Raymond L. Semler, Appellant,

This opinion is nonprecedential except as provided by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
A22-0204

Raymond L. Semler,
Appellant,

vs.

Jodi Harpstead, et al.,
Respondents.

Filed October 17, 2022
Affirmed
Bratvold, Judge

Ramsey County District Court
File No. 62-CV-21-3723

Raymond L. Semler, Moose Lake, Minnesota (pro se appellant)

Keith Ellison, Attorney General, Leaf McGregor, Assistant Attorney General, St. Paul,
Minnesota (for respondents)

Considered and decided by Bratvold, Presiding Judge; Segal, Chief Judge; and
Wheelock, Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
Appellant challenges the district court’s judgment dismissing his complaint for
failure to state a claim upon which relief can be granted. Appellant is civilly committed to
the Minnesota Sex Offender Program (MSOP), and his complaint alleges disability
discrimination under the Americans with Disabilities Act (ADA) and the Rehabilitation
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Act (RA) and employment discrimination under the Minnesota Human Rights Act
(MHRA). Because appellant’s complaint fails to allege facts from which we may infer
either that he has a disability or that he is an employee of either respondent, we affirm.
FACTS
Appellant Raymond L. Semler is committed to MSOP in Moose Lake. Respondent
Jodi Harpstead is the commissioner of the department of h uman services, which operates
MSOP. Respondent Nancy Johnston is the executive director of MSOP.
In July 2021, Semler sued the respondents, alleging violations of his rights under
federal and state law, specifically, 42 U.S.C. § 12132 (2018) (ADA), 29 U.S.C § 794(a)
(2018) (RA), and Minn. Stat. § 363A.08, subd. 2(3) (2020) (MHRA). Semler’s complaint
alleges that respondents discriminated against him and denied him benefits and
programming based on his disability by not allowing him “to receive more than eight hours
per week” in the vocational work program (VWP). The complaint further allege s that
MSOP policy provides that residents “actively participating in sex offender treatment are
given priority hours of programming and placement” for the VWP and that residents who
do not participate in treatment are limited to eight hours per week. The complaint also
alleges Semler is in the VWP, he does not “actively participate” in MSOP’s non-mandatory
treatment program, and his VWP hours are limited to eight hours per week.
Respondents moved to dismiss Semler’s complaint for failure to state a claim upon
which relief can be granted under Minn. R. Civ. P. 12.02(e). Following a hearing, the
district court issued a December 2021 order granting respondents’ motion, dismissing the
complaint, and ordering judgment against Semler. The district court reasoned that Semler’s
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complaint fails to state a claim under the ADA and RA because “[a ]side from Semler’s
contention that his civil commitment constitutes an underlying mental impairment, Semler
acknowledges that he has no other physical or mental disabilities.” On Semler’s MHRA
claim, the district court reasoned that Semler is not an employee of MSOP and “has not
shown he has a disability under the MHRA.” In a footnote, the district court added that
Semler’s MHRA claim is time-barred.
Semler appeals.
DECISION
When reviewing the dismissal of a complaint under Minn. R. Civ. P. 12.02(e) for
failure “to state a claim upon which relief can be granted, [appellate courts] must ‘accept
the facts alleged in the complaint as true and construe all reasonable inferences in favor of
the nonmoving party.’” Engstrom v. Whitebirch, Inc., 931 N.W.2d 786, 790 (Minn. 2019)
(quoting Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 606 (Minn. 2014)). The sole question
on appeal is “whether the complaint sets forth a legally sufficient claim for relief.” Zutz v.
Nelson, 788 N.W.2d 58, 61 (Minn. 2010) (quotation omitted). We review this question de
novo. Engstrom, 931 N.W.2d at 790.
In his brief to this court, Semler fails to address the district court’s reasoning for
dismissing his complaint. Semler’s brief to this court does not discuss or dispute the district
court’s determinations that the complaint (1) fails under the ADA or RA because it does
not allege Semler is a person with a disability, nor does it allege discrimination or a denial
of benefits based on a qualifying disability; and (2) fails under the MHRA because Semler
is not an MSOP employee. Because Semler’s brief fails to identify the district court’s error,
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we may consider whether he has forfeited appellate review. In re Application of Olson for
Payment of Servs., 648 N.W.2d 226, 228 (Minn. 2002) (noting that “[i]t is axiomatic that
issues not ‘argued’ in the briefs are deemed waived on appeal” and that “we have indicated
that the threshold is whether an issue was addressed in the ‘argument portion’ of the brief”
(quotation omitted)).
Nonetheless, Semler’s brief seeks review of the district court’s decision. Even if we
assume without deciding that Semler has not forfeited appellate review, his appeal fails on
the merits. We address Semler’s claims under the ADA and RA before turning to his
MHRA claim.
A. ADA and RA
The ADA provides that “no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity.” 42 U.S.C. § 12132 (emphasis added). The RA
provides that “no otherwise qualified individual with a disability . . . shall, solely by reason
of [their] disability , be excluded from participation in” a program or activity receiving
federal financial assistance. 29 U.S.C § 794(a) (emphasis added). To state a prima facie
claim under the ADA and RA, a plaintiff must show “1) he is a person with a disability as
defined by statute; 2) he is otherwise qualified for the benefit in question; and 3) he was
excluded from the benefit due to discrimination based upon disability.” Randolph v.
Rodgers, 170 F.3d 850, 858 (8th Cir. 1999). The district court’s analysis of Semler’s
complaint focused on the first and third elements.
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Semler’s complaint alleges he is “exercising his statutory and constitutional rights
[by] declining to enter and actively participate in MSOP’s non- mandatory treatment
program.” The complaint also alleges respondents discriminated against him under the
ADA because they limited his participation in the VWP “by reason of [his] not actively
participating in MSOP’s non-ma ndatory treatment program.” Similarly, the complaint
alleges respondents excluded Semler from the VWP program by “not allow[ing him ] to
work more than 8 hours per week.”
We agree with the district court that these allegations fail to state a claim under the
ADA and RA for two reasons. First, the complaint alleges no facts from which we can infer
that Semler is a person with a disability. The ADA and RA share a definition of disability
requiring (1) an impairment that substantially limits a major life activity; (2) a record of
the impairment; or (3) being considered to have such an impairment. 42 U.S.C. § 12102(1)
(2018); 29 U.S.C. § 705(9) (2018).
The complaint does not allege Semler has a disability although it alleges he “is an
individual confined at” MSOP. During the hearing on the respondents’ motion to dismiss,
the district court asked whether Semler claims he is a person with a disability. Semler
responded, “Yes,” and explained that “part of the basis of [his] disability” is a “mental
impairment” that “predisposes one to commit a sexual offense.” Even if we assume that
Semler’s complaint allows us to infer that his alleged disability is the “mental impairment”
that led to his MSOP commitment, the complaint fails. The ADA explicitly excludes
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“sexual behavior disorders” from the definition of disability. 42 U.S.C. § 12211(b)(1)
(2018).1
Second, even if we assume Semler is a person with a disability, the complaint alleges
no facts from which we can infer that the respondents discriminated against him or
excluded him from the VWP based on his disability. See 42 U.S.C. § 12132 (ADA prohibits
discrimination “by reason of” disability); 29 U.S.C § 794(a) (RA prohibits exclusion
“solely by reason of” disability). Semler’s complaint alleges respondents excluded him
from participating in the VWP for more than eight hours per week because Semler refused
to participate in the treatment program. The complaint alleges his refusal to participate was
voluntary and does not allege facts from which we may infer that he did not participate in
the treatment program because of a disability.
Thus, Semler’s complaint fails to state a claim under either the ADA or the RA
because it does not allege that he is a person with a disability, nor does it allege that
respondents discriminated against him or excluded him from a program based on a
disability.
B. MHRA
The MHRA declares it is an unfair employment practice for an employer, because
of an employee’s disability, to discriminate with regard to “compensation, terms,
upgrading, conditions, facilities, or privileges of employment .” Minn. Stat. § 363A.08,

