Meagan Abel,

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STATE OF MINNESOTA

IN SUPREME COURT

A19-0461

C o u r t o f A p p e a l s M c K e i g , J .
Dissenting, Gildea, C.J., Anderson, J.
Took no part, Chutich, J.

Meagan Abel,

Appellant,

vs. Filed: July 29, 2020
O f f i c e o f A p p e l l a t e C o u r t s
Abbott Northwestern Hospital, et al.,

R e s p o n d e n t s ,

St. Mary’s University Minnesota,

R e s p o n d e n t .

________________________

Christopher W. Madel, Ellen M. Ahrens, Matthew J.M. Pelikan, Madel PA, Minneapolis,
Minnesota, for appellant.

Melissa Raphan, John T. Sullivan, Bria na Al Taqatqa, Dorsey & Whitney LLP,
Minneapolis, Minnesota, for respondents Abbott Northwestern Hospital, et al.

Robert L. McCollum, Cheryl Hood Langel, Brian J. Kluk, McCollum Crowley P.A.,
Minneapolis, Minnesota, for respondent St. Mary’s University Minnesota.

Keith Ellison, Attorney General, Rachel Bell-Munger, Assistant Attorney General,
Saint Paul, Minnesota, for amicus curiae Co mmissioner of the Minnesota Department of
Human Rights.

Christy L. Hall, Gender Justice, Saint Paul, Minnesota, for amicus curiae Gender Justice.

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Nicholas G.B. May, Fabian May & Anderson, PLLP, Minneapolis, Minnesota;

Matthew A. Frank, Nichols Kaster, PLLP, Minneapolis, Minnesota;

Frances E. Baillon, Baillon Thome Jozwiak & Wanta LLP, Minneapolis, Minnesota; and

Brian T. Rochel, Phillip M. Kitzer, Teske Katz Kitzer & Rochel, PLLP, Minneapolis,
Minnesota, for amicus curiae National Em ployment Lawyers Association–Minnesota
Chapter.

________________________

S Y L L A B U S

1. The district court erred in dismissing appellant’s employment discrimination
claim under the Minnesota Human Rights Act because the continuing violations doctrine
tolled the statute of limitations, but the distri ct court correctly dismissed her remaining
statutory discrimination claims as time-barred.
2. The absence of compensation is not dispositive in deciding whether a
graduate student providing services for a hos pital through an unpaid practicum program
has an employment relationship with the hospital for purposes of a claim brought under the
Minnesota Human Rights Act.
3. Appellant’s common-law negligence claims are not barred by the exclusive
remedy provision of the Minnesota Human Rights Act, Minn. Stat. § 363A.04 (2018).
Affirmed in part, reversed in part, and remanded.

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O P I N I O N

MCKEIG, Justice.

A graduate student brought Minnesota Human Rights Act and common-law
negligence claims against a university and a hospital for race- and sex-based discrimination
she allegedly experienced during a practicum program. The district court dismissed the
Human Rights Act claims, concluding they were barred by the statute of limitations. The
common-law negligence claims were dismissed as well, based on appellant Meagan Abel’s
failure to establish that respondents St. Mary ’s University Minnesota (St. Mary’s) and
Allina Health System1 (Allina) owed her a common-law duty separate from the obligations
owed under the Human Rights Act. The court of appeals affirmed.
We hold that Abel’s employment discrimination claim under the Human Rights Act
against respondent Allina was time ly pled and, moreover, that the district court erred in
determining that Abel’s lack of compensa tion from the practicum barred her claim. We
hold that Abel’s remaining statutory discrimination claims against respondents Allina and
St. Mary’s are time-barred. We further hold that Abel has alleged sufficient facts to
maintain her common-law negligence claims. We affirm in part and reverse in part the
court of appeals’ decision, and remand to the di strict court to reinstate certain claims and
for further proceedings.

1 Abbott Northwestern Hospital is an assumed name of Allina Health System. In this
opinion, we refer to respondents Abbott a nd Allina collectively as “Allina” and use
“Abbott” to refer to the location of Abel’s practicum.

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FACTS

This appeal arises from the district court’s grant of a motion to dismiss and motion
for judgment on the pleadings, which resulted in the dismissal of four discrimination claims
under the Minnesota Human Rights Act and two common-law negligence claims. The
complaint alleges the following facts.2
Appellant Meagan Abel was a doctoral st udent in the psychology program at
St. Mary’s. As part of the program, Abel was required to complete a certain number of
practicum hours at an accredited institution. She was encouraged by her program advisor
to apply for placement with re spondent Allina in its clinical psychology program at
respondent Abbott Northwestern Hospital. Abel applied for the program and was selected.
She began the practicum in September 2015.
The practicum program wa s supervised by Dr. Jeffrey Gottlieb, a clinical
psychologist and Abbott’s practicum training dire ctor. Over the course of the practicum,
Dr. Gottlieb regularly engaged in inappropriate and hara ssing behavior. Dr. Gottlieb
required Abel to participate in highly sexua lized group and individual sessions, which
included role-play exercises where Dr. Go ttlieb would touc h students’ chests; force
students to mimic having sex with him; and make remarks on and critique students’ bodies.
He gave shoulder massages to his female students—called “his girls” throughout the

2 When reviewing a district court’s gran t of motions to dismiss and motions for
judgment on the pleadings, we accept the factual allegations in the complaint as true. See
Zutz v. Nelson, 788 N.W.2d 58, 61 (Minn. 2010) (motion for judgment on the pleadings);
Bodah v. Lakeville Motor Express, Inc. , 663 N.W.2d 550, 553 (Minn. 2003) (motion to
dismiss).

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clinic—and engaged in flirtatious and sexual conduct. Dr. Gottlieb also referred to Abel,
who is of Asian Indian descent, as “the graduate student of color” or “the brown one.” The
derogatory terms were used frequently and publicly. When Abel informed Dr. Gottlieb
that she had reported incidents of racial discrimination in the past, he responded that if he
had known, he would never have let her join the program.
Supported by Abbott’s lack of written program policies, Dr. Gottlieb fostered a
climate of isolation and dependence within th e practicum program. Dr. Gottlieb told the
practicum students that others at the clinic did not want them there and considered them a
nuisance, and that it was only by virtue of his power and influence that the practicum
program continued. He intimidated students by telling them that obeying him was integral
to their continued participation in the practicum and future paid employment.
Allina removed Dr. Gottlieb as training director on December 23, 2015, and he was
given a no-contact order with students. Abel took several weeks off due to stress and
anxiety. When she returned , she started working for Dr. Elizabeth LaRusso, the medical
director of mental health services. Despite the no-contact order, Dr. Gottlieb would often
make “threatening eye contact” with Abel and other students, and the clinic layout resulted
in Abel seeing Dr. Gottlieb on a daily basis. A few weeks after the no-contact order was
issued, Dr. Gottlieb “approach ed [Abel] from behind a nd stood breathing in a
simultaneously sexualized and threatenin g manner.” Abel was also harassed and
intimidated by allies of Dr. Go ttlieb at the clinic following her return. This included
harassment by the interim practicum program director following Dr. Gottlieb’s removal,
who continued some of Dr. Gottlieb’s controversial methods.

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Abel raised concerns with Allina throughout her practicum experience. Informally,
she spoke with Dr. Kimberly Finch, who was th e intern supervisor at Abbott. Dr. Finch
shared Abel’s concerns with her colleagues at the clinic. Abel also spoke informally with
Dr. LaRusso, who, like Dr. Finch, agreed to share the information.
On a number of occasions, Abel met with Dr. Michael Schmitz, a clinical director
at Abbott. Initially, Dr. Schmitz told Abel that she should bring he r concerns to Dr.
Gottlieb, but he later agreed to meet with her privately. During one private meeting,
Dr. Schmitz instructed Abel to be “emotionally tough” and implied that Abel would have
to tolerate Dr. Gottlieb’s misconduct. An A bbott human resources representative joined
several of Abel’s meetings with Dr. Schmitz, and it was typical in these meetings for Abel
to be asked yes or no questions, but she was otherwise prevented from sharing the details
of her experiences and concerns. In one me eting, Dr. Schmitz and the HR representative
acknowledged that they knew Dr. Gottlieb was violating the no-contact order, but asserted
that it was probably unintentional. After Abel filed a formal complaint with the Board of
Psychology, Dr. Schmitz requested a fo llow-up meeting where he and the HR
representative focused primarily on keeping news of the complaint suppressed.
Abel had similar conversations with St. Mary’s. After her initial interview with
Dr. Gottlieb, Abel voiced concerns to th e program advisor wh o had recommended she
apply for Dr. Gottlieb’s program. Her a dvisor counseled her to go along with
Dr. Gottlieb’s requests, dismissing his misconduct as “normal” and saying that he is “just
funny.” During the first month of the practic um, Abel raised concerns with Dr. Phyllis
Solon, another St. Mary’s faculty member. Dr. Solon acknowledged that Dr. Gottlieb was

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culturally incompetent and admitted that she had advised St. Mary’s to discontinue sending
students to work with him. Abel discovere d that other students had experienced similar
race- and sex-based discrimination during th eir own training under Dr. Gottlieb and that
St. Mary’s had merely counseled them on how to “get through” it.
Abel complained to Dr. Solon a second time two months after their first discussion,
and Dr. Solon gave Abel tip s on how to deflect Dr. Gottlie b’s harassment and sexual
advances, revealing that she knew of “at le ast three previous students who had been
sexually and racially harassed.” Dr. Solon advised Abel to avoid unwanted attention from
Dr. Gottlieb because the school’s efforts, including past complaints about Dr. Gottlieb and
remediation plans, had gone nowhere. By December 2015, Abel “was raising her concerns
with St. Mary’s on a weekly basis.” That same month, Abel announced to the class at her
practicum seminar that Dr. Gottlieb was engaged in “racial and sexual violence.”
In the spring and summer of 2016, faculty members at St. Mary’s were hostile to
Abel and made her feel that completion of her degree was contingent on her silence. Abel
asserts that St. Mary’s ignored Dr. Gottlieb’s misconduct because St. Mary’s depended on
practicum sites under his control for its continued accreditation, and noted that Dr. Gottlieb
sat on the advisory board for the psychology doctorate program at St. Mary’s.
Allina and St. Mary’s discussed whether Abel should complete her practicum in the
spring of 2016. Dr. Solon of St. Mary’s indicated to Dr. Finch of Allina that she was aware
of Dr. Gottlieb’s history of misconduct; the school had coached st udents on how to deal
with him; and the school had conversations with him “about sexist and racist behaviors as
well as abuse of power in supervision.”

