OAH 16-3100-20113-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF VETERANS
AFFAIRS
|
Ricardo
Cano, Petitioner, vs. Respondents. |
RECOMMENDED ORDER GRANTING SUMMARY DISPOSITION |
This matter is before
Administrative Law Judge Manuel J. Cervantes (“ALJ”) on a motion for summary
disposition brought by the
John D. Baker, Baker,
Wadd, & Williams, LLP, represents Petitioner.
Cheri Sudit, Assistant
Hennepin County Attorney, represents HCMC.
Based upon the record in
this matter, and for reasons set forth in the accompanying Memorandum, the ALJ
makes the following:
It Is Recommended that: HCMC’s Motion
for Summary Disposition be DENIED;
That Petitioner’s Motion for Summary Disposition be GRANTED; and
That Petitioner be GRANTED a veterans preference hearing.
Dated: May 22,
2009
s/Manuel
J. Cervantes
|
MANUEL
J. CERVANTES Administrative
Law Judge |
NOTICES
This Report is a recommendation, not a final
decision. The Commissioner of the
Department of Veterans Affairs (“Commissioner”) will make a final decision
after a review of the record. The
Commissioner may adopt, reject, or modify this Report and Recommendations. Under Minn. Stat. § 14.61, the final decision
of the Commissioner shall not be made until this Report has been made available
to the parties to the proceeding for at least ten days. 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
Clark Dyrud, Commissioner of Veterans Affairs,
Under Minn.
Stat. § 14.62, subd. 1, the Commissioner is required to serve his final
decision upon each party and the ALJ by first class mail or as otherwise
provided by law.
Minn. Stat. § 197.46
provides in 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.
The issue in this case
is whether Petitioner’s conduct could appropriately be deemed as job
abandonment so as to constitute a voluntary resignation from his job by his
employer, HCMC or whether HCMC was obligated to give Petitioner notice of the
right to a hearing to determine whether HCMC removed Petitioner for misconduct
or incompetency under the Veterans Preference Act (“VPA”).[2]
HCMC is a political subdivision of the State of
On December 9, 2008, the
Department served a Notice of Petition and Order for Hearing on Petitioner and on
HCMC by
On March 13, 2009, the
ALJ issued correspondence indicating that the record was insufficient to make a
determination on the merits and requested the parties to perfect what the ALJ
construed to be motions for summary disposition. On March 27, 2009, HCMC filed its Motion for
Summary Disposition pursuant to Minn. R. 1400.6600, its Memorandum, and
Affidavits in support of the motion. On
April 22, 2009, Petitioner filed his Response, Cross-Motion for Summary
Disposition, his Memorandum, and Affidavits in support thereof. On April 24, 2009, HCMC filed its Reply.
Underlying Facts
Based on the submissions
of the parties, it appears the following facts are not in dispute: Petitioner
was honorably discharged from the U.S. Army on May 21, 1986.[6] Petitioner was employed by HCMC from 2001 to October
27, 2008.
On October 15, 2008,
Petitioner was arrested by the St. Paul Police and taken to the
On October 16, 2008, Petitioner
called his friend Darrell Sandin (“Sandin”) from the
Summary Disposition Standard
Minn. R. Civ. P.
