|
|
OAH 15-3100-19983-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT VETERANS AFFAIRS
|
Gary F. Frahm v. |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
A hearing was held on January 22, 2009, at
the Office of Administrative Hearings, before Beverly Jones Heydinger,
Administrative Law Judge, pursuant to a Notice of Petition and Order for
Hearing, dated October 22, 2008.
Appearances: Bruce P. Grostephan, Peterson, Engberg & Peterson, on behalf of Gary F. Frahm (Petitioner); Patrick J. Flynn, Knutson, Flynn & Deans, P.A., on behalf of Independent School District No. 2859, Glencoe-Silver Lake (School District).
The hearing record closed upon the receipt of the posthearing reply briefs on April 15, 2009.
1.
Is the Petitioner entitled to notice of his
right to a veterans preference hearing prior to his termination from employment
with the
2. If the Petitioner was terminated without a hearing, is he entitled to back pay?
The Administrative Law Judge will recommend that the Petitioner be given notice of his right to a hearing under the Veterans Preference Act and back pay. However, this proceeding must be reconvened for the purpose of determining what back pay, if any, the Petitioner is entitled to receive until the proper notice of his right to hearing is given.
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
1.
The Petitioner is a veteran of the United States
Navy, honorably discharged on September 19, 1962. The Petitioner was employed by the
2. During the school year, the Petitioner drove a route each school-day morning and afternoon, and also drove athletic and academic teams and for field trips. Some of the trips occurred in the summer before school began.[1] During the 2005-2006 school year, the Petitioner worked approximately 1,597 hours.[2] During the 2006-2007 school year, through April 2, 2007, the Petitioner worked approximately 1,077 hours.[3]
3.
The
4.
At a meeting on July 10, 2006, the
5.
Throughout the 2006-2007 school year, the School
District and the Service Employees International Union, Local 284 (
6. In September 2006, Petitioner mentioned to Mr. Hennek or the Glencoe supervisor, Bob Becker, that he wanted to take vacation for a couple of weeks the following March. Either Mr. Hennek or Mr. Becker told the Petitioner that the request could probably be granted, but it would require the approval of the School District Superintendent, John Hurnung.[8]
7. In February 2007, Petitioner submitted his request for 13 days of leave the next month to the Superintendent. Mr. Hornung denied the request.[9] The Petitioner called Mr. Hornung and was led to believe that Mr. Hornung was concerned about finding adequate substitutes for the Petitioner.[10] The Petitioner and Mr. Becker arranged for substitutes to cover the Petitioner’s routes during his requested absence.[11]
8. On March 7, 2007, Petitioner obtained Mr. Becker’s approval and resubmitted the leave request to the Superintendent, requesting 11 days of leave. The Petitioner clarified on the request that he planned to attend the 50-year reunion of the men who served on the U.S.S. Tombigbee and to visit his son. The Superintendent denied the request.[12]
9. Prior to leaving on vacation, the Petitioner left a message for Pamela Twiss, the Union business agent, raising concerns about his treatment and about being disciplined if he left on vacation.[13] Ms. Twiss did not conclude from the message that the Petitioner voluntarily quit his job. [14]
10.
The Petitioner’s last day of work before leaving
on vacation was March 16, 2007. On that
day, he told Mr. Becker that it was his last day, that he was going on
vacation.[15] Mr. Becker sent a note to the School District
office reporting that the Petitioner had stated that March 16 would be his last
day working for the
11.
Ms. Twiss confirmed that there was a
long-standing history of the bus drivers receiving unpaid vacation, with the
approval of the supervisor and the
12. The Petitioner returned to work on April 2, 2007, but was not permitted to resume his duties.[20] There was no school in the district from April 5-9. 2007.[21]
13.
4.0 School Services offered to hire Petitioner as
its employee to drive for the
14.
The
15. There was no evidence in this proceeding that the Petitioner’s competence as a bus driver was at issue. At the arbitration proceeding, both Mr. Becker and Mr. Hennek confirmed that the Petitioner was a very good bus driver.[24]
16.
After being terminated by 4.0 School Services,
the Petitioner requested retirement, fearing that he would lose the public
pension which he believed he should receive.
He submitted a slip to the
17.
On or about April 11, 2007, the Union submitted
a grievance on behalf of the Petitioner; the Superintendent would not accept it
on the basis that the Petitioner was no longer employed by the
18.
