11-3100-13264-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF VETERANS AFFAIRS

Nathan D. Schluter, Petitioner, v. City of Minneapolis, Respondent.

FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION UPON REMAND

The above-entitled matter came on for hearing before Administrative Law Judge Barbara L. Neilson on remand by the Minnesota Court of Appeals.  The remand hearing took place on June 12, 2003, at the Office of Administrative Hearings in Minneapolis, Minnesota.  The parties filed simultaneous post-hearing briefs dated July 1, 2003.  The Petitioner filed a reply brief on July 17, 2003.  The City elected not to file a reply brief.  At the request of the ALJ, the parties filed supplemental letter memoranda addressing the issues of burden of proof and the interplay between the governing civil service rules and labor agreement provisions.  The City filed its letter memorandum on September 5, 2003.  The Petitioner filed his response on September 22, 2003, and the record closed on that date. 

Burt T. Osborne, Assistant City Attorney, 333 South 7^th Street, Suite 300, Minneapolis, Minnesota 55402-2453, appeared on behalf of the Respondent, the City of Minneapolis (“City”).  Steven K. Marden, Attorney at Law, Marden Law Offices, 2136 Ford Parkway, Box 359, St. Paul, Minnesota 55116-1863, appeared on behalf of Petitioner Nathan D. Schulter.

NOTICE

This Report is a recommendation, not a final decision.  The Commissioner of the Department of Veterans Affairs will make the final decision after reviewing the administrative record.  The Commissioner may adopt, reject or modify these Findings of Fact, Conclusions and Recommendation.  The Commissioner shall not make his final decision until after this Report has been made available to the parties for at least ten days.[1]  An opportunity must be afforded to each party adversely affected by this Report to file exceptions and present argument to the Commissioner.  Parties should contact the office of Jeffrey L. Olson, Commissioner, Minnesota Department of Veterans Affairs, Veterans Service Building, St. Paul, MN 55155-2079, (651) 296-2562 to find out how to file exceptions or present argument.

If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a.  The record closes upon the filing of exceptions to the report and the presentation of argument to the Commissioner, or upon the expiration of the deadline for doing so.  The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes.

 

STATEMENT OF THE ISSUE

The issue presented on remand is whether the Petitioner was entitled to notice under the Veterans Preference Act before termination or whether he voluntarily or involuntarily resigned, excusing the City from the requirement of notice. 

Based upon all the proceedings herein, the Administrative Law Judge makes the following:

FINDINGS OF FACT

Procedural Background

1.               This matter was originally heard pursuant to a Notice of Petition and Order for Hearing issued by the Commissioner of Veterans Affairs on November 6, 2000.  The Petitioner filed a Petition for Relief with the Department of Veterans Affairs on or about October 17, 2000.  In his petition, the Petitioner alleged that he was unfairly released from employment with the City and membership in Teamsters Local 320.  Petitioner asserted that he was not given any information in writing, his telephone calls were not returned, and his e-mail messages were not answered.  Petitioner asked for reinstatement with seniority and back pay.

2.               The City filed a motion for summary disposition on February 1, 2001.  Further briefs were filed, oral argument was heard, and supplemental responses were received.  On June 27, 2001, the undersigned Administrative Law Judge denied the City’s motion for summary disposition based upon a determination that a limited evidentiary hearing was necessary to resolve genuine issues of material fact relating to whether the Petitioner in fact received notice of the City’s intent to discharge him and notice of his right to a veteran’s removal hearing.[2]  The Administrative Law Judge found that it was reasonable to expect that employees would keep their employers informed of their proper mailing address and declined to rule that the Veterans Preference Act required that the veteran actually receive the written notice of intent to discharge and hearing rights.[3]  However, the City’s motion was denied because its contention that the notice was mailed to the Petitioner’s last known address was not supported by an affidavit.  In addition, the Petitioner had asserted by affidavit that he did, in fact, inform his supervisor that he was going to be incarcerated in the Ramsey County Jail and provided documentation indicating that he lived at a different address in Minneapolis between approximately August of 1997 and December of 1999.[4]  The Administrative Law Judge concluded that a limited evidentiary hearing would be held to determine whether the notice issued by the City was, in fact, provided to the Petitioner’s last known address.[5]  If it were determined that notice was not properly provided and the Petitioner was entitled to a hearing under the VPA, the Administrative Law Judge ordered that the further substantive issues of whether the Petitioner was actually “removed” and, if so, whether the removal was for good cause would then be addressed in a further hearing.[6]  The further hearing was also to include the issue of whether the City in fact viewed the Petitioner as having voluntarily resigned from or abandoned his job or in fact relied upon Civil Service Commission Rule 13.04.[7]  The parties requested and were given an opportunity to conduct discovery prior to the evidentiary hearing. 

