agreements that establish the procedure are
voluntarily entered into by the entity that employs the complainant and the entity that
represents the complainant. These agreements generally preexist the specific disputes to
which they later apply. Under these agreements, an employee’s labor union customarily
can initiate a grievance procedure unilaterally on the employee’s behalf regardless of the
employer’s willingness to engage in the procedure. But the tolling statute nevertheless
considers these grievance procedures to be voluntary. The city’s respect-in-the-workplace
complaint process, like a collective bargaining agreement, exists as a component of the
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voluntary employment relationship between the parties. We conclude that the policy
complaint process is therefore not excluded from the tolling statute merely by virtue of its
unilateral, case-specific initiation.
That the statute includes the labor grievance process similarly answers the city’s
related argument that, unless a third-party neutral moderates the procedure, the procedure
is not a “dispute resolution process” under the statute. Although a labor grievance process
might eventually involve a third-party neutral, its early stages customarily do not. The
city’s collective bargaining agreement with Peterson’s union, for example, has a grievance
process that does not necessarily involve a third-party-neutral decisionmaker. An arbitrator
becomes involved only if the dispute is not resolved in one of the first two steps of the
grievance process, neither of which involves a neutral. The first step is a discussion
between the employee or his union representative and the employee’s supervisor or some
other ranking officer authorized to resolve the grievance. The second step, if necessary, is
a meeting between the police chief and the union president. Because a grievance procedure
is a “dispute resolution process” under the statute, and grievance procedures might not
involve a third-party neutral, the city’s policy complaint process is not excluded as a tolling
procedure simply because it involves no third-party-neutral facilitator or decisionmaker.
This takes us to the city’s contention that, unlike its policy complaint process, a
“dispute resolution process” must be a process capable of resolving the dispute. Here
somewhat of a fact dispute develops. The district court concluded that unrebutted evidence
established that the purpose of the respect-in-the-workplace complaint process was to
determine whether an accused employee has violated the city’s policy, not to resolve claims
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of unlawful discrimination under the MHRA. Peterson maintains that the complaint
process might have resolved the dispute through mediation, and he supports the assertion
by producing an affidavit swearing that a human resources employee informed him that the
city’s investigative process would have led to mediation if the investigation found that his
transfer constituted a policy violation. Even if we disregard Peterson’s assertion that
mediation would have followed the city’s policy investigation, we are satisfied from the
city’s policy that its complaint process could lead to “resolution” of the alleged unlawful
discrimination under the MHRA.
The city’s policy does not expressly declare all possible outcomes of a policy
investigation, but it does imply that an investigation could lead to resolving an employee’s
complaint about age discrimination. For instance, the policy informs offended employees
that the city will investigate a complaint “even if the complainant does not want . . . any
action taken.” The policy here implies that the investigation may indeed result in the city
taking “action” to remedy (i.e., resolve) the reported discrimination. Similarly, the policy
requires a supervisor who receives a policy complaint to “take prompt action to address the
complaint.” Accepting all reasonable inferences that favor the nonmoving party, we infer
that this “action” by the human resources department or the complainant’s supervisor could
“resolve” the complaint so as to end the reported policy-violating and statute-violating
discrimination. In other words, it could include the type of relief that mirrors the injunctive
relief an MHRA suit could produce. See Minn. Stat. §§ 363A.33, subd. 6; 363A.29 subds.
3, 5(1) (2014) (authorizing the district court to order equitable relief under the MHRA,
including ordering the employer to cease the discriminatory conduct and to reinstate or
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promote the employee, among other things). The policy also declares that supervisors
“shall be subject to a higher level of discipline” when they violate the policy. Violator
“discipline,” which we understand may include discharge or demotion, likewise might
resolve the reported discrimination.
In sum, we disagree with the district court’s reading of the city’s policy. The text
informs us that age discrimination under the policy is also age discrimination under the
MHRA. And it strongly implies that an age-discrimination complaint to the human
resources department could result in the kind of resolution that the city argues is necessary
for the process to constitute a “dispute resolution process” under the deadline-tolling
statute.
The city relatedly argues that the policy complaint process does not qualify because
the policy’s primary purpose is to eliminate harassment and discrimination in the
workplace and not to determine whether any federal or state law has been violated. It
maintains that this makes the process akin to a mere internal “auditing” process. But the
tolling provision is triggered by a “dispute resolution process involving a claim of unlawful
discrimination under [the MHRA],” not a dispute resolution process resolving an actual
MHRA claim. Minn. Stat. § 363A.28, subd. 3 (emphasis added). The reported violation of
the city policy prohibiting age discrimination involves a claim of unlawful discrimination
under the MHRA. Whether the policy is primarily directed toward resolving MHRA claims
or toward resolving policy violations that only implicitly constitute MHRA violations, a
claim of age discrimination “involves” a claim concerning conduct that violates the
MHRA.
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The city contends finally that Peterson was never “engaged in” any process with the
city because the workplace policy does not provide for complainants to “take . . . part in
the investigation.” The argument again relies on too narrow a reading of the statutory
language. Because the statute expressly includes labor grievance procedures as qualifying
dispute resolution processes, we look again to the city’s own collective bargaining
agreement with its police union to dispose of the city’s argument. Under that agreement,
the grievant himself need not participate in the process, because the agreement allows the
union to interact in the process instead of the employee. We have no reason to suppose that
the legislature intended to include only those agreements that require the employee to be
directly involved in the grievance process. And as a matter of undisputed fact, the record
demonstrates that Peterson was involved in the complaint process. Peterson himself
initiated the process by making his human resources complaint, and we infer that
complainant interviews are an integral part of the complaint-investigation process.
Summarizing, the statute does not exclude the city’s human resources complaint
process as a “dispute resolution process.” Because the city’s process has the same essential
elements as the procedures the legislature expressly included as tolling processes, we
believe the district court too narrowly construed the statute.
Although the statute is clear and our plain-language interpretation does not depend
on MHRA policy considerations, those considerations would support our holding. The
legislature asks that we interpret the MHRA liberally to accomplish its purposes. Minn.
Stat. § 363A.04 (2014). The statute’s tolling provision with its multiple dispute resolution
examples, evinces the legislature’s intent to encourage claimants to vet their discrimination
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claims in nonjudicial forums without forfeiting their option to file an MHRA lawsuit.
Congress similarly encouraged Title VII claimants to attempt alternative dispute
resolution. See Civil Rights Act of 1991, Pub. L. No. 102–166, § 118, 105 Stat. 1071, 1081
(1991) (“Where appropriate . . . , the use of alternative means of dispute resolution,
including . . . conciliation, . . . mediation, . . . and arbitration, is encouraged to resolve
disputes arising under [Title VII].”). Interpreting the MHRA’s tolling provision to hold that
the city’s human resources investigation of Peterson’s age-discrimination complaint is a
“dispute resolution process” meets both the letter and spirit of the act.
We reverse the summary judgment decision dismissing Peterson’s claim as
untimely.
DECISION
Because the parties became voluntarily engaged in a dispute resolution process after
Peterson filed his human resources complaint, we hold that Peterson triggered the statute
of limitations tolling provision, and we remand for further proceedings.
Reversed and remanded.
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