Peterson v. City of Minneapolis

ANDERSON, Justice

(dissenting).

I respectfully dissent. The plain language of Minn. Stat. § 363A.28, subd. 3(b) (2016), requires that the parties be en*834gaged in a “dispute resolution process” to suspend the statute of limitations for a claim of unlawful discrimination under the Minnesota Human Rights Act (MHRA). Because the City of Minneapolis’s Respect in the Workplace Policy is not a dispute resolution process and the complainant was unable to engage in the Workplace Policy investigation, the statute of limitar tions here was not suspended under the statute, the complaint was not timely filed, and I would accordingly reverse the decision of the court of appeals.

I turn first to the language of the suspension statute, which suspends the limitations period in the MHRA during the period in which the parties “are voluntarily engaged in a dispute resolution process involving a claim of unlawful discrimination under [the MHRA], including arbitration, conciliation, mediation or grievance procedures.” Minn. Stat. § 368A.28, subd. 3(b). As the court notes, the phrase “dispute resolution process” must be read in light of the surrounding examples under the associated-words canon. See State v. Rick, 835 N.W.2d 478, 485 (Minn. 2013).

I agree with the court that, in this context, the subsequent examples of “arbitration, conciliation, mediation or grievance procedures,” Minn. Stat. § 363A.28, subd. 3(b), often use third-party neutrals and always provide a possibility of recovery for the complainant. But the examples of dispute resolution processes also suggest two additional characteristics that are missing here: notice to the employee about the outcome of the process and a process that allows the parties to exchange their respective positions regarding the dispute and the appropriate resolution. See Arbitration, Black’s Laiv Dictionary (10th ed. 2014) (describing a mutually agreed upon process where a third-party arbitrator informs the parties of the binding outcome of the case); Conciliation, Black’s Law Dictionary, supra (describing a process where the parties meet with a neutral person and explore how the dispute might be resolved); Mediation, Black’s Law Dictionary, supra (describing a process where the parties meet with a neutral third party who tries to help achieve a resolution); Grievance Procedure, Black’s Law Dictionary, supra (describing a series of successive steps an employer and employee take, typically culminating in a form of arbitration before a neutral arbitrator).

The Workplace Policy does not contain any of these four elements.1 First, contrary to the court’s analysis, the Workplace Policy does not utilize third parties or provide a mechanism for a neutral evaluation of a complainant’s claims. The investigators identified by the policy are City employees who investigate claims against other City employees. Because they investigate alleged misconduct within their own organization, these investigators are not neutral third parties. Additionally, the Workplace Policy is focused on finding and prosecuting wrongful conduct, rather than simply helping the parties reach a mutually agreeable resolution to their dispute. The Workplace Policy states that it “is in the best interests of the City to provide a hospitable and respectful workplace.” The policy also notes that “[a] person who has knowledge or believes harassment has occurred, or is occurring, is encouraged to report that.” Complaints can be filed by anyone, and the City is required to investigate even if the person who complained, or was the target of the *835alleged misconduct, “does not want an investigation conducted.” Supervisors also are subject to strict penalties if they do not enforce the policy, creating an incentive for the supervisors to overreport misconduct. For example, a supervisor’s failure to enforce the policy could lead to a “final warning or dismissal for the first offense.” My point here is not to argue that the City should have a different policy or that the current policy is unfair or not sufficiently neutral for its purposes. Rather, these elements suggest that the City has chosen an investigatory and pros-ecutorial model to uncover and prevent harassment, not a model that neutrally investigates claims or attempts to reach a mutually agreeable outcome on the dispute.

Second, the Workplace Policy does not provide for relief or recovery on the part of the complaining employee. The Workplace Policy does not specifically empower the City or its employees to resolve disputes. The Workplace Policy requires the employee receiving the complaint to take “prompt action to address the complaint” and to report it to the director of the human resources department, beginning an inquiry by the City. The court argues that the requirement that the employee receiving the complaint “take prompt action” grants that employee the power to resolve the dispute in any appropriate manner. The problem with this argument is that, at least in the context of this case, this power comes from the employer-employee relationship, not from the Workplace Policy. Put another way, in the absence of the Workplace Policy, an employee still could complain about discriminatory conduct and the employer still could try to find an accommodation between the employees or take other appropriate action. But as drafted, the Workplace Policy is not what empowers the investigating employee to grant such relief. The only thing the Workplace Policy accomplishes is to authorize another City employee to conduct an investigation.

