Long time readers of Minnesota Litigator will know that lawyers use the acronym SOL to mean “statute of limitation” but also refer to an alternative meaning: “sh*t out of luck.”

This week, the Minnesota Court of Appeals affirmed a district court ruling that the plaintiff in a sexual harassment claim was barred by the statute of limitations. It’s a short one by Minnesota standards: one year. On the other hand, sexual harassment (unlike, say, legal malpractice) happens when it happens. Presumably a sexual harassment plaintiff is aware of the harassment in real time. It is not, it cannot be, the “ticking time-bomb” scenario where wrong-doing may lie unseen for years. So maybe the short statute of limitations is not such an onerous or unfair requirement of sexual harassment plaintiffs.

Plaintiff Meagan Abel ended her practicum at Abbott Northwestern Hospital (as part of her doctoral program at St. Mary’s University) on May 27, 2016 and then brought a filed a charge of discrimination against Allina (but not St. Mary’s, a co-defendant) with the Minnesota Department of Human Rights on May 26, 2017. That’s within one year, right?

No. Not right.

The district court also threw out (and the court of appeals affirmed) Plaintiff’s negligence case against two institutions, finding that the claim was time-barred because the one-year clock does not start when one leaves the job. It starts “within one year after the occurrence of the practice.” Minn. Stat. § 363A.28, subd. 3(a). The “occurence of the practice” did not happen on Plaintiff Abel’s last day of work (see here at p. 15).

Also, the court of appeals found that the Minnesota Human Rights Act (“MHRA”) provided the exclusive remedy and that Plaintiff failed to provide any basis that the institutions “owed a common-law duty to protect her from third-party conduct” (here at p. 16).

Abel argues for the first time on appeal that her negligence claim is sufficient “at least under theories of negligent supervision and negligent retention.” Abel did not plead these claims in her complaint and did not argue to the district court that her negligence claim should be allowed to proceed under these theories in opposing Allina’s motion to dismiss. And the district court did not address these theories in its order. As such, they are forfeited.

Finally, the decision is noteworthy for the dissent of Sr. Judge Roger M. Klaphake. (It is here at p. 18 of the PDF.) It seems to us that Judge Klaphake’s position was strongly influenced by the egregious allegations in the case and the concern that the Plaintiff, as a result of this decision, will have no remedy (subject to reversal by the Minnesota Supreme Court, of course, which is possible).

This case offers a painful practice pointer as to the timing of a complaint for sexual harassment.

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