Kimberly Brinkman, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0089

Kimberly Brinkman,
Appellant,

vs.

Nasseff Mechanical Contractors, Inc.,
Respondent,

Sprinkler Fitters Local #417,
Defendant.

Filed December 24, 2018
Reversed and remanded
Larkin, Judge

Hennepin County District Court
File No. 27-CV-17-8508

Lisa C. Stratton, Christy L. Hall, Gender Justice, St. Paul, Minnesota; and

Jean Boler, Schaefer Halleen, LLC, Minneapolis, Minnesota (for appellant)

Britton D. Weimer, William C. Weeding, Weimer & Weeding , PLLC, Bloomington,
Minnesota (for respondent)

Considered and decided by Larkin, Presiding Judge; Connolly, Judge; and Reyes,
Judge.

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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges the dismissal of her employment -discrimination and
retaliation claims against respondent, arguing that the district court erred by determining
that her claims were barred under the 45-day statute of limitations in Minn. Stat. § 363A.33,
subd. 1(1) (2018). We reverse and remand.
FACTS
This appeal stems from a ppellant Kimberly Brinkman’s employment with
respondent Nasseff Mechanical Contractors, Inc. (Nasseff) as a sprinkler fitter , as well as
her membership in the Sprinkler Fitters Local 417 trade union (Local 417). On January 14,
2014, Brinkman filed a charge of discrimination with the Minnesota Department of Human
Rights (MDHR) alleging that Nasseff had discriminated against her on the basis of sex.
Brinkman filed a similar charge against Local 417. MDHR cross-filed the charges with
the Equal Employment Opportunity Commission (EEOC) under a work-sharing agreement
between MDHR and EEOC.
By two letters dated September 30, 2014, MDHR updated Brinkman regarding her
claims. One letter notified Brinkman that MDHR had “referred” her “charge” against
Local 417 to EEOC for “further processing ” on preemption grounds , because “MDHR
lacks jurisdiction.” This letter further stated that “the charge and all associated documents
have been transferred to EEOC,” “the charge filed with MDHR has been closed,” and “[a]ll
MDHR proceedings relating to the charge will now be terminated.” The other letter, which
contained very similar language, notified Brinkman that her “charge” against Nasseff had

3
also been “referred” to EEOC “for further processing because it is a companion charge” to
her case against Local 417. This letter also referred to MDHR’s lack of jurisdiction and
stated that “the charge and all associated documents have been transferred to EEOC,” “the
charge filed with MDHR has been closed,” and “[a]ll MDHR proceedings relating to the
charge will now be terminated.” Neither letter refer enced a right to bring a civil action or
a 45-day deadline for doing so.
MDHR sent Brinkman another letter, dated July 7, 2015, regarding her claim against
Local 417. Using substantially similar language to the September 30, 2014 letters, the July
letter once again informed Brinkman that her “charge” against Local 417 had been referred
to EEOC “for further processing” because MDHR lacked jurisdiction. However, the letter
closed by stating that “the charge filed with MDHR has been dismissed.” (Emphasis
added.) Brinkman did not receive a similar letter informing her that her charge against
Nasseff had been dismissed.
On July 18, 2016, two-and-a-half years after filing her discrimination charges with
MDHR, Brinkman received right -to-sue letters from EEOC. On October 21, 2016, she
filed a federal suit against Local 417 and Nasseff alleging discrimination and reprisal
claims under both federal and state law. On May 2, 2017, t he federal district court
dismissed the federal claims because Brinkman’s complaint was filed after expiration of
the 90 -day statute of limitations for those c laims. The court declined to exercise
supplemental jurisdiction over the state-law claims and dismissed them without prejudice.
On June 1, 2017, Brinkman filed suit in state court, claiming discrimination and
reprisal under the Minnesota Human Rights Act ( the MHRA). Local 417 and Nasseff