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On May 2, 2016, Abel decide d that she would end her pr acticum 3 months early.
She allowed herself a few remaining weeks to “facilitate patient transitions” and complete
her required hours. Abel ended her practicum on May 27, 2016.
Despite the practicum ending, Abel continued to work for Allina through the fall of
2016 with Dr. LaRusso. She explained that the work w ith Dr. LaRusso was off-site and
“safe.” In June 2016, at th e request of Dr. LaRusso, Abel met with Dr. Paul Goering,
Allina’s Vice President of Mental Health. Th ey discussed Abel’s practicum experience
and ongoing hostility among clinic staff. Dr. Gottlieb resigned in June 2016.
Abel also had several conversations with St. Mary’s related to her practicum
experience after the practicum had ended. In spring 2017, Abel was instructed by a faculty
member at St. Mary’s to apply to an intern ship site that Dr. Gottlieb was affiliated with,
telling Abel she would have to “suck it up.” During the internship application process,
Dr. Solon also told Abel that she needed to put the experience behind her because she
“represent[ed] St. Mary’s.”
Dr. Solon further contacted Abel in January 2018, in the wake of the Larry Nassar
trial in Michigan, to see how Abel was reacting to the news. Abel responded that she was
having a difficult time, and she asked Dr. Solon a series of follow-up questions related to
her own harassment. Dr. Solon responded, ma king it clear that she and St. Mary’s “were
aware of the extent of [the] misconduct,” but implying that completion of Abel’s degree
program depended on her continued silence.
On May 26, 2017, Abel filed a charge of discrimination with the Minnesota
Department of Human Rights. She alleged race- and sex-based discrimination in the area

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of employment against Allina. Abel brought a civil lawsuit against Allina about 9 months
later, on March 2, 2018. Under the Human Rights Act, Minn. Stat. §§ 363A.01–.44 (2018),
she brought a reprisal claim and race- and sex- based discrimination claims in the areas of
employment, education, and public accomm odation. She also asserted a common-law
negligence claim.
Abel brought a civil lawsuit against St. Ma ry’s 3 days later, on March 5, 2018, 3
including Human Rights Act discrimination clai ms in the areas of education and public
accommodation and a common-law negligence claim.
Allina filed a motion to dismiss, and St. Mary’s filed a motion for judgment on the
pleadings. The district court gr anted both motions as to all of Abel’s claims. In relevant
part, the court concluded that (1) the Huma n Rights Act discrimination claims were
time-barred as a matter of law, and (2) the ne gligence claims failed because Abel had not
sufficiently alleged that Allina and St. Mary’s owed her a cognizable common-law duty.
Abel appealed the dismissal of her claims except for her reprisal claim against Allina
and her discrimination claim in the area of public accommodation against St. Mary’s. A
divided panel of the court of appeals affirmed in an unpublished opinion. Abel v. Abbott
Nw. Hosp., No. A19-0461, 2019 WL 4 745372, at *1 (Minn. App. Sept. 30, 2019). The
majority did not reach the merits of Abel’s discrimination claims. Id. at *3–7. The court
concluded that, “even when calculated usi ng the charge-filing date, the statute of

3 The claims against both Allina and St. Mary’s were brought in the same summons
and complaint, but service of process on St. Ma ry’s occurred 3 days later than service on
Allina. See Minn. R. Civ. P. 3.01(a) (providing that a civil action commences against each
defendant “when the summons is served upon that defendant”).

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limitations bars all of Abel’s MHRA claims against Allina” because “the last incidents of
harassment occurred in January 2016, outside of the statute-of-limitations period.” Id. at
*5–6. The majority agreed with the district court that Abel did not plead viable negligence
claims absent respondents owing her a common-law duty. Id. at 7. Judge Klaphake
dissented on both issues. Id. at *7–10 (Klaphake, J., dissen ting). We granted Abel’s
petition for further review.
ANALYSIS

We review a district court’s grant of a motion to dismiss for failure to state a claim
and a motion for judgment on the pleadings de novo to determine whether the pleadings
set forth a legally sufficient claim for relief. See Zutz v. Nelson, 788 N.W.2d 58, 61 (Minn.
2010) (motion for judgment on the pleadings); Bodah v. Lakeville Motor Express, Inc., 663
N.W.2d 550, 553 (Minn. 2003) (motion to dismiss). A claim is legally sufficient “if it is
possible on any evidence which might be produc ed, 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). “The reviewing court must consider only the facts allege d in the complaint,
accepting those facts as true and must construe all reasonable inferenc es in favor of the
nonmoving party.” Bodah, 663 N.W.2d at 553. Construction of the Human Rights Act’s
provisions is an issue of statutory in terpretation which we review de novo. Krueger v.
Zeman Constr. Co., 781 N.W.2d 858, 861 (Minn. 2010).
Abel challenges the district court’s dismissal of four discrimination claims brought
under the Human Rights Act and two common-law negligence claims. We consider these
claims in turn, beginning with the discrimination claims.

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I.
The district court dismissed all of Abel’s Human Rights Act discrimination claims
against Allina and St. Mary’s as time-barred. We first consider the timeliness of the
discrimination claims against Allina.
A.
Abel appeals the dismissal of three Hu man Rights Act claims against Allina,
including race- and sex-based discrimination in the areas of employment, education, and
public accommodation. We conclude that the district court did not err in dismissing the
education and public accommodation claims as time-barred, but that Abel’s employment
discrimination claim was timely commenced.
As a preliminary matter, we must decide the measuring date for the statute of
limitations periods on each of Abel’s discrimination claims against Allina. The measuring
date is uncontested for the employment disc rimination claim, which is measured from
May 26, 2017, when Abel f iled a charge of discrimination against Allina with the
Commissioner of Human Rights. The parties dispute the measuring date for the two
remaining claims: the education and public accommodation discrimination claims.
Abel argues that the education and pub lic accommodation discrimination claims,
like the employment discrimination claim, should be measured from the date she filed her
charge of discrimination. She asserts that the charge was sufficient to put Allina on notice
of the several claims later brought against it. Allina argues that the date Abel commenced
her civil action against Allina by service of her complaint—March 2, 2018—is the proper
measuring date for the claims. We agree with Allina.

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The Human Rights Act requires individuals to identify the practices that they allege
to be discriminatory in the charging documents they file with the Department of Human
Rights. See Minn. Stat. § 363A.28, subd. 1. Any charge filed w ith the Department must
contain “a clear and concise statement of the facts that . . . may constitute the alleged unfair
discriminatory practice,” Minn. R. 5000.0400, subp. 1C (2019), to inform the scope of the
Department’s investigation and put the respondent on notice of the nature of the allegations
against it. An “[u]nfair discriminatory practice” is “any act described in sections 363A.08
to 363A.19.” Minn. Stat. § 363A.03, subd. 48.
Discrimination in the areas of employme nt, education, and public accommodation
are three distinct unfair discriminatory practices that are described in separate sections of
the Human Rights Act. See Minn. Stat. §§ 363A.08 (employment), .13 (education), .11
(public accommodation). Each discriminato ry practice includes different elements,
although they may be based in part on common facts, as they are here. Compare, e.g.,
Minn. Stat. § 363A.11, subd. 1(a)(1) (providing that it is an unfair discriminatory practice
under that section “to deny any person the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, and accommodations of a place of public
accommodation” based on a protected status), with Minn. Stat. § 363A.08, subd. 2(3)
(providing that it is an unfair discriminatory practice under that section to “discriminate
against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions,
facilities, or privileges of employment” based on a protected status). And any separate
unfair discriminatory practice must be identifie d and detailed separately in any charge of
discrimination filed with the commissioner. See Minn. Stat. § 363A.28, subd. 1.

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Here, the May 26, 2017 charge of discrimination that Abel filed with the Department
of Human Rights did not allege discrimina tion in the areas of education and public
accommodation. Instead, it detailed Abel’s as serted employment w ith Allina, and it
specifically cited the employment discriminati on provision, Minn. Stat. § 363A.08. In
response to the prompt, “[t]he discrimina tion was in the area of,” Abel wrote
“Employment.” And in the se ction of the charge in whic h she was to “[d]escribe the
discriminatory act, setting forth in statutory language the violation of Minnesota Statutes,
Section §363A,” Abel wrote in relevant part: “I therefore allege that the above-named
Respondents have discriminated against me in the area of employment on the basis of my
sex and race . . . .”
About 9 months later, on March 2, 2018, Abel commenced her civil lawsuit against
Allina. Like the charge of discrimination, the complaint alleged discrimination in the area
of employment, but it also included allegations of discrimination in the areas of education
and public accommodation. Abel did not amend her pending charge with the Department
in the intervening months to include discrimina tory practices in the areas of education or
public accommodation. And there is nothing in the record to sugg est that Abel was
somehow prevented from doing so. No material change occurred between May 26, 2017,
and March 2, 2018, that would explain the omission of the education or public
accommodation claims, as the practicum program had ended long before either date.
We have barred a discriminatory practice claim as untimely for failing to name the
perpetrator of the discriminatory practice—a se parate requirement of the charging rules.
State ex rel. Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 700 (Minn. 1996); see also Minn. Stat.

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§ 363A.28, subd. 1 (providing that a charge of discrimination “must state the name of the
person alleged to have committed an un fair discriminatory practice”). In RSJ, Inc., the
Department of Human Rights filed a complaint against the owner and operator of a
restaurant in his individual capacity, alleging that he had aided and abetted discriminatory
practices. The owner/operator argued that the claims should be dismissed because “they
were not filed in a verified charge within on e year” of the discriminatory practice. 552
N.W.2d at 697–98; see also Minn. Stat. § 363.06, subds. 3, 4(3) (1994) (providing that a
charge must have been filed within one y ear of a discriminatory practice before the
Department could file a complaint). The De partment asserted that the complaint was
timely based on a discrimination charge filed against the restaurant within the appropriate
timeframe. 552 N.W.2d at 699–70. We disagreed, noting that “no charge ha[d] been filed
by either a charging party or the Commi ssioner against the respondent alleging a
discriminatory practice on the part of the re spondent,” and the existing charge was never
amended to include the owner/operator. Id. at 700. We found no basis for tolling the
limitations period, particularly because the Department knew or should have known the
necessary information to include the owner/operator in the charge. Id.
A federal district court in Minnesota has reached a similar conclusion when a charge
of discrimination and a civil complaint allege d unfair discriminatory practices based on
different types of discrimination. See Hayes v. Blue Cross Blue Shield of Minn., Inc. , 21
F. Supp. 2d 960 (D. Minn. 1998). In Hayes, a party timely filed a charge of discrimination
based on disability. Id. at 968. In a civil complaint f iled later, the plaintiff alleged
pregnancy discrimination. Id. The court concluded that, b ecause the charge did not

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mention pregnancy discrimina tion, the pregnancy discrimi nation claim was time-barred
under the Human Rights Act. Id. at 977.
As in RJC, Inc. and Hayes, we conclude that Abel’s charge of discrimination cannot
be read to encompass her education and public accommodation discrimination claims.
Abel’s charge of discrimination identifying and detailing her empl oyment discrimination
claim—and only her employment discrimina tion claim—did not meet the charging
requirements as to her education and public accommodation discrimination claims and did
not put Allina on notice that those claims would be leveled against it 9 months later by civil
complaint. Accordingly, we conclude that the filing date of the civil complaint, March 2,
2018, is the measuring date for the education and public accommodation claims.
B.
Having established the releva nt measuring dates for the claims against Allina, we
must consider whether the charge was filed or the civil action was brought “within one year
after the occurrence of the practice.” Minn. Stat. § 363A.28, subd. 3(a).
Even considering the discrimination claim with the earliest measuring date for the
claims against Allina—May 26, 2017—it is clear that most of the alleged misconduct
occurred outside of the one-year statute of li mitations periods. The final day of Abel’s
practicum was May 27, 2016. Accordingly, only the last two days of Abel’s practicum fall
within the limitations period. The rest of the practicum, and Dr. Gottlieb’s and
respondents’ alleged misconduct during that tim e, thus occurred outside of the one-year
limitations period.

