11-3100-20576-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE
|
Steven Shannon, Petitioner, vs. City of Respondent. |
FINDINGS
OF FACT, CONCLUSIONS
AND RECOMMENDATION |
The
above entitled matter initially came on for hearing before Administrative Law
Judge Barbara L. Neilson on
On
Gayle Gaumer, Attorney at Law,
appeared on behalf of the Petitioner, Steven
STATEMENT
OF ISSUE
The issue presented at this stage of the hearing is whether or not the
Petitioner was removed from his position with the City for incompetency or
misconduct and what, if any, relief should be awarded under the Veterans
Preference Act.
Based
upon all of the proceedings herein, the Administrative Law Judge makes the
following:
FINDINGS
OF FACT
Procedural Findings
1.
The
Petitioner, Steven R. Shannon, is an honorably discharged veteran within the
meaning of the Veterans Preference Act (VPA).[2]
2.
The
City of
3.
The
Petitioner was hired by the City of
4.
On
January 16, 2009, the Local 292 Hiring Hall provided the Petitioner with a
“Separation Notice” that indicated that the City had “discontinued his
employment due to limitations not allowing him to perform all of the essential
functions required by the Traffic Division.”[3]
5.
The
City did not notify the Petitioner of its intent to discharge him or of his
right to request a hearing under the VPA within 60 days of receipt of the
notice of intent to discharge.
6.
On
7.
The
Commissioner of Veterans Affairs issued a Notice of Petition and Order for
Hearing on
8.
The
Administrative Law Judge held a telephone conference call with counsel for the
parties on
9.
At the initial
hearing held on
10.
On
11.
A
further hearing was held on August 20, 2009, as previously scheduled, to
consider the substantive issue of whether the Petitioner was removed for
incompetency or misconduct and whether he was entitled to relief under the VPA.
Nature
of Petitioner’s Employment
12.
The Petitioner
is a licensed Journeyman Electrician who worked in the City’s Public Works
Traffic Division between 2001 and January 2008.[8]
13.
A 2008
job posting by the City states that typical duties and responsibilities of
electricians working for the City include, among other things, “[i]nstall[ing],
repair[ing] and maintain[ing] electrical equipment and appliances” such as
“generators, motors, control boards, receptacles, conduits, meters, lighting
systems, traffic systems, etc.;” “[p]erform[ing] overhead and underground
electrical work;” “[i]nstall[ing] interior and exterior wiring;” and
“[p]erform[ing] other related duties as assigned.” The posting requires that candidates “[m]ust
be able to perform all essential job functions of an electrician.” The specific duties of electricians working
in the Traffic Division identified in the posting include the following:
·
Assemble,
install and maintain traffic signal and street lighting hardware.
·
Install
and maintain above and below ground wiring and conduit systems.
·
Install
and maintain mechanical and solid state traffic signal control and
communication equipment.
·
Install
and maintain outdoor and indoor electrical facilities as required.
·
Install
and maintain navigation lighting systems on
·
Performs
other related duties as assigned.[9]
The
posting states that City electricians must work under the following working
conditions:
Exposure
to high voltage. Frequently works out of
a bucket lift truck and will be required to work above ground, in some
instances, over 100 feet. Works in all
kinds of weather conditions and with exposure to dust, dirt, fumes, loud noises
and traffic; ability to walk on rough, uneven or slippery surfaces; ability to
work in confined spaces; must be able to push, pull, lift and carry tools and
equipment; must be able to bend, twist, reach crouch, stoop, kneel and
climb. Must be able to perform all essential
job functions of an electrician.[10]
The
Petitioner agreed that the description in this job posting accurately describes
the general duties and working conditions for electricians working for the
City.[11]
14.
The
2008 posting did not mention any weight requirements that applied to candidates
for the job or specify the maximum load capacities of the equipment used by
electricians.
15.