4
moved for dismissal under Minn. R. Civ. P. 12.02(e), arguing that Brinkman’s claims were
barred by the MHRA’s 45-day statute of limitations and preempted by the National Labor
Relations Act. The district court g ranted the motion s, reasoning that Brinkman’s claims
were untimely under the MHRA and that she failed to establish a basis for equitable tolling.
The district court did not address the preemp tion iss ue. Brinkman appeals the district
court’s dismissal of her claims against Nasseff.1
D E C I S I O N
A complaint may be dismissed under rule 12.02(e) if it “fail[s] to state a claim upon
which relief can be granted.” Minn. R. Civ. P. 12.02(e). “A claim is sufficient against a
motion to dismiss for failure to state a claim if it is possible on any evidence which might
be produced, consistent with the pleader’s theory, to grant the relief demanded.” Walsh v.
U.S. Bank, N.A. , 851 N.W.2d 598, 603 (Minn. 2014 ). A pleading should be dismissed
under rule 12 “only if it appears to a certainty that no facts, which could be introduced
consistent with the pleading, exist which would support granting the relief demanded.”
Bahr v. Capella Univ., 788 N.W.2d 76, 80 (Minn. 2010) (quotation omitted).
This court “review[s] de novo whether a complaint sets forth a legally sufficient
claim for relief.” Walsh, 851 N.W.2d at 606. In reviewing a rule 12 dismissal, an appellate
court considers “only the facts alleged in the complaint, accepting those facts as true and
must construe all reasonable inferences in favor of the nonmoving party.” Bahr, 788
N.W.2d at 80 (quotation omitted). Generally, documents outside of the pleadin gs cannot

1 Brinkman does not appeal the dismissal of her claims against Local 417.

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be considered on a motion to dismiss. See Minn. R. Civ. P. 12.02 (stating that if on a rule
12.02(e) motion, “matters outside the pleading are presented to and not excluded by the
court, the motion shall be treated as one for summary judgment”) . However, courts may
consider documents that are attached to the complaint. See Hardin Cty. Savs. Bank v. Hous.
& Redevelopment Auth. of City of Brainerd , 821 N.W.2d 184, 192 (Minn. 2012) (citing
Minn. R. Civ. P. 10.03 in context of fraud claim under Minn. R. Civ. P. 9.02). Courts may
also consider documents that are referenced in the complaint. N. States Power Co. v. Minn.
Metro. Council, 684 N.W.2d 485, 490 (Minn. 2004).
A motion to dismiss may be properly granted “if it clearly and unequivocally
appears from the face of the complaint that the statute of limitations has run.” Pederson v.
Am. Lutheran Church , 404 N.W.2d 887, 889 (Minn. App. 1987), review denied (Minn.
June 30, 1987). “The construction and applicability of statutes of limitations are questions
of law,” which this court reviews de novo. Benigni v. County of St. Louis, 585 N.W.2d 51,
54 (Minn. 1998). Generally, “[c]ourts have no authority to extend or modif y statutory
limitations periods.” Jacobson v. Bd. of Trs. of Teachers Ret. Ass’n, 627 N.W.2d 106, 109
(Minn. App. 2001) (quotation omitted), review denied (Minn. Aug. 15, 2001).
The district court dismissed Brinkman’s claims after determining that she failed to
comply with the 45 -day statute of limitations in the MHRA. A charge of unfair
discrimination under the MHRA must be (1) brought as a civil action, (2) filed in a charge
with a local commission, or (3) filed in a charge with the commissioner of MDHR, “within
one year after the occurrence of the practice.” Minn. S tat. § 363A.28, subd. 3(a) (2018 ).

6
There is no dispute that Brinkman filed her Charge of Discrimination with MDHR within
one year of the alleged discrimination.
Once a charge has been filed, the claimant must bring a civil action
within 45 days after receipt of notice that the commissioner has
dismissed a charge because it is frivolous or without merit,
because the charging party has failed to provide required
information, because the comm issioner has determined that
further use of department resources is not warranted, or
because the commissioner has determined that there is no
probable cause to credit the allegations contained in a charge
filed with the commissioner.

Minn. Stat. § 363A.33, subd. 1(1) (emphasis added). The district court’s dismissal was
based on this statute.
Given the statute -of-limitations trigger, this case raises the question whether the
September 30, 2014 letter regarding Brinkman’s claims against Nasseff (the September
letter) provided “notice that the commissioner ha[d] dismissed [the] charge.” Id. In its
order granting dismissal, the district court indicated that Brinkman had conceded or agreed
that the September letter provided such notice , stating, “It is also undisputed that
[Brinkman] received notice that the MDHR had dismissed the c harges on September 30,
2014.” Brinkman asserts that the district court’s statement regarding her alleged
concession is inaccurate.
In district court, Brinkman primarily argued that the 45 -day statute of limitations
does not apply to jurisdictional dismissals and that the statute was subject to equitable

