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12-3100-20203-2 |
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STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF VETERANS AFFAIRS
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In the
Matter of: Donald H.
Varenhorst, Petitioner, vs. Respondent. |
RECOMMENDED
ORDER ON MOTION FOR SUMMARY
DISPOSITION |
This matter is before
Administrative Law Judge Steve M. Mihalchick on
Scott
Lepak, Esq., Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza,
Based upon all the files, records and proceedings herein, and for the reasons set forth in the accompanying Memorandum, the Administrative Law Judge makes the following:
IT IS HEREBY RECOMMENDED THAT:
1. The County’s motion for summary disposition be GRANTED; and
2. The Department of Veterans Affairs dismiss the Petition of Donald H. Varenhorst for relief under the Veterans Preference Act.
Dated: July 20, 2009.
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/s/ Steve M. Mihalchick |
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STEVE M. MIHALCHICK |
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Administrative Law Judge |
The
Petitioner is a disabled veteran who served in the U.S. Army from 1967 through
1970, when he was given a temporary disability retirement based on combat
wounds, for which he received a Purple Heart.[1] He worked for the U.S. Postal service as a
labor relations manager in various locations from 1973 through 2003, when he
retired.[2] In October 2008 the Petitioner applied for a
position as a Veterans Service Officer in New York Mills,
On December 18, 2008, the Petitioner filed a petition for relief with the Department of Veterans Affairs, alleging that the County had violated his rights under the Veterans Preference Act. He requested relief in the form of immediate placement in the Veterans Service Officer (VSO) position, front pay, back pay, seniority, and interest on lost wages, benefits, and entitlements. On January 6, 2009, the Department issued a Notice and Order for Hearing to determine whether the Petitioner’s rights were violated or denied. The County now seeks summary disposition, contending it fully complied with the Veterans Preference Act and was not obligated to hire the Respondent for the position.
Factual Background
In support of
its motion, the County offered evidence in the form of an Affidavit of Stephanie
Morris, a human resources specialist for
The Petitioner applied for the position
on October 9, 2008. On the application,
he indicated that he was a disabled veteran and wished to claim five additional
Veteran’s Preference Points based on his disability status.[4] The Petitioner also submitted a copy of his DD
Form 214, which provides that his discharge was a retirement because of
placement on a temporary disability retired list.[5]
Morris prepared an initial scoring
sheet for all applicants. In her initial
scoring, she allowed the Petitioner five veterans preference points in addition
to those points scored on the application and supplemental rating tool. Because the Petitioner’s DD Form 214
referenced a “temporary” disability at the time of his discharge in 1970, she
did not believe the Petitioner had established his entitlement to ten veterans
preference points based on his disability status.[8] Based on his score as initially calculated,
the Petitioner and seven other applicants were deemed eligible for an interview. The Petitioner was notified of and
participated in the interview process. At
the conclusion of the interview process, the highest-scoring applicant had
166.4 points, and the lowest-scoring applicant had 92 points. The Petitioner received a score of 112.2
points and was ranked seventh out of the eight candidates.[9] The County offered the position to the person
with the highest score.[10]
On November 26, 2008, the Petitioner
called Ms. Morris to inquire about the position, and she advised him that
another applicant had been selected.
During this conversation, the Petitioner advised her that he should have
received ten veterans preference points because of his disability status. On that same date, Ms. Morris notified the
Petitioner in writing that another candidate with a higher overall score had
been selected. She invited him to apply
for other positions within the county.[11]
Ms. Morris later had the Veterans
Service Officer review the Petitioner’s DD Form 214, after which five
additional points were added to the Petitioner’s score, bringing it to 117.2.[12] This revision, made on or about December 1,
2008, did not change the Petitioner’s ranking, which remained seventh out of
the eight candidates.[13]
The Petitioner requested more
information about the selection process from Ms. Morris. On December 1, 2008, Morris sent him the
application form of the person selected for the position and the final scores
of the top eight candidates.[14] During discovery in this matter, the County
provided additional information about the hiring process and other candidates interviewed
for the position.[15]
Motions for Partial Summary Disposition
Summary
disposition is the administrative equivalent of summary judgment. Summary disposition is appropriate where
there is no genuine issue as to any material fact and one party is entitled to
judgment as a matter of law.[16] 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.[17] A genuine issue is one that is not sham or
frivolous. A material fact is a fact
whose resolution will affect the result or outcome of the case.[18]
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 non-moving party must
show that there are specific facts in dispute which have a bearing on the
outcome of the case.[19] The nonmoving party must establish the
existence of a genuine issue of material fact by substantial evidence; general
averments are not enough to meet the nonmoving party’s burden under Minn. R.
