Amin v. Macy's, Inc.
ORDER granting 5 Motion to Dismiss (Written Opinion). Signed by Judge Ann D. Montgomery on 11/28/2012. (GS)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Ismail F. Amin,
Civil No. 12-02528 ADM/SER
Nixon Ayeni, Esq., Law Office of Nixon Ayeni, Bloomington, MN, on behalf of Plaintiff.
Kerry Middleton, Esq., and Jeffrey Timmerman, Esq., Littler Mendelson, PC, Minneapolis, MN,
on behalf of Defendant.
On November 28, 2012, the undersigned United States District Judge heard oral
argument on Defendant Macy’s, Inc.’s (“Macy’s”), Motion to Dismiss, or, Alternatively, to
Compel Arbitration [Docket No. 5]. Neither Plaintiff Ismail F. Amin nor his counsel appeared to
oppose the motion. For the reasons set forth below, Defendant’s motion to dismiss is granted
On or about November 20, 2009, Macy’s hired Amin to work as a retail salesperson at
Macy’s retail location in the Mall of America. Notice of Removal [Docket No. 1] Ex. 1
(“Complaint”) ¶ 3. Amin suffered from childhood polio, and as a result is unable to stand on his
left leg for long periods of time. Id. ¶¶ 2, 4. Upon the start of his employment at Macy’s, Amin
claims he made multiple requests for a stool to sit on to ease his leg pain. Id. ¶¶ 4-6. Amin
alleges that Macy’s never made this accommodation and that as a result, his leg’s condition
worsened. Id. ¶ 9.
Amin filed suit against Macy’s on or about August 15, 2012, seeking lost wages and
damages for medical treatment. See id. Macy’s removed this action to federal court on October
3, 2012, and moved to dismiss on October 10, 2012. [Docket Nos. 1, 5]. Amin did not file a
response to the motion, though he did fax a response memorandum directly to the Court at 12:01
a.m. on the day of the hearing for the motion.1
As stated by the Court on the record at oral argument, Amin’s Complaint has several
facial infirmities and his response to Macy’s motion is procedurally deficient. Even assuming
Amin had properly identified claims and filed his memorandum appropriately, the Court must
still dismiss the Complaint as time-barred. Macy’s argues, and the Court agrees, that when
liberally construed the Complaint implicates discrimination under the Americans with
Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA). Amin may also have a
plausible claim under the Minnesota Worker’s Compensation Act (WCA), as he alleges his leg
disability worsened during his employment at Macy’s. Compl. ¶ 9.
Amin’s potential ADA and MHRA claims are untimely. Macy’s terminated Amin on
December 26, 2009, making this the date from which the statutes of limitation began counting.
Amin had 300 days from his termination to file an ADA charge with the Equal Employment
Although Amin filed his response improperly and in an untimely manner, the Court has
considered Amin’s arguments. The Court also notes that the day before the hearing, Amin’s
counsel faxed a letter to the Court noting Amin’s willingness to arbitrate. In the letter, Amin’s
counsel also notified the Court that the parties had not satisfied the meet-and-confer requirement
of Local Rule 7.1. At the hearing, Macy’s counsel indicated that the parties had conferred before
the hearing, and that Amin would oppose the motion.
Opportunities Commission (EEOC). See E.E.O.C. v. Fed. Exp. Corp., 165 F. Supp. 2d 956, 961
(D. Minn. 2001). Amin did not do so, and then filed the Complaint in state court, without
exhausting his administrative remedies under the ADA. See Henke v. Allina Health Sys., 698 F.
Supp. 2d 1115, 1123 (D. Minn. 2010) (citation omitted). The MHRA does not require an
exhaustion of administrative remedies, but its statute of limitations does impose a one year filing
deadline. Minn. Stat. § 363A.28, subd. 3 (2012). Having filed the Complaint nearly three years
after his termination, Amin does not satisfy this requirement. To the extent Amin stated ADA or
MHRA claims, these claims are time-barred.
The Court also holds that equitable tolling of the applicable statutes of limitation is
inappropriate. Amin alleges suffering “symptoms of psychosis” that caused him to “avoid
people,” which justifies his filing his Complaint in an untimely manner. See Compl. ¶¶ 11-12.
The Court finds that such allegations do not satisfy the high bar set by the Eighth Circuit Court
of Appeals for tolling due to mental illness. See, e.g., Wilkie v. Dep’t of Health & Human
Servs., 638 F.3d 944, 950 (8th Cir. 2011). In Wilkie, the court held that “a plaintiff seeking
tolling on the ground of mental incapacity must come forward with evidence that a mental
condition prevented him from understanding and managing his affairs generally and from
complying with the deadline he seeks to toll.” Id. (internal quotation omitted). Amin alleges no
Finally, Macy’s is correct that the WCA is the sole remedy for injuries arising out of and
in the course of employment. See, e.g., Parker v. Tharp, 409 N.W.2d 915, 916-17 (Minn. Ct.
App. 1987). Whether Amin has a viable WCA claim is not within the Court’s jurisdiction, and
must be pursued with the Department of Labor and Industry. See, e.g., Klaahsen v.
APCOA/Standard Parking, Inc., No. 02-620, 2002 WL 1397041, at * 4-5 (D. Minn. June 26,
Based upon all the files, records, and proceedings herein, IT IS HEREBY ORDERED:
Defendant’s Motion to Dismiss [Docket No. 5] is GRANTED;
All claims alleged in the Complaint are DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: November 28, 2012.
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