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Abel argues, however, that all of her claims are timely un der the continuing
violations doctrine. The continuing violations doctrine is an equitable doctrine that can toll
the statute of limitations where a pattern of discriminatory condu ct “constitute[s] a
sufficiently integrated pattern to form, in effect, a single discriminatory act.” Hubbard v.
United Press Int’l, Inc., 330 N.W.2d 428, 440 n.11 (Minn. 1983). “Under Minnesota law,
each individual discriminatory act which is part of a continuing violation triggers anew the
time period for reporting the entire pattern of discrimination, ‘as long as at least one
incident of discrimination occurred within the limitations period.’ ” Smith v. Ashland, Inc.,
250 F.3d 1167, 1172 (8th Cir. 2001) (quoting Treanor v. MCI Telecomms. Corp., 200 F.3d
570, 573 (8th Cir. 2000)). 4 A plaintiff can prove a con tinuing violation of the Human
Rights Act by demonstrating “(1) a series of related acts, one or more of which fell within
the limitations period, or (2) th e maintenance of a discriminatory system both before and
during the limitations period.” Id. at 1172. The critical ques tion is “whether any present

4 Although “a federal interpretation of state law is not binding on our court,” McBee
v. Team Indus., Inc., 925 N.W.2d 222, 228 n.3 (Minn. 2019), we find the Eighth Circuit’s
interpretation to be an accurate reflection of our holdings in Sigurdson v. Isanti County ,
448 N.W.2d 62 (Minn. 1989) and Brotherhood of Railway & St eamship Clerks v. State ,
229 N.W.2d 3 (Minn. 1975). In those cases, we applied the continuing violations doctrine
to extend discrimination claims under the Human Rights Act. In Sigurdson, we concluded
that “[t]he wrongful denial of plaintiff’s claim to be a deputy assessor with a deputy
assessor’s pay was a continuing act,” and was thus not barred by the statute of limitations.
448 N.W.2d at 68. And in Brotherhood, we concluded that discriminatory acts in pay, job
rights, and job classification c onstituted a continuing violati on and thus were not barred,
despite some of the acts having taken place more than 8 years before the charges were filed.
229 N.W.2d at 8–9, 12.

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violation exists” within the statute of limitations period. Sigurdson v. Isanti County, 448
N.W.2d 62, 67 (Minn. 1989) (citation omitted) (internal quotation marks omitted).
Abel alleges that the violations she experienced “were part of a series of related acts
of discrimination” based on her sex and race. Essentially, Abel argues that the complicity
of Allina and St. Mary’s in Dr. Gottlieb’s ongoing misconduct constitutes a continuing
violation which tolls the statute of limitations as to each discrimination claim.5 Although
we agree that applying the continuing violations doctrine is appropriate in this case, we do
not conclude that the doctrine saves all of Abel’s claims. We will discuss the matter in the
context of each statute of limitations period.
C.
We start with Abel’s employment discrimination claim. See Minn. Stat. § 363A.08,
subd. 2(3). The measuring date for this claim is May 26, 2017, when Abel filed her charge
of discrimination. To survive the motion to dismiss on this claim, Abel must have

5 In her complaint, Abel ch aracterizes several of her discrimination claims as hostile
environment claims, although she did not make that point in briefing to our court. We note
that the continuing violations doctrine is particularly rele vant in hostile environment
claims. See Smith, 250 F.3d at 1173 (stating that “a hostile work environment claim, by
nature, constitutes a continuing violation”). This is because hostile environment claims of
any kind are by nature analyzed differently than discrimination based on discrete acts. See
Nat’l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 116–17 (2002) (“A hostile work
environment claim is composed of a series of separate acts that collectively constitute one
unlawful employment practice.”) (citation omitte d) (internal quota tion marks omitted).
Hostile environment claims may be based on “[p]ervasive incidents, any of which may not
be actionable when considered in isolation.” Kenneh v. Homeward Bound, Inc. , 944
N.W.2d 222, 232 (Minn. 2020).

18
sufficiently pled a continuing vi olation with one or more acts falling on or after May 26,
2016. We conclude that she did.
The district court should dismiss claims based on the running of a statute of
limitations “only when it is clear from the stated allegations in the complaint that the statute
of limitations has run.” Hansen v. U.S. Bank Nat’l Assoc. , 934 N.W.2d 319, 326 (Minn.
2019). “We will not make infere ntial leaps in favor of the de fendant to conclude that a
lawsuit is time-barred.” Id. “An assertion that the statute of limitations bars a cause of
action is an affirmative defense and ‘the pa rty asserting the defense has the burden of
establishing each of the elements.’ ” Id. (quoting MacRae v. Grp. Health Plan, Inc. , 753
N.W.2d 711, 716 (Minn. 2008)).
The complaint asserts that th e “violations were part of a series of related acts of
discrimination based on the sex and race of [Abel] a nd constitute continuing violations.”
Abel alleged that Dr. Gottlieb broke the no-contact order every day, routinely walking past
the practicum students and making threateni ng eye contact or entering their workspace
“looking for something.” In one instance, Dr. Gottlieb “appr oached [Abel] from behind
and stood breathing in a simultaneously sexualiz ed and threatening manner.” Abel also
alleged aggravating and hum iliating conduct at the hands of Dr. Gottlieb’s colleagues
nearly every day that contribute d to the hostile climate at th e clinic. These interactions
ranged from Dr. Gottlieb’s ability to send me ssages through allies at the clinic to
disparaging remarks about Abel made by his colleagues.
Under these allegations, taken as true, Allina has not met its burden of showing that
Abel’s employment discrimination claim is barred by the statute of limitations. Abel has

19
plausibly alleged a continui ng violation extending throu gh the final 2 days of her
practicum. Accordingly, the statute of limitations is tolled for Abel’s employment
discrimination claim. This claim was improperly dismissed as time-barred.
Next, we consider the timeliness of Abel’s discrimination claims against Allina in
the areas of education and public accommodation. See Minn. Stat. §§ 363A.13, .11. The
measuring date for these claims is March 2, 2018, when Abel brought her civil lawsuit
against Allina. The claim surv ives the motion to dismiss unle ss it is clear that Allina has
established there was not a cont inuing violation with one or more acts falling within the
statute of limitations period. We conclude that Allina has met this burden and affirm the
dismissal of these claims as time-barred.
Unlike the employment discrimination claim, which included the final two days of
the practicum, there are no alleged discrimina tory acts that are part of the continuing
violation—or even any conversations or disc ussions with Allina—on or after March 2,
2017. Abel alleges that she remained affected by Allina’s ongoing failure to remedy the
earlier discriminatory practices . But, by March 2, 2017, Abel’s practicum would have
already ended even if she had not prematurely left the program. Dr. Gottlieb had resigned
9 months earlier, and even the Abbott clinical director who formally handled Abel’s
concerns, Dr. Schmitz, was no longer at Abbott.
In deciding whether one or more relate d acts fell within the limitations period,
“[o]ne must distinguish between discriminatory acts and discriminatory effects; the proper
focus is upon the time of the discriminatory acts , not upon the time at which the
consequences of the acts became most painful.” Sigurdson, 448 N.W.2d at 67 (citation

20
omitted) (internal quotation marks omitted). As we stated in Sigurdson, “[i]n one sense, a
discriminatory act always has some continuing consequences. There is always the effect
of the loss of ‘what should have been.’ But if a mere continuing e ffect will extend the
limitation period, the statute of limitations would be effectively emasculated. This cannot
be.” Id. We do not doubt that the consequences of the alleged discrimination continued to
be painful for Abel following the termination of her practicum. Nevertheless, we conclude
that the education and public accommodati on discrimination claims against Allina are
barred by the statute of limitations and were therefore properly dismissed.
D.
Abel appeals the dismissal of her discrimination claim against St. Mary’s in the area
of education. See Minn. Stat. § 363A.13. The educatio n discrimination claim against St.
Mary’s is measured from March 5, 2018, wh en Abel commenced her civil action against
St. Mary’s by service of compla int. The claim survives th e motion for judg ment on the
pleadings unless St. Mary’s shows that there was not a continuing vi olation with one or
more acts falling on or after March 5, 2017. We conclude that St. Mary’s has met this
burden, and that this claim was therefore properly dismissed.
As noted above, the continuing violations doctrine applies to toll the statute of
limitations where a pattern of discriminatory conduct constitutes a single discriminatory
act. Hubbard, 330 N.W.2d at 440 n.11. We must look to whether any present violation
exists within the statute of limitations period. See Sigurdson, 488 N.W.2d at 67. Three
events allegedly occurred on or after March 5, 2017: a spring 2017 conversation with a St.
Mary’s faculty member where Abel was told to “suck it up”; a similar conversation where

21
Dr. Solon told Abel that she represented St. Mary’s and that she needed to put the Abbott
experience behind her; and an email conversation between D r. Solon and Abel regarding
Larry Nassar and St. Mary’s role in Abel’s practicum experience.
Abel’s conversations about the practicum after the fact are insufficient to extend her
claim under the continuing violations doctrine because they are not within the series of acts
that constitute the continui ng violation. As above, we note that the continuing
consequences for Abel may be significant, but this is insufficient to extend her claim. We
conclude that the education discrimination claim against St. Mary’s is barred by the statute
of limitations and was therefore properly dismissed.
In sum, we conclude that the district c ourt properly dismissed three of Abel’s four
discrimination claims as time-barred. We further conclude that Abel’s employment
discrimination claim against Allina was not time-barred and dismissal of the claim on that
basis was improper.
II.
Because dismissal of Abel’s employment discrimination claim based on the statute
of limitations was improper, we turn next to the question of whether Abel’s claim is
otherwise barred because she cannot maintain th e claim as an unpaid practicum student.
Essentially, the district court concluded that compensation is a necessary prerequisite to
the maintenance of Abel’s employment disc rimination claim, noting that the lack of

22
compensation would have barred the claim “even if it were timely.” The court of appeals
did not reach this question.6 Abel, 2019 WL 4745372, at *3 n.4.
We must decide whether the employment discrimination provision, Minn. Stat.
§ 363A.08, subd. 2(3), provides a cause of action for a practicum student despite a lack of
compensation. This decision requires constr uction of the Human Ri ghts Act, which we
review de novo. Krueger, 781 N.W.2d at 861.
The section of the Human Rights Act governing unfair employment practices is
broad and encompasses a wide range of actions from unlawful hiring policies to unlawful
discharge. See generally Minn. Stat. § 363A.08. Releva nt here, the Human Rights Act
provides that it is an unfair employment prac tice for an employer, because of race or sex,
to “discriminate against a person with respec t to hiring, tenure, compensation, terms,
upgrading, conditions, facilities, or pr ivileges of employment.” Minn. Stat.
§ 363A.08, subd. 2(3).
The Human Rights Act does include se veral enumerated exemptions from
employment discrimination liability. See Minn. Stat. § 363A.08 note (“Any statutory
exemptions to this section are covered under sections 363A.20 and 363A.26.”); Minn. Stat.
§ 363A.20 (exempting certain employers and employment practices from liability); Minn.

6 Abel raised this issue in her petition fo r review, which we granted. Although we
could remand this issue to the court of appeals, we address it here in the interests of judicial
economy. See Frazier v. Burlington N. Santa Fe Corp., 811 N.W.2d 618, 628–29 (Minn.
2012) (addressing three separate grounds not reached by the court of appeals because “the
relevant questions have been briefed by the parties and the r ecord is sufficient for us to
decide the remaining issues”); see also Hoffman v. N. States Power Co. , 764 N.W.2d 34,
48 (Minn. 2009) (addressing a jurisdiction question in the interests of judicial economy).

23
Stat. § 363A.26 (exempting religious associa tions from liability for certain practices).
Unpaid practicum students, however, are not ex pressly exempted from the protections of
the Human Rights Act by any of these provisions.7
Because we have not yet had the opport unity to consider whether an unpaid
practicum student may state a claim under section 363A.08, subdivision 2(3), a discussion
of approaches taken in the Title VII context is helpful. 8 For the reasons that follow, we
conclude that the “hybrid” test used in ce rtain Title VII cases pr ovides the a ppropriate
framework for Human Rights Act claims. Under this framework, we do not agree with the

7 We note that the Commissioner of the De partment of Human Rights encourages us
to construe the Human Rights Act to a llow employment discrimination claims by “an
individual working in a workplace as a mandatory practical component of their education
even if the individual is not paid for that work.” The Commissioner discourages a
bright-line test based on compensation and instead urges a more holistic fact-based
determination. Although this interpretation is not binding on our court, it reinforces our
conclusion that the plain terms of Minn. Stat . § 363A.08, or its attendant definitions, do
not require the person asserting the discrimi nation claim to be compensated, and, while
compensation may be a relevant factor in determining whether an employment relationship
exists, it should not be dispositive.