Civ. P. 56.05.[20] The evidence presented to defeat a summary
judgment motion, however, need not be in a form that would be admissible at
trial.[21]
When
considering a motion for summary judgment, the Court must view the facts in the
light most favorable to the non-moving party.[22] All doubts and factual inferences must be
resolved against the moving party.[23] If reasonable minds could differ as to the
import of the evidence, judgment as a matter of law should not be granted.[24]
Legal Analysis
The
law is well settled in
The Veterans Preference Act, Minn. Stat. § 197.455, subd. 5 (2008), provides in relevant part:
There shall be added to the competitive open examination rating of a disabled veteran, who so elects, a credit of ten points provided that the veteran obtained a passing rating on the examination without the addition of the credit points.
The Act further provides that an eligible with a rating augmented by veteran’s preference shall be entered on an eligible list ahead of a nonveteran with the same rating.[26] In addition, a governmental agency, when notifying eligibles that they have passed examinations, shall show the final examination ratings and preference credits and shall notify all eligible persons that they may elect to use veteran’s preference to augment passing ratings.[27] If the appointing authority rejects a certified eligible who has received veteran’s preference, the appointing authority shall notify the eligible in writing of the reasons for the rejection and file the notice with the appropriate local personnel officer.[28]
In Hall v. City of Champlin, the Minnesota Supreme Court held that political subdivisions of the state must adapt their hiring systems to a 100-point rating system to enable the allocation of veterans preference points as provided in the statute.[29] The Court provided further direction as follows:
Our decision today does not unduly restrict the discretion granted by the legislature to cities that choose to operate under a personnel ordinance. It does not require political subdivisions to adopt any particular form of hiring system. They need not adopt civil service systems nor need they extensively revise hiring processes and administer formal written examinations for all positions subject to veterans preference. A local appointing authority may administer any type of evaluation as long as it is based on criteria capable of being reduced to [a] 100-point rating system. The 100-point rating system will apply to all positions except those specifically exempted from the veterans preference act by Minn. Stat. § 197.46.[30]
The plain language of the Veterans Preference Act makes clear that the hiring preference consists of use of a 100-point rating system, augmenting a veteran’s rating with preference points, and ranking an eligible veteran ahead of a nonveteran with the same rating. In this case, all of the eligible candidates were veterans, because that was a minimum job requirement for the position. Beyond this, the Act contains no guarantees of an interview or employment by a veteran, whatever the ranking. By requiring the appointing authority to provide written notice of the reasons for rejecting a veteran who has elected to use the statutory preference, the Act expressly contemplates that an eligible veteran may be rejected.
In McAfee v. Department of Revenue, the Minnesota Court of Appeals held that the hiring preference does not apply to temporary unclassified positions in the Department of Revenue.[31] With regard to Minn. Stat. § 43A.11 (the veteran’s preference provision applicable at the time the case was decided), the court noted that a veteran’s preference credit may increase the chance that a veteran will receive an interview, but the appointing authority may hire any certified applicant.[32] Once a veteran is given his or her preference points and ranked correctly on the eligibility list, the veteran is afforded all of the preference entitled to the veteran by law.[33]
The County presented evidence that it used a 100-point system to rank the eligible candidates, and it gave the Petitioner five preference points and included him in the group of applicants who received an interview. After the interview, the Petitioner ranked seventh of eight applicants. Even after his preference points were augmented to reflect his disability, the Petitioner remained seventh of the eight applicants. An applicant with a higher score was selected. The County maintains it was not required to do more for the Petitioner and that it accordingly is entitled to summary disposition and dismissal of the Petitioner’s claims.
In opposing the motion for summary disposition, the Petitioner argued that the County violated his rights because the “10 point Veteran Preference credits were not awarded until December 1, 2008, [after] [t]he selection was made on November 26, 2008.”[34] The Petitioner’s argument as to the date on which the extra five points were awarded is immaterial; even if the additional five points had been awarded before the interview and selection of another candidate, the correction in the number of preference points had no effect on the Petitioner’s ranking within the group or his eligibility for an interview. He remained seventh out of the eight candidates. He was ranked correctly. He got an interview. There is nothing in the Veterans Preference Act that required the County to hire him instead of another veteran in the group.
