                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A15-0413

                                   Teresa McDonald,
                                       Appellant,

                                           vs.

                       Allina Health System d/b/a United Hospital,
                                      Respondent.

                                Filed October 26, 2015
                                       Affirmed
                                   Schellhas, Judge

                             Ramsey County District Court
                               File No. 62-CV-14-5784

Teresa McDonald, Cottage Grove, Minnesota (pro se appellant)

Sara Gullickson McGrane, Jessica J. Nelson, Jessica M. Marsh, Felhaber Larson,
Minneapolis, Minnesota (for respondent)

      Considered and decided by Reilly, Presiding Judge; Schellhas, Judge; and

Stoneburner, Judge.*

                        UNPUBLISHED OPINION

SCHELLHAS, Judge

      Pro se appellant challenges the district court’s dismissal of 12 claims arising from

the termination of her employment with respondent. We affirm.


*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                                        FACTS

      On May 6, 1996, appellant Teresa McDonald began working as a Health Unit

Coordinator for respondent Allina Health System d/b/a United Hospital. On May 3, 2011,

Allina terminated McDonald’s employment for cause. On May 1, 2013, McDonald

commenced an action against Allina in the United States District Court for the District of

Minnesota, acting pro se and alleging various claims arising from her termination. The

court dismissed McDonald’s complaint without prejudice for lack of subject-matter

jurisdiction. McDonald v. Allina Health Sys., No. 13-CV-1031, 2013 WL 5999407, at *1

(D. Minn. Nov. 12, 2013).

      On January 13, 2014, McDonald filed charges of discrimination against Allina

with both the Equal Employment Opportunity Commission (EEOC) and the Minnesota

Department of Human Rights (MDHR). The EEOC and the MDHR dismissed

McDonald’s charges as untimely and, on January 22, issued notices of McDonald’s right

to sue. On April 21, McDonald filed a complaint against Allina in Ramsey County

District Court, acting pro se, and moved for default judgment despite having failed to

effectuate service of process on Allina. The court denied McDonald’s default-judgment

motion and directed McDonald to complete proper service on Allina and file an affidavit

of service by July 30. McDonald did not comply with the court’s order, and the court

dismissed McDonald’s complaint without prejudice.

      On August 19, 2014, McDonald filed a summons and complaint—with 31 pages

of attachments—against Allina in Ramsey County District Court, acting pro se and

asserting 12 claims arising from her employment termination. On August 29, McDonald


                                            2
served Allina with the summons and complaint. Allina moved to dismiss for failure to

state a claim upon which relief can be granted, arguing that most of McDonald’s claims

were time-barred and that none of the claims stated a viable claim for relief under Minn.

R. Civ. P. 12.02(e). The court applied the standards governing a rule 12.02(e) motion to

dismiss for failure to state a claim upon which relief can be granted, concluded that ten of

McDonald’s claims were time-barred and that the remaining two otherwise failed to state

a claim, granted Allina’s motion to dismiss, and entered judgment dismissing

McDonald’s complaint with prejudice.

       McDonald filed a notice of appeal on March 9, 2015. On March 19, Allina filed a

notice and application for taxation of costs and disbursements in Ramsey County District

Court. McDonald filed no objection. The district court found that “all [c]osts” were

reasonable, allowed their taxation, and entered judgment on costs and disbursements on

April 3.

                                     DECISION

Failure to state a claim

       “A district court may only dismiss a complaint under Rule 12.02(e) if it appears to

a certainty that no facts, which could be introduced consistent with the pleading, exist

which would support granting the relief demanded.” Finn v. All. Bank, 860 N.W.2d 638,

653 (Minn. 2015) (quotation omitted). No facts exist which would support granting the

relief demanded “when it is clear and unequivocal from the face of the complaint that the

statute of limitations has run on . . . the claim[].” See Jacobson v. Bd. of Trs. of the

Teachers Ret. Ass’n, 627 N.W.2d 106, 109 (Minn. App. 2001), review denied (Minn.