7
tolling under the circumstances of this case.2 Her arguments emphasized MDHR’s failure
to provide her with notice of a right to sue. However, at the hearing on the motion s to
dismiss, Brinkman noted that the September letter described MDHR’s action as a transfer
for investigation. Brinkman argued that “she really [had] no reason to think that she should
run out and file a lawsuit right at that point. Nor [was] there really any statutory basis for
the 45-day hook applying at that point.” In her memorandum opposing the motions to
dismiss, Brinkman characterized MDHR’s action as a transfer and argued that “the statute
setting the dea dline does not cover the ‘tr ansfer’ scenario here,” “the statute does not
mention . . . transfers to the EEOC,” and the letter “did not provide the notice required by
the statute.” This record does not suggest that Brinkman conceded that the September letter
provided notice that MDHR had dismissed her charge against Nasseff, such that the 45 -
day statute of limitations was triggered. We therefore consider whether the September
letter provided the requisite notice of dismissal.
Brinkman contends that her “charge against Nasseff was transferred to the EEOC,
not dismissed.” Nasseff counters that the “terms ‘closed ’ [and] ‘terminated’” in the
September letter “were entirely synonymous” with the word “dismissed.” Nasseff argues
that a reasonable person would have understood the letter to mean that the charge against
Nasseff had been dismissed, even though the letter d id not expressly say the charge was
dismissed.
The September letter concerning Brinkman’s claims against Nasseff states:

2 On appeal, Brinkman does not dispute that a jurisdictional dismissal trigge rs the 45-day
statute of limitations.

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This is to n otify you that the above -referenced charge
and any associated documents in the file have been referred to
the Equal Employment Opportunity Commission (EEOC) for
further processing because it is a companio n charge to
[Brinkman’s claim against Local 417 ]. Fe deral courts have
found the National Labor Relations Act preempts the
Minnesota Human Rights Act when the allegation involves a
union’s duty of fair representation. Accordingly, MDHR lacks
jurisdiction to examine this discrimination claim brought under
the Minnesota Human Rights Act (Minn. Stat. § 363A).
MDHR will take no further action on this matter and the charge
and all associated documents have been transferred to EEOC.
. . . .
Accordingly, the charge filed with MDHR has been
closed. All MDHR proceedings relating to the charge will now
be terminated.

(Emphasis added) (citation omitted).
In determining whether this letter notified Brinkman that the commissioner had
dismissed her charge against Nasseff, and therefore triggered the 45 -day statute of
limitations, we consider the relevant statutory language, administrative rules, and caselaw.
The Statutory Language

“The construction and applicability of statutes of limitations are questions of law ,”
which this court reviews de novo. Benigni, 585 N.W.2d at 54. When interpreting statutes,
our goal is to effectuate the intent of the legislature. In re Welfare of Children of J.B., 782
N.W.2d 535, 539 (Minn. 2010). If a statute is unambiguous, we must apply its plain
meaning without resorting to canons of statutory construction. State v. Hayes, 826 N.W.2d
799, 804 (Minn. 2013).
The MHRA requires “notice that the commissioner has dismissed a charge ” to
trigger the 45-day statute of limitations. Minn. Stat. § 363A.33, subd. 1(1). Neither party

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argues that th is statutory language is ambiguous, and we do not discern ambiguity. We
therefore apply the statute’s plain meaning.
The September letter does not state that the commissioner had dismissed
Brinkman’s charge or use any form of the word “dismiss.” Instead, it says that the charge
was “referred,” “transferred,” and “closed.” A court may look to dictionary definitions to
determine the plain and ordinary meanings of words. State v. Heiges, 806 N.W.2d 1, 15
(Minn. 2011). We do so here. “Refer” is defined as “[t]o submit (a matter in dispute) to
an authority for arbitration, decision, or examination .” The American Heritage College
Dictionary 1168 (4th ed. 2007). “Transfer” is defined as “[t]o convey or cause to pass
from one place, person, or thing to another.” Id. at 1459. And “close” is defined as “[t]o
bring to an end” or “terminate .” Id. at 271. Whereas “dismiss” is defined as “[t]o stop
considering” or “reject.” Id. at 407. Although the definitions of “close” and “dismiss” are
similar, the words “ref erred,” “transferred,” and “closed ,” as used together in th e
September letter, are not synonymous with “dismissed.”
Moreover, the omission of the word “dismissed” in the September letter is notable
because MDHR’s July 7, 2015 letter regarding Brinkman’s charge against Local 417
explicitly stated that “the charge filed with MDHR has been dismissed.” (Emphasis added.)
The July letter would seemingly be unnecessary and duplicative if the September 30, 2014
letter regarding Brinkman’s charge against Local 417 —which said the charge had been
“referred,” “transferred,” and “closed” —provided notice that the commissioner had
dismissed the charge against Local 417 . Th us, the July 2015 letter reg arding dismissal
suggests that referring, transferring, or closing a charge is not the same as dismissing a