The Petitioner also argues that the County’s motion is premature and that he was deprived of the opportunity to present material on the validity of the 100-point system used by the County. On the contrary, the County provided the Petitioner with copies of the applications for all of the candidates, as well as their scores based on the application, the supplemental rating tool, and the interview.[35] The County appears to have used a 100-point system that complies with the requirements of the Act. If the County did not use this system, the Petitioner has had the opportunity to demonstrate it, and he has not done so. In addition, the Petitioner contends that during the interview, one of the interviewers made notes about him that were unfair, subjective, and inaccurate. He argues that the County’s motion should be denied so that he can further develop the record on the awarding of points and the objectivity of the selection process. This argument overstates the County’s legal obligation. As long as the County has implemented a 100-point system, appropriately ranked candidates, and awarded veterans preference points, the County is legally entitled to make a hiring decision based on its subjective determination as to which of the candidates interviewed will be best for the job.
To successfully resist a motion for summary disposition, the non-moving party must show by substantial evidence that there are specific facts in dispute which have a bearing on the outcome of the case. Because the Petitioner has not raised a genuine issue of material fact regarding the County’s evidence that he was ranked highly on the list of eligible candidates, he received an interview, and he received the preference points to which he was entitled, the County’s motion should be granted and this matter should be dismissed.[36]
S.M.M.
NOTICE
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 this Recommendation. 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, Department of Veterans Affairs, 206C
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.
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.
[1] Affidavit of Stephanie Morris, Ex. B. DD Form 214, attached to Petition for Relief under the Veterans Preference Act. The Petitioner has not disclosed the nature of his service-connected disability.
[2] Morris Aff. Ex. A.
[3] Petitioner’s Reply Memorandum (July 7, 2009), Ex. 5. See also Minn. Stat. § 197.601 (any person appointed a Veterans Service Officer by a county must be a veteran as defined in Minn. Stat. § 197.447).
[4] Morris Aff. Ex. A.
[5]
[6]
[7] Morris Aff. ¶ 16.
[8] The Veterans Preference Act defines a disabled veteran, for the purpose of securing appointment from a competitive open examination, as a person who has “a compensable service-connected disability as adjudicated by the United States Veterans Administration, or by the retirement board of one of the several branches of the armed forces, which disability is existing at the time preference is claimed.” See Minn. Stat. § 197.455, subd. 6.
[9]
[10] Morris Aff. ¶ 12.
[11] Morris Aff. Ex. F.
[12] Morris Aff. ¶ 10; Affidavit of Scott Lepak Ex. B (Petitioner’s Response to Interrogatory No. 6).
[13] Morris Aff. ¶ 11 & Ex. D.
[14] Morris Aff. ¶ 13 & Ex. E.
[15] Lepak Aff. Ex. A; Protective Order and correspondence from ALJ (Mar. 13, 2009).
[16] Sauter v. Sauter, 70 N.W.2d 351, 353 (
[17] See
[18] Illinois Farmers Insurance Co. v. Tapemark
Co., 273 N.W.2d 630, 634 (
[19] Thiele v. Stich, 425 N.W.2d 580, 583 (
[20]
[21] Carlisle, 437 N.W.2d at 715 (citing Celotex Corp. v. Catrett, 477
[22] Ostendorf v. Kenyon, 347 N.W.2d 834 (
[23] See, e.g.,
Celotex, 477
[24] Anderson v. Liberty Lobby, Inc., 477
[25]
[26]
[27]
[28]
[29] Hall v. City of
[30] 463 N.W.2d at 506.
[31]
514 N.W.2d 301, 302 (
[32]
[33] Grehl v.
[34] Lepak Aff. Ex. B (Petitioner’s Response to Interrogatory No. 7).
[35] Lepak Aff. Ex. A; Morris Aff. Ex. E.
[36] The Administrative Law Judge has also considered the Petitioner’s July 9, 2009, submission, despite the fact that it was not allowed under the June 3, 2009, Order on Motion for Extension. The Petitioner raised no new relevant facts or arguments in that submission.