                                             3
Aug. 15, 2001). “The statute of limitations begins to run on a claim when ‘the cause of

action accrues.’” Park Nicollet Clinic v. Hamann, 808 N.W.2d 828, 832 (Minn. 2011)

(quoting Minn. Stat. § 541.01 (2010)). “A cause of action accrues when all of the

elements of the action have occurred, such that the cause of action could be brought and

would survive a motion to dismiss for failure to state a claim.” Id.

       “When a case is dismissed pursuant to Minn. R. Civ. P. 12.02(e) for failure to state

a claim for which relief can be granted, [appellate courts] review the legal sufficiency of

the claim de novo to determine whether the complaint sets forth a legally sufficient claim

for relief.” Graphic Commc’ns Local 1B Health & Welfare Fund “A” v. CVS Caremark

Corp., 850 N.W.2d 682, 692 (Minn. 2014). In so doing, “[appellate courts] consider only

those facts alleged in the complaint, accepting those facts as true and construing all

reasonable inferences in favor of the nonmoving party.” Id. “We are permitted, however,

to consider documents that are embraced by the complaint, including pleadings and

orders in an underlying proceeding.” Greer v. Prof’l Fiduciary, Inc., 792 N.W.2d 120,

126–27 (Minn. App. 2011). “[P]ro se litigants . . . are held to the same rules and

standards as attorneys.” Davis v. Danielson, 558 N.W.2d 286, 287 (Minn. App. 1997),

review denied (Minn. Mar. 18, 1997).

       Count 1: Defamation

              To establish the elements of a defamation claim in Minnesota,
              a plaintiff must prove that: (1) the defamatory statement was
              communicated to someone other than the plaintiff; (2) the
              statement is false; (3) the statement tends to harm the
              plaintiff’s reputation and to lower the plaintiff in the
              estimation of the community; and (4) the recipient of the false



                                             4
             statement reasonably understands it to refer to a specific
             individual.

McKee v. Laurion, 825 N.W.2d 725, 729–30 (Minn. 2013) (quotations and citation

omitted). A defamatory statement may be published by its placement in a company’s

files. See McGovern v. Cargill, Inc., 463 N.W.2d 556, 557–58 (Minn. App. 1990)

(referring to company’s alleged placement of defamatory material in its files as “the

original publication” of that material). A defamation claim accrues at the time of such

publication. Id. at 558. A claim of defamation must be asserted within two years of its

accrual. See Minn. Stat. § 541.07 (2014) (providing that actions for libel and slander

“shall be commenced within two years”).

      McDonald’s complaint asserts a claim for defamation apparently arising from

documents generated by Allina in connection with McDonald’s termination. Every such

document that is referenced in or attached to the complaint is dated no later than May 9,

2011. McDonald did not commence the present action until August 29, 2014, more than

three years after the claim accrued. See McGovern, 463 N.W.2d at 557−58. The district

court therefore did not err in concluding that McDonald’s defamation count failed to state

a claim upon which relief can be granted.

      Counts 2 and 3: “Retaliation/Reprisal” and “Harassment”

      Under the Minnesota Human Rights Act (MHRA), Minn. Stat. §§ 363A.01–.44

(2014), an employer engages in an unfair discriminatory practice by “discharg[ing] an

employee” or by “discriminat[ing] against a person with respect to hiring, tenure,

compensation, terms, upgrading, conditions, facilities, or privileges of employment” on



                                            5
the basis of sex, age, or other protected status. Minn. Stat. § 363A.08, subd. 2. An

employer also engages in an unfair discriminatory practice by “intentionally engag[ing]

in any reprisal against any person because that person . . . opposed a practice forbidden

under th[e MHRA] or has filed a charge, testified, assisted, or participated in any manner

in an investigation, proceeding, or hearing under th[e MHRA].” Minn. Stat. § 363A.15.

“A reprisal includes, but is not limited to, any form of intimidation, retaliation, or

harassment.” Id. “A claim of an unfair discriminatory practice must be brought as a civil

action . . . , filed in a charge with a local commission . . . , or filed in a charge with the

commissioner within one year after the occurrence of the practice.” Minn. Stat.