Electricians
working for the City report to a foreman, and the foremen report to Thomas
Piersak, who is the General Foreman for the City’s electricians. Mr. Piersak and the foremen decide the work
and crew assignments without consulting with the union. Employees are assigned specific job duties
each morning, and on-going duties are reevaluated every morning. The City’s Collective Bargaining Agreement
with Local 292 includes a management rights clause which is interpreted to vest
City management with the right to assign work duties. That clause specifies:
The
16.
During
the time the Petitioner worked for the City, both temporary electricians hired
through the union hiring hall and permanent electricians hired directly by the
City had similar responsibilities.[13]
17.
Electricians
working for the City can be assigned anywhere, to do any work within the City,
and must be able to perform both above ground and below ground work. Their job duties can include many different
overhead and underground tasks, such as wiring lights in a building or a
semaphore or installing or repairing
street lighting and underground wiring.
If the job they are asked to perform involves overhead work, they may need
to work out of a bucket truck or, less frequently, use a ladder. On occasion, a scissors lift or scaffolding
is used to perform such work. Electricians
who are assigned to work on lighting systems that are located inside a building
may need to use a ladder. The City has
just one classification for electricians, regardless of whether they work
outside or in the City’s shop.[14]
18.
The
City has approximately eight or nine bucket trucks (also called tower trucks)
that are used almost daily. Two of the
bucket trucks have a maximum load capacity of 400 pounds, and the others have a
maximum load capacity of 350 pounds. The
400-pound bucket trucks are generally assigned to bigger and heavier projects,
such as larger overhead projects or those involving installation of lighting or
signal cabinets.[15]
19.
The
City has only one scissors lift and it is not always available for every job.[16]
20.
The
ladders used by electricians in the City’s Traffic Division have maximum load
limits of either 300 or 350 pounds.
Bucket trucks are used more frequently than ladders.[17]
21.
The
maximum load capacity reflects the maximum working load that the bucket or
ladder can safely hold, and takes into account the weight of the electrician as
well as the weight of his or her tool belt, work boots, hard hat, jacket,
harness, and the equipment being used that day.
The City did not offer precise weights for each piece of equipment. Mr. Piersak estimated that the safety harness
worn by electricians weighs approximately 7 pounds; a “come-along” (used to
pull items tighter) and hand tools that an electrician might carry into the
bucket weighs approximately 10-12 pounds; a reel of wire weighs approximately
8-10 pounds; and a fixture weighs approximately 40-45 pounds. Although several of the trucks have material
handling capability that allows workers to lift equipment with a hoist, at some
point the worker in the bucket must take hold of the item. If the worker is pulling cable, a significant
amount of pressure and additional weight may be involved.[18]
22.
City
workers are trained not to exceed the maximum load capacity of the
equipment. If the maximum load capacity
is exceeded, it is possible the equipment could fail, resulting in injury to
the worker and/or others.[19]
23.
The
City’s electricians usually work in two-person crews. Two electricians may be paired on the same
crew for as long as two or three years.
A foreman oversees several crews and sometimes is present at the work
site. When the electricians are using a
bucket truck, one person remains on the ground to observe or do work on the
surface, while the other person goes up in the bucket. Frequently the worker in the bucket doing the
overhead work must work harder than the worker on the ground. The City lets workers decide who will go up
in the bucket at any given time. The
crews generally take turns or flip a coin to decide who will be in the bucket.[20] If
there is a dispute between the crew members, the foreman decides and typically
tells the crew members to rotate.[21]
24.
The
Petitioner weighed approximately 320 pounds at the time he was hired by the
City. His weight has gone up during the
last few years. He has diabetes and
attributes at least some of his weight gain to a medication that he previously
took. That medication was found to be
conducive to weight gain and is now off the market. He weighed approximately 380 pounds in
January 2009, and approximately 370 pounds at the time of the hearing in August
2009. The Petitioner’s doctor has
recommended that he undergo bariatric surgery to assist him in losing weight. The Petitioner has petitioned his insurance
carrier for approval of the surgery but has not yet received approval. The Petitioner’s physician expects that he
would lose approximately one-half his body weight if he had the surgery.[22]
25.