10
charge. Again, the record does not indicate that MDHR sent Brinkman a letter regarding
her charge against Nasseff, stating that the “charge filed with MDHR has been dismissed.”
Lastly, although there may be merit to Nasseff’s argument that a reasonable person
could read the September letter to mean that the charge against Nasseff had been dismissed,
under the plain language of the relevant statut e of limitations, the triggering event is
“receipt of notice that the commissioner has dismissed a charge,” and not receipt of notice
that could reasonably be construed as a dismissal. Minn. Stat. § 363A.33, subd. 1(1).
In sum, the plain language of the statute does not suggest that the September letter
notified Brinkman that the commissioner had “dismissed” her charge against Nasseff.
The Administrative Rules

MDHR administrative rules state that “[t]he commissioner shall issue an order
dismissing a cha rge when it falls outside the jurisdiction of the [MHRA] or when it is
dismissed pursuant to the act.” Minn. R. 5000.0560 (2017). “Written notice dismissing a
charge shall be sent by certified and first class mail to the charging party and to the
respondent within ten days of the dismissal.” Id. “Notification to the charging party shall
include notice of the right to bring a civil action relating to the charge within 45 days of a
dismissal . . . .” Id. (emphasis added). But the September letter did not contain notice of
the right to bring a civil action relating to the charge within 45 days of a dismissal . The
omission of that mandatory language suggests that the September letter was not “[w]ritten
notice dismissing a charge” as contemplated by the rule. Id.
Moreover, the MHRA’s 45 -day statute of limitations is triggered when the
commissioner dismisses a charge “because it is frivolous or without merit, because the

11
charging party has failed to provide required information, because the commissione r has
determined that further use of department resources is not warranted, or because the
commissioner has determined that there is no probable cause to credit the allegations. ”
Minn. Stat. § 363A.33, subd. 1(1). MDHR administrative rules address each o f th ose
grounds. Minn. R. 5000.0530 (2017) provides that the commissioner “shall dismiss” a
frivolous charge. Minn. R. 5000.0540, subp. 1 (2017) , provides that under certain
circumstances, the commissioner “shall dismiss” a charge for “failure to provide required
information.” And Minn. R. 5000.0580, subp. 1 (2017), provides that “[t]he commissioner
shall issue an order dismissing a charge” if “there is no probable cause to believe that the
respondent has engaged in the alleged unfair discriminatory practice.”
However, MDHR administrative rules do not mandate dismissal if the
commissioner determines that a charge does not warrant further use of department
resources. Instead, Minn. R. 5000.0520 provides that “[t]he commissioner shall not
process” a charg e that “the commissioner determines does not warrant further use of
department resources.” (Emphasis added.) Instead of mandating dismissal like r ules
5000.0530, 5000.0540, and 5000.0580, rule 5000.0520 provides for “ termination of
proceedings” and states that the commissioner “shall not process” certain cases. Because
the relevant rules distinguish between dismissing a charge and terminating proceedings ,
they refute Nasseff’s argument that notice of termination of MDHR proceedings is the
same as notice of dismissal of a charge.
In sum, the relevant administrative rules do not suggest that the September letter
notified Brinkman that the commissioner had “dismissed” her charge against Nasseff.

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Caselaw
The parties discuss Jones v. Consol. Freightways Corp., 364 N.W.2d 426 (Minn.
App. 1985) in their briefs to this court . One of the issues in Jones was whether MDHR
had provided notice of the occurrence of an event sufficient to trigger application of a 90 -
day statute of limitations under the then-existing MHRA. 364 N.W.2d at 428 . We
determined that MDHR had done so. Id. at 430.
In Jones, the applicable statute of limitations provided in relevant part, “if within 90
days from the filing of a charge . . . the department has not entered into a concilia tion
agreement to which the charging party is a party , [the commissioner] shall so notify the
charging party and within 90 days after the giving of such notice a civil a ction may be
brought by the charging party.” Id. at 428 (emphasis omitted) (quotation omitted). MDHR
notified Jones, by letter, that “attempts to voluntarily resolve the above-captioned case
through conciliation have been unsuccessful” and “we were unable to reach an agreement.”
Id. Thus, the letter expressly referenced the relevant statute-of-limitations triggering event:
lack of a conciliation agreement.
Here, the relevant triggering event is “notice that the commissioner has dismissed a
charge,” Minn. Stat. § 363A.33, subd. 1(1). Unlike the letter in Jones, the September letter
did not expressly refer to that triggering event. Thus, Jones does not support a conclusion
that the September letter provided the notice necessary to trigger the statute of limitations.
We also consider Special Sch. Dis t. No. 1 v. Dunham , 498 N.W.2d 441 (Minn.
1993). In Dunham, the supreme court held that “[a] claimant who withdraws a request for
reconsideration of a no probable cause determination under [the MHRA] must commence