§ 363A.28, subd. 3.

       McDonald’s complaint may attempt to assert MHRA claims of unfair

discriminatory practices culminating in Allina’s termination of her employment on

May 3, 2011. McDonald did not file any administrative charge until January 13, 2014,

and she did not commence the present action until August 29, 2014. Because McDonald

did not act until nearly three years after the most recent “occurrence of the practice,” see

id., the district court did not err in concluding that McDonald’s “[r]etaliation/[r]eprisal”

and “[h]arassment” counts failed to state a claim upon which relief can be granted.

       Count 4: Negligent Infliction of Emotional Distress (NIED)

       “A plaintiff may recover for [NIED] only when that plaintiff is within a zone of

danger of physical impact, reasonably fears for his or her own safety, and consequently

suffers severe emotional distress with resultant physical injury.” Yath v. Fairview Clinics,

N.P., 767 N.W.2d 34, 46 (Minn. App. 2009) (quotation omitted). “The zone of danger


                                              6
requirement may be replaced by an intentional tort such as defamation or another willful,

wanton, or malicious act.” Oslin v. State, 543 N.W.2d 408, 417 (Minn. App. 1996),

review denied (Minn. Apr. 1, 1996). But when an NIED claim is based on an intentional

tort rather than based on a zone of danger, the failure of the underlying intentional tort

results in the failure of the NIED claim. See id. (affirming summary-judgment dismissal

of NIED claim based on claims of defamation and battery, where defamation and battery

claims were properly dismissed).

       McDonald’s complaint appears to assert a claim for NIED arising from Allina’s

conduct in terminating her employment. The complaint does not allege that McDonald

was within a zone of danger of physical impact. As a result, any NIED claim must have

been based on an intentional tort. See id. Because McDonald’s defamation claim was

time-barred, the district court did not err in concluding that McDonald’s NIED count

failed to state a claim upon which relief can be granted.

       Count 5: “Destruction of Documents”

       “Generally, a statute does not give rise to a civil cause of action unless the

language of the statute is explicit or it can be determined by clear implication.” Lickteig

v. Kolar, 782 N.W.2d 810, 814 (Minn. 2010) (quotation omitted); see also Summers v. R

& D Agency, Inc., 593 N.W.2d 241, 245 (Minn. App. 1999) (“A criminal statute does not

give rise to a civil cause of action unless the statute expressly or by clear implication so

provides.” (citing Larson v. Dunn, 460 N.W.2d 39, 47 n.4 (Minn. 1990))). “Principles of

judicial restraint preclude [the courts] from creating a new statutory cause of action that

does not exist at common law where the legislature has not either by the statute’s express


                                             7
terms or by implication provided for civil tort liability.” Becker v. Mayo Found., 737

N.W.2d 200, 207 (Minn. 2007) (quotation omitted).

       McDonald’s complaint may attempt to assert a civil claim arising from Allina’s

alleged violation of Minn. Stat. § 609.63 (2014), a statute criminalizing forgery. That

statute contains no language to suggest that its violation gives rise to a civil claim. See

Minn. Stat. § 609.63. The district court therefore did not err in concluding that

McDonald’s “[d]estruction of [d]ocuments” count failed to state a claim upon which

relief can be granted.

       Count 6: “Whistleblower as amended”

       Under the Minnesota whistleblower act (MWA), Minn. Stat. § 181.932 (2014), an

employer is forbidden to “discharge, discipline, threaten, otherwise discriminate against,

or penalize an employee regarding the employee’s compensation, terms, conditions,

location, or privileges of employment” on the grounds that

              the employee, in good faith, reports a situation in which the
              quality of health care services provided by a health care
              facility, organization, or health care provider violates a
              standard established by federal or state law or a professionally
              recognized national clinical or ethical standard and potentially
              places the public at risk of harm.

“To establish liability under the [MWA], an employee must prove three elements:

‘[1] statutorily protected conduct by the employee, [2] an adverse employment action by

the employer, and [3] a causal connection between the two.’” Coursolle v. EMC Ins.