8 “In construing the MHRA, we have at times ‘relied on principles developed under
Title VII’ but we are not bound by interpretations of Title VII.” Ray v. Miller Meester
Advert., Inc., 684 N.W.2d 404, 408 (Minn. 2004) (quoting Turner v. IDS Fin. Servs. Inc.,
471 N.W.2d 105, 107 (Minn. 1991)). The definitions of “employer” and “employee” are
not identical between th e MHRA and Title VII. Compare Minn. Stat. § 363A.03,
subds. 15–16, with 42 U.S.C. § 2000e(b), (f) (2018). They are, however, sufficiently
similar to consider Title VII principles in this context.

24
district court that unpaid practicum student s are excluded from the protections of the
Human Rights Act as a matter of law.
We begin with the approach used most frequently in the Title VII context:
application of common-law agency doctrine.9 When determining whether an individual is
an employee or an independent contractor in the workers’ comp ensation context, for
example, we consider the fo llowing non-exhaustive common-law factors: “(1) The right
to control the means and manner of perfo rmance; (2) the mode of payment; (3) the
furnishings of material or tools; (4) the control of the premises where the work is done; and
(5) the right of the employer to discharge.” Wangen v. City of Fountain, 255 N.W.2d 813,
814–15 (Minn. 1977).10 Of these, the most important is “the right to control the means and
manner of performance.” Id.
To be sure, at least two fe deral courts have read in to these common-law factors a
requirement of compensation. See O’Connor v. Davis, 126 F.3d 112, 115 (2d Cir. 1997)

9 As the dissent notes, many federal courts ha ve taken this approach in Title VII cases
rather than applying the “hybri d” or “economic realities” tests discussed later. This is
largely because the economic realities test was precluded in the Title VII context by the
U.S. Supreme Court. As one federal cour t explained, “when Congress uses the term
‘employee’ without defining it with precision, courts should presume that Congress had in
mind ‘the conventional master-servant re lationship as understo od by the common-law
agency doctrine.’ ” O’Connor v. Davis , 126 F.3d 112, 115 (2d Cir. 1997) (quoting
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322–23 (1992)). Use of the economic
realities test was not allowed post- Darden because “the construction is broader than at
common law.” Wilde v. County of Kandiyohi, 15 F.3d 103, 106 (8th Cir. 1994). Minnesota
is under no obligation to follo w this limiting construction in the context of the Human
Rights Act.

10 The factors from Wangen arose from common-law agency doctrine. See Graf v.
Montgomery Ward & Co. , 49 N.W.2d 797, 801 (Minn. 1951) (discussing Restatement
(First) of Agency § 220 (Am. Law Inst. 1933)).

25
(concluding that an unpaid intern was not an employee under Title VII because “a
prerequisite to considering whether an indi vidual is [an employee or an independent
contractor] under common-law agency principles is that the individual have been hired in
the first instance”); Graves v. Women’s Prof’l Rodeo Ass’n , 907 F.2d 71, 72–73 (8th Cir.
1990) (concluding that a rodeo association’s membership roster could not be construed as
a list of employees because compensation “is an essential condition to the existence of an
employer-employee relationship”).11
This interpretation is not universal, however. See Haavistola v. Cmty. Fire Co. of
Rising Sun, Inc., 6 F.3d 211, 221–22 (4th Cir. 199 3) (concluding that summary judgment
on the issue of whether an employment relati onship existed was inappropriate where the
putative employee was an unpaid volunteer w ith a fire company, but received certain
benefits); cf. Marie v. Am. Red Cross, 771 F.3d 344, 353 (6th Cir. 2014) (declining to adopt
a “threshold remuneration test” for the dete rmination of whether a volunteer is an
employee); Waisgerber v. City of Los Angeles , 406 Fed. Appx. 150, 151 (9th Cir. 2010)
(explaining that “the fact that a person is not paid a salary does not necessarily foreclose
the possibility” of an employment relationship).

11 In Graves, a rodeo association was “organized for the principal purpose of
sanctioning rodeo barrel races.” 907 F.2d at 72. Its member s could participate in rodeo
association-endorsed competitions but were not trained or paid by the association, and its
members transported their own horses and equipment. Id. As the Eighth Circuit pointed
out, the rodeo association was “so unlike an employer to its members that plunging into
questions of control or economic realities is on the order of considering whether mitigating
circumstances were present during the commission of a crime before determining whether
there is [in fact a crime].” Id. at 74. The analysis in Graves is therefore of limited use in
this case, where Abel’s s ituation much more closely approximated a traditional
employment relationship.

26
Moreover, the Human Rights Act has hist orically “provided more expansive
protections to Minnesotans than federal law.” Kenneh v. Homeward Bound, Inc. , 944
N.W.2d 222, 229 (Minn. 2020). The purpose of the Human Ri ghts Act is “to secure for
persons in this state, freedom from discrimination,” as discrimination “threatens the rights
and privileges of the inhabitants of this state and menaces the institutions and foundations
of democracy.” Minn. Stat. § 363A. 02, subd. 1. The provisions of the Human Rights Act
are to be “construed liberally for the accomplishment of the purposes thereof.” Minn. Stat.
§ 363A.04. We therefore avoid a construction of Minn. Stat. § 363A.08, subd. 2(3), which
reads in compensation as a prerequisite fo r a discrimination claim when that is not
mandated by the statutory language.
Further, we conclude that reliance on co mmon-law agency principles alone is
unnecessarily restrictive in li ght of the liberal construction we must afford the Human
Rights Act. While common-law principl es impose reasonable constraints on the
maintenance of employment discrimination suits, we conclude that Title VII’s hybrid test
is the more appropriate approach in this case. Under the hybrid test, the existence of an
employment relationship “is construed in li ght of general common-law concepts, taking
into account the economic rea lities of the situation.” Wilde v. County of Kandiyohi , 15
F.3d 103, 105 (8th Cir. 1994) (describing consideration of economic realities as being
“based on the court’s view that the statute should ‘be read in light of the mischief to be
corrected and the end to be attained’ ” (quoting Armbruster v. Quinn, 711 F.2d 1332, 1340
(6th Cir. 1983), abrogated on other grounds by Arbaugh v. Y&H Corp. , 546 U.S. 500
(2006))).

27
To determine whether an employment relationship exists—and a suit may be
maintained—the hybrid test “examines the economic rea lities underlying the work
relationship to decide whether the worker is lik ely to be susceptible to the discriminatory
practices Title VII was designed to eliminate.” Id. at 105; see also Krueger, 781 N.W.2d
at 863 (explaining that we are called to “determine whether the statute actually provides a
cause of action to a particular class of pers ons”). Courts have al so weighed “additional
factors related to the worker’s economic situation, like how the work relationship may be
terminated, whether the worker receives yearly leave, whether the worker accrues
retirement benefits, and whether the hiring party pays social security taxes.” Wilde, 15
F.3d at 105. In this totality -of-the-circumstances analysis, no single factor is dispositive.
See Hanson v. Friends of Minn. Sinfonia , 181 F. Supp. 2d 1003, 1007 (D. Minn. 2002)
(citing Wilde, 15 F.3d at 104–05).
Turning to the facts of this case, we examine whether A llina has sufficiently
demonstrated that Abel cannot, as a matter of law, be “susceptible to the discriminatory
practices [the Human Rights Ac t] was designed to eliminate,” id. at 105, because of her
lack of compensation. Based on the statut ory language and common-law factors, we do
not agree that Abel’s employment discrimina tion claim should be di smissed for lack of
compensation. Like a traditional employee, Abel underwent an application process and
was selected to take part in the practicum program. Once she was a part of the practicum
program, Abel accessed traditional employee re sources, like human resources and the IT
department. Moreover, Abel asserts in her comp laint that she “performed the work of an

28
employee.” Like her paid colleagues, she provided services to Allina and its patients and
clients, and Allina—albeit not Abel—was compensated for this work.
The absence of compensation does not bar Abel’s employment discrimination claim
as a matter of law. Abel has alleged that she had an employment relationship with Allina.
We therefore conclude that Abel has stated a claim for employment discrimination under
the Human Rights Act. See Walsh, 851 N.W.2d at 603.
III.
Finally, we turn to Abel’s common-law negligence claims against Allina and
St. Mary’s. The district court dismissed thes e claims, and the court of appeals affirmed.
Essentially, both courts stated that, to avoid preemption under the Human Rights Act, Abel
must have alleged facts sufficient to show a cognizable common-law duty separate and
apart from any obligations owed under the Human Rights Act. 12 The courts further
concluded that Abel had not done so. These de cisions thus require us to consider which

12 The Human Rights Act provides that “as to acts declared unfair by sections 363A.08
to 363A.19, and 363A.28, subdivision 10, th e procedure herein provided shall, while
pending, be exclusive.” Minn. Stat. § 363A.04. The district court’s formulation of when
common-law negligence is preempted by the Human Rights Act stems from a decision by
a federal district court in Minnesota, which held “that the MHRA preempts a common law
cause of action if (1) the factual basis and injuries supporting the common law claim also
would establish a violation of the MHRA, and (2) the obligations the defendant owes to
the plaintiff, as a practical matter, are th e same under both the common law and the
MHRA.” Pierce v. Rainbow Foods Grp., Inc. , 158 F. Supp. 2d 96 9, 975–76 (D. Minn.
2001). For the purposes of our discussion, we assume, without deciding, that this
formulation is appropriate.

29
common-law duties, if any, a graduate sch ool and hospital owe to a graduate student
involved in a practicum program.13
We discuss each negligence claim in turn, beginning with the claim against Allina.
A.
“The basic elements of a negligence claim are: (1) existence of a duty of care; (2)
breach of that duty; (3) proximate causation; and (4) injury. Bjerke v. Johnson, 742 N.W.2d
660, 664 (Minn. 2007). When asserting a negligence claim, “[t]he existence of a duty of
care is a threshold question because a defend ant cannot breach a nonexistent duty.” Doe
169 v. Brandon, 845 N.W.2d 174, 177 (Minn. 2014). Generally, “a person does not owe a
duty of care to another—e.g., to aid, protect, or warn that person—if the harm is caused by
a third party’s conduct.” Id. at 177–78.
There are two instances, however, where “a negligent defendant may be held liable
to a plaintiff for harm caused by a third party.” Fenrich v. Blake School, 920 N.W.2d 195,
202 (Minn. 2018). One of these instances oc curs “when there is a special relationship
between a plaintiff and a defendant and the harm . . . is foreseeable.” Doe 169, 845 N.W.2d
at 178. Another occurs “when the defendant’s own conduct creates a foreseeable risk of
injury to a foreseeable plaintiff.” Domagala v. Rolland, 805 N.W.2d 14, 23 (Minn. 2011).
We review the existence of a duty of care de novo. Id. at 22.

13 The parties did not argue or brief whet her Allina was responsible for Dr. Gottlieb’s
misconduct under a theory of respondeat superior. Our decision today does not foreclose
any party from moving to amend its pleadings to address this theory.