56 provides that summary judgment shall be granted if “there is no genuine
issue as to any material fact and that either party is entitled to a judgment
as a matter of law.”[15] Summary disposition is the administrative
equivalent of summary judgment. The
Office of Administrative Hearings has generally followed the summary judgment
standards developed in judicial courts in considering motions for summary
disposition regarding contested case matters.[16] A genuine issue is one that is not a sham or
frivolous. A material fact is a fact
whose resolution will affect the result or outcome of the case.[17]
The moving party has the
initial burden of showing the absence of a genuine issue concerning any
material fact. To successfully resist a
motion for summary judgment, the nonmoving party must show that there are
specific facts in dispute that have a bearing on the outcome of the case.[18] When considering a motion for summary
judgment, the Court must view the facts in the light most favorable to the
non-moving party.[19] All doubts and factual inferences must be
resolved against the moving party.[20] If reasonable minds could differ as to the import
of the evidence, judgment as a matter of law should not be granted.[21] Summary judgment should only be granted in
those instances where there is no dispute of material fact and where there
exists only one conclusion.[22]
Analysis
On October 27, 2008, Petitioner’s
supervisor issued a “Deemed to Have Resigned” letter to Petitioner. The letter contained the following language:
Article 14 [sic][23] of the Collective Bargaining
Agreement between HCMC and AFSCME Council 5, Local 977 states:
Any absence of an employee from
scheduled duty that has not been previously authorized by the EMPLOYER may be
deemed an absence without leave. Any
employee absent without leave will be subject to disciplinary action and any
employee absent without leave for three (3) consecutive days may be deemed to
have resigned his/her employment…[24]
Failure to report an absence or an unauthorized absence for three
consecutive shifts is generally considered job abandonment, which is considered
a voluntary resignation from employment.[25]
As of October 27, 2008, we have deemed you to have resigned from
A veteran is entitled to notice, and if requested within 60 days, a
hearing under the Veteran’s [sic] Preference Act (Minn. Stat. §197.46) prior to
a public employer removing a veteran from employment. You, however, abandoned your job; and
pursuant to the collective bargaining agreement, you have resigned your
employment. Therefore, under the case of
Mack v.
The remaining relevant language of
Article 15 was not quoted in the letter, and reads as follows:
… provided the EMPLOYER may grant approval for leave subsequent to the
unauthorized absence if the employee can conclusively establish to the EMPLOYER
that the circumstances surrounding the absence and failure to request leave
were beyond the employee’s control.[26]
HCMC policy defines
“Unscheduled Absence: [as] [a]n absence
not approved in advance”, and states at paragraph 9: “The standards described in this policy are
intended to serve as general guidelines.
HCMC evaluates and responds to situations of absenteeism and tardiness
on a case-by-case basis considering factors such as length of employment, job
performance, and other criteria deemed relevant.”[27]
There are three
significant difficulties with the position taken by HCMC in this case. The first relates to the failure to include
the proviso set forth in Article 15 cited above in the notice issued to
Petitioner on October 27, 2008. The omitted
collective bargaining agreement language grants an employee an opportunity to
demonstrate that the circumstances surrounding his absence were beyond his
control. The October 27, 2008 letter did
not notify Petitioner of this exception or give him the opportunity to
demonstrate that the circumstances causing his absence were beyond his control and
it was appropriate for HCMC to grant a leave of absence after the fact. Second, HCMC concluded, based on the limited
information it had at the time, i.e., that Petitioner had been arrested and
that he had been absent from work for eight days, that Petitioner’s absence
from work was due to incarceration, HCMC assumed it was his fault, and
therefore, this conduct constituted voluntary resignation. And, third, it does not appear based on the
present record that HCMC followed its own Human Resources policy that each case
be considered on its own merit, on a case-by-case- basis considering factors
such as length of service, job performance, and other criteria deemed relevant.[28]
HCMC relies on four
First, HCMC relied on Mack v. Hennepin County (“Mack”),[29] which was cited in its “Deemed to Have
Resigned” letter. HCMC cites Mack for the proposition that it was
within the authority of HCMC to deem Petitioner to have abandoned his job and
voluntarily resigned because he absented himself from his job for three
consecutive days or more and it was appropriate for HCMC to decide that he was not
entitled to the VPA Notice or Hearing. However,
a review of the Mack decision, and
others cited by HCMC, do not lead the ALJ to that conclusion.
The Mack decision is an unpublished decision and, while it may have
persuasive value, it is not binding and its application is limited to the facts
of that case. A review of the facts in Mack show they are readily distinguishable
from Petitioner’s case. In Mack, the supervisor was having trouble
with the employee, Mack, because he was leaving work whenever he wanted to
attend to personal matters. In response,
the supervisor imposed certain conditions on him. Mack disregarded his supervisor’s directive
to communicate with him, or another supervisor, when he would not be at work. Mack failed to follow this order on 12
different occasions over the course of the next 16 days. Mack also disregarded his supervisor’s
directive to provide medical documentation for a medical issue he claimed to
have.