Grp., Inc., 794 N.W.2d 652, 657 (Minn. App. 2011) (alteration in original) (quoting Gee




                                             8
v. Minn. State Colls. & Univs., 700 N.W.2d 548, 555 (Minn. App. 2005)), review denied

(Minn. Apr. 19, 2011).

       McDonald’s complaint appears to assert an MWA claim arising from Allina’s

termination of McDonald’s employment. But the complaint fails to allege that McDonald

engaged in statutorily protected conduct that resulted in her termination. Indeed,

McDonald acknowledged at the hearing on Allina’s motion to dismiss that she could not

“point to any [statutorily protected conduct] that occurred before [she] w[as] fired.” The

district court did not err in concluding that McDonald’s “[w]histleblower as amended”

count failed to state a claim upon which relief can be granted.

       Count 7: “[V]iolation of code of conduct/corporate compliance”

       “[P]ersonnel handbook provisions, if they meet the requirements for formation of

a unilateral contract, may become enforceable as part of the original employment

contract.” Pine River State Bank v. Mettille, 333 N.W.2d 622, 627 (Minn. 1983). “The

elements of a breach of contract claim are (1) formation of a contract, (2) performance by

plaintiff of any conditions precedent to his right to demand performance by the

defendant, and (3) breach of the contract by defendant.” Lyon Fin. Servs., Inc. v. Ill.

Paper & Copier Co., 848 N.W.2d 539, 543 (Minn. 2014) (quotation omitted). Any claim

for breach of an employment contract must be asserted within two years of accrual. See

Park Nicollet Clinic, 808 N.W.2d at 832 (stating that “[the supreme court] ha[s]

consistently applied [a two-year] statute of limitations period whenever the gravamen of

the action is the breach of an employment contract” (quotation omitted)).




                                             9
       McDonald’s complaint may attempt to assert a claim for breach of employment

contract arising from Allina’s conduct in terminating her employment on May 3, 2011,

alleging that such conduct violated Allina’s own “[r]ules and obligations.” McDonald did

not commence the present action until August 29, 2014, more than three years after the

claim accrued. See id. The district court therefore did not err in concluding that

McDonald’s “violation of code of conduct/corporate compliance” count failed to state a

claim upon which relief can be granted.

       Count 8: “EPA”

       Under the Equal Pay Act (EPA), 29 U.S.C. § 206(d) (2014),

              [n]o employer having employees subject to any provisions of
              this section shall discriminate, within any establishment in
              which such employees are employed, between employees on
              the basis of sex by paying wages to employees in such
              establishment at a rate less than the rate at which he pays
              wages to employees of the opposite sex in such establishment
              for equal work on jobs the performance of which requires
              equal skill, effort, and responsibility, and which are
              performed under similar working conditions . . . .

29 U.S.C. § 206(d)(1). A claim for negligent violation of the EPA must be asserted

within two years of accrual, and a claim for willful violation of the EPA must be asserted

within three years of accrual. 29 U.S.C. § 255 (2014); see also Simpson v. Merchants &

Planters Bank, 441 F.3d 572, 579 (8th Cir. 2006) (stating that “if an employee can show

that the employer willfully violated the Equal Pay Act, the statute of limitations is three

years, rather than the presumptive two-year statute of limitations”).

       McDonald’s complaint appears to assert an EPA claim of unfair discriminatory

practices culminating in Allina’s termination of McDonald’s employment on May 3,


                                            10
2011. McDonald did not commence the present action until August 29, 2014, more than

three years after the latest date on which such a claim could have accrued. See Park

Nicollet Clinic, 808 N.W.2d at 832. The district court therefore did not err in concluding

that McDonald’s “EPA” count failed to state a claim upon which relief can be granted.

      Count 9: “ADEA of 1967 as amended”

      The Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621–634

(2014), provides:

             It shall be unlawful for an employer—

                           (1) to . . . discharge any individual or otherwise
                    discriminate against any individual with respect to his
                    compensation, terms, conditions, or privileges of
                    employment, because of such individual’s age;

                           (2) to limit, segregate, or classify his employees
                    in any way which would deprive or tend to deprive any
                    individual of employment opportunities or otherwise
                    adversely affect his status as an employee, because of
                    such individual’s age . . . .