From
approximately 2003 to late 2008, the Petitioner was assigned to the City’s shop,
where he uncrated, pre-wired, and set up traffic signal heads for use in
intersections. The Petitioner was given
that job because Mr. Piersak “needed him there at the time.” Before the Petitioner began working in the
shop, that job had traditionally been held by a “permanent” City employee
rather than a “temporary” employee hired through Local 292. In the latter part of 2008, the City hired
two permanent electricians, and Mr. Piersak decided to move the Petitioner out
of the shop and replace him with Keith Anderson, a permanent electrician.[23] Mr.
Piersak told Mr. Anderson that a lot of temporary employees may be laid off and
he wanted someone who was a permanent employee to work in the shop. Mr. Anderson thereafter began to do much of
the work that the Petitioner previously performed in the shop.[24]
26.
In the
latter part of 2008, after being moved out of the shop, the Petitioner began receiving
assignments in the field. During
December 2008, the Petitioner performed a variety of tasks for the City. His work in the field included adjusting
cabinets to provide power for the City’s wi-fi system; trouble-shooting
problems with lighting systems (i.e., trying to locate a break in wiring, a bad
fuse, or a bad contact causing an outage); installing under-bridge wiring using
a scissors lift (a mobile platform with a greater load capacity than the City’s
ladders and bucket trucks); and pulling in street light wire (which involved
laying conduit in the ground for street lights, setting foundations for the
lights, and thereafter pulling the wire in for operation of street lights). In performing this work, he was not required
to work in the bucket. In fact, during
late 2008, the Petitioner did a minimal amount of work using ladders and
buckets. He did a lot of underground
wiring work in which he remained on the surface of the street.[25]
Events
Leading To Termination
27.
On or
about
28.
Mr.
Piersak discussed the memorandum he received from the foremen with the City’s
Human Resources office, which recommended that the Petitioner undergo a fitness-for-duty
physical examination. The City arranged
for the Petitioner to see Thomas C. Jetzer, M.D., of Occupational Medicine
Consultants in
29.
Dr.
Jetzer issued a Report of Work Ability relating to the Petitioner on or about
30.
After
the City received the Report of Work Ability, the Human Resources Office
advised Mr. Piersak to meet with the Petitioner to find out what the notation
on the Report meant. In late December,
2008, a meeting was held with the Petitioner, two union representatives, Mr. Piersak,
and Steve Mosing, Engineer III, to discuss the Report. During the meeting, Mr. Piersak brought up
the Petitioner’s ability to go up in the bucket trucks and told him that all
electricians were expected to be able to perform the essential functions of the
job. One of the union representatives
urged the City to assign the Petitioner to other duties. Mr. Piersak did not agree with that
suggestion. During the meeting, the
Petitioner told Mr. Piersak that the Report of Work Ability meant that he could
not work in the bucket because of his weight, and expressed doubt that he could
lose enough weight to meet the specifications.
Mr. Piersak told the Petitioner that he would have to stay home until he
could perform the essential functions of the position and pass the physical.[30] The
Petitioner did not work at the City during January 2009.[31]
31.
Mr.
Piersak reported back to the City’s human resources office after the meeting
and was told that, because the Petitioner was a temporary employee and could
not perform the essential functions of the position, the City had to let the
Petitioner go.[32]
32.
On
January 16, 2009, the Local 292 Hiring Hall provided the Petitioner with a
“Separation Notice” that indicated that the City had “discontinued his employment
due to limitations not allowing him to perform all of the essential functions
required by the Traffic Division.”[33]
33.