3.               The evidentiary hearing took place on October 11, 2001, and post-hearing briefs were filed on October 31, November 13, and November 21, 2001.

4.               On December 21, 2001, the undersigned Administrative Law Judge issued a Report recommending that the Commissioner of Veterans Affairs dismiss the Petitioner’s petition requesting relief under the Veterans Preference Act (“VPA”).  On January 10, 2002, the Deputy Commissioner of Veterans Affairs adopted the report issued by the Administrative Law Judge.

5.               The Petitioner thereafter appealed the decision of the Deputy Commissioner to the Minnesota Court of Appeals.

6.               On November 5, 2002, the Court of Appeals, in an unpublished decision, reversed the decision of the Deputy Commissioner because the Court concluded that “the VPA requires that veterans receive notice of rights and because Schluter clearly did not receive that notice.”[8]  The Court noted that the Petitioner was serving a one-year jail sentence at the time he was terminated.[9]  The Court determined that certain actions taken by the Petitioner (informing his supervisor by telephone that he was in jail but expected to receive work release privileges and submitting a request for a leave of absence through a co-worker) “clearly put the city on notice that Schluter was in jail,” but that the City “nevertheless sent the VPA notice to Schluter’s address of record, which was where his estranged wife was living.”  The Court emphasized that “[t]here is no dispute that Schluter failed to receive notice and that he was unaware of the city’s attempt to inform him of his VPA rights.”[10]  The Court thus concluded that, “where, as here, the veteran clearly did not receive notice of his rights, the 60-day appeal period of Minn. Stat. § 197.46 is not triggered” and that “Schluter therefore has a right to a hearing on his discharge.”[11]  However, the Court remanded for further proceedings because the Deputy Commissioner “did not determine whether Schluter was terminated or whether he involuntarily resigned without good cause attributable to the city.”[12]  The Court noted:

The question nevertheless remains whether Schluter was terminated by the city or whether he involuntarily resigned by virtue of the civil service rule that an unexcused absence longer than three days will be treated as a resignation.  Although this issue was raised, it apparently was not argued to or considered by the ALJ.  Because this issue was not decided by the ALJ, we remand for further findings on whether Schluter was entitled to notice under the VPA before termination or whether he voluntarily or involuntarily resigned, excusing the city from the requirement of notice.[13]

7.               The Court of Appeals returned the record to the Department of Veterans Affairs, which sent it to the Administrative Law Judge in early April 2003.

8.               A status conference was held on April 17, 2003, to discuss a schedule for the submission of further evidence and argument.  The remand hearing was held on June 12, 2003, and post-hearing briefs were submitted.

Findings on Remand[14]

9.               The Petitioner, Nathan D. Schluter, is an honorably discharged veteran who had four years of active service in the Army.[15]  As such, Petitioner is a “veteran” within the meaning of Minn. Stat. § 197.447 and is entitled to the protections of the Veterans Preference Act. 

10.           The Petitioner first worked as a truck driver for the City of Minneapolis (“City”) Public Works Department in 1990 and 1991.[16]  On September 12, 1991, Petitioner resigned his position because he had been sentenced to serve approximately eight months in the County jail as a result of a criminal conviction.[17] 

11.           In a letter dated October 2, 1991, to the Minneapolis Civil Service Commission, Petitioner explained that he had resigned his position after being told that he would “be terminated due to job abandonment” once incarcerated.  Petitioner further explained that he understood a resignation would be better than a termination for reinstatement purposes.[18] 

12.           On June 3, 1992, the City’s Public Works Department again hired Petitioner as a truck driver.  Petitioner was a member of Minnesota Teamsters Public and Law Enforcement Employees’ Union, Local 320.[19]  A collective bargaining agreement between the Union and the City governed some of the terms of the Petitioner’s employment.[20]

13.           David Babcock has been the supervisor of the Equipment Services Division of the City’s Public Works Department since 1995.  Mr. Babcock was also Petitioner’s direct supervisor.  Mr. Babcock oversees the field operations of the Equipment Services Division and directly supervises the dispatchers, drivers and equipment operators.  Mr. Babcock’s duties include managing personnel issues and approving requests for leave or time off.[21]