29 U.S.C. § 623(a). “No civil action may be commenced by an individual [for violation

of the ADEA] until 60 days after a charge alleging unlawful discrimination has been filed

with the [EEOC].” 29 U.S.C. § 626(d)(1). An EEOC charge alleging unlawful

discrimination that occurred “in a State which has a law prohibiting discrimination in

employment because of age and establishing or authorizing a State authority to grant or

seek relief from such discriminatory practice” must be filed “within 300 days after the

alleged unlawful practice occurred, or within 30 days after receipt by the individual of




                                           11
notice of termination of proceedings under State law, whichever is earlier.” See 29 U.S.C.

§§ 626(d)(1)(B), 633(b).

       McDonald’s complaint appears to assert an ADEA claim of age discrimination

culminating in Allina’s termination of McDonald’s employment on May 3, 2011.

McDonald did not file any administrative charge until January 13, 2014. Because

McDonald did not seek an administrative remedy until nearly three years “after the [latest

date on which an] alleged unlawful practice [could have] occurred,” see 29 U.S.C.

§ 626(d)(1)(B), the district court did not err in concluding that McDonald’s “ADEA of

1967 as amended” count failed to state a claim upon which relief can be granted.

       Count 10: “Violation of public policy”

       “In Minnesota, the employer-employee relationship is generally at-will, which

means that an employer may discharge an employee for any reason or no reason and that

an employee is under no obligation to remain on the job.” Dukowitz v. Hannon Sec.

Servs., 841 N.W.2d 147, 150 (Minn. 2014) (quotations omitted). The supreme court has

“recognized a narrow public-policy exception to the employment-at-will rule,” under

which “‘[a]n employee may bring an action for wrongful discharge if that employee is

discharged for refusing to participate in an activity that the employee, in good faith,

believes violates any state or federal law or rule or regulation adopted pursuant to law.’”

Id. (quoting Phipps v. Clark Oil & Ref. Corp., 408 N.W.2d 569, 571 (Minn. 1987)). The

public-policy exception to the employment-at-will rule derives from common law rather

than statute. See Nelson v. Productive Alts., Inc., 715 N.W.2d 452, 454–55 (Minn. 2006)

(concluding that public-policy exception provides “a cause of action with continuing


                                            12
viability in the common law” (citing Phipps, 408 N.W.2d at 571)). As such, any claim

based on that exception must be asserted within two years of its accrual. Cf. Sipe v. STS

Mfg., Inc., 834 N.W.2d 683, 686 (Minn. 2013) (concluding that two-year statute of

limitations, under Minn. Stat. § 541.07 (2012), “is limited to common law causes of

action not created by statute”).

       McDonald’s complaint may attempt to assert a common-law claim for violation of

public policy arising from Allina’s conduct in terminating her employment on May 3,

2011, alleging that such conduct was “contrary to public policy for the rights of

employment and the safety and well-being of public/patients.” McDonald did not

commence the present action until August 29, 2014, more than three years after the claim

accrued. See Park Nicollet Clinic, 808 N.W.2d at 832. The district court therefore did not

err in concluding that McDonald’s “[v]iolation of public policy” count failed to state a

claim upon which relief can be granted.

       Count 11: Intentional Infliction of Emotional Distress (IIED)

       The elements of an IIED claim are: “(1) the conduct must be extreme and

outrageous; (2) the conduct must be intentional or reckless; (3) it must cause emotional

distress; and (4) the distress must be severe.” Langeslag v. KYMN Inc., 664 N.W.2d 860,

864 (Minn. 2003) (quotation omitted). A claim for IIED must be asserted within two

years of its accrual. See Wenigar v. Johnson, 712 N.W.2d 190, 209 (Minn. App. 2006)

(stating that “there is [a] two-year statute of limitations for commencing an [IIED]

claim”).




