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From the Bench: Wrongful Discharge Case Hinges on Timeliness of Claim

By Susan Naughton

EMPLOYMENT LAW
Wrongful discharge

Nearly three years after being discharged, Sipe sued his joint employers, claiming they wrongfully discharged him in violation of various provisions of the Minnesota Drug and Alcohol Testing in the Workplace Act after he tested positive to a drug test. The lower courts ruled against Sipe, holding that his claims were untimely because they were subject to a two-year statute of limitations under Minnesota Statutes, section 541.07(1). The Minnesota Supreme Court reversed and ruled in Sipe’s favor, holding that a claim for wrongful discharge under the act is governed by a six-year statute of limitations under Minnesota Statutes, section 541.05, subdivision 1(2). The Supreme Court reasoned that the claims that are subject to the two-year statute of limitations are limited to common law causes of action that were not created by statute. Sipe v. STS Manufacturing, Inc., 834 N.W.2d 683 (Minn. 2013).

The Minnesota
Supreme Court
reversed and held
that an application
for a certificate of
appropriateness
is a �written
request relating to
zoning� under the
60-Day Rule.LAND USE
60-Day Rule

The company 500, LLC submitted a site plan application to develop a vacant building into an office building. Before the City Council reviewed the application, the city’s Heritage Preservation Commission nominated the property for designation as a local historic landmark.

This action resulted in a prohibition on the property’s “destruction or inappropriate alteration” during the designation process in the absence of a “certificate of appropriateness.”

On May 6, 2009, 500, LLC submitted an application for a certificate of appropriateness to the Heritage Preservation Commission. Following a public hearing and a series of administrative appeals, the City Council denied the application on July 31, 2009. The City Council also subsequently designated the property as a local historic landmark.

500, LLC sued, claiming that the city violated Minnesota Statutes, section 15.99 (60-Day Rule) because it failed to approve or deny the application within 60 days, and that this failure to act resulted in the application’s automatic approval. The city argued that an application for a certificate of appropriateness is not governed by the 60-Day Rule because it is not a “written request relating to zoning” within the statute’s meaning. The lower courts ruled in the city’s favor. The Minnesota Supreme Court reversed and held that an application for a certificate of appropriateness is a “written request relating to zoning” under the 60-Day Rule. The Supreme Court reasoned that the 60-Day Rule applies to any written request that “has a connection, association, or logical relationship to the regulation of building development or the uses of property.” 500, LLC v. City of Minneapolis, 837 N.W.2d 287 (Minn. 2013).

EMPLOYMENT LAW
Veterans Preference Act

Dryden, an honorably discharged veteran, began performing software programming for the city in August 2008 after completing an employment application form titled “Employment Application/Seasonal and Temporary.” Dryden was paid an hourly rate, did not receive full benefits, and was issued a temporary employee badge. He did, however, receive vacation and sick leave, and the city made contributions on his behalf to a retirement fund at the Public Employees Retirement Association. In December 2009, the city notified Dryden that his employment would be terminated due to budget constraints. In January 2010, Dryden began working for the city as an independent contractor. In June 2011, the city notified Dryden that his work as an independent contractor would be discontinued. The city did not hire anyone to replace Dryden.

Dryden petitioned the Minnesota Department of Veterans Affairs, seeking back pay and reinstatement to his position under the Veterans Preference Act. An administrative law judge (ALJ) determined that Dryden is not entitled to the act’s protections because he was employed by the city as a temporary employee and because his position was abolished in good faith. The commissioner of Veterans Affairs affirmed the ALJ’s decision and adopted most of the ALJ’s findings. The Minnesota Court of Appeals affirmed, holding that Dryden was not entitled to the act’s protections because the evidence supports the findings that he was a temporary employee and that his position was abolished in good faith. Dryden v. City of Rochester, No. A12-2310 (Minn. Ct. App. 2013) (unpublished decision). Note: LMCIT represented the city.

