(concurring in part and dissenting in part).
I concur with the majority that the Minnesota Human Rights Act (MHRA) allows, under appropriate circumstances, an action against an employer for sexual harassment of its employee by a non-employee. I further concur with the majority’s affirmance of the dismissal of Costilla’s claims of intentional infliction of emotional distress and negligent infliction of emotional distress. But because I believe that Costilla’s MHRA claim against the state, as her employer, is barred by the act’s one-year statute of limitations, I respectfully dissent from the majority on that issue.
Accepting the facts in the light most favorable to Costilla, as we must, I do not believe that she has alleged, or that the record shows, facts establishing that any act of discrimination against her by the state within the year preceding the filing of her complaint. See Minn.Stat. § 363.06, subd. 3 (1996) (requiring claim to be brought within one year of discriminatory practice). Because Costilla has not shown there is evidence of at least one act of discrimination by the state during 1995, the continuing violations theory cannot apply to her cause of action. See Giuliani v. Stuart Corp., 512 N.W.2d 589, 595 (Minn.App.1994) (stating that continuing violation theory applies when at least one act of harassment occurs during limitation period).
According to Costilla, two incidents of harassment by Acosta occurred in 1995: one in March and one in April. But Acosta’s actions cannot toll the statute and are not the focus of our inquiry. Costilla has a separate action pending against Acosta and the United States Department of Labor, as his employer. The case before us is based on allegations that the state discriminated against Costilla by failing to take timely and appropriate action to stop Acosta’s sexual harassment. For the continuing violations theory to apply here, Costilla must show evidence of at least one act of such discrimination by the state during 1995. She has failed to do so.
As noted, I concur that the MHRA allows an action against an employer based on the sexual harassment of its employee by a non-employee. But it is important to note that Equal Employment Opportunity guidelines, which similarly recognize such employer liability and on which the majority in part relies, provide that in reviewing such cases, “the Commission will consider the extent of the employer’s control and any other legal responsibility, which the employer may have with respect to the conduct of such non-employees.” 29 C.F.R. § 1604.11(e) (1996). Acosta was an employee of the federal government, not of the state. The state could not discipline Acosta, nor could it terminate his employment. The record shows that the state learned about the March and April 1995 incidents of harassment in May 1995. DES’s affirmative action officer immediately contacted Acosta’s supervisor, recommending a full investigation and that Acosta not be allowed to work with Costilla. The affirmative action officer also contacted the United States Department of Labor’s regional Equal Employment Opportunity agent regarding Acosta’s conduct. In June 1995, the deputy commissioner of the Minnesota Department of Economic Security wrote to the Regional Administrator of the United States Department of Labor regarding Acosta’s harassment of Costilla, which resulted in Acosta’s *598reassignment and which Costilla concedes was “appropriate action.” The state acted immediately in May 1995 upon learning of the two 1995 incidents of harassment, and Acosta’s harassment stopped.
I find nothing in the record or in the facts Costilla alleges that suggests that during 1995 the state discriminated against her by failing to take timely and appropriate action to stop Acosta’s sexual harassment. I conclude, therefore, that Costilla’s claim is barred by the MHRA’s one-year statute of limitations.