                                           13
       McDonald’s complaint appears to assert a claim for IIED arising from Allina’s

conduct in terminating her employment on May 3, 2011. McDonald did not commence

the present action until August 29, 2014, more than three years after the claim accrued.

See Park Nicollet Clinic, 808 N.W.2d at 832. The district court therefore did not err in

concluding that McDonald’s IIED count failed to state a claim upon which relief can be

granted.

       Count 12: “Title VII of the Civil Rights Act of 1964 as amended”

       Under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e to

2000e-17 (2014), an employer engages in an unlawful employment practice by

“discriminat[ing] against any individual with respect to his compensation, terms,

conditions, or privileges of employment” or by “limit[ing], segregat[ing], or classify[ing]

his employees . . . in any way which would deprive or tend to deprive any individual of

employment opportunities or otherwise adversely affect his status as employee” on the

basis of sex or other protected status. 42 U.S.C. § 2000e-2(a). An employer also engages

in an unlawful employment practice by “discriminat[ing] against any of his employees

. . . because he has opposed any practice made an unlawful employment practice by [Title

VII], or because he has made a charge, testified, assisted, or participated in any manner in

an investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a).

              [I]n a case of an unlawful employment practice with respect
              to which the person aggrieved has initially instituted
              proceedings with a State or local agency with authority to
              grant or seek relief from such practice . . . , [an EEOC] charge
              [that an employer has engaged in an unlawful employment
              practice] shall be filed by or on behalf of the person aggrieved
              within three hundred days after the alleged unlawful


                                            14
             employment practice occurred, or within thirty days after
             receiving notice that the State or local agency has terminated
             the proceedings under the State or local law, whichever is
             earlier . . . .

42 U.S.C. § 2000e-5(b), (e)(1). Failure to timely file such a charge bars the assertion of

any related Title VII claim. Wilson v. Brinker Int’l, Inc., 382 F.3d 765, 769 (8th Cir.

2004) (stating that “a claim is time-barred if it is not filed within the[] [Title VII

administrative charge period]”).

      McDonald’s complaint appears to assert a Title VII claim of unfair discriminatory

practices culminating in Allina’s termination of McDonald’s employment on May 3,

2011. McDonald did not file any administrative charge until January 13, 2014. Because

McDonald did not seek an administrative remedy until nearly three years “after the [latest

date on which an] alleged unlawful employment practice [could have] occurred,” see 42

U.S.C. § 2000e-5(e)(1), the district court did not err in concluding that McDonald’s

“Title VII of the Civil Rights Act of 1964 as amended” count failed to state a claim upon

which relief can be granted.

      Equitable estoppel, tolling, and waiver

      McDonald appears to argue on appeal that the applicable statutes of limitation and

exhaustion requirements were subject to equitable estoppel, tolling, and waiver, such that

her claims were not time-barred. But McDonald asserted no recognizable argument of

this nature below; in fact, she acknowledged at the hearing on Allina’s motion to dismiss

that she had no basis to disagree with Allina’s arguments that many of her claims were

time-barred. As a result, we do not address her arguments regarding equitable estoppel,



                                           15
tolling, and waiver. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (“A

reviewing court must generally consider only those issues that the record shows were

presented and considered by the trial court in deciding the matter before it.” (quotation

omitted)).

Judgment on costs and disbursements

      Minnesota Rule of Civil Procedure 54.04 allows costs and disbursements to be

taxed by the court administrator on the application of a prevailing party. See Minn. Stat.

§§ 549.02, subd. 1, .04 (2014); Minn. R. Civ. P. 54.04(a), (b). “Not later than seven days

after service of the application by any party, any other party . . . may file written

objections to the award of any costs or disbursements sought by any other party,

specifying the grounds for each objection.” Minn. R. Civ. P. 54.04(c).

      McDonald asks us to reverse the judgment on costs and disbursements. But

McDonald failed to appeal that judgment. Moreover, she failed below to object to

Allina’s notice and application for taxation of costs and disbursements as required by

Minn. R. Civ. P. 54.04(c). She therefore has forfeited appellate review of the judgment.

See Thiele, 425 N.W.2d at 582.

      Affirmed.




                                           16