EMPLOYMENT LAW
Voter registration

A A group of voters sued various state and county officials responsible for election administration, raising a variety of constitutional claims under 42 U.S. Code, section 1983 challenging the process by which the officials confirm the eligibility of voters who register on Election Day. The group of voters claimed that their constitutional rights were violated by the state and county officials’ failure to verify Election Day registrants’ voting eligibility before allowing them to vote, after which time any improperly cast votes cannot be “clawed back” or otherwise rescinded. They alleged that officials verify early registrants’ voting eligibility before allowing them to vote and that the same measures should be applied to Election Day registrants. The district court granted the state and county officials’ motion to dismiss, concluding that the voters failed to raise a valid constitutional claim. The 8th U.S. Circuit Court of Appeals affirmed, noting that the Constitution is not an election fraud statute and holding that a constitutional claim in the election context can be raised only when there is discriminatory or other intentional, unlawful misconduct. Minnesota Voters Alliance v. Ritchie, 720 F.3d 1029 (8th Cir. 2013).

MINNESOTA GOVERNMENT DATA PRACTICES LAW
Federal Copyright Act

The National Council on Teacher Quality (NCTQ), a nonprofit research and advocacy organization, made a request under the Minnesota Government Data Practices Act for copies of faculty-authored educational syllabi maintained by the Minnesota State Colleges and Universities (MnSCU). MnSCU refused to provide the requested material because it believed that providing the syllabi might allow the NCTQ to infringe on the intellectual property rights of the faculty members who authored them, exposing MnSCU to liability under the Federal Copyright Act. MnSCU offered to allow the NCTQ to inspect the syllabi, but not to copy them. The NCTQ insisted that it needed to copy the documents and sued, claiming that its use of the syllabi would qualify as “fair use” under the Copyright Act.

Under the Copyright Act, the reproduction and distribution of a copyrighted work by a third party “for purposes such as criticism, comment … scholarship, or research is not an infringement of copyright;” instead it is a lawful and “fair use.” The district court granted summary judgment in the NCTQ’s favor and ordered MnSCU to provide copies of the requested syllabi. The Minnesota Court of Appeals affirmed, reasoning that a state agency cannot rely on the Copyright Act to refuse to disclose data that is subject to a request for disclosure under the Minnesota Government Data Practices Act when it is undisputed that the requestor intends only “fair use” of the data as defined by the Copyright Act. National Council on Teacher Quality v. Minnesota State Colleges & Universities, 837 N.W.2d 314 (Minn. Ct. App. 2013).

CONSTITUTIONAL LAW
First Amendment

The Court of Appeals
reasoned that the Board
did not offer sufficient
evidence to show
there was a real need
to prohibit literature
distribution because of
crowd congestion. The Minneapolis Park and Recreation Board (Board) oversees Loring Park, a public park in downtown Minneapolis. For more than 30 years, Loring Park has been the site of the Pride Festival, an event celebrating the gay, lesbian, bisexual, and transgender community. The festival is hosted by a nonprofit organization. During the festival, the use of Loring Park is nonexclusive, and admission to the park remains free and open to the public. Johnson, a self-described “professing evangelical Christian,” has historically distributed Bibles in Loring Park during the Pride Festival. The Board adopted a resolution prohibiting park attendees like Johnson from personally distributing literature in Loring Park during the Pride Festival, and restricting literature distribution to host-sponsored and Board-sponsored booths. Johnson sued, seeking a preliminary injunction against the resolution’s enforcement. The district court denied Johnson’s motion, reasoning that his claim did not have a sufficient likelihood of success on the merits because the regulation was a content-neutral time, place, and manner restriction that is narrowly tailored to serve the Board’s significant interest in crowd control. The 8th U.S. Circuit Court of Appeals reversed and ruled in Johnson’s favor. The Court of Appeals concluded that the regulation was not narrowly tailored to serve a significant government interest, reasoning that the Board did not offer sufficient evidence to show there was a real need to prohibit literature distribution because of crowd congestion. The Court of Appeals also reasoned that the regulation was underinclusive because it did not regulate other forms of expression that implicate the same concern, noting that persons soliciting donations and street performers are permitted in Loring Park during the Pride Festival. Johnson v. Minneapolis Park and Recreation Board, F.3d (8th Cir. 2013).

Written by Susan Naughton, research attorney with the League of Minnesota Cities. Contact: snaughto@lmc.org or (651) 281-1232.

Read the January-February 2014 issue of Minnesota Cities magazine

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