1 The RA does not have this explicit exclusion, and we have been unable to find any legal
authority considering whether sexual- behavior disorders are a disability under the RA.
Still, Semler’s complaint includes no allegations from which we can infer he is a person
with a disability.
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subd. 2(3). To establish a prima facie case of disability discrimination under the MHRA, a
plaintiff must show that they (1) are a person with a disability under the MHRA; (2) are
otherwise qualified to perform the essential functions of the job; and (3) suffered an
adverse employment action because of their disability. Hoover v. Norwest Private Mortg.
Banking, 632 N.W.2d 534, 542 (Minn. 2001).
Semler’s complaint alleges that respondent’s policy limiting VWP hours violates
the MHRA because “it is illegal for an employer to engage in unfair employment practices”
and that MSOP policy “discriminated against” him based on his refusal “to actively
participate in MSOP’s non-mandatory treatment program.” The complaint also alleges that
the policy limiting VWP hours led to “adverse employment action . . . that caused a
material change in the terms or conditions of employment” and that Semler “experience[d]
discrimination on a daily basis while working” in the VWP.
We agree with the district court that these allegations fail to state a claim under the
MHRA because the relevant statute provides that a VWP participant is not an employee.
Minn. Stat. § 246B.06, subd. 7 (2020), states that “[c]iv illy committed sex offenders
participating in the [V WP] are not employees of the [MSOP] . . . and are not subject
to . . . the [MHRA].” Thus, Semler’s complaint fails to state a claim under the MHRA
because it does not , and cannot, allege that he is an MSOP employee. Because we reject
his MHRA claim for this reason, we need not consider the district court’s additional
conclusion that Semler’s MHRA claim is untimely.
Affirmed.