There
is no indication in the record that the City had previously questioned the
Petitioner’s qualifications for the electrician job or had previously taken
disciplinary action against him. The
City never warned the Petitioner prior to December 2008 or January 2009 that he
needed to lose weight to avoid the termination of his employment. The Petitioner was not aware until the
hearing that the foremen had raised a concern about his safety, nor was he
aware that they had not been assigning him to certain work because of that
concern.[34]
34.
As set
forth in the Procedural Findings above, the Petitioner subsequently filed a
Petition for Relief under the VPA, the Commissioner of Veterans Affairs issued
a Notice of Petition and Order for Hearing, and hearings were held on
Additional
Findings
35.
At the
time of his termination, the Petitioner was paid at a rate of $38.55 per hour.[35] Under
the Letter of Agreement between the City and the Union, temporary employees who
worked in excess of regular hours on regular work days (Monday through Friday)
were to be paid 1½ times the regular rate of straight time up to midnight; and
those who worked in excess of ten hours in a workday or worked on Saturdays,
Sundays, holidays, or emergency call-back bases were to be paid a double the
rate of single time.[36] It
is not clear from the record how much overtime the Petitioner worked.
36.
At the
time of his termination, the City paid $17.75 per hour worked by the Petitioner
to the electrician fringe benefit fund.[37]
37.
The
Petitioner has not been employed since
38.
The
Petitioner had received approximately $14,000 ($565 per week) in unemployment
compensation as of the date of the hearing.
He continues to be a union officer and receives a stipend for attending
union meetings, as he did prior to his termination. There has been no change in the frequency of
union meetings since his termination.[39]
39.
The
Petitioner was never unable to perform an assigned job duty while he was
working for the City. Apart from the
issue of equipment specifications, the Petitioner agrees that he is physically
able to do the job of electrician and there is no medical reason why he cannot do
the job. [40]
40.
Keith Anderson
(the permanent electrician who took the Petitioner’s place in the City’s shop) does
not spend all of his working time in the shop.
He works there most mornings but, in the afternoon, he goes out in the
field on the signal truck to cover the gap between the morning and afternoon
signal truck shifts. Mr. Anderson also
works weekends on bucket trucks and fills in on various crews as needed.[41]
41.
Mr.
Anderson would not object if the Petitioner worked in the shop and Mr. Anderson
worked outside.[42]
42.
There
would be sufficient work for electricians in the Traffic Division to assign the
Petitioner to full-time work not involving the use of a bucket truck or ladder.[43]
43.
The
facts set forth in the
44.
To the
extent that the Memorandum that follows explains the reasons for these Findings
of Fact and contains additional findings of fact, including findings on
credibility, the Administrative Law Judge incorporates them into these
Findings.
Based upon the foregoing Findings of Facts,
the Administrative Law Judge makes the following:
CONCLUSIONS
1.
Pursuant
to Minn. Stat. §§ 14.50 and 197.481, the Administrative Law Judge and the
Commissioner of Veterans Affairs have the authority to determine if the
Petitioner has the right to a hearing under the VPA prior to discharge from
employment and, if so, whether there was a proper basis for the City to
terminate the Petitioner’s employment and what, if any, relief is appropriate
under the VPA.
2.
When
issuing the Notice of Petition and Order for Hearing, the Department substantially
complied with all substantive and procedural requirements of statute and rule,
and this matter is properly before the Administrative Law Judge. The Petitioner’s Petition for Relief was
received by the Department in May, 2009.[44] At
the request of counsel for the Petitioner, the Department scheduled the hearing
on the petition for
3.
The Petitioner
is an honorably discharged veteran within the meaning of the VPA.[45]
4.
The
City of
5.
The
parties have complied with all relevant substantive and procedural requirements
of statute and rule and this matter is properly before the Administrative Law
Judge.
6.
The
conclusions and legal discussion set forth in the
7.
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.
8.
Under
Minn. R 1400.7300, subp. 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 denied his rights under the Veterans Preference Act, Minn. Stat. §
197.46.
9.
The
Petitioner has demonstrated by a preponderance of the evidence that he was
removed from his employment with the City on
10.