On April 24, 2007, the
19.
On May 21, 2007, the
20. The Petitioner submitted evidence of wages earned in 2007 and 2008,[31] but there was insufficient evidence upon which to determine what the Petitioner would have earned if he had remained employed by the School District, what benefits he would have received during that employment, including contributions by the School District to the Public Employee Retirement Association (PERA), what income the Petitioner received in 2009 to date, and whether PERA benefits received should be an offset to the back pay that may be owing to the Petitioner.
Based on these Findings of Fact, the Administrative Law Judge makes the following:
1. The Department of Veterans Affairs and the Administrative Law Judge have jurisdiction to consider whether a petitioner has the right to a hearing under the Veterans Preference Act prior to discharge from employment, pursuant to Minn. Stat. § 197.481 and § 14.50.[32]
2. The Department of Veterans Affairs has complied with all relevant procedural requirements and has given proper notice of the hearing.
3.
Because the
4. A veteran who voluntarily quits or relinquishes employment is not considered to be “discharged” and is not entitled to the notice of right to request a hearing.[33]
5. A resignation occurs when an employee abandons his employment by leaving the position with no intent to return to it and his actions are consistent with his intent. [34]
6.
The
7.
The
8.
The Petitioner is entitled to the wages he would
have earned between the date of wrongful discharge and the date that he was
formally discharged in accordance with his rights under the Veterans Preference
Act.[35] Since the record is not clear on the
compensation that the Petitioner would have received, or any offsets from
earnings after March 16, 2007, the hearing will be re-opened for the
presentation of evidence on the amount, if any, that the
9. Any Findings of Fact more properly designated Conclusions are adopted as such.
Based upon these Conclusions, and for the reasons explained in the accompanying Memorandum, the Administrative Law Judge makes the following:
1. The Administrative Law
Judge recommends that the
2. The hearing record will be
reopened to take evidence concerning the compensation, if any, that the
3. A hearing will be held on June 24, 2009, at 9:30 a.m., at the Office of Administrative Hearings.
4. By June 17, 2009, the parties shall exchange a list of exhibits that they intend to offer into evidence relevant to the determination of compensation, and the name and address of each witness to be called, with a brief summary of the testimony to be given. Evidence previously admitted need not be listed.
Dated: May 18, 2009
s/Beverly Jones Heydinger
|
BEVERLY JONES HEYDINGER Administrative Law Judge |
Reported: Digitally Recorded
A-bjh-012209
Transcribed in part
MEMORANDUM
The parties do not dispute that the
Petitioner was an honorably discharged veteran who was employed by the
The issue in this case is not whether the
The parties dispute exactly what the Petitioner said on March 16, 2007. The Petitioner claims that he told Mr. Becker that he was leaving on vacation and that it was his last day, to clearly convey that the substitute would need to take over the routes on the next school day. The Petitioner claims that he did not intend to convey that he was quitting for good. Mr. Becker apparently interpreted the Petitioner’s statements to mean that he was resigning. Mr. Becker directed the Petitioner to put his resignation in writing, but the Petitioner did not do so.
Ms. Twiss did not interpret the Petitioner’s message to her as a resignation. Instead, she understood that the Petitioner was concerned about the discipline he might face when he returned.
The Petitioner acknowledged that he had told a member of the School Board, Glen Gruenhagen, that he would quit if he could not get vacation. The Petitioner did so because he was angry about the situation and the on-going dispute with the bus drivers.[37]
It is clear that Petitioner did not submit any written notice that he was resigning, that Petitioner reported to work on April 2, 2007, that the Superintendent would not let him work, that 4.0 School Services hired the Petitioner to drive the bus routes beginning on April 10, and that the Petitioner reported for work and drove the routes until the Superintendent pressured 4.0 School Services to fire him on April 11.