30
Abel claims that Allina owed her a duty under both theories.14 “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, 851 N.W.2d at 603. It is not required that a plaintiff “allege facts and
every element of a cause of action.” Id. at 602 (quoting N. States Power Co. v. Franklin,
122 N.W.2d 26, 29 (Minn. 1963)). We “constr ue the complaint to allow the plaintiff’s
claim to go forward unless there is no way to construe the alleged facts—and the inferences
drawn from those facts—in support of the plaintiff’s claim.” Hansen, 934 N.W.2d at 326.
We begin with whether the facts alleged support a conc lusion that Allina’s own
conduct created a foreseeable ri sk of injury to a foreseeabl e plaintiff. “In analyzing a

14 Judge Klaphake of the court of appeal s agreed, concluding that under either
exception, “Abel allege[d] facts that could support a duty.” Abel, No. A19-0461, 2019 WL
4745372, at *9 (Klaphake, J., dissenting).
Abel has not forfeited her right to argue that Allina and St. Mary’s owed her a duty
under a foreseeable risk theory. In her complaint, Abel a lleged at length that both Allina
and St. Mary’s were aware of discrimination and harassment taking place at Abbott, both
before and during her practicum. She alleged that respondents owed her duties of care and
breached those duties by knowi ngly exposing her to discri mination and harassment at
Abbott. And in briefing to the district court, Abel maintained that St. Mary’s owed a duty
to protect her from harm caused by “third parties.”
Pleadings are to be construed so “as to do substantial justice,” Minn. R. Civ. P. 8.06,
and our rules demonstrate a “preference for non-technical, broad-brush pleadings,” Walsh,
851 N.W.2d at 605. Neglig ence is not among the special matters requiring enhanced
factual specificity in pleading. See Minn. R. Civ. P. 9. Further, sample forms for
negligence in the Rules of Civil Procedure fail to me ntion the word “duty” at all. See
Appendix of Forms 8–9; see also Minn. R. Civ. P. 84 (stating that the forms “sufficiently
reflect the rules and are intended to indicate the simplicity and brevity of statement which
the rules contemplate”). We decline to impose a more rigorous standard in this matter than
is required by our rules. Unde r the broad pleading standards th at govern the case at this
early stage in the proceedings, we conclude that Abel properly preserved this theory.

31
defendant’s ‘own conduct,’ we have draw n a distinction between misfeasance and
nonfeasance.” Fenrich, 920 N.W.2d at 203. Whereas misfeasance is “active misconduct
working positive injury to others,” nonfeasance is “passive inaction.” Id. (quoting Doe
169, 845 N.W.2d at 178). “If a defendant’s c onduct is mere nonfeasance, that defendant
owes no duty of care to the plaintiff for harm caused by a third party.” Id.
The facts alleged support a conclusion that Allina’s conduct was not passive
inaction. The practicum was run through Abbott’s clinical psychology program, and Allina
authorized Dr. Gottlieb to supervise the pr ogram. Allina fielded the complaints of
practicum students. Upon receiving Abel’s complaints, an Allina clinical director
instructed Abel to br ing her concerns back to Dr. Gottlie b. Allina clearly attempted to
exercise its control when its leadership removed Dr. Gottlie b as training director and
instituted the ultimately unsuccessful no-co ntact order. And, when Dr. Gottlieb was
removed, Abbott replaced him with an interi m program director wh o engaged in similar
misconduct. Contrary to Allina’s assertions, these allegations, at least at this early stage of
litigation, constitute misfeasance on the part of Allina.
Moving to the foreseeability of the harm, “we ‘look at whether the specific danger
was objectively reasonable to expect, not simp ly whether it was with in the realm of any
conceivable possibility.’ ” Foss v. Kincade, 766 N.W.2d 317, 322 (Minn. 2009) (quoting
Whiteford ex rel. Whiteford v. Yamaha Motor Corp., U.S.A., 582 N.W.2d 916, 918 (Minn.
1998)). Here, it was objectively reasonable for Allina to expect Dr. Gottlieb’s misconduct
against Abel to occur. Dr. Gottlieb was vocal about “his girls” in the practicum program,
and his colleagues knew about his problematic methods, including the role plays and

32
chest-touching. Further, Allina was aware th at the harm was occurring during Abel’s
tenure with the program. Even when Allina instituted the no-contact order, practicum
students were moved to a place in the clinic where Dr. Gottlieb could interact with them
frequently and the order was not enforced. Not only could Allina reasonably expect harm,
it knew the harm was occurring.
It is also clear that Abel was a foreseeable plaintiff. As a female student, Abel was
in a class of students who ha d already been subjected to Dr. Gottlieb’s inappropriate
conduct, and was likely to be subjected to disc rimination as one of Dr. Gottlieb’s “girls.”
Moreover, Abel was placed and kept under the supervision of Dr. Gottlieb even though he
openly referred to her as “the brown one” or “the graduate student of color” and described
himself as “not culturally competent.”
Taken together, these allega tions support the conclusion that Allina had a duty to
protect Abel based on its own conduct creati ng a foreseeable risk of harm to Abel, a
foreseeable plaintiff. Because we conclude that the allegations un der this theory are
sufficient to support Abel’s assertion that Allina owed Abel a duty, we decline to address
whether a special relationship exists.
B.
We now turn to Abel’s negligence claim against St. Mary’s. As with Allina, we do
not decide whether a special relationship exists in this instance because we conclude that
Abel has sufficiently alleged that St. Mary’s own conduct created a foreseeable risk of
injury to a foreseeable plain tiff. On appeal from dismissa l of a claim based on a motion
for judgment on the pleadings, “we consider only the facts alleged in the complaint,

33
accepting those facts as true a nd drawing all reasonable in ferences in favor of the
nonmoving party.” Zutz, 788 N.W.2d at 61. “Under our law, the pleading of broad general
statements that may be conclusory is permitted.” Barton v. Moore, 558 N.W.2d 746, 749
(Minn. 1997). As with a mo tion to dismiss, we “construe the complaint to allow the
plaintiff’s claim to go forward unless there is no way to construe the alleged facts—and
the inferences drawn from those facts—in support of the plaintiff’s claim.” Hansen, 934
N.W.2d at 326.
Taking Abel’s factual allegations as true, the complaint alleges misfeasance on the
part of St. Mary’s. Far from “passive inaction,” Fenrich, 920 N.W.2d at 203, Abel’s
advisor at St. Mary’s knowingl y endorsed a practicum that would likely subject Abel to
race- and sex-based discrimination. Even after the interview with Dr. Gottlieb, when Abel
could still have avoided the Abbott practicum program, her advisor dismissed her concerns
and said that Dr. Gottlieb was “just funny. ” Rather than protecting Abel from harm,
St. Mary’s faculty actively encouraged her placement with Dr. Gottlieb and then counseled
her on how to remain in the practicum despite the discrimination and harassment.
The risk of harm was also foreseeable, ba sed on similar facts to those establishing
misfeasance. St. Mary’s knew that D r. Gottlieb had committed race- and sex-based
misconduct in the past, and it was “objectively reasonable to expect” that he would do so
in the future. Foss, 766 N.W.2d at 322. The school had made past efforts to remedy the
behavior, including submittin g complaints and having Dr. Gottlieb work through
remediation plans, but those efforts had faile d. With full knowledge that Dr. Gottlieb’s

34
tendencies for race- and sex-ba sed misconduct had not been me aningfully addressed, St.
Mary’s encouraged students like Abel to apply for placements with Dr. Gottlieb.
Finally, Abel was a foreseeable plaintiff. Other students at St. Mary’s, including
female students of color, had experienced si milar problems with Dr. Gottlieb. Dr. Solon
indicated that she knew of at least three other students who had been sexually and racially
harassed and gave Abel tips to avoid Dr. Gottlieb’s advances . There is nothing in the
record to indicate that expecta tions for Abel in the practicum should have been different
than for any other female student who had been subjected to Dr. Gottlieb’s misconduct.
Together, these allegations support the conc lusion that St. Mary’s owed a duty to
Abel based on its own conduct, giving rise to a foreseeable risk of injury to a foreseeable
plaintiff.
C.
Abel has alleged sufficient facts to establish that Allina and St. Mary’s owed her a
cognizable common-law duty. At this early stage in litigation, we cannot definitively say
that the duties owed under the common law are the same as the statutory obligations owed
to Abel under the Human Rights Act. No court has yet concluded that Allina or St. Mary’s
owe Abel any obligations under the Human Rights Act. The preemption provision applies
only where a Human Rights Act claim is “pending” and only “as to acts declared unfair by
sections 363A.08 to 363A.19, and 363A.28, subdivision 10.” Minn. Stat. § 363A.04. Until
a determination is made that the Human Righ ts Act covers the claims of an unpaid
practicum student, the Human Rights Act’s ex clusivity provision ha s no application. A
decision preempting the negligence claims at this point is therefore premature.

35
CONCLUSION

For the foregoing reasons, we affirm in part and reverse in part the decision of the
court of appeals and remand to the district c ourt for reinstatement of certain claims and
proceedings consistent with this opinion.
Affirmed in part, revers ed in part, and remanded.
CHUTICH, J., took no part in the consideration or decision of this case.

D-1
D I S S E N T
GILDEA, Chief Justice (dissenting).
The majority holds that an employment relationshi p may have existed between a
graduate student and the host site of her practicum, even though the graduate student
received no wages, salary, or benefits for her work. In doing so, the majority expands the
potential liability of employers beyond the intent of the Legislature in a decision that will
surely limit the practical oppor tunities available to Minnesot a’s students. The majority
further errs by conflating misfeasance with no nfeasance in concludi ng that appellant’s
common-law negligence claims were improperly dism issed. The majority’s error will
inevitably create confusion and inconsistency in future cases. Because I disagree with the
majority’s conclusions that the absence of compensation is not dispositive of an
employment relationship and that the res pondents’ conduct constitutes misfeasance, I
respectfully dissent.1
I.
Appellant Meagan Abel, a doctoral student, brought an employment discrimination
claim under the Minnesota Human Rights Act, Minn. Stat. ch. 363A (2018) (“MHRA”),
against respondent Allina Health Systems. Abel alleged that she experienced race and sex
discrimination while completing her practicum at one of Allina’s hospitals. The district
court dismissed Abel’s claim because the court determined that Abel was not an employee

1 Because I conclude that Abel’s employm ent discrimination claim fails as a matter
of law, I would not address the statute of limitations issue with respect to the employment
discrimination claim. I agree with the majo rity’s conclusion th at Abel’s remaining
discrimination claims in the areas of education and public accommodation are time-barred.

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under the MHRA. The court of appeals affirmed the dismi ssal of Abel’s MHRA claim
because it was untimely; the court did not reach the question of whether Abel was an Allina
employee. Abel v. Abbott Nw. Hosp. , No. A19-0461, 2019 WL 4745372, at *6 (Minn.
App. Sept. 30, 2019).
The MHRA protects employees from ma ny types of discrimination, including
discrimination based on race and sex. Minn. Stat. § 363A.08, subd. 2. The MHRA defines
“employee” as “an individual who is employed by an employer and who resides or works
in this state.” Minn. Stat. § 363A.03, subd. 15. An “employee” “includes a commission
salesperson, as defined in section 181.145, who resides or works in this state.” Id.
Although we have not consider ed the question of who is an employee under the MHRA,
the statutory definition of “employee,” case law from our court, and case law from federal
courts interpreting Title VII, show that co mpensation is a necessary prerequisite in
determining that an employment relationship exists.
The MHRA includes “a commiss ion salesperson” in its definition of “employee.”
Id. A “commission salesperson” is “a person who is paid on the basis of commissions for
sales[.]” Minn. Stat. § 181.145, subd. 1 (201 8). By including “commission salesperson”
in the definition of “e mployee,” the Legislature made cl ear that to be considered an
employee, an individual must receive some type of compensation in exchange for her work.
See Minn. Stat. § 363A.03, subd. 15.
Our case law supports this in terpretation. We have cons idered the nature of the
employment relationship in distinguishin g between employees and independent
contractors in workers’ compensation and unemployment compensation cases. See, e.g.,

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Wangen v. City of Fountain , 255 N.W.2d 813, 814–15 (Minn. 1977) (workers’
compensation); Speaks, Inc. v. Jensen , 243 N.W.2d 142, 144–45 (Minn. 1976)
(unemployment compensation). In doing so, we considered five factors derived from
common-law agency principles: “(1) The right to control the means and manner of
performance; (2) the mode of payment ; (3) the furnishing of material or tools; (4) the
control of the premises wher e the work is done; and (5) the right of the employer to
discharge.”2 Wangen, 255 N.W.2d at 815 (emphasis added); see also Restatement
(Second) of Agency § 220 (A m. Law Inst. 1958). Notably, we did not consider if the
employee or independent contractor was paid in those cases; rather, we considered how the
employee or independent contractor was compensated. See Wangen, 255 N.W.2d at 815.
The compensation factor of this test shows th at remuneration is an essential condition of
the employment relationship.
Federal courts interpreting Title VII agree. Title VII defines “employee” similarly
to the MHRA. Compare 42 U.S.C. § 2000e(f) (2018) (d efining “employee” as “an
individual employed by an employer”), with Minn. Stat. § 363A.03, subd. 15 (defining
“employee” as “an individual who is employed by an employer and who resides or works
in this state”). And “[w]e have relied on federal law interpreting Title VII in our

2 The Department of Labor and Industr y and the Department of Employment and
Economic Development have since codified sta ndards that are similar to these factors to
determine whether an individual meet s the definition of an employee. See Minn. R.
5224.0010, .0340 (2019) (w orkers’ compensation); Minn. R. 3315.0555, subp. 1 (2019)
(unemployment insurance).