Minn.
Stat. § 197.46 further provides:
Any veteran who has been notified of the intent to
discharge the veteran from an appointed position or employment pursuant to this
section shall be notified in writing of such intent to discharge and of the
veteran's right to request a hearing within 60 days of receipt of the notice of
intent to discharge. The failure of a veteran to request a hearing within the
provided 60-day period shall constitute a waiver of the right to a hearing.
Such failure shall also waive all other available legal remedies for
reinstatement.
11.
As
discussed in the
12.
Under
the VPA, a veteran may be dismissed from employment for misconduct or
incompetency.[47] The
13.
The
discipline imposed on the veteran may be modified if the employer acted
unreasonably[50] or there are extenuating circumstances that
demonstrate that the discharge was unwarranted.[51]
14.
The
City bears the burden to show by a preponderance of the evidence that its
conduct was reasonable.[52] Factors
that may be considered in this regard include “the veteran’s conduct, the
effect upon the workplace and work environment, and the effect upon the
veteran’s competency and fitness for the job.”[53]
15.
A back pay
award made under the VPA is subject to customary mitigation of damages
principles.[54] A
veteran is required to “reduce his claim for wages by the amount which, by the
exercise of due diligence, he could have earned in employment of a like kind or
grade.”[55] The
employer must bear the burden of showing that the employee could have obtained
other employment.[56]
16.
The
Petitioner’s approximate two-month delay in filing his Petition for Relief and
proceeding with the hearing in this matter amounted to a failure to mitigate
his damages. The City did not
demonstrate that the Petitioner could have obtained other employment.
17.
Unemployment
compensation received by the veteran must be deducted from a veteran’s back pay
award.[57]
18.
The
City has not demonstrated that its decision to discharge the Petitioner under
these circumstances was reasonable. In
addition, the Petitioner has demonstrated that extenuating circumstances exist
that render termination unwarranted at this time.
19.
The
Petitioner is entitled to reinstatement to his position with the City, and is
entitled to his wages and benefits as if he had held the position consistently
through the date of the Commissioner’s Order, minus (1) two months’ wages attributable to the
Petitioner’s delay in filing his Petition for Relief and proceeding with the
hearing in this matter; and (2) the
amount of unemployment compensation received by the Petitioner between
20.
The
Petitioner is entitled to receive interest on his back wages at the rate of 6
percent per year, calculated from the time each paycheck was due, as set forth
in Minn. Stat. § 334.01, subd. 1.[58]
21.
The
City is entitled to take adverse action against the Petitioner, up to and
including discharge, if his weight is not reduced within six months of his
reinstatement to a sufficient level to enable him to meet equipment
specifications.
22.
The
Memorandum that follows explains the reasons for these Conclusions, and the
Administrative Law Judge therefore incorporates that Memorandum into these
Conclusions.
Based
upon the foregoing Conclusions, the Administrative Law Judge makes the
following:
RECOMMENDATION
IT
IS RECOMMENDED THAT:
1.
The
Commissioner of the
2.
The City
reinstate the Petitioner to his electrician position with the City.
3.
The City
compensate the Petitioner for such back pay and benefits to which the
Petitioner may have become entitled between January 16, 2009, and the date of
the Commissioner’s Order, with interest, minus the amount of unemployment
compensation received by the Petitioner, and minus two months’ wages to reflect
the Petitioner’s delay in filing the petition with the Department and promptly
proceeding with the hearing.
4.
The
City be permitted to take adverse action against the Petitioner, up to and
including discharge, if his weight is not reduced within six months of his
reinstatement to a sufficient level to enable him to meet equipment
specifications.
Dated:
September 23, 2009
s/Barbara L.
Neilson
|
BARBARA L. NEILSON Administrative Law Judge |
Reported: Digitally Recorded; No
Transcript Prepared
NOTICE
This
Report is a recommendation, not a final decision. The Commissioner of