14.           After Petitioner’s wife obtained an Order for Protection against Petitioner in Ramsey County District Court on August 25, 1997 and filed a petition for dissolution of their marriage, Petitioner moved into his brother’s home located at 5408 Russell Avenue North in Minneapolis and stayed there until approximately December 1999, with the exception of a one-week reconciliation with his wife.[22]

15.           At some point prior to March 10, 1998, the City became aware that Petitioner may have had his driver’s license suspended and may have driven a City vehicle without a valid license.  The City scheduled a department administrative meeting for 8:30 a.m. on March 10, 1998, to allow Petitioner the opportunity to explain the situation.  Petitioner failed to appear for this meeting, nor did he call to reschedule it.  The City scheduled another meeting with Petitioner for April 17, 1998.[23]

16.           On March 12, 1998, Petitioner called the dispatch office and told the dispatcher, Mary Jansen, that he was sick and that he would not be coming into work for a few days.  Petitioner hung up the telephone before Ms. Jansen could ask him any more questions.[24] 

17.           Petitioner was not sick on March 12, 1998.  Rather, Petitioner was unable to go to work because he had to appear in court for sentencing on Fifth Degree Assault and Gross Misdemeanor Stalking and Harassment charges.  The Petitioner’s wife was the victim in both matters.[25] 

18.           Petitioner was convicted of Fifth Degree Assault and Gross Misdemeanor Stalking and Harassment in Ramsey County District Court on March 12, 1998.  Petitioner was sentenced to 90 days in jail on the assault charge, and to one year in jail on the stalking and harassment charge.  In addition, on April 14, 1998, Petitioner was convicted of Third Degree Felony Assault in Hennepin County District Court for assaulting his wife and breaking her nose.  The Petitioner was sentenced to one year in jail on the Hennepin County matter, which he served concurrently with the Ramsey County sentences.[26] 

19.           After his sentencing on March 12, 1998, Petitioner was taken directly from court to jail.[27]

20.           The Petitioner’s incarceration was in no way attributable to the City.[28] 

21.           On or about March 14, 1998, Petitioner called his supervisor, David Babcock, and told him that he was in jail but that he expected he would be able to get work release.  The Petitioner did not tell Mr. Babcock the details of his sentence or how long he was going to be in jail.[29]  Mr. Babcock had two or three conversations with the Petitioner during March of 1998 about his incarceration.  When the Petitioner told Mr. Babcock that he was hoping to get a work release, Mr. Babcock understood this to mean that Petitioner wanted to come back to work.[30]

22.           By Monday, March 16, 1998, both Mr. Babcock and Mary Jauman,[31] a Human Resources Senior Consultant for the City’s Public Works Department, were aware that Petitioner was incarcerated.  Petitioner had missed work assignments on March 12, March 13 and March 15, 1998.[32]  Neither Mr. Babcock nor Ms. Jauman knew how long Petitioner would remain in jail, the details of his sentence, or whether he had been given work release.[33] 

23.           Petitioner was eventually denied work release.  Petitioner did not contact Mr. Babcock and inform him that his request for work release had been denied.  After March 1998, Petitioner did not contact Mr. Babcock again while he was incarcerated.  Petitioner remained incarcerated until December 13, 1998.[34]

24.           Phil O’Connor was a foreman who supervised Petitioner’s work activities on his work crew, but was not the Petitioner’s direct supervisor.[35]

25.           Sometime in March of 1998, Petitioner filled out a leave of absence form and gave it to Phil O’Connor to give to Mr. Babcock.  Mr. O’Connor presented the leave of absence form to Mr. Babcock and spoke briefly with him about Petitioner’s incarceration.[36]  Mr. Babcock refused to accept the leave of absence form because he said the employee requesting the leave must personally submit the form.[37]  Petitioner’s leave of absence request was never processed or approved.[38]

26.           The City’s Public Works Department does not grant leaves of absence for incarceration.[39]

27.           No leave of absence was approved for the Petitioner during the period of his incarceration.[40]

28.           While in jail, Petitioner assumed that he had lost his job with the City.  Petitioner was aware that an absence from work without cause for three days or more was considered job abandonment.  If he was absent from work for three days due to being incarcerated, Petitioner assumed that that would be deemed to be job abandonment and that he would lose his job.[41]

29.           There is no evidence that the City has ever granted an employee a leave of absence because they were incarcerated.[42]

30.           A departmental administrative hearing to discuss Petitioner’s possible violations of work rules and disciplinary action was scheduled for April 17, 1998, at 10:30 a.m. at the Minneapolis City Hall.  The City scheduled the meeting in part because Mr. Babcock had received information that Petitioner may have driven City vehicles without a valid driver’s license.  Petitioner did not appear for the meeting or call to reschedule it.[43]