An employee voluntarily quits when he directly or indirectly exercises his choice to leave employment.[38] A resignation occurs when an employee abandons his employment. One must look for the intent to abandon, some act of abandonment and evidence that the surrender of the position was voluntary. Whether these three elements exist in a particular case is a question of fact.[39]
In State
ex rel. McCarthy v. Civil Service Comm’n of
It is noteworthy that, in this case, there is no provision in the
collective bargaining agreement that states that failure to report for work
without permission or notice to the employer constitutes resignation. The specific act that the
The
In Johnson v. County of Anoka,[43] the Court of Appeals emphasized that the veteran’s resignation must be voluntary. In that case, an employee was having difficulty adapting to a new computer system. After some time, the employer gave the employee the choice to resign or to be terminated, telling him that it would be in his best interest to resign and that he would be given a good recommendation. The employee was given 24 hours to make a decision. The employee resigned and was not given notice of his veterans preference rights. Years later, he learned of those rights and attempted to exercise them. The court dismissed the matter on the basis of the statute of limitations, but stated, in dicta, that there was substantial support for the employee’s claim that the choice given to him was tantamount to being removed from employment, that the effect of the employer’s action was to make it unlikely that the veteran would be able to continue in the job, and that he should have been given notice of his rights under the Veterans Preference Act.
The
It is important to note that this result does not imply that the
An employee may be entitled to a
hearing under both the collective bargaining agreement under which he is
employed and the Veterans Preference Act.
Under the Veterans Preference Act, a veteran is entitled to compensation
until he is formally discharged in accordance with the Act. It is within the discretion of the
The record is insufficient to determine the compensation owing to the Petitioner for the time period between April 2, 2007, and resolution of this proceeding. He is entitled to the wages and benefits he would have received until the date that he was discharged in compliance with the provisions of the Veterans Preference Act. The amount that is owing to the Petitioner must be reduced by the amount that the veteran did earn, or with due diligence could have earned, in similar employment.[49] Thus, it is appropriate to reconvene the hearing to assure that the record is complete.
B. J. H.
[1] Testimony (Test). of Gary Frahm, transcribed, at 4-5.
[2] Petitioner’s Exhibit (P. Ex.) 8.
[3] P. Ex. 9.
[4] R. Ex. 10; Test. of Frahm at 15.
[5] Respondent’s Exhibit (R. Ex.) 21.
[6] Test. of Pamela Twiss at 8.
[7] See P. Ex. 18; R. Ex. 8.
[8] Test. of Frahm at 11; R. Ex. 1 at transcript pages 29-31, 87-88.
[9] R. Ex. 4.
[10] Test. of Frahm at 16.
[11] Test. of Frahm at 16-17.
[12] R. Ex. 5.
[13] Test. of P. Twiss at 24, 32.
[14] Test. of P. Twiss at 28.
[15] Test. of Frahm at 51-52; R. Ex. 1, transcript at 40 (Becker).
[16] R. Ex. 6.
[17] Test. of P. Twiss at 30.
[18] Test. of P. Twiss at 31.
[19] Test. of P. Twiss at 32.
[20] Test. of Frahm at 19; R. Ex. 1, transcript at 151.
[21] P. Ex. 7.
[22] Test. of Frahm at 21-22; Resp. Ex. 1 at transcript page 80.-81.
[23]
Test. of Frahm at 27 (statement of
[24] Resp. Ex. 1 at transcript pages 54-55, 105, 154-155.
[25]
P. Ex. 20 (including copy of post-it note between
[26] P. Exs. 10, 21; P. Ex. 22.
[27] R. Ex. 17.
[28] R. Ex. 11.
[29] R. Ex. 18.
[30] R. Ex. 26 at 10.
[31] P. Ex. 25.
[32] Unless otherwise noted, the Minnesota Statutes are cited to the 2008 edition.
[33] Brula v.
[34] Anson v. Fisher Amusement Corp., 254
[35] Pawelk v.
[36] Brula v.
[37] Test. of Frahm at 58-59.
[38] Seacrist v. City of
[39] State ex rel. Young v. Ladeen, 116 N.W.
486, 487 (
[40]
152 N.W.2d 462 (
[41]
The Civil Service Commission Rule 9.03 stated that the absence of an employee
for three successive days or longer without leave or notice to his superior
shall be considered resignation.
[42]
[43] 536 N.W.2d 336 (Minn. App. 1995), rev. denied, Sept. 28, 1995.
[44] Southern Minnesota Municipal Power Agency v.
Schrader, 394 N.W.2d 796, 800-01 (
[45] Garavalie v. City of
[46]
356 N.W.2d 295 (
[47]
[48]
[49] Pawelk v. Camden Township, 415 N.W.2d 47, 51-42 (Minn. App. 1987) and cases cited therein.