Third, unlike the statutory examples, the Workplace Policy does not require notice to the employee after the dispute is resolved. In arbitration, conciliation, mediation, and grievance procedures, the parties receive notice when the process has concluded and know the outcome reached. Here, however, the City is under no obligation to inform complainants of the results of its investigation. The Workplace Policy states that “[ijnvestigations ... will be conducted” and that “employees are directed to cooperate.” The absence of a notice requirement suggests that the Workplace Policy is meant for the City’s benefit, to allow it to investigate claims to determine their validity before taking action. This is something very different from the statutory examples, which are designed to help the parties reach a mutually agreeable solution to a problem, all of which contemplate initial agreement between parties and thus notice of the results (in the case of mediation or conciliation), or formal notice of fact-finding and an award of relief (as in arbitration or grievance procedures).2

*836Finally, the Workplace Policy does not provide a process for the parties to exchange their respective positions on the dispute or its resolution. The Workplace Policy outlines the process for filing and investigating a complaint, but has no mechanism for the parties to exchange their views on the dispute. Thus, the process is not similar to the structured processes of arbitration, conciliation, mediation, or grievance procedures, which have, at their core, a process for exchanging views on the dispute.3

The statutory phrase “are voluntarily engaged in a dispute resolution process,” Minn. Stat. § 363A.28, subd. 3(b), supports this final point. The court correctly defines the phrase “are ... engaged” to mean “[t]o involve oneself or become occupied; participate: engage in conversation.” The American Heritage Dictionary of the English Language 610 (3d ed. 1996). But contrary to the court’s interpretation, this definition requires a party to do more than merely initiate a process. For example, two people do not engage in conversation by simply exchanging formulaic greetings; the definition requires a more in-depth exchange. Rather, the statute’s use of the word “are” in the phrase “are voluntarily engaged in” indicates a continuing, ongoing process. See Minn. Stat. § 363A.28, subd. 3(b). This is further supported by the statute’s use of examples that describe a continuing engagement by both sides. Read as a whole, this phrase requires both parties to voluntarily participate in an ongoing process of engagement.

Although the City’s Workplace Policy allows complainants to initiate an investigation, it does not allow complainants to freely participate in that investigation. The Workplace Policy sets out a unilateral investigative process that requires no input from the complainant. Even if the complainant initiates the process by filing a complaint, the complainant has no control over how the City investigates the claim, and may not even stop the investigation by withdrawing the complaint. Furthermore, the complainant has neither control over who the City interviews during the course of the investigation nor an express right to attend or otherwise participate in any aspect of the investigation. Although Peterson certainly initiated the investigation, he could not have “engaged” in the investigation, given the limitations in the Workplace Policy itself.

The court’s interpretation of the statute broadens the scope of the suspension provision. The court’s interpretation requires *837only that the process be written down, have clearly identifiable starting and ending dates, utilize employees that are not within the same department as the complainant, and not prevent the employer from settling the dispute with the complainant. These elements do not accurately reflect the essential characteristics of a dispute resolution process, nor does the Workplace Policy resemble any of the examples listed. Because the Workplace Policy is not a “dispute resolution process” under Minn. Stat. § 363A.28, subd. 3(b), and Peterson could not have “engaged” in the process even if it were, I would reverse the decision of the court of appeals and affirm the district court’s grant of partial summary judgment for the City.

. Importantly, the Workplace Policy never claims to be a dispute resolution policy. Rather, the Policy outlines the procedures for filing a complaint of unlawful discrimination with the City and provides the steps the City will take to determine whether a claim has merit.

. The court argues that the statutory requirement that the respondent notify the charging party and the Department of Human Rights of its involvement in a dispute resolution process obviates the need for notice. However, this argument begs the question by assuming that processes without notice can be dispute resolution processes. The examples provided in the statute suggest otherwise. Additionally, even though Peterson received a letter describing the outcome of the Workplace Policy investigation, this letter was not required by the terms of the policy itself, suggesting that the letter may have been sent under some other City policy.

. The court claims that it is possible for the parties to complete an arbitration process or grievance procedure without exchanging their views on the resolution of the case. This may be possible in rare instances, but the overarching characteristic of the statutory examples is an exchange of views by the parties on the proper resolution of a dispute through some formal process. Although arbitration and grievance procedures, by design, lack the formal discovery machinery of our civil procedural rules, it is difficult to imagine either allowing the parties to proceed without the disclosure of at least the general nature of their claims and defenses. Indeed, standard American Arbitration Association rules contemplate such disclosure. See, e.g., AAA Commercial R. 32(a) (2016) ("The claimant shall present evidence to support its claim. The respondent shall then present evidence to support its defense.”). Those rules also provide for a statement of claim (including the relief sought), an answer, and an arbitrator-managed document exchange. AAA Commercial R, 4(e)(iv), 5, 22(b). I recognize that many arbitration and grievance hearings are very informal and may well prove to be more informal than the rules provide. But the Workplace Policy is completely different from the listed examples because it provides no mechanism for an exchange of claims and defenses and provides no mechanism for even requesting such an exchange. The essential characteristics of a dispute resolution process are simply absent from the Workplace Policy.