31.           By letter dated May 4, 1998, Ms. Jauman notified Petitioner that the City had terminated his employment effective April 17, 1998.  This letter was addressed to Petitioner and sent to the 1241 Karth Lake Drive address in Arden Hills, which was the last address the City had for Petitioner in its human resources database.  Although Ms. Jauman was aware that Petitioner was in jail in March, she did not know how long his sentence was and she was not aware that Petitioner was no longer residing at the Arden Hills address.[44] 

32.           At the time she sent the termination letter, Ms. Jauman did not think Petitioner was still in jail.[45] 

33.           Ms. Jauman’s May 4, 1998, letter indicated that the reasons for Petitioner’s discharge were his failure to report the loss of his drivers license within 24 hours of the loss or suspension of the license, in violation of Civil Service Rule 11.03 A 4; his absenteeism and failure to be available for call-out on March 6, 13, and 15, 1998, as required by the on-call policy, in violation of Civil Service Rule 11.03 B 1; his absence without leave, unavailability for call-out and failure to show for two department meetings to discuss his employment on March 10, 1998, and April 17, 1998, in violation of Civil Service Rule 11.03 B 3; and his failure to report the loss of his driver’s license as required and his driving of a City vehicle without a valid driver’s license, in violation of Civil Service Rule 11.03 B 18.  The letter asserted that the Petitioner failed to attend a departmental administrative hearing that was scheduled for April 17, 1998, at 10:30 a.m. to discuss his employment situation and did not call to reschedule the meeting.  Because of this, the letter indicated that the City had no recourse other than termination from employment.[46]

34.           Enclosed with Ms. Jauman’s May 4, 1998, letter was a “Recommendation for Discharge” form.  The form listed Petitioner’s name, job title, the effective date of discharge, and the reasons for the discharge.  The reverse side of the “Recommendation for Discharge” form included a notice regarding veterans’ hearing rights.[47]

35.           Ms. Jauman’s May 4, 1998, letter and enclosed “Recommendation for Discharge” form were sent to 1241 Karth Lake Drive by certified mail.  Someone other than the Petitioner accepted delivery of the letter on May 8, 1998, and signed the certified return receipt card.[48]

36.           Petitioner never received or saw Ms. Jauman’s May 4, 1998, letter and Recommendation for Discharge.  Petitioner’s wife did not forward the letter to him in jail.[49]

37.           While in jail, Petitioner contacted his cousin, George Vojta, for assistance with filing a grievance through his union to protest his termination.  Mr. Vojta was the President of another local of the union.  Mr. Vojta contacted Paul Nelson, the Business Agent for Petitioner’s union (Local 320), on Petitioner’s behalf.[50]

38.           On May 15, 1998, Paul Nelson, Business Agent for Teamsters Local 320, filed a grievance on behalf of Petitioner appealing the termination of his employment.  The grievance was addressed to Mr. Babcock and the cover letter indicated that Petitioner was copied on the letter.[51]  Mr. Nelson listed Petitioner’s address on the grievance application as 5408 Russell Avenue North, Minneapolis.  Although Petitioner never talked with Mr. Nelson about the grievance, he talked to his cousin about the filing of a grievance relating to his termination.[52] 

39.           In her response letter to Mr. Nelson dated May 27, 1998, Ms. Jauman detailed the chronology of events leading up to the decision to terminate Petitioner.  Ms. Jauman explained that the City was initially concerned that Petitioner may have driven a City vehicle without a valid driver’s license.  The City scheduled a meeting to discuss this matter with Petitioner for March 10, 1998, but Petitioner did not appear for the meeting.  Thereafter, Petitioner was incarcerated and was unavailable for work.  Ms. Jauman explained that the City does not grant leaves of absence for incarceration and employees are not permitted to use sick or vacation leave to cover an absence due to incarceration.  The City scheduled another administrative hearing with Petitioner for April 17, 1998 and Petitioner again failed to appear.  After that the City recommended that Petitioner be discharged for, among other things, his absence without leave.  Ms. Jauman stated that she believed the City acted appropriately and in accordance with civil service rules and the governing labor contract.  Ms. Jauman closed the letter by informing Mr. Nelson that Petitioner’s grievance was denied.[53]  There is no evidence that the grievance was pursued thereafter.