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interpretation of the MHRA.” Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790, 796
(Minn. 2013). I would look to this persuasive authority here as well.
In Graves v. Women’s Pr ofessional Rodeo Ass’n , for example, th e Eighth Circuit
rejected the appellant’s claim that the members of the Women’s Professional Rodeo
Association were employees under Title VII. 907 F.2d 71, 73–74 (8th Cir. 1990). The
Eighth Circuit explained that members of the Association received no compensation for
being members and that compensation “is an essential condition to the existence of an
employer-employee relationship.” Id. at 73. The court declin ed to apply the “economic
realities” test cited by the majority in this case and the “right to control” test we relied on
in Wangen because courts turn to these tests “only in situations that plausibly approximate
an employment relationship,” id. at 74.
In O’Connor v. Davis , the Second Circuit agreed with the Eighth Circuit’s
conclusion that compensation is an essential condition of the employment relationship.
126 F.3d 112, 115–16 (2d Cir. 1997). In O’Connor, a student who was completing an
unpaid internship at a hospital brought a sexual harassment claim against the hospital under
Title VII. Id. at 113. In analyzing whether the st udent was an employee of the hospital,
the Second Circuit explained that courts typically consider factors derived from common-
law agency principles to determine whether an individual is an employee. Id. at 115. The
court determined, however, that applying those factors to an unpaid intern “is flawed
because it ignores the antecedent question of whether [the unpaid intern] was hired by [the
hospital] for any purpose.” Id. The court further explained that compensation “ ‘is an
essential condition to the existence of an employer-employee relationship.’ ” Id. at 116

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(quoting Graves, 907 F.2d at 73). And because the student received “no salary or other
wages, and no employee benefits such as health insurance, vacation, or sick pay, nor was
she promised any such compensation,” the S econd Circuit concluded that she was not an
employee and therefore her Title VII claim failed.3 Id.
The vast majority of federal courts that have addressed the issue have adopted the
Second and Eighth Circuits’ ru le that remuneration is an essential condition of the
employment relationship. See, e.g., Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d
431, 439–40 (5th Cir. 2013) (holding that a volunteer firefighter was not an employee under
Title VII because “there [wa]s no receip t of remuneration supporting an employer-
employee relationship”); Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1243 (11th
Cir. 1998) (“[O]nly individuals who recei ve compensation from an employer can be

3 The majority points to Haavistola v. Community Fire Co. of Rising Sun, Inc., 6 F.3d
211 (4th Cir. 1993), as evidence that not every federal jurisdiction views compensation as
an essential condition of the employment relationship. But Haavistola supports my view
that Abel was not an employee. In that ca se, the Fourth Circuit considered whether a
volunteer firefighter—who received benefits but no di rect wages as a member of the fire
company—was an employee. 6 F.3d at 221 (explaining that the firefighter received a
disability pension, “survivors’ benefits for dependents,” “scholarships for dependents upon
disability or death,” “tuition reimbursement ,” and workers’ compensation coverage).
Because compensation was not de fined by law, the Fourth Ci rcuit concluded that “[t]he
district court must leave to a factfinder th e ultimate conclusion whether the benefits
represent indirect but significant remuneration[.]” Id. at 222. The court explained that if
the factfinder concluded the firefighter receiv ed significant remuneration, then the test
based on common-law agency principles would apply. Id. at 219–22. If the benefits were
not significant remuneration, the cases in which the courts held that compensation was an
essential condition of employment would apply. Id. (citing Graves, 907 F.2d at 73).
In this case, Abel did not receive any bene fits and no issue of fact exists as to
whether she received “significant remuneration,” id. at 222. Under Haavistola, we would
conclude that she was not an employee because she did not receive any compensation. See
id. The majority’s reliance on Haavistola is therefore misplaced.

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deemed ‘employees’ under [Title VII].”); McGuinness v. Univ. of N.M. Sch. of Med. ,
170 F.3d 974, 979 (10th Cir. 1998) (concluding that a medical student’s claim under Title I
of the ADA must fail because “[u]nless a student receives remuneration for the work he
performs, he is not considered an employee”); Melton v. Alaska Career Coll., Inc. ,
No. 3:15-cv-209 RRB, 2016 WL 1312738, at *2 (D. Alaska Apr. 4, 2016) (concluding that
a student’s Title VII claim against the school must fail because the student did not receive
any wages or employee benefits from the sc hool and was therefore not an employee);
Cimino v. Borough of Dunmore , No. 3:02CV1137, 2005 WL 3488419, at *6–8 (M.D. Pa
Dec. 21, 2005) (dismissing the plaintiff’s Title VII claim because she received no direct or
indirect compensation from the defendant and was therefore not the defendant’s
employee).4

4 The Sixth Circuit has rejected the thre shold-remuneration test and instead weighs
compensation as one of several nondispositive factors in determining whether an individual
is an employee. See, e.g., Marie v. Am. Red Cross, 771 F.3d 344, 353–59 (6th Cir. 2014)
(concluding that nuns were not employees of two emergency management agencies in part
because the nuns received no compensation or benefits nor did the agencies exercise
control over the means and manner of their work).
The Seventh Circuit has no t addressed whether compensation is dispositive in
determining whether an employment relationshi p exists and courts in that circuit have
taken varying approaches. Compare Doe v. Lee, 943 F. Supp. 2d 870, 876–77 (N.D. Ill.
2013) (weighing compensation as one of several factors in determining whether a plaintiff
was an employee), with Holder v. Town of Bristol , No. 3:09-CV-32 PPS, 2009
WL 3004552, at *5–6 (N.D. Ind. Sept. 17, 2009) (concl uding that a volunteer reserve
police officer was not an employee because the benefits he received from the department
were insufficient to establish an employment relationship).
The Ninth Circuit’s position, like the Seventh Circuit’s, is also unclear. In
Waisgerber v. City of Los Angeles , the court explained that, in the past, the court has not
treated remuneration as a dispositive factor in determining whether an individual is an
employee. 406 Fed. App’x 150, 152 (9th Cir. 2010). But the court went on to say that “[i]t
is possible [the appellant] can amend her comp laint to allege the ‘substantial benefits’

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I would adopt this common sense view and join these courts in concluding that
compensation is an essential requireme nt of the employment relationship. 5 Just like the
student in O’Connor, the question of whether Abel received compensation for her work is
dispositive. Abel does not dispute that she received no salary, wages, or employee benefits
from Allina during her practicum. Accordingly, I would conclude th at Abel is not an
employee.
The majority reaches the oppo site conclusion and holds that Abel has sufficiently
alleged that she had an employment relationship with Allina. In reaching this decision, the
majority relies on the “hybrid” test and concludes that compensation is one of several non-
dispositive factors considered in determining whether an employment relationship exists.6
But even if I were to adop t the hybrid test, the result would be the same—Abel is
not an employee. Under the hybrid test, courts consider common-law factors as well as
“some additional factors related to the worke r’s economic situation, like how the work

necessary to make her an employee under Title VII . . . .” Id. The Ninth Circuit therefore
seems to require some evidence of compensation to consider an individual an employee.

5 The majority dismisses this approach becau se “[t]his interpretation is not universal”
yet the majority does not cite a single case in which a court has held that an individual who
did not receive a salary, wages, or benefits for her work qualified as an employee.

6 The test is called the hybr id test because it is “a hybrid of the common-law test and
the economic realities test.” Wilde v. County of Kandiyohi , 15 F.3d 103, 105 (8th Cir.
1994). Wilde is a Title VII case, see id. at 104, and the majority cites Wilde to conclude
that the hybrid test is appr opriate for determining whether an individual is an employee.
In a footnote, the majority explains that because Title VII and the MHRA define
“employee” similarly, we can apply Title VII principles to interpret the MHRA. But in the
very next footnote, the major ity rejects those same Title VII principles because they
contradict the majority’s holding.

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relationship may be terminated , whether the worker receives yearly leave, whether the
worker accrues retirement benefits, and whethe r the hiring party pays social security
taxes.” Wilde v. County of Kandiyohi, 15 F.3d 103, 105 (8th Cir. 1994). The common-law
factors courts consider when applying the hybrid test are almost the same common-law
factors we considered in Wangen, which, as explained above, assume that the individual is
being compensated. See Wilde, 15 F.3d at 105; Wangen, 255 N.W.2d at 815 (explaining
that we consider five factors, including “the mode of payment”).
And the factors relating to Abel’s economic situation show even more clearly that
Abel was not an employee: she did not receive yearly leave or retirement benefits, nor did
Allina pay social security taxes. See Wilde, 15 F.3d at 105. The only fact the majority
points to with respect to the economic realities of the work ing relationship is that Abel
provided services to Allina’s patients and Allina was compensa ted for that work. But in
determining whether there is an employment relationship, the relevant inquiry is about the
economic relationship between the hiring party and the worker, not the economic
relationship between the hiring party and the customers of the hiring party. See id. (“[A]
court typically weighs . . . additional factors related to the worker’s economic
situation . . . .” (emphasis added)). Altho ugh the majority holds that the court must
consider “the economic realities underlying the work relationship,” the majority fails to do
so.
The majority further explains that the absence of compensation does not bar Abel’s
employment discrimination claim because “[t]he provisions of the Human Rights Act are
to be ‘construed liberally for the accomplishment of the purposes thereof,’ ” quoting Minn.

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Stat. § 363A.04.7 But in Wangen, we recognized that while “[ t]here is no doubt that the
Worker’s Compensation Act should be liberally construed[,] . . . there must be limitations
on the findings of an employee- employer relationship in cases in which the facts will not
support such a relationship.” 255 N.W.2d at 816; see also Krueger v. Zeman Constr. Co.,
781 N.W.2d 858, 863 (Minn. 2010) (“The ‘rem edial nature’ of a statute does not justify
the adoption of ‘a meaning not inte nded by the legislature.’ ” (quoting Beck v. Groe ,
70 N.W.2d 886, 897 (Minn. 1955))). Compensation is one such limitation. And because
Abel did not receive any wages, salary, or benefits from Allina, she was not an employee.8

7 To support its conclusion that comp ensation is not a dispositive factor in
determining whether an employment relations hip exists under the MHRA, the majority
cites the interpretation of the Commissioner of the Department of Human Rights. The
Commissioner argues that the MHRA’s defi nition of “employee” does not require
compensation. The majority’s reliance on the agency’s interpretation is flatly inconsistent
with our well-settled statutory interpretation precedent. That precedent directs that we do
not turn to an agency’s interpretation of a statute unless we have first determined that the
statute is ambiguous. Schwanke v. Minn. Dep’t of Admin., 851 N.W.2d 591, 594 n.1 (Minn.
2014) (“[W]e owe no deference to an agency’s interpretation of an unambiguous statute.”).
Because the majority does not conclude that the MHRA’s de finition of “employee” is
ambiguous, the agency’s views on the statute’s interpretation are irrelevant.

