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OAH 58-3100-17672-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF VETERAN AFFAIRS
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Petitioner |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
v.
City of
Respondent
This matter came on for hearing before
Administrative Law Judge Linda F. Close on
Craig O. Ash,
1. Is Petitioner a veteran within the meaning of the Veterans Preference Act (VPA) who was removed from his employment with the Respondent without being notified of the hearing rights under Minn. Stat. § 197.46?
2. If so, is Petitioner entitled to relief under Minn. Stat. § 197.481?
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
1.
Petitioner is a veteran who was honorably
discharged from the
2.
Petitioner is a licensed emergency medical
technician (EMT). On
3. The Service has approximately sixteen volunteers. Volunteers meet monthly to sign up for their volunteer hours for the following month. In order of their seniority, volunteers sign up for twelve shifts plus one weekend. If any shifts remain unfilled after each volunteer has selected his or her twelve shifts and weekend, then volunteers may sign up for any unfilled shifts. This is also done by seniority.[4] Attendance at the monthly meetings is mandatory. If a volunteer must miss a meeting, the volunteer can request another volunteer to sign up on his or her behalf. [5]
4.
On
5.
Petitioner is a member of the National Disaster
Medical System, which was part of the Federal Emergency Management Agency
(FEMA) until recently. In July 2006,
Petitioner was called up by FEMA to serve in
6. Respondent’s Service has a list of protocols and responsibilities for members of the Service. Violation of the protocols may result in discipline. The current list of protocols states that an EMT riding in the back of the ambulance must constantly monitor the patient’s condition and provide appropriate care, even when a nurse-volunteer is present. The current list further makes it grounds for discipline for an EMT to sleep when the EMT should be doing patient care.[8] The protocol list in effect on July 6th did not include the provision about the duties of the EMT riding in the back or specify that sleeping was grounds for discipline.[9] The current protocol list was revised, in part, because of the July 6th events reported by Ms. Keimig.[10]
7.
Tom Scoblic is the Director of the Service. In early August 2006, Scoblic became aware,
through oral communication, of Ms. Keimig’s complaint about Petitioner’s
conduct during the July 6th transfer. Keimig did not provide a written complaint to
Director Scoblic until
8. The Service has a Board of three members, all of whom are volunteers with the Service. In August 2006, the three members were Kathleen Korth, James Hasslen, and Tom Scoblic. At its August 2006 meeting, the Board discussed Ms. Keimig’s complaint and debated whether to discipline Petitioner based on the complaint. The Board also discussed other complaints about Petitioner, including his failure to drive fast enough and his lack of rapport with other volunteers. The Board also discussed whether Petitioner’s conduct amounted to gross misconduct and thought it did. The Board ultimately decided to ask Petitioner to resign from the Service rather than dismiss him.[12]
9.
At the time of the August Board meeting,
Petitioner was still in
10. Petitioner refused to resign. At some point during the conversation, Petitioner offered to turn in the pager he carried in order to respond to calls from the Service. Director Scoblic accepted that as an alternative to resignation, and he followed Petitioner to Petitioner’s home, where the Director collected Petitioner’s pager. Director Scoblic was not authorized to ask Petitioner for the pager.[14] At no time did Director Scoblic tell Petitioner that his employment with Respondent was terminated. Director Scoblic knew that Petitioner is a veteran and therefore could not be terminated without a hearing.[15] However, both the Director and Petitioner understood that turning in the pager meant that Petitioner could no longer take call.[16]
11.
On
12.
At the
13.
On
14.
At the
15. Petitioner did not attend the monthly Service meeting in November. Petitioner told the Director that he was dealing with a family matter and could not attend. At the November meeting, other Service volunteers signed up for December call. After the meeting, Petitioner called the Director and was told that only December 25th had not been filled. Petitioner took no call hours for December.[25]
16.
By a letter dated
17.
On advice of his counsel, Petitioner did not
attend the monthly Service meeting on
18.
On
Based on these Findings of Fact, the Administrative Law Judge makes the following:
1. The Administrative Law Judge and the Commissioner of Veterans Affairs have jurisdiction to consider this matter under the VPA.[29]
2. The Department of Veterans Affairs gave proper notice of the proceedings and has complied with all relevant substantive and procedural requirements of law.
3.
Petitioner was honorably discharged from the
4. Respondent is a political subdivision of the State which is subject to the provisions of Minn. Stat. § 197.46.
5. The burden of proof is on Petitioner to prove by a preponderance of the evidence that his employment was terminated in violation of Minn. Stat. § 197.46.[31]
6. Petitioner has not proven, by a preponderance of the evidence, that Respondent terminated Petitioner’s employment, constructively or otherwise.
7. Respondent has not violated Petitioner’s rights under VPA.
Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:
Based upon these Conclusions, the Administrative Law Judge recommends that: the Petition of Norwood R. F. Baybridge be DENIED.
Dated:
s/Linda
F. Close
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LINDA
F. CLOSE Administrative
Law Judge |
Reported: Taped,
6 tape(s)
No
transcript prepared
This report is a recommendation, not a final decision. The Commissioner of Veterans Affairs will make
the final decision after a review of the record. The Commissioner may adopt, reject or modify
these Findings of Fact, Conclusions, and Recommendations. The parties have 10 calendar days after
receiving this report to file Exceptions to the report. At the end of the exceptions period, the
record will close. The Commissioner then
has 10 working days to issue his final decision. Parties should contact Clark Dyrud,
Commissioner of Veterans Affairs,
Under 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 or as otherwise provided by law.