40.           Petitioner was released from jail in December 1998.  In January 1999, Petitioner called David Babcock and Paul Nelson of Local 320 to see if he could get his job back with the City.  Neither Mr. Babcock nor Mr. Nelson returned Petitioner’s calls.  Eventually, someone at Local 320 told Petitioner’s cousin to tell the Petitioner to quit calling Mr. Nelson because Petitioner was not going to get his job back.  Petitioner’s cousin passed this message on to the Petitioner and he quit calling Mr. Nelson.[54]  The Petitioner later filed a petition under the VPA, resulting in this contested case proceeding.

CONCLUSIONS

1.      The Administrative Law Judge and the Commissioner of Veterans Affairs have jurisdiction in this matter pursuant to Minnesota Statutes §§ 14.50 and 197.481. 

2.      The Petitioner is an honorably discharged veteran within the meaning of Minn. Stat. § 197.46 and 197.447. 

3.      The City of Minneapolis is a political subdivision of the State of Minnesota within the meaning of Minn. Stat. § 197.46. 

4.       The City has complied with all relevant substantive and procedural requirements of statute and rule, and this matter is properly before the Administrative Law Judge.

5.       The Petitioner has the burden of proof to establish by a preponderance of the evidence that he was removed from his employment with the City and was denied his rights under the Veterans Preference Act, Minn. Stat. § 197.46.[55]

6.      Minn. Stat. § 197.46 prohibits the removal of a qualified veteran from public employment except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges in writing. 

7.       Article 14, Section 14.01 of the Labor Agreement between the City of Minneapolis and the Minnesota Teamsters Public and Law Enforcement Employees Union, Local No. 320, Drivers Unit, for the period January 1, 1998, through June 30, 2000, specifies that:

“[l]eaves of absence without pay may be granted to permanent employees when authorized by state statute or by the Employer pursuant to the provisions of this article upon written application to the employee’s immediate supervisor or his/her designated representative.  Except for emergency situations, leaves must be approved in writing by the Employer prior to commencement.”[56]

8.      Under Rule 13.04 of the Rules of the Minneapolis Civil Service Commission,

“[t]he absence of an employee from duty for a period of three successive days or longer, without leave and without notice to their supervisor of the reason for such absence and of their intention to return, will be considered a resignation.”[57]

9.      Pursuant to Rule 1.02 of the Rules of the Minneapolis Civil Service Commission,

“[a]greements reached under PELRA between the City of Minneapolis and exclusive employee representatives will supersede Civil Service Commission Rules whenever overlap exists.  Employees in the classified service and not covered by labor agreements are subject to these rules.”[58]

10.     The Petitioner failed to establish that he was removed from his employment with the City.  Instead, the record shows that he abandoned his employment when he was incarcerated and was absent from work without having an approved leave of absence.  Under the City’s Civil Service Rules, this constituted a resignation. 

11.    Petitioner’s resignation was voluntary because his voluntary actions led to his incarceration and job abandonment.

12.    Petitioner’s incarceration and voluntary resignation were in no way attributable to the City.

13.    Because the Petitioner voluntarily resigned his employment by virtue of his absence without leave, he was not removed from his position within the meaning of Minn. Stat. § 197.46 and he is not, therefore, entitled to a veterans preference removal hearing or any notice of a right to such a hearing.

14.    These Conclusions are reached for the reasons discussed in the attached Memorandum, which is incorporated herein by reference.

Based on the foregoing Conclusions, the Administrative Law Judge makes the following:

RECOMMENDATION

IT IS HEREBY RECOMMENDED:

That the Commissioner of Veterans Affairs DISMISS the petition of Nathan D. Schluter requesting relief under the Veterans’ Preference Act.  

 

Dated:  October 22, 2003.                         

 

/s/ Barbara L. Neilson

BARBARA L. NEILSON

Administrative Law Judge

Reported: Tape-recorded (1 tape); no transcript prepared.

NOTICE

Pursuant to Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail. 

