Allison Schaber, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1453

Allison Schaber,
Respondent,

vs.

Ramsey County,
Appellant,
Minnesota State Retirement System, et al.,
Defendants.

Filed May 23, 2022
Reversed; motion granted
Reyes, Judge

Ramsey County District Court
File No. 62-CV-21-1228

Rebekah L. Bailey, Anna Prakash, Melanie A. Johnson, Charles O’Meara, Nichols Kaster,
P.L.L.P., Minneapolis, Minnesota (for respondent)

Michelle E. Weinberg, Michelle A. Christy, Kennedy & Graven, Chtd., Minneapolis,
Minnesota (for appellant)

Keith Ellison, Attorney General, Jennifer A. Kitchak, Kristine Nogosek, Assistant
Attorneys General, St. Paul, Minnesota (for defendants Minnesota State Retirement
System, et al.)

Considered and decided by Reyes, Presiding Judge; Johnson, Judge; and Cochran,
Judge.

2
NONPRECEDENTIAL OPINION
REYES, Judge
Appellant-county appeals the district court’s denial of its motion to dismiss
respondent-employee’s claims, arguing that the district court lacks subject -matter
jurisdiction because the claims are subject to an agreement to arbitrate under a collective
bargaining agreement. We reverse.
FACTS
Respondent Alison Schaber has worked for appellant Ramsey County (the county)
since 2012. As part of her employment with the county, Schaber participated in the
Minnesota Deferred Compensation Plan (the plan). The plan allows employees to save for
retirement through deferred compensation. Employers may choose to match employees’
deferred-compensation contributions to the plan.
Schaber is a member and president of the Ramsey County Deputy Federation (the
union), a union representing certain Ramsey Coun ty employees. Schaber is subject to a
collective bargaining agreement (the CBA) entered into between the county and the Law
Enforcement Labor Services union on January 1, 2018. 1 Article 25.10 of the CBA states
that the county will provide a matching contribution to the employee’s deferred
compensation of up to $25 per month per contributing employee. The CBA also requires

1 Schaber’s current union was previously represented by the Law Enforcement Labor
Services Union, but it voted to leave and form the current union in November 2020. At
the time of this dispute, the county and the union were in the process of negotiating a new
collective bargaining agreement, and the union remained subject to the 2018 CBA.
3
employee grievances to be resolved through a four-step procedure. Step 4 of the grievance
procedure requires the grievance to be submitted to arbitration.
The county did not send the employer -match portion of Schaber’s deferred -
compensation funds to her deferred -compensation account. Instead, it remitted t he
“matching” funds directly to Schaber through her paycheck.
In May 2020, Schaber initiated a grievance under the CBA, alleging that the county
violated article 25.10 of the CBA because the county failed to remit the matching funds
directly to her defe rred-compensation account. She went through the first three steps of
the grievance process. At step 3, the county met with Schaber and union representatives
to discuss the grievance. The union argued that the CBA’s deferred -compensation-match
provision is misleading because the county’s matching contribution is made directly to the
employee rather than the deferred -compensation account, resulting in a shortage of
contribution to the account. On May 22, 2020, the county denied the union’s step -3
grievance in a letter determining that it had not violated the CBA.
Nearly a year later, Schaber filed a putative class -action2 complaint against the
county, alleging that the county breached its fiduciary duties and breached the unilateral
contract created by its online summary of employment policies (the policies) by failing to
remit its employer -match contribution to employees’ deferred -compensation accounts. 3