The Mack court reasoned:
On these facts, we conclude Mack was not removed from his employment
within the meaning of [the VPA] Minn. Stat. 197.46. Mack was a member of the
union and does not dispute that the bargaining agreement governing his
employment with the county provided that he would be deemed to have resigned if
he failed to report for three consecutive days without permission for proper
leave.[30]
The inference to be drawn from the court’s
rationale is that Mack’s conduct, voluntarily absenting from work a dozen times
over the course of 16 days without explanation, and in violation of his
supervisor’s directives, was so egregious as to constitute voluntary
abandonment of his job. In effect, Mack resigned.
Those facts are not
similar to the current case: here, there
is no evidence in the record that Petitioner was a problem employee who had
violated supervisory conditions that had been imposed upon him. Viewing the facts in the light most favorable
to Petitioner, he was absent from work through no fault of his own but rather because
he was arrested and extradited from the state for an old and improper child
support warrant.[31]
Also, Petitioner made significant efforts to obtain a leave of absence
from HCMC,[32] albeit unsuccessfully. The factual inferences that are to be drawn
from these efforts are that he did not wish to relinquish his job; instead, he attempted
to preserve it.
The Mack case is further distinguishable from the current case because there
is no evidence that the collective bargaining agreement involved in Mack gave Mack the rights contained in
Article 15 of the collective bargaining agreement that apply to the Petitioner
in the current case, including the specific language omitted from the notice.
Second, HCMC relies on Andersen v. City of Minneapolis (“Andersen”)[33] for the proposition that the VPA is
inapplicable to an employee who voluntarily terminates his employment. In Andersen,
the employee sought and received a non-work-related disability pension. The Minnesota Supreme Court held that, when
Andersen went on voluntary disability leave, he ceased to be an “employee” of
the city and therefore, he was not “removed” from his job within the meaning of
the VPA and was not entitled to a hearing.
Unlike Andersen, Petitioner did
not seek a voluntary disability pension or any status other than that of an employee.
Andersen
does not apply to the facts in the current case. It was HCMC’s act of deeming Petitioner to
have abandoned his job, prior to fulfilling its obligations under the
collective bargaining agreement and Human Resource policy that prevented him
from returning to work once he was released from the improper arrest and
incarceration. “[U]nder the Veterans Preference Act, a veteran is removed from
his or her position or employment 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.”[34]
It was HCMC’s premature determination that Petitioner resigned that, in
effect, removed Petitioner from his job.
Third, HCMC relies on
the decision of the Minnesota Court of Appeals decision in Schluter v. City of Minneapolis (Schluter).[35]
The court held that an employee who is absent from work without approved
leave because he committed a crime and is incarcerated is not entitled to a VPA
notice or hearing. His criminal conduct
was voluntary and constituted a resignation, not a removal attributable to the City. Schluter was a truck driver for the City
employer. The City became suspicious
that Schulter may have driven for the City while his driver’s license was
suspended so a meeting with Schluter was scheduled. Schluter failed to appear or request a
continuance. A couple of days later, Schluter
called his supervisor and said he was sick and would be out of work for a few
days. Before his supervisor could ask
him any questions, Schluter hung up. In
fact, Schluter was to appear in District Court that day to answer charges
related to assault, stalking, and harassment of his estranged wife. Schluter was convicted and sentenced to
prison that same day. A couple of days
later, Schluter called his supervisor to advise that he expected to get work
release. Work release was denied but
Schluter failed to advise his supervisor of this fact. Schluter did not apply for a leave of
absence, although it was unlikely that it would have been approved since the
City’s policy did not allow granting leaves of absence for incarceration. A month later, the City rescheduled the
meeting for the driving after suspension issue. Again, Schulter failed to appear or reschedule. Two weeks later, the City sent a letter of
termination to Schluter’s last known address, effective the date of the second
scheduled meeting. The letter of
termination gave several reasons for the discharge: failure to report the driver’s license
suspension, failure to be available for call-out [for work], absence without
leave, and failure to attend scheduled meetings. Schluter was released from incarceration after
a period of nine months.
The Schluter court agreed with the ALJ, who found that Schluter failed
to prove by a preponderance of the evidence that the City had removed him from
his employment. On the contrary, the
court found that Schluter’s conduct, which led to his incarceration, resulted
in the abandonment of his job when he absented his job without approved
leave. His resignation was not involuntary
because his voluntary actions led to his incarceration. Lastly, Schluter’s incarceration and
voluntary resignation were not attributable to the City.