8 The majority points to the MHRA’s enumerated exemptions from employment
discrimination liability, noting that unpaid practicum students are not expressly exempted
from the MHRA. But the exemptions apply to what are clearly employment relationships.
See, e.g., Minn. Stat. § 363A.20, subd. 1 (“The pr ovisions of secti on 363A.08 shall not
apply to the employment of any individual [by certain family members]; or . . . in the
domestic service of any pers on.” (emphasis added)); id., subd. 2 (exempting religious
organizations “when religion or sexual orientation shall be a bona fide occupational
qualification for employment” (emphasis added)); id., subd. 6 (exempting employers who
offer varying insurance or benefits to “employees of differing ages” (emphasis added)); id.,
subd. 8 (exempting employers that require a physical examination “for the purpose of
determining the person’s capa bility to perform available employment”); Minn. Stat.
§ 363A.26 (“Nothing in this chapter prohibits any religious [organization] . . . from . . .
taking any action with respect to education, employment, housing and real property, or use
of facilities.” (emphasis added)). Becaus e the MHRA’s employment discrimination

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In an effort to justify its decision to r each the opposite conc lusion, the majority
asserts that the purpose of the MRHA is to secure freedom from all discrimination for all
Minnesotans. The Legislature made its purpose clear in the statute, and that is “to secure
for persons in this state, freedom from discrimination” in five specific areas: employment,
housing and real property, public accommodations, public services, and education. Minn.
Stat. § 363A.02, subd. 1. The area at issue here is employment discrimination, which the
Legislature designed to protect empl oyees and prospective employees. See Minn. Stat.
§ 363A.08. There is no doubt that Abel has alleged that she experienced discrimination
and harassment and that Allina failed to take action to stop it. And if Abel had brought a
timely education discrimination claim under the MHRA, her complaint likely would
survive a motion to dism iss. The majority’s attempt to save Abel’s only viable MHRA
claim—her employment discrimination claim—through the adoption of an unbounded rule
of law for employment discrimination claims does not serve the Legislature’s purpose; it
undermines that purpose.
Because Abel was not an employee of A llina, I would hold th at her employment
discrimination claim fails.

provision does not apply to non-employees, such as unpaid practicum students, it is not
surprising that the statute contains no exception for those students.
The majority also relies on Abel’s assertion in her comp laint that she “performed
the work of an employee” in concluding that Abel has sufficiently alleged that she had an
employment relationship with Allina. Of course, there is a vast difference between being
an employee and doing the work of an empl oyee. Moreover, adopting the majority’s
interpretation, which ignores this differenc e, has severe implications. Extending the
liability of employers under the MHRA to unpaid interns will discourage employers from
offering these learning opportunities in the future. The options for students seeking
practical experience will be limited and their education will suffer as a result.

D-11
II.
Abel also brought common-law negligence claims against A llina and respondent
St. Mary’s University Minnesota (collectiv ely, “respondents”). The district court
dismissed Abel’s claim against Allina, determining that Allina did not owe Abel a duty of
care because she was not an employee of Allina. The district court also determined that
the MHRA preempted Abel’s negligence claim against St. Mary’s. The court of appeals
affirmed, explaining that Abel did not pr ovide a basis for concluding that Allina and
St. Mary’s owed a common-law duty to Abel. Abel, 2019 WL 4745372, at *7.
Abel argues that the district court and the court of appeals improperly dismissed her
negligence claims and asserts that Allina and St. Mary’s owed her a duty of care under two
theories. The first theory is that the conduct of Allina and St. Mary’s “created a foreseeable
risk of injury to a foreseeable plaintiff.” The second theory is th at Abel had a special
relationship with Allina and St. Mary’s. The majority agrees with Abel’s first theory and
therefore does not reach Abel’s second theory.
Because I conclude that Abel forfeited the argument that the conduct of Allina and
St. Mary’s created a foreseeable risk of injury to a foreseeable plaintiff, I would decide the
question of whether Abel’s negligence claims were improperly dismissed based on the
second theory.
A.
A negligence claim has four elements: “(1) the existence of a duty of care, (2) a
breach of that duty, (3) an injury, and (4) that the breach of the duty of care was a proximate
cause of the injury.” Domagala v. Rolland , 805 N.W.2d 14, 22 (Minn. 2011). The

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threshold question in analyzing a negligence claim is whether the defendant owed a duty
to the plaintiff “because a defendant cannot breach a nonexistent duty.” Doe 169 v.
Brandon, 845 N.W.2d 174, 177 (Minn. 2014).
The general rule is “that a person does not owe a duty of care to another—e.g., to
aid, protect, or warn that person—if the harm is caused by a third party’s conduct.” Id. at
177–78. We have recognized two exceptions to this rule. The first is that a defendant owes
a duty of care to a plaintiff “when there is a special relationship between a plaintiff and a
defendant and the harm to the plaintiff is foreseeable.” Id. at 178. The second is that a
defendant owes a duty of care to a plaintiff “when the defe ndant’s own conduct creates a
foreseeable risk of injury to a foreseeable plaintiff.” Domagala, 805 N.W.2d at 23.
In her appeal to our court, Abel asserts that Allina and St. Mary’s owed her a duty
because their own conduct created a foreseeable risk of injury to her, a foreseeable plaintiff.
The majority agrees, even though Abel did not raise this argument before the district court
or the court of appeals. 9 But we “consider ‘only those i ssues that the record shows were

9 The majority holds that Abel did not forfeit the argument that Allina and St. Mary’s
owed her a duty under a foreseeable risk theory because Minnesota Rule of Civil Procedure
8.01 prefers “non-technical, broad-brush pleadings,” Walsh v. U.S. Bank, N.A. ,
851 N.W.2d 598, 605 (Minn. 2014). But our longstanding precedent requires pleadings
“to give fair notice to the [defe ndant] . . . with sufficient clarity to disclose the pleader’s
theory upon which his claim for relief is based[.]” N. States Power Co. v. Franklin ,
122 N.W.2d 26, 29 (Minn. 1963) (emphasis added); see also Walsh , 851 N.W.2d at 603
(“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.” (emphasis added)). And we do not allo w appellants to assert new
theories on appeal that were not litigated or argued to the district court. See Thiele v. Stich,
425 N.W.2d 580, 582 (Minn. 1988); Pomush v. McGroarty , 285 N.W.2d 91, 93 (Minn.
1979) (rejecting a plaintiff’s attempt to raise a new theory of negligence on appeal).

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presented and considered by the trial court in decidi ng the matter before it.’ ” Thiele v.
Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quoting Thayer v. Am. Fin. Advisers, Inc. ,
322 N.W.2d 599, 604 (Minn. 19 82)). A party cannot “obtain review by raising the same
general issue litigated below but under a different theory.” Id.; see also Midwest Family
Mut. Ins. Co. v. Wolters, 831 N.W.2d 628, 633–34 (Minn. 2013) (concluding that an issue
was properly before our court in part because appellants raised the issue in their briefs to
the district court and the court of appeals).
In her complaint, the bases for Abel’s negligence claims were that Allina owed her
a duty of care as an employee and as a client, and that St. Mary’s owed her a duty of care
as a student. In her responses to respondent s’ motions to dismiss, Abel’s only arguments
with respect to duty were that (1) Allina “owed a duty to care to” Abel and (2) “[s]chools
carry a common law duty to protect students from harm by third parties.” Taken together,
Abel alleged that Allina and St. Mary’s owed her a duty based on a sp ecial relationship.
She did not argue that Allina and St. Mary’s owed her a duty because of their own conduct.

In her complaint, Abel alleged that St. Ma ry’s owed her a duty as a student and that
Allina owed her a duty as an employee and as a client. These alle gations did not give
Allina and St. Mary’s fair noti ce of the theory that they ow ed Abel a duty because their
own conduct created a foreseeable risk to her. Abel’s respon ses to respondents’ motions
to dismiss in the district court also failed to put respondents on notice of this theory: Abel’s
only arguments with respect to the duty owed by St. Mary’s were that “[e]ducational
institutions owe a common law duty to their students” and “[s]chools carry a common law
duty to protect students from harm by third parties.” And Abel’s only argument with
respect to Allina’s duty was that “Allina owed a duty to care to” her. By holding that the
court can properly consider Abel’s foreseeable risk theory because she made a conclusory
statement that Allina and St. Mary’s owed her a duty, the majority directly contradicts our
well-settled precedent that requires pleadings to provide fair notice of the theory upon
which a claim for relief is based. See N. States Power Co., 122 N.W.2d at 29.

D-14
The district court’s decision supports this conclusion. The district court concluded
that Abel was not an employee and therefore Allina did not ow e her a duty of care. The
court also determined that Allina did not owe her a duty of care as a client. And because
the court concluded that the MHRA preempted Abel’s negligence claim against St. Mary’s,
it did not determine whether St. Mary’s owed Abel a duty because she was a student. The
court did not consider whether the conduct of Allina or St. Mary’s created a foreseeable
risk for Abel.
Abel similarly did not raise this issue before the court of appeals. In her brief, Abel’s
only argument with respect to the duties of Allina and St. Mary’s were that “her allegations
are also sufficient to sustai n negligence claims, at leas t under theories of negligent
supervision and negligent retention.” The court of appeals dismissed her negligence
claims, determining that Abel “does not expl ain on what basis this court could conclude
that Allina or St. Mary’s owed a common- law duty to protect her from third-party
conduct.” Abel, 2019 WL 4745372, at *7 (“With resp ect to St. Mary’s, Abel is silent on
the issue of duty.”). The court of appeals further concluded that Abel forfeited the theories
of negligent supervision and negligent retention because she did not raise those theories in
her complaint nor did she argue those theories to the district court. Id. Because Abel did
not argue that respondents’ own conduct created a foreseeable risk of injury to her, the
court of appeals did not consider that argument in its decision.10

10 Even though Abel did not argue this theory in her brief or at oral argument, in his
dissent, Judge Klaphake concluded that “Abel alleges facts that could support a duty under”
the exception that “a party’s own conduct crea te[d] a foreseeable ri sk of injury to a

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Finally, Abel did not raise the foreseeable risk theory in her petition for review. See
McGuire v. Bowlin , 932 N.W.2d 819, 829 (Minn. 2019) (“Failing to raise an issue both
before the court of appeals and in a petition for review forfeits the issue.”). In her petition,
Abel argued that the court of appeals erre d in dismissing her neg ligence claim because
“assessing whether a duty is owed includes an analysis of whether a ‘special relationship’
existed between plaintiff and defendant.” She asserted that she “pleaded extensively as to
the relationship between herself and the institution hosting and supervising her practicum
(Allina) and her school (St. Mary’s).” Nowhere in her petition did Abel assert that Allina
and St. Mary’s owed her a duty under a foreseeable risk theory.
The record shows that Abel did not assert that the conduct of Allina and St. Mary’s
created a foreseeable risk of in jury to her in her complaint, nor did she raise this issue to
the district court, to the court of appeals, or in her petition for review. I would therefore
conclude that Abel forfeited this argument. See In re A.D., 883 N.W.2d 251, 261 (Minn.
2016) (“[W]e will not consider an issue not addressed below.”).
B.
Even if Abel had not forfeited the ar gument that the co nduct of Allina and
St. Mary’s created a foreseeable risk of inju ry to a foreseeable plaintiff, I would still
conclude that her negligence claims against th e respondents fail. I begin with the claim
against St. Mary’s.

foreseeable plaintiff.” Abel, 2019 WL 4745372, at *9 (Klaphake, J., dissenting). The
majority, however, did not respond to this argument.