2 Schaber filed an initial complaint on March 18, 2021. She filed an amended complaint
with the same claims on May 17, 2021. We refer to the amended complaint in this opinion.
3 Schaber’s complaint defines the putative class as “All individuals employed by [the
county], who participated in and contributed to the Minnesota Deferred Compensation
Plan, at any time in the six years prior until the filing of the original Complaint unt il the
date of final judgment in this matter.”
4
The policies state that full-time employees “are eligible to earn benefits.” One of the listed
benefits is “[d]eferred compensation.” The policies further state that “ [m]ost Ramsey
County employees are eligible for an employer match.” (Emphasis added.) However, the
policies direct union employees, such as Schaber, to “check their bargaining agreement for
information on the employer match.” Schaber’s complaint does not explicitly allege a
breach of the CBA.
The county believed Schaber’s original grievance was still open when Schaber filed
the complaint. But Schaber confirmed in June 2021 that she considered the grievance
process closed. Schaber and the union never attempted to move the grievance to step -4
arbitration.
The county moved to dismiss Schaber’s claims, arguing that the district court lacks
subject-matter jurisdiction because Schaber’ s claims are subject to the CBA’s arbitration
agreement. In the alternative, the county moved to dismiss for failure to state a claim,
arguing that it does not have a fiduciary relationship with Schaber and that Schaber has not
pleaded any policies with sufficiently definite terms to create a unilateral contract.
The district court denied the county’s motions. It determined that, because
Schaber’s “causes of action are independent of —and liability can be determined without
reference to—the CBA,” Schaber’s claims fall outside of the scope of the CBA’s grievance
procedure. It also determined that Schaber pleaded sufficient facts to proceed on her claims
for breach of fiduciary duty and breach of a unilateral contract. This appeal follows.

5
DECISION
I. Schaber’s motion to strike is granted.
Schaber moved this court to strike all references in the county’s brief to a September
14, 2021 email exchange between Schaber and the county, arguing that the email is outside
of the record. We agree.
The appellate record consists only of documents filed in the district court, offered
exhibits, and transcripts of the proceedings. Minn. R. Civ. App. P. 110.01. “An appellate
court may not base its decision on matters outside the record on appeal, and may not
consider matters not produced and received in evidence below.” Thiele v. Stich , 425
N.W.2d 580, 582-83 (Minn. 1988). We will strike references in a party’s brief to matters
outside of the appellate record. See Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App.
1992), aff’d, 504 N.W.2d 758 (Minn. 1993). Motions to reconsider are prohibited except
by permission of the district court. Minn. R. Gen. Prac. 115.11. A party may not use a
motion for reconsideration to supplement the record on appeal. Am. Bank of St . Paul v.
Coating Specialties, Inc., 787 N.W.2d 202, 206 (Minn. App. 2010).
The county submitted the September 14 email exchange to the district court to
support its request for leave to file a motion for reconsideration. The district court did not
respond to that request or grant permission to file the motion. Accordingly, the email
attached to the request has not been properly received by the district court, and it is not part
of the appellate record. We therefore strike any reference in the parties ’ briefs to the
September 14 email and do not consider it in deciding the merits of this appeal.

6
II. Standard of review
The county argues that the district court lacks subject -matter jurisdiction because
Schaber’s claims must go through the CBA’s grievance procedure, including arbitration.
“Subject-matter jurisdiction is a question of law that [appellate courts] review de
novo.” Daniel v. City of Minneapolis, 923 N.W.2d 637, 644 (Minn. 2019). Subject-matter
jurisdiction involves “a court’s authority to hear and determine a particular class of actions
and the particular questions presented to the court for its decision.” Zweber v. Credit River
Township, 882 N.W.2d 605, 607 (Minn. 2016) (quotation omitted). When a plaintiff brings
a putative class action, we evaluate whether the district court has jurisdiction over the
named plaintiff’s claims without regard to the court’s jurisdiction over other potential class
members. See Ward v. Smaby , 405 N.W.2d 254, 261 -62 (Minn. App. 1987) (affirming
district court’s refusal to certify class action when named plaintiffs’ claims were moot);
Pruell v. Caritas Christi , 645 F.3d 81, 84 (1st Cir. 2011) (noting that when district court
lacks jurisdiction over claim of class representative, it has no jurisdiction over class action).
Courts will dismiss a case for lack of subject-matter jurisdiction when a plaintiff-employee
fails to exhau st a grievance -procedure remedy provided under a collective bargaining
agreement. See Edina Educ. Ass’n v. Bd. of Educ. of Indep. Sch. Dist. No. 273, 562 N.W.2d
306, 310 (Minn. App. 1997), rev. denied (Minn. June 11, 1997).