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a civil action within 45 days of the date of the withdrawal.” 498 N.W.2d at 442 . The
supreme court considered the 45-day limitations period at issue here and said that it “was
almost certainly put in place to encourage quick legal action after the [MDHR] made a
negative determination.” Id. at 445.
The “negative determination” in Dunham was a no-probable-cause determination.
Id. at 442. This case does not involve such a determination. Instead MDHR “referred” or
“transferred” Brinkman’s charge against Nasseff to EEOC for processing. If we construe
all reasonable inference s in Brinkman’s favor, as we must, see Bahr, 788 N.W.2d at 80,
the current record indicates that MDHR determined that EEOC should process Brinkman’s
charge instead of MDHR. We do not view MDHR’s transfer of Brinkman’s c harge to
another investigating agency as a statute-of-limitations-triggering negative determination
comparable to the no-probable-cause determination in Dunham.
The supreme court in Dunham also stated that “[a] new 45-day period is necessary
once the petition for reconsideration is withdrawn because otherwise . . . a charging party
could be forced to bring a civil action while a petition for reconsideration was still pending
[before MDHR].” 498 N.W.2d at 446 n.4. Treating the September letter as a notice of
dismissal would have forced Brinkman to bring a civil action while an investigation of the
underlying charge was still pending before EEOC. The prospect of forcing the filing of a
civil action before completion of a pending EEOC investigation regarding the underlying
charge under a work -sharing agreement with MDHR is similar to forcing the filing of a
civil action before completion of a pending MDHR reconsideration of a negative
determination. Neither scenario is desirable.

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In sum, the releva nt caselaw does not suggest that the September letter notified
Brinkman that the commissioner had “dismissed” her charge against Nasseff.
Conclusion
We must keep in mind the rule 12 context of our review. A motion to dismiss based
on expiration of the applicable statute of limitations is appropriate only if it “clearly and
unequivocally” appears that the statute of limitations has run. Pederson, 404 N.W.2d at
889. On this record , we cannot reach that conclusion because the relevant statute,
administrative rules, and caselaw do not suggest that the September letter provided notice
that the commissioner had dismissed Brinkman’s charge against Nasseff. Thus, the current
record does not establish that the 45-day statute of limitations was triggered, much less that
it has run. We therefore reverse the district court’s order dismissing Brinkman’s claims
based on the 45-day statute of limitations.3 Because we reverse on this ground, we do not
consider the district court’s ruling regarding equitable tolling . We remand for further

3 The district court also ruled that even if it were to have concluded that the 45-day statute
of limitations did not apply, “it would be compelled to find that [Brinkman’s] claims are
barred under the alternative limitations period established by Minn. Stat. § 363A.28, subd.
3(a).” Brinkman assigns error to this alternative ruling , but Nasseff does not defend it or
otherwise argue that section 363A.28, subdivision 3(a), provides a basis to dismiss. Once
again, under Minn. Stat. § 363A.28, subd. 3(a), “A claim of an unfair discriminatory
practice must be brought as a civil action . . . or filed in a charge with the commissioner
within one year after the occurrence of the practice.” Brinkman initially elected to file a
charge with the commissioner, instead of bringing a civil action. There is no assertion that
Brinkman did not file her claim of an unfair discriminatory practice with the commissioner
“within one year after the occurrence of the practice.” We therefore do not discern a basis
to dismiss for failure to comply with the one-year statute of limitations in section 363A.28,
subdivision 3.

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proceedings consistent with this decision, including a ruling on Nasseff’s preemption
argument, if requested by Nasseff.4
Reversed and remanded.

4 Our reversal of the district court’s rule -12 dismissal does not prevent the district court
from revisiting the statute -of-limitations issue on a more fully developed record in a
summary-judgment proceeding.