Again, the facts in Schluter are distinguishable from
Petitioner’s case. Nowhere herein is it alleged
that Petitioner committed a crime or that his incarceration was attributable to
any sentence for a crime. The recurring
theme in Mack and Schluter is that the employees’ conduct was
so egregious and voluntary that their extended absences from work constituted job
abandonment, tantamount to voluntary resignations, and not removal under the
VPA. In contrast, the facts in the
present case do not involve egregious or voluntary conduct on the part of
Petitioner. He did not voluntarily
ignore the directives of his supervisor or commit a crime that landed him in
jail. Nor was his absence extensive
before he was deemed to have resigned.
The record before us does not show there was voluntary conduct on
Petitioner’s part that caused his incarceration, but unlike the facts in Schluter, does show that he attempted to
preserve his job by having third parties, his union and Sandin, file a leave of
absence request on his behalf.[36] Petitioner’s facts do not amount to the
voluntary and egregious conduct evinced in Mack
and Schluter so as to constitute job
abandonment, tantamount to a voluntary resignation.
Lastly, HCMC relies on Grushus v. Minnesota Mining and
Manufacturing Company[37] (Grushus) to rebut Petitioner’s argument that he did not voluntarily
relinquish his job. HCMC cites Grushus for the proposition that because
Petitioner was not available for work during the time frame at issue, HCMC was
not obligated to keep his job open until he might be released from
custody. The Supreme Court held that Grushus
was disqualified for unemployment benefits because his criminal conduct
resulted in a guilty plea, incarceration, and his unavailability to return to
work when called upon by his employer. Grushus is not a VPA case but rather an
unemployment benefit case. In Grushus, the employee was not available
to return to work after a lay-off due to his incarceration after he pled guilty
to burglary/larceny charges. A requisite
element in determining entitlement to unemployment benefits is whether the
employee was available for work. Grushus is distinguishable from the
instant case because it does not involve the VPA, bargaining contract language,
or human resource policy, but it is instructive, nonetheless. Grushus pled guilty to burglary/larceny
charges. The court found support for its
ruling in the public policy statement behind the unemployment insurance program[38] which indicates that unemployment
reserves were to be used “for the benefit of persons unemployed through no
fault of their own.”
Like the Schluter analysis above, Grushus committed a voluntary act
constituting a crime which resulted in incarceration. Consistent with Schluter, the Grushus court
determined that an employee who commits a crime for which he is incarcerated
cannot avail himself of a law that is intended to protect a “faultless”
employee. Here, while it is true that
Petitioner was not available to work for a period of time due to incarceration,
it appears from this record that his incarceration was not his fault.[39]
The record shows that Petitioner was arrested erroneously for a 2001
child support issue that was resolved in 2006.[40]
HCMC objects to this evidence, arguing that Petitioner has not produced
any objective documentary evidence to support his position. While the ALJ agrees that additional documentary evidence
may have been helpful, Petitioner did provide a sworn affidavit attesting to the
above facts and the Unemployment Law Judge made specific findings of fact consistent
with Petitioner’s sworn affidavit and found that Petitioner was discharged for
reasons other than misconduct. The
Unemployment Judge awarded unemployment benefits to Petitioner which is contrary
to the result in Grushus. HCMC did not provide any evidence calling the
facts asserted in Petitioner’s affidavit and the Unemployment Judge’s decision
into doubt.
Accordingly, the ALJ
recommends that HCMC’s motion for summary disposition be denied because it has
not shown that it is entitled to judgment as a matter of law, and that the Petitioner’s
motion for summary disposition be granted.