7
III. Under Minn. Stat. § 57 2B.06(b) (2020), the district court had authority to
determine whether Schaber’s claims fall within the scope of the CBA’s
arbitration agreement.

The county argues that, under Minn. Stat. § 572.06(b), the initial determination of
whether Schaber’s claims fall within the scope of the CBA’s arbitration agreement must
be made by an arbitrator, not the district court. We disagree.
Under section 572B.06(b), “The court shall decide whether an agreement to arbitrate
exists or a controversy is subject to an agreement to arbitrate, except in the case of a
grievance arising under a collective bargaining agreement when an arbitrator shall
decide.” (Emphasis added.) The county argues that, when there is a question of whether
a dispute falls within the scope of a collective bargaining agreement’s arbitration provision,
section 572B.06(b)’s grievance exception requires an arbitrator, not the district court, to
decide the initial question of arbitrability. Schaber argues that the grievance exception
does not apply here because her claims were not brought as a grievance and do not arise
under the CBA.
The parties’ arguments require us to interpret and apply section 572B.06(b). “The
interpretation of a statute is a question of law that we review de novo.” Cocchiarella v.
Driggs, 884 N.W.2d 621, 624 (Minn. 2016). When interpreting a statute, we first
determine if the statute is ambiguous, meaning that it is subject to more than one reasonable
interpretation. Peterson v. City of Minneapolis , 892 N.W.2d 824, 827 (Minn. 2017). In
determining whether a statute is ambiguous, we construe the statute’s words and phrases
according to their plain meaning. See A.A.A. v. Minn. Dep’t of Hum. Servs. , 832 N.W.2d
816, 819 (Minn. 2013). We interpret the statute as a whole, giving effect to all its parts
8
and leaving no phrase superfluous or insignificant. See City of Rochester v. Kottschade ,
896 N.W.2d 541, 546 (Minn. 2017).
We first note that section 572B.06(b) is a waivable provision of the revised
Minnesota uniform arbitration act (MUAA), Minn. Stat. §§ 572B.01 -.31 (2020), which
parties may alter by agreement. See Minn. Stat § 572B.04(a) (stating that, other than
certain listed exceptions, parties may waive or vary requirements of sections 572B.01 to
572B.31). But when, as here, the parties have not agreed otherwise, the first clause of
section 572B.06(b) clearly establishes a general rule that the district court decides the initial
question of arbitrability. The second clause of section 572B.06(b), howeve r, provides an
exception to that general rule for “ a grievance arising under a collective bargaining
agreement, when an arbitrator shall decide.” Reading both clauses together, we conclude
that the statute is unambiguous. The exception applies only to a complaint proceeding
through a grievance process.
Although the county agrees that the statute is unambiguous, the county argues for a
broader reading of the exception and contends that the grievance exception “expressly
requires an arbitrator to determine whether a controversy is subject to arbitration where a
collective bargaining agreement is at issue.” But that interpretation is not reasonable. The
county appears to conflate the language of the first and second clauses. The grievance
exception does not use the broader term controversy found in the first clause but rather
refers to a grievance. This distinction is meaningful because the first clause does use the
more general term “controversy” when describing the court’s authority to determine the
threshold question of arbitrability. See Transp. Leasing Corp. v. State , 199 N.W.2d 817,
9
819 (Minn. 1972) (“Distinctions of language in the same context must be presumed
intentional and . . . applied consistent with that intent.”). The legislature could ha ve
directed that an arbitrator shall decide whether a controversy is subject to an arbitration
agreement in a collective bargaining agreement, but it did not.
Additionally, a plain reading of “a grievance” furthers the purpose of the statute,
which is to clarify when the court has jurisdiction over the initial determination of
arbitrability. The legislature enacted section 572B.06 in 2010 when Minnesota adopted
the MUAA. See Glacier Park Iron Ore Props., LLC v. U.S. Steel Corp., 948 N.W.2d 686,
691 (Minn. App. 2020), aff’d, 961 N.W.2d 766 (Minn. 2021). Before 2010, Minnesota
courts used the “reasonably debatable” standard when deciding whether an arbitrator or the
district court should determine arbitrability. See id. at 691-92. Under the “reasonably
debatable” standard, if the intent of the parties was reasonably debatable as to the scope of
the arbitration agreement, an arbitrator determined the threshold issue of arbitrability. See
id. (explaining origin of “reasonably debatable” standard and listing cases applying it). But
we concluded in Glacier Park that the MUAA superseded the “reasonably debatable”
standard and that section 572B.06(b) now governs arbitrability. Id. at 692-93.
The plain language of section 572B.06(b) requires the court, not the arbitrator, to
decide whether a controversy is withi n the scope of an arbitration agreement unless there
is a grievance arising under a collective bargaining agreement. The exception allows an
arbitrator to continue to have jurisdiction over a grievance that has been submitted to
arbitration until the grievance process is complete and prevents two parallel actions from
proceeding simultaneously.
10
Here, there are no overlapping proceedings. Schaber did not appeal the county’s
decision on the union’s deferred-compensation grievance but instead filed separate claims
at the district court. The grievance process ended. There is no arbitration proceeding and
no arbitrator that has been appointed. There is not even a motion to compel arbitration.
Because there is no grievance under the CBA, the grievance exce ption of section
572B.06(b) does not apply, and the district court had the authority to decide whether the
dispute falls within the scope of the CBA’s arbitration agreement.4
IV. The district court erred by denying the county’s motion to dismiss for lac k of
subject-matter jurisdiction because an agreement to arbitrate exists and
Schaber’s claims are “a controversy . . . subject to an agreement to arbitrate.”