MEMORANDUM

The sole issue presented in this case under remand is whether the Petitioner was “removed” from his position of employment, entitling him to notice under the Veterans Preference Act (VPA) before he was terminated by the City of Minneapolis, or whether he voluntarily or involuntarily resigned, excusing the City from the requirement of providing notice.  The Veterans Preference Act provides in pertinent part:

No person holding a position by appointment or employment in the several counties, cities, towns, school districts and all other political subdivisions in the state, who is a veteran separated from the military service under honorable conditions, shall be removed from such position or employment except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, in writing.[59]

A veteran is removed from his or her position when the effect of the employer’s action is to make it unlikely or improbable that the veteran will be able to return to the job.[60]

Underlying Facts

Petitioner is an honorably discharged veteran who worked as a truck driver for the City of Minneapolis.  On March 12, 1998, he called the dispatch office and told the dispatcher that he was sick and would not be coming into work for a few days.  Petitioner was not sick.  Instead, he was unable to come to work that day because he had to appear in Ramsey County District Court to be sentenced on fifth degree assault and gross misdemeanor stalking and harassment charges.  Petitioner was sentenced on March 12, 1998, to 90 days in jail on the assault charge and 1 year in jail on the stalking and harassment charge.  On or about March 14, 1998, Petitioner called his supervisor and told him that he was in jail but that he hoped that he would be able to get work release.  The Petitioner did not tell his supervisor how long he was going to be in jail.  In the end, Petitioner was denied work release and remained incarcerated until December 13, 1998.  Sometime in March 1998, the Petitioner filled out a leave of absence form and gave it to a co-worker to give to his supervisor.  Petitioner’s supervisor refused to accept the leave of absence form from the coworker and no leave of absence was approved for the Petitioner during the period of his incarceration.  The City terminated Petitioner’s employment effective April 17, 1998.  The City sent Petitioner notice of his termination and of his Veterans Preference rights at his last known address.  Because Petitioner was incarcerated, he never received the notice. 

While employed with the City, Petitioner was a member of the Minnesota Teamsters Public and Law Enforcement Employees Union, Local No. 320.  Article 14, Section 14.01 of the Labor Agreement between the City and Local No. 320’s Drivers Unit, for the period January 1, 1998, through June 30, 2000, provided as follows:

“Leaves of Absence Without Pay:  Leaves of absence without pay may be granted to permanent employees when authorized by state statute or by the Employer pursuant to the provisions of this article upon written application to the employee’s immediate supervisor or his/her designated representative.  Except for emergency situations, leaves must be approved in writing by the Employer prior to commencement.”[61]

Rule 13.04 of the Rules of the Minneapolis Civil Service Commission, provides as follows:

“Termination by Abandonment of Position:  The absence of an employee from duty for a period of three successive days or longer, without leave and without notice to their supervisor of the reason for such absence and of their intention to return, will be considered a resignation.”

Under Rule 1.02 of the Rules of the Minneapolis Civil Service Commission, “agreements reached under PELRA between the City of Minneapolis and exclusive employee representatives will supersede Civil Service Commission Rules whenever overlap exists.”[62]

Contentions of the Parties

The Petitioner asserts that under Rule 13.04 of the City’s Civil Service Rules, the evidence must show that he was absent without leave and without notice to his supervisor in order to establish that he resigned his position.  That is, Petitioner argues that the word “and” in Rule 13.04 must be given its ordinary conjunctive meaning and the rule must be read as requiring both an absence without leave and a failure to notify one’s supervisor in order for an absence to be deemed a resignation.  While Petitioner concedes that he was absent from duty for a period of more than three successive days and his leave request was not granted, Petitioner maintains that he did notify his supervisor of his incarceration and of his intention to return to work.  Therefore, Petitioner contends that he cannot be found to have abandoned or resigned his position under Civil Service Rule 13.04.  As a result, Petitioner argues he was entitled to notice from the City under the VPA.  And Petitioner maintains that because the City terminated Petitioner “for cause” effective April 17, 1998, it cannot now claim, several years after the fact, that Petitioner involuntarily resigned his position by virtue of his incarceration prior to the termination.  

The City contends that Petitioner’s absence without leave should be treated as a resignation.  The City points out that the pertinent provision of the collective bargaining agreement, section 14.01, specifies that leaves of absences may be granted by an employee’s supervisor but must be approved in writing by the employer prior to commencement.  Petitioner did not request a leave of absence prior to the commencement of his incarceration and his supervisor never approved a leave of absence for him.  As a result, the City argues that Petitioner involuntarily resigned his position of employment by being incarcerated and absent from work for several months, thereby excusing the City from providing him notice.  The City maintains that because Petitioner was absent without leave for more than three days, he resigned his position pursuant to Civil Service Rule 13.04.

 

Analysis

Whether, for purposes of the VPA, Petitioner voluntarily or involuntarily resigned his position by reason of abandonment or whether he was terminated (removed) is a question of law.[63]  An employee who voluntarily resigns or quits without good cause attributable to the employer is not entitled to notice and hearing under the Veterans Preference Act.[64]  Thus, it must be determined if Petitioner voluntarily or involuntarily resigned his employment by being absent from work without leave due to his incarceration. 