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1.
In Fenrich v. Blake School, we explained that a school may owe a duty to a student
if “(1) the school’s own conduct, (2) creat ed a foreseeable risk, (3) to a foreseeable
plaintiff.” 920 N.W.2d 195, 203 (Minn. 2018). In identifying the school’s “own conduct,”
we distinguish between nonf easance and misfeasance. Doe 169 , 845 N.W.2d at 178
(citation omitted) (internal quotation marks omitted). Nonfeasance “is passive inaction or
a failure to take steps to protect others from harm.” Id. (alteration omitted) (citation
omitted) (internal quotation marks omitted). Misfeasance, in contrast, is “active
misconduct working positive injury to others.” Id. (citation omitted) (internal quotation
marks omitted). To meet the first elemen t, the school’s conduct must amount to
misfeasance; nonfeasance “is not enough.” Id.
The majority concludes that a reasonable factfinder could determine that the conduct
of St. Mary’s constitutes misfeasance. The basis for the majority’s conclusion is that
faculty members at St. Mary’s encouraged Abel to complete a practicum at Allina, despite
being aware that the supervisor of the pr acticum program, Dr. Go ttlieb, had engaged in
harassing and discriminatory beha vior in the past. St. Mary’s also did not warn Abel of
Dr. Gottlieb’s past behavior nor did it act wh en Abel brought her concerns about his
behavior to the faculty at St. Mary’s. I disa gree with the majority’s conclusion that this
conduct amounts to misfeasance.
Our case law is instructive of what conduct constitutes misfeasance. In Fenrich, a
16-year-old high-school student caused a fata l car accident while driving his teammates
and a volunteer coach to an at hletic event in South Dakota. 920 N.W.2d at 198. The

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student crashed into another car, killing the car’s driver and se verely injuring the driver’s
wife. Id. The wife sued, asserting that the high school owed a duty of care to members of
the general public because the school’s own conduct created a foreseeable risk of injury to
a foreseeable plaintiff. See id.
In determining whether a reasonable factfinder could conclude that a high school’s
own conduct was misfeasant, we considered several facts. See id. at 204. The head coach
strongly encouraged team members to participate in the athletic event. Id. at 204. Another
coach paid the bulk registration fee, attende d a practice leading up to the event, and
recruited the volunteer coach to run practices for the event. Id. That coach also took
responsibility for coordinating transportation a nd approved the plan for the 16-year-old
student—who had received his license less than 6 months prior—to drive himself, his
teammates, and the volunteer coach to the event. Id. at 199, 204. Because these facts
showed that the school had “assum[ed] supervision and control over its athletic team’s trip”
to a postseason athletic event, we held that a reasonable factfinder could conclude that the
school’s conduct was misfeasant. Id. at 203–04.
We also considered whether a defendan t’s conduct constituted misfeasance in
Domagala, 805 N.W.2d 14. There, the plainti ff, Domagala, engaged the defendant,
Rolland, to perform landscaping services on Domagala’s yard. Id. at 19. Rolland used a
skid loader to perform the wo rk, and when debris jammed th e levers on the skid loader,
Rolland shook the attachment that was connected to the skid loader to dislodge the debris.
Id. Domagala was injured while attempting to remove a rock that was jammed in the skid

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loader. Id. at 19–20. Domagala sued Rolland, asserting that Rolland breached his duty of
care to Domagala. Id. at 20.
In determining whether Rolla nd owed a duty of care to Domagala, we considered
whether Rolland’s conduct was misfeasant. Id. at 22–23, 26–27. We determined that
“forcefully shaking a bucket attachment that was hanging vertically from a skid loader by
one pin could cause injury to those in proximity to the skid loader.” Id. at 27. Accordingly,
we concluded that Rolland owed Domagala a duty to act with reasonable care. Id. at 27–
28.
These cases support my conclusion that the conduct of St. Mary’s—failing to warn
Abel of Dr. Gottlieb’s past behavior and failing to take action when Abel raised concerns—
did not amount to misfeasance. Unlike the high school in Fenrich, St. Mary’s did not take
affirmative steps to assume supervisio n and control over Abel’s practicum. See
920 N.W.2d at 203–04. Abel concedes that her work during the practicum “was at the total
control and discretion of Allina.” And St. Mary’s, unlike the defendant in Domagala who
“forcefully sh[ook] a bucket a ttachment,” 805 N.W.2d at 27, did not take an affirmative
step to work “positive injury to others,” Doe 169, 845 N.W.2d at 17 8 (citation omitted)
(internal quotation marks omitted). Rather, Abel herself asserts that St. Mary’s “failed to
correct” the discrimination. The failure of St . Mary’s to warn Abel of Dr. Gottlieb’s past
conduct, and to act when Abel raised concerns, easily meets the definition of nonfeasance:
“passive inaction or a failure to take steps to protect others from harm.” Doe 169 ,
845 N.W.2d at 178 (alteration omitted) (citation omitte d) (internal quotation marks

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omitted). Because Abel alle ged only nonfeasance, and nonfeasance does not equate to
misfeasance, I would conclude that St. Mary’s did not owe a duty to Abel.
2.
For similar reasons, I woul d conclude that the conduct of Allina also does not
constitute misfeasance. Because Abel did not argue that Allina was responsible for
Dr. Gottlieb’s misconduct under a theory of res pondeat superior, the question is whether
Allina—not Dr. Gottlieb—engaged in “active misconduct working po sitive injury to
others,” Doe 169, 845 N.W.2d at 178 (citation omitted) (internal quotation marks omitted).
Abel alleged the following facts in he r complaint about Allin a’s conduct. Allina
failed to provide written polic ies about supervising practic um students, and Dr. Gottlieb
took advantage of this lack of guidance. Abel brought her concerns about Dr. Gottlieb’s
behavior to Allina staff yet “A llina[] fail[ed] to appropriately intervene.” When staff at
Allina finally met with Abel as part of “an ‘internal investigation’ of Dr. Gottlieb,” they
asked her “a series of ‘yes’ or ‘no’ questions and preven ted [her] from providing an
additional response.” Allina failed to remove Dr. Gottlieb as a training director after first
learning that he had engaged in discriminatory and harassing behavior toward Abel. After
Abel filed a formal complain t, Allina staff “failed to as k any questions about [her]
experiences or to provide he r an opportunity to discuss Dr. Gottlieb’s misconduct.” And
in her brief, Abel argues that “Allina’s failure to stop ongoing discrimination was an act of
discrimination.”
Although these facts show th at Allina’s response to l earning about Dr. Gottlieb’s
discriminatory behavior was disappointing, they do not support the conclusion that Allina

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engaged in active misconduct that worked positive inju ry to Abel. See Doe 169 ,
845 N.W.2d at 178. Rather, they show that Allina’s conduct was passive inaction: Allina
failed to provide written policies, failed to respo nd to or investigate Abel’s concerns, and
failed to remove Dr. Gottlieb as the training director upon first learning that he engaged in
discriminatory and harassing behavior toward Abel. Because a defendant does not owe a
duty of care to the plaintiff when the defe ndant’s own conduct is “mere nonfeasance,” I
would hold that Allina owed no duty to Abel. See Fenrich, 920 N.W.2d at 203.
C.
As explained above, Abel argues that he r negligence claims were improperly
dismissed under two theories. Because Abel forfeited the argument that the conduct of
Allina and St. Mary’s created a foreseeable risk of harm—t he first theory—I have to
consider Abel’s second theory: whether Allina and St. Mary’s owed her a duty because a
special relationship existed between her and each entity. A defendant may owe a duty of
care to a plaintiff “when there is a special relationship between a plaintiff and a defendant
and the harm to the plaintiff is foreseeable.” Doe 169 , 845 N.W.2d at 178. In her
complaint, Abel asserted that Allina owed her a duty as an employee and that St. Mary’s
owed her a duty as a student.11
We have recognized that a special rela tionship may exist under three scenarios:
(1) “the status of the parties, such as parents and children, masters and servants, possessors

11 Abel also alleged in he r complaint that A llina owed her a duty as a client. The
district court, however, determined that Allina did not owe Abel a duty as a client and Abel
did not renew this argument on appeal.

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of land and licensees, and common carrier s and their customers”; (2) “when an
individual . . . has custody of another pers on under circumstances in which that other
person is deprived of normal opportunities of self-protection”; and (3) “when an individual
assumes responsibility for a duty that is owed by another indi vidual to a third party.”
Bjerke v. Johnson , 742 N.W.2d 660, 665 (Minn. 20 07) (alteration omitted) (citation
omitted) (internal quotation marks omitted).
Abel’s claim that Allina owed her a duty falls under the first scenario because she
asserts that she was Allina’s employee. But as explained above, Abel was not Allina’s
employee because she received no salary, wages, or employee benefits for her work. See
Graves, 907 F.2d at 73 (explaining that compensation is an e ssential requirement of an
employer-employee relationship). And because Abel was not an employee, Allina did not
owe her a duty. I would theref ore conclude that Abel’s ne gligence claim against Allina
fails because she has not alleged sufficient facts to maintain that Allina owed her a duty.
Abel also claims that St. Mary’s owed her a duty because a special relationship
exists between a school and its students. It is true that schools owe a duty of reasonable
care to their students in certain circumstances. See, e.g. , Fallin v. Maplewood-North
St. Paul Dist. No. 622, 362 N.W.2d 318, 32 1 (Minn. 1985) (woodworking class); Verhel
ex rel. Verhel v. Indep. Sch. Dist. No. 709 , 359 N.W.2d 579, 586, 588–89 (Minn. 1984)
(off-campus cheerleading activity); Tiemann v. Indep. Sch. Dist. # 740, 331 N.W.2d 250,
251 (Minn. 1983) (physical education class). We have held that a school owes a duty of
reasonable care to a student in a woodworking class. Fallin, 362 N.W.2d at 321 (Minn.
1985). We have also concluded that a school district has a duty “ ‘to protect its students

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from injury resulting from the conduct of other students[.]’ ” Verhel, 359 N.W.2d at 586
(quoting Sheehan v. St. Peter’s Catholic Sch. , 188 N.W.2d 868, 870 (Minn. 1971)). And
we have held that “a school owes a duty to its students to use reasonable care to inspect
and maintain its premises and equipment and to protect its students from an unreasonable
risk of harm[.]” Tiemann, 331 N.W.2d at 251 (alteration omitted) (citation omitted)
(internal quotation marks omitted). This case la w is consistent with the principle that a
special relationship typically arises when a pl aintiff has “some degree of dependence” on
the defendant. H.B. ex rel. Clark v. Whittemore, 552 N.W.2d 705, 708 (Minn. 1996).
We have not recognized that a school owes a duty to protect a graduate student from
off-site harms inflicted by third parties and I would decline to do so in this case. A school’s
oversight and control over its ow n classes, programs, and stud ents is markedly different
from its oversight and control over a graduate student’s off-site practicum. Abel herself
acknowledged in her comp laint that her “work was at the total control and discretion of
Allina.” And Abel asserts that it was th e employee of Allina—not an employee of
St. Mary’s—who harassed her. Imposing a duty on a school to protect a graduate student
from off-site harms inflicted by a third party would expand the potential liability of schools
for conduct outside of their control. See Fenrich , 920 N.W.2d at 210 (Anderson, J.,
dissenting) (explaining that we have long viewed the legal issue of duty as a matter of
public policy for the court). I would therefore conclude that St. Mary’s did not owe Abel
a duty to protect her from harm inflicted by a third party at her off-site practicum.

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Because the district court and the court of appeals properly dismissed Abel’s
employment discrimination and common-law negligence claims, I would affirm the court
of appeals.

ANDERSON, Justice (dissenting).
I join in the dissent of Chief Justice Gildea.