The county argues that the district court should have dismissed Schaber’s claims
against it for lack of subject-matter jurisdiction because her claims fall within the scope of
the CBA’s arbitration agreement. We agree.
We review the interpretation of arbitration clauses de novo. Glacier Park , 948
N.W.2d at 690. Arbitration is a contract matter, and courts will not require a party to submit
to arbitration a dispute which it has not agreed to arbitrate. Johnson v. Piper Jaffray, Inc.,
530 N.W.2d 790, 795 (Minn. 1995). To determine the scope of an arbitration clause, we
examine the language of the agreement to ascertain the parties’ intent. Glacier Park, 948
N.W.2d at 694. Because “Minnesota law clearly favors arbitration of disputes,” any

4 The county argues that the public policy underlying the Public Employment Labor
Relations Act (PELRA), Minn. Stat. §§ 179A.01-.25 (2020), weighs in favor of concluding
that the arbitrator must decide arbit rability when a dispute arguably involves a collective
bargaining agreement. But the plain language of the MUAA governs here, and we do not
consider public policy when the language of a statute is unambiguous. See Firefighters
Union Loc. 4725 v. City of Brainerd, 934 N.W.2d 101, 109 (Minn. 2019).
11
“[d]oubts concerning the scope of arbitrable issues are resolved in favor of arbitration.”
Minn. Teamsters Pub. & L. Enf’t Emps.’ Union, Loc. No. 320 v. County of St. Louis , 611
N.W.2d 355, 358 -59 (Minn. App. 2000) (quotations and citations omitted). When
considering the arbitrability of a controversy or dispute, the court’s inquiry is limited to
(1) whether a valid arbitration agreement exists and (2) whether the controversy is subject
to an arbitration agreement. Amdahl v. Green Giant Co. , 497 N.W.2d 319, 322 (Minn.
App. 1993); Minn. Stat. § 572B.06(b).
First, the parties agree that the CBA’s arbitration ag reement is valid and that
Schaber is subject to it as a union member. Second, to determine whether Schaber’s claims
are subject to the CBA’s arbitration agreement, we must examine the language of the CBA.
Section 7.4 states that “Grievances, as defined b y Section 7.1, shall be resolved in
conformance with” a four-step procedure. Section 7.4 describes those steps, including step
4: “A grievance unresolved in Step 3 and appealed to Step 4 by the Union shall be
submitted to arbitration . . . .” Section 7.1 defines a “grievance” as “a dispute or
disagreement as to the interpretation or application of the specific terms and conditions of
this agreement.” Accordingly, if Schaber’s claims constitute a “dispute or disagreement as
to the interpretation or applic ation of the specific terms and conditions” of the CBA, she
must first assert them through the grievance procedure, including arbitration.
Schaber’s complaint alleges that “[w]hether, and to what extent, an employer will
match an employee’s [deferred -compensation] contribution is set forth in the employer’s
controlling employment policies/contracts,” citing Minn. Stat. § 356.24, subd. 3(d) (2020).
(Emphasis added.) Although Schaber’s complaint refers to “contracts” generally, section
12
356.24, subd. 3(d), specifies that “[e]nrollment in the plan is provided for in: (1) a personnel
policy of the public employer; (2) a collective bargaining agreement between the public
employer and the exclusive representative of public employees in an appropriate unit ; or
(3) an individual employment contract between a city and a city manager.” (Emphasis
