Dec. 18—ROCHESTER — A judge’s recommendation to dismiss part of Rochester City Council member Molly Dennis’ lawsuit against the city, Mayor Kim Norton and fellow council member Patrick Keane has been thrown out.
A 48-page report filed in late October by U.S. Federal Court Magistrate Judge Douglas Micko was sealed for 45 days to allow review by Dennis and the city’s attorneys to ensure no information was needed are redacted for confidentiality.
Because no confidential information was reported, the court granted public access to the document this week.
Micko recommends that the presiding judge, Chief Judge Patrick J. Schiltz, dismiss six of Dennis’ nine complaints as outlined in the discrimination claim.
The remaining three claims allege that Dennis was denied access to public services based on needs related to her diagnosis of attention-deficit/hyperactivity disorder, and that she allegedly faced retaliation after seeking accommodations for her disability.
In her lawsuit, Dennis alleges that her March 6, 2023 disapproval, as well as subsequent actions, violated several state and federal protections against discrimination. The city wanted to have the lawsuit dismissed.
Micko’s recommendation suggests that all claims against Keane should be dropped and only one claim against Norton should move forward for potential trial, largely because their role in the censure involved legislative actions taken as elected officials.
Several claims related to employment discrimination are also recommended for dismissal based on Dennis’ status as an elected official.
“Ms. Dennis was simply not an employee of the City of Rochester at the time of the alleged events because she was serving as an elected official,” Micko wrote. “She asks the court to permit the discovery of additional facts about her employment status, but does not explain what additional facts might change the court’s conclusions here, nor can the court conceive of a set of discovered facts that would alter this analysis can change.”
The judge repeatedly points out that he did not hold Dennis to the “same strict standards” as a lawyer in arguing her case, as the councilor is representing herself, but Micko also outlined when arguments appear to have no legal standing, including a complaint alleging racial discrimination rather than her diagnosis of attention deficit/hyperactivity disorder.
He also argues that Dennis’ claims that the censure violated her First and Fourteenth Amendment rights are not supported in her complaint.
The three claims Micko recommends moving forward relate to access to public services and alleged retaliation based on Dennis’ disability. All three involve the city, but only one involves Norton.
“The court understands that Ms. Dennis alleges that the City denied her meaningful access by failing to take into account her disability and by discriminating against her for her disability,” Micko wrote. “As a result, the court interprets Ms. Dennis’ plea as follows: she is excluded from receiving the benefits of and participating in the City’s services and activities available to non-disabled members in her elected council member group.”
Dennis has noted the need for hourly exercise breaks, among other medically supported accommodations, that align with her ADHD diagnosis. While she claims the city has not supported the needs, the city’s attorneys have argued that the required accommodations have been supported, even though Dennis says more was needed.
Dennis has also stated that she believes the communication restrictions outlined in the censure were intended to address her disability and were intended to hinder her access to the public services needed as a council member.
Micko said the two complaints about access to public services are complicated by Dennis’ elected status because it makes her a public entity rather than an external member of the public.
It “raises the question of how an elected official is legally protected — if at all — from disability discrimination,” he wrote. “Neither the ADA nor the Minnesota Human Rights Act expressly preclude elected officials from making a public access claim related to their disability.”
He said enough demand remains to require additional judicial review through a potential lawsuit.
He recommends that the same apply to the council member’s claims that the city and Norton retaliated against her based on her request for disability accommodations.
“Ms. Dennis also plausibly provided examples of how the restrictions imposed on her had a material impact on her ability to do her job: communicating with her constituents and representing her constituents in municipal proceedings,” he said.
Possible retaliation includes Norton’s refusal to meet with Dennis and accusations of actions that excluded her from conversations and prevented her from accessing needed information, but Micko points out a potential uncertainty about the timing of such actions, which would be necessary to to prove that they were based on retaliation. about Dennis’ search for accommodation for the disabled.
Erin Emory, an attorney with the Minneapolis-based law firm Greene Espel, which is representing the city, filed an objection to the recommendation. The document remains sealed and Emory reports it contains confidential information.
Dennis, who is in her last weeks as a councilor, has no objection to Micko’s report before the court.
According to court records, no dates have been set for future hearings or a possible trial and Chief Justice Schiltz is expected to make a final decision at a later date on whether to adopt Micko’s recommendations.