It is undisputed that Petitioner was issued the “Deemed to Have
Resigned” letter on October 27, 2008 after having absented from work for eight
days; the letter failed to give Petitioner accurate notice of his rights
pursuant to the parties’ collective bargaining agreement; the notice failed to
disclose his right to attempt to demonstrate that the circumstances surrounding
his absence were beyond his control; HCMC did not grant Petitioner the
opportunity to demonstrate that the circumstances surrounding his absence and
failure to request leave were beyond his control; and there is no evidence that
HCMC evaluated and responded to Petitioner’s absence on a case-by-case basis
considering factors such as length of employment, job performance, and other
criteria deemed relevant in accordance with its Human Resources policy.[41] In the ALJ’s view, reasonable minds can not differ
as to the import of the evidence and judgment should be granted to the
Petitioner as a matter of law on the issue presented here, namely, whether HCMC
was obligated to give Petitioner notice of the right to a hearing to determine
whether HCMC removed Petitioner for misconduct or incompetency under the VPA.[42] Let the record be clear, by this report the
ALJ has not made a decision on the underlying merits of this case but has
determined that HCMC had certain obligations to Petitioner under its collective
bargaining agreement and Human Resource policy which it failed to provide. Had HCMC met these obligations, it may have
obviated the necessity for a VPA notice and hearing. Because HCMC did not meet those obligations,
it is further recommended that HCMC give the requisite notice and afford
Petitioner an opportunity for a VPA hearing and award Petitioner all
entitlements he would have earned had he not been removed as well as back pay
from and after October 27, 2008.
Lastly, because this
report is not a final decision, the request for an award of attorney fees is
premature, and it is hereby recommended that the request be DENIED.
M. J. C.
[1] Petitioner attorney’s affidavit (Aff.)
in support of an award of attorney fees was received on April 17, 2009.
[2]
[3] Notice and Order for Hearing (NOH).
[4] Scheduling Order.
[5]
[6] NOH.
[7] Petitioner’s (“Pet.’s”) Aff. and Ex. A to Pet.’s
Aff., Unemployment Law Judge Decision, filed March 9, 2009.
[8] Ex. A to Pet.’s Aff., Unemployment Law Judge Decision,
filed March 9, 2009.
[9]
Pet.’s Aff. and Ex. A to Pet.’s Aff.,
Unemployment Law Judge Decision, filed March 9, 2009.
[10] Pet.’s Aff.
[11] Ex. 6, Aff. of Kimberly Quistad.
[12]Aff. of Stephanie Secrest, attached to HCMC’s Reply;
Petitioner requested his Union Representative to file the request for leave
document, but HCMC had no executed document from Petitioner authorizing anyone
to act on his behalf. Also see, Ex. G.
[13] Pet.’s” Aff. and Ex. A to Pet.’s Aff., Unemployment
Law Judge Decision, filed March 9, 2009.
[14] Ex. 2.
[15]
[16] See,
[17] Illinois
Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 634 (
[18] Thiele v.
Stitch, 425 N.W.2d 580, 583 (
[19] Ostendorf v.
Kenyon, 347 N.W.2d 834 (
[20] See, e.g.,
Thompson v.
[21]
[22]
[23] The supervisor indicated the quoted language was
from Article 14 of the collective bargaining agreement. The language is actually from Article 15.
[24] Emphasis in original.
[25] Ex.1. This language is taken from the HCMC Human
Resources Policies and Procedures, Resignation From Employment, A. 3, Ex.
6. However, “[i]f any information in the
policies and procedures conflict in any way with applicable collective bargaining
agreements or legal requirements, the collective bargaining agreement and/or
legal requirements supersede the information in the policy and/or procedure; otherwise,
HCMC’s decisions as to the interpretation of this information will be final and
binding.” Ex. 6, F, Policy #:
001946. Thus, the collective bargaining
agreement language in Article 15 quoted above, not HCMC policy, governs this
case. Contrary to the assertion of HCMC, the language of the collective bargaining
agreement and the language of HCMC Human Resources policy are not identical.
[26] Ex. 5.
[27] Ex. 6, F, Policy #:
001935.
[28]
[29] 1996 WL523818 (Minn. App.), unpublished.
[30]
[31] Pet.’s Aff. and Ex. A to Pet.’s Aff., Unemployment Law Judge Decision, filed March 9, 2009.
[32] The record shows that Petitioner requested Sandin to
file the request for leave document, but HCMC had no executed document from
Petitioner authorizing anyone to act on his behalf.
[33] 503 N.W.2d 780 (
[34] Myers v. City
of
[35] 2004 WL2987158 (Minn.App.), unpublished.
[36] Ex. G.
[37] 100 N.W.2d 516 (
[38]
[39] Pet.’s Aff. & Ex. A to Pet.’s Aff.; Unemployment
Law Judge Croft’s decision, filed March 9, 2009.
[40]
[41]
[42]