added.) Schaber’s complaint alleges that “According to [the county’s] employment
policies, participating employees are entitled to receive an employer match,” citing the
county’s benefits-summary webpage. (Emphasis added.) But the policies do not support
that allegation. The “Deferred Compensation” section of that webpage states:
Most Ramsey County employees are eligible for an employer
match. . . . The match amount varies based on bargaining
agreement. Employees who are not represented by a union are
eligible for a $35 per month employer match. Employees
covered by a union should check their bargaining agreement
for information on the employer match for their group.
(Emphasis added.) As a union employee, Schaber’s entitlement to, and amount of, a
deferred-compensation match is set forth in article 25.10 of the CBA:
The Employer will provide a matching contribution to deferred
compensation of $20.00 per month per contributing employee.
Effective the first full pay period following January 1, 2014 the
matching contribution will increase to $25.00 per month , per
contributing employee. Contributions will be pro -rated for
part-time employees.
(Emphasis added.)
Although Schaber’s complaint does not explicitly reference the CBA, it refers to,
and relies on, this CBA “matching” term: Schaber’s complaint establishes her participation
in the plan by stating that Schaber “was eligible to receive a match of up to $25.00 per
month.” (Emphasis added.) In other words, the CBA, not the policies, is the “controlling
13
contract” that answers Schaber’s questions of “[w]hether, and to what extent, an employer
will match an employee’s contribution.”
As her complaint makes clear, Schaber’s claims involve a dispute or disagreement
as to the interpretation or application of the CBA’s deferred -compensation-match term.
Accordingly, her claims fall within the scope of the CBA’s grievance procedure, and she
must go through that process, inclu ding step -4 arbitration, before the district court can
exercise jurisdiction.
Schaber contends that her claims are not within the scope of the CBA’s grievance
procedure because her right to participate in the plan comes from her fulltime employment
status, not from the CBA. But Schaber’s complaint, which invokes the deferred -
compensation-match term of the CBA multiple times, belies this contention. Schaber
asserts that the CBA merely “documents” the match amount. But her complaint also
disputes the basis for providing the match. And here, it is the CBA that requires the county
to provide the match, as stated in article 25.10 of the CBA: “The employer will provide a
matching contribution to deferred compensation . . . .”
Schaber further argues that the CBA need not be completely silent on a topic for an
action to be outside the CBA’s scope. But in the cases Schaber cites in support of this
argument, plaintiffs were allowed to proceed with claims based in independent statutory
rights. See McDaniel v. United Hardware Distrib. Co., 469 N.W.2d 84, 88 (Minn. 1991)
(concluding that retaliatory -discharge claim under Worker’s Compensation Act did not
require interpretation of collective bargaining agreement and thus was not preem pted by
federal law requiring exhaustion of contractual remedies); Moe v. REO Plastics, Inc., No.
14
C7-97-814, 1997 WL 613656, at *1 (Minn. App. Oct. 7, 1997) (concluding employee’s
Minnesota Human Rights Act sexual -harassment claim did not arise out of coll ective
bargaining agreement); Vega v. New Forest Home Cemetery, LLC , 856 F.3d 1130, 1134 -