Several recent decisions are instructive.  For example, in McKinney v. St. Paul Public Schools,[65] a veteran employed in the school district’s food services department plead guilty to fifth degree misdemeanor assault (domestic abuse), violated the terms of his probation by refusing to stop drinking, and was thereafter incarcerated.  Although the petitioner had talked to his supervisor in advance of his court appearance and told her that he might have to go to jail, he indicated that he probably would not need to take time off.  The petitioner’s supervisor told him that he would have to fill out a request for leave if he was going to be absent, but the petitioner did not do so.  The petitioner was incarcerated after he informed the court that he would rather serve 90 days in jail than complete chemical dependency treatment and after-care.  The petitioner’s wife called and informed school district personnel that the petitioner had been sentenced to jail for 90 days with no work release privileges and asked for a leave of absence form.  The human resources department eventually wrote to the petitioner and advised him that, because he was unavailable for work due to his incarceration, he was deemed to have resigned his employment.  Although the petitioner was later granted work release privileges, he did not request reinstatement or advise school personnel that he was able to work. 

More than 1½ years later, the petitioner in McKinney filed a petition with the Commissioner of Veterans Affairs alleging that he had been removed from his employment without notice of his VPA hearing right.  Administrative Law Judge Jon Lunde issued a report recommending that the Commissioner find that the petitioner voluntarily discontinued his employment, emphasizing that the pertinent civil service rule specified that the petitioner was deemed to have resigned his employment as a result of his absence without leave.  Judge Lunde noted further that the petitioner chose to be incarcerated and thereby made a voluntary decision to abandon his job for 90 days so that he could continue drinking, and the petitioner had fair notice that a leave was required and that absence from work could be grounds for discharge or other adverse action. 

Similarly, in Hodapp v. St. Louis County,[66] Administrative Law Judge Mihalchick concluded that a county employee absent from work without authorized leave due to the employee’s incarceration had voluntarily discontinued his employment under civil service rules stating that an employee absent from work for three consecutive work days without leave would be deemed to have resigned.  Judge Mihalchick stated that,

“[w]hile there may be some hesitancy to say that Petitioner ‘voluntarily’ absented himself from the job, the fact is that his voluntary actions led to his incarceration.  The County has not taken disciplinary action against petitioner for his unauthorized absence.  It did not refuse to let him work.  Under the circumstances, the absence must be treated as a resignation.” 

The commissioner affirmed the ALJ’s finding in Hodapp that the petitioner had voluntarily discontinued his employment under the applicable civil service rule due to his absence from work without leave.  The commissioner found that the petitioner had not been removed even though constructive resignations do not “comfortably” fit within the usual categories of either “removal” by the employer, which would require notice under the VPA, or “voluntary resignation,” which would not.  The commissioner’s conclusion was based in part on the fact that there was no evidence in the record suggesting that the county was acting in bad faith.  Because the county had not adopted its rule in an ad hoc manner, the commissioner agreed that the employee had voluntarily abandoned his employment by being absent from work without leave.  The commissioner stated that a generally applied policy denying leaves for incarceration cannot be said to come within the purview of the VPA. 

Finally, in Mack v. Hennepin County,[67] the Minnesota Court of Appeals held that a veteran public employee who was deemed to have resigned after three consecutive days’ absence without leave under the provisions of a bargaining agreement had not been removed from his employment and was not entitled to notice and a hearing under the VPA.  The Court explained that the veteran was a member of the union whose governing bargaining agreement provided that employees would be deemed to have resigned if they failed to report to work for three consecutive days without obtaining permission for the proper leave.  Because Mack was absent from work without approved leave for more than three days, the Court held that the Commissioner properly dismissed his petition under the VPA. 

Like the cases cited above, the Petitioner in this matter was absent without leave from his job for more than three successive days due to his incarceration.  Unlike those cases, however, the City’s civil service rule governing Petitioner’s employment does not state simply that more than three days absence without leave will be deemed a resignation.  Instead Civil Service Rule 13.04 states that an absence of three or more days without leave and without notice to the employee’s supervisor of the reason for the absence and of the employee’s intention to return, will be considered a resignation.  Clearly, Petitioner was absent without leave.  While this is cause for disciplinary action under Civil Service Rule 11.03, the issue is whether it may be deemed a resignation under Rule 13.04 where Petitioner did eventually notify his supervisor of the reason for the absence and of his intent to return.  The City concedes that, after he was incarcerated, Petitioner did notify his supervisor of the reason for his absence and of his desire to return to work. 

Petitioner was a member of the Teamsters Union, Local 320.  Under the collective bargaining agreement governing his employment, leaves of absence must be approved by the employer prior to commencement.  Petitioner did not obtain an approved leave of absence prior to his incarceration and he did not notify his supervisor that his absence from work was due to incarceration until his third day in jail.  By that time, Petitioner had already missed work assignments on March 12^th and March 13^th.  Moreover, although Petitioner indicated to Mr. Babcock that he hoped to return to work on a work release program, he could not guarantee that he would qualify for work release and be able to return.  As it turns out, Petitioner was not granted work release and he remained incarcerated for nine months.  Once Petitioner was denied work release and the leave of absence form he submitted through a co-worker was rejected, he did not show up for work or contact Mr. Babcock again. 

Given Petitioner’s circumstances, his intention or desire to return to work was not determinative of whether he would in fact return to work.  This is a significant difference from the more typical situation in which an employee is able to assure the employer that he or she will return.  In Petitioner’s case, his intent to return to work was obviously contingent on his ability to obtain work release.  Once he was not granted work release that intention was rendered moot and Petitioner remained incarcerated for nine months.  It would be unreasonable to expect the City to wait nine months for his return.  Moreover, Petitioner admitted that he assumed that his situation would be deemed to be job abandonment and that he would lose his job.  In fact, several years prior the Petitioner had resigned earlier employment with the City when he was incarcerated because he had been told he would be terminated due to job abandonment once incarcerated. 

In light of the collective bargaining agreement, civil service rules, surrounding circumstances, and prior decisions of the courts and the Commissioner, the Administrative Law Judge concludes that Petitioner’s absence from his position for more than three successive days without leave may be deemed a resignation under Civil Service Rule 13.04.  To interpret Rule 13.04 in the manner urged by Petitioner, an employee could be absent without approved leave for any length of time and the City would not be permitted to treat this absence as a resignation so long as the employee, at some point, told his or her supervisor of the reason for the absence and of his or her intent to return to work.  Such an interpretation would lead to an absurd result and would prevent the City from being able to treat unapproved absences as voluntary resignations.  In essence, employees would be able to grant their own leaves of absence by simply informing their supervisors of their plans.  Under this interpretation, the City’s only option in response to an employee’s unapproved absence would be to pursue disciplinary action. 

Civil service regulations are to be given a commonsense construction and the spirit rather than the letter of the rules should be followed.[68]  In order to construe Civil Service Rule 13.04 in a manner consistent with Section 14.01 of the Labor Agreement, the ALJ concludes that it is reasonable to interpret Rule 13.04 as requiring employees to obtain approved leaves and to notify their supervisors prior to the commencement of their absence, in order to avoid having their absence deemed a resignation.  Such an interpretation is consistent with Section 14.01 of the governing Labor Agreement, whose provisions supersede the Civil Service Rules whenever an overlap exists.[69]  Moreover, it is a commonsense construction because requesting a leave of absence necessarily requires notifying one’s supervisor of the reason for the absence and of one’s intention to return.  Since the Labor Agreement requires leaves of absence be approved prior to commencement, Rule 13.04’s leave and notice requirements should be read likewise.  Therefore, the ALJ concludes that Petitioner’s absence from work without leave for three or more successive days and his failure to notify his supervisor of the reason for his absence prior to its commencement amounted to job abandonment and may be considered a resignation. 

In addition, the ALJ finds that the City is not prohibited from arguing that Petitioner resigned his position even though the City terminated Petitioner for cause.  Petitioner has the burden of proving that he was “removed” from employment under the Veterans Preference Act.  Petitioner is unable to meet this burden because he abandoned his position prior to the City’s termination of his employment.  Regardless of the reasons for discharge given by the City in its subsequent notice of termination, Petitioner resigned his position in March 1998 when he was unable to accept work assignments due to his incarceration.  Moreover, Petitioner’s resignation was voluntary in the sense that his voluntary actions led to his incarceration and his incarceration was in no way attributable to the City.  Thus, it was the Petitioner’s own conduct and not any action on the part of the City that made it unlikely or improbable that Petitioner would be able to return to his job.  Because Petitioner voluntarily resigned from his position prior to the effective date of his termination, he was not “removed” from his position and the City was not required to provide him with notice under the Veterans Preference Act. 

The ALJ recommends that the Commissioner of Veterans Affair dismiss the Petitioner’s petition for relief under the Veterans Preference Act.

B.L.N.