Under the VPA, “no person holding a position by
appointment or employment in the several counties, cities, towns, schools 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.”[32] The
Minnesota Supreme Court has explained that “removal” under VPA may include
employer actions that fall short of an explicit termination. Thus, it has construed removal to include employer
actions that “make it unlikely or improbable that the veteran will be able to
return to the job.”[33]
Petitioner, relying on cases of
constructive removal, argues that he was discharged from his employment when he
turned in his pager on
The Administrative Law Judge has
resolved this factual difference in favor of the Respondent because other facts
make the Director’s version of the events the more credible version. For example, it is undisputed that, when
Director Scoblic met with Petitioner on
The actions of the Director on October
4th did not make it “unlikely
or improbable” that Petitioner could return to the job. Although it is certain that Petitioner could
not take call without a pager, it was Petitioner’s decision to turn in the
pager.
Respondent’s subsequent actions
confirm that it did not regard Petitioner’s case as “closed” once the pager was
turned in. As of October 4th,
no disciplinary action had been taken as to Petitioner. The Service, however, believed that
disciplinary action was appropriate, as reflected in the discussions of the Board
during its August meeting.[40] The conversation of October 4th
between Petitioner and the Director left disciplinary action unresolved. Since it was up to the City Council whether
such action would be taken, the Director took his recommendation for discipline
to the Council’s next meeting.[41]
Petitioner argues that he was
constructively discharged for the period of time during which he had no pager. The ALJ has resolved that issue by finding
that it was Petitioner who chose to give up the pager. Thus, there can be no constructive discharge
by Respondent. But Petitioner goes on to
argue that the constructive discharge continued even after the return of the
pager. According to Petitioner’s
argument, he could not return to work because of a “hostile environment” at the
Service. Respondent’s failure to resolve
the “hostile environment” at the Service amounts to a constructive discharge,
the argument goes.[42] Petitioner cites no VPA decisions in support
of this argument. Instead, he cites
workplace harassment cases.[43]
The evidence as a whole does not
support the hostile work environment Petitioner alleges, and certainly not an
environment so hostile it would amount to a constructive discharge situation. On the contrary, one of the witnesses
testified he would willingly work with Petitioner, if Petitioner would sign up
on the schedule.[44] Petitioner testified that he felt there was
tension during the meetings with the Director.[45] But the Director’s testimony reflects it was
Petitioner who was combative. Because of
Petitioner’s hostility at the October 4th meeting, the Director
asked another Board member to be present at the November 7th
meeting.[46]
Petitioner also testified to his
impression that there had been a letter-writing campaign against him, but this
is also not supported by evidence in the record. In sum, the facts do not support Petitioner’s theory
of a hostile environment amounting to a constructive discharge.
L. F. C.
[1] Testimony of Petitioner; Form DD 214, attached to the Notice of Petition and Order for Hearing.
[2] The parties agree that, for purposes of this hearing, Petitioner’s status as a volunteer has no legal significance.
[3] Test. of Pet.
[4] Testimony of James Hasslen.
[5] Testimony of Tom Scoblic; Test. of J. Hasslen.
[6] Resp. Ex. A. As a nurse from the hospital, Ms. Keimig is not a volunteer, but she is considered a part of the Services team. Testimony of Kathleen Korth.
[7] Test. of Pet.
[8] Resp. Ex. B.
[9] See Pet. Ex. Q.
[10] Test. of T. Scoblic.
[11] Test. of T. Scoblic; Resp. Ex. A.
[12] Test. of K. Korth; Test. of J. Hasslen.
[13] Test. of T. Scoblic.
[14] Test. of J. Hasslen.; Test. of K. Korth.
[15] Test. of T. Scoblic.
[16] Test. of Pet.
[17] See Pet. Ex. D. The petition is referenced in Petitioner’s Exhibit D, but it was not put into evidence.
[18] Pet. Ex. D
[19] Resp. Ex. D.
[20] Test. of T. Scoblic. The record is unclear exactly what action the Council took. From the ensuing events, it must be inferred that the Council approved the recommended disciplinary action.
[21] Test. of Scoblic.
[22] Test. of T. Scoblic.
[23] Test. of T. Scoblic; Test. of J. Hasslen.
[24] Test. of Pet.
[25] Test. of Pet; Test. of T. Scoblic.
[26] Resp. Ex. C.
[27] Test. of Pet; Test. of T. Scoblic.
[28] Notice of Petition and Order for Hearing attachment.
[29]
[30]
[31]
[32]
[34] Test. of Pet.
[35] Test. of T. Scoblic.
[36] Test. of Pet.; Test. of T. Scoblic.
[37] Test. of Pet.; Test. of T. Scoblic.
[38] Test. of T. Scoblic.
[39] Test. of T. Scoblic; Test. of K. Korth; Test. of J. Hasslen.
[40] Test. of K. Korth; Test. of J. Hasslen; Test. of T. Scoblic.
[41] Test. of J. Hasslen; Test. of T. Scoblic; Pet. Ex. D.
[42] Resp. Ex. C.
[43] See,
e.g., Pribil v. Archdiocese of
[44] Test. of J. Hasslen.
[45] Test. of Pet.
[46] Test. of T. Scoblic; Test. of J. Hasslen.