35 (7th Cir. 2017) (concluding that employee need not arbitrate Fair Labor Standards Act
claim when collective bargaining agreement did not explicitly require arbitrat ion of
statutory rather than contract rights). Here, Schaber’s claims are not based in any
independent statutory right.
Schaber argues that common -law claims may also fall outside the scope of a
collective bargaining agreement, citing this court’s decision in Ferrell v. Cross , 543
N.W.2d 111 (Minn. App. 1996), aff’d, 557 N.W.2d 560 (Minn. 1997). But Ferrell is
similarly distinguishable. In Ferrell, we concluded that the district court had jurisdiction
to hear a plaintiff -employee’s state -law defamation and intentional -infliction-of-
emotional-distress claims against her supervisor and coworker because those claims
existed i ndependent of any collective bargaining agreement. Id. at 116 -17. Schaber’s
claims are not so independent of the CBA: in fact, she relies on the CBA’s deferred -
compensation-match term in her complaint to establish her claims against the county.
Schaber emphasizes that she is disputing whether the county provided a match, not
the amount of the match. She argues that, because the CBA does not define “match,” her
claims do not involve an interpretation or application of the CBA’s terms. While it is true
that the CBA itself does not define “match,” the union and the county negotiated for and
agreed on union members’ right to a deferred-compensation match and memorialized that
agreement in article 25.10 of the CBA. Ultimately, when determining whether a party must
15
follow a grievance procedure, we consider whether the parties intended to grieve the
dispute at issue based on the language of the agreement. Cf. Minn. Teamsters, 611 N.W.2d
at 359 (stating that arbitration will not be compelled without evidence that parties intended
to submit dispute to arbitration). That the parties here included a term in the CBA
establishing union members’ right to a deferred-compensation match indicates the parties’
intent to resolve disputes over the county’s provision of that match through the CBA’s
grievance process. We further note that Schaber does not dispute that she did initially bring
her failure-to-provide-a-match claim against the county as a grievance under the CBA. Her
grievance also required an interpretation of terms found in article 25.10 of the CBA that
the county “will provide a matching contribution . . . per contributing employee.” Schaber
does not dispute that the CBA covered that controversy. Moreover, “[a]ny doubts about
arbitrability should be resolved in favor of arbitration.” Kilcher v. Dale, 784 N.W.2d 866,
870 (Minn. App. 2010).
In sum, the CBA requires any “dispute or disagreement as to the interpretation or
application of the specific terms and conditions” of the CBA to proceed through the
grievance process. Schaber’s initial pursuit of the issue as a grievance under the CBA and
the multiple references in her complaint to the article 25.10 match term lead us to conclude
that Schaber’s claims are, in fact, a controversy subject to the CBA’s grievance procedure,
including arbitration. The district court therefore lacked subject -matter jurisdiction and
erred when it denied the county’s motion to dismiss. See Edina Educ. Ass’n, 562 N.W.2d
at 310 (noting that employee must exhaust administrativ e remedies provided under
16
collective bargaining agreement before bringing action derived from that agreement in
district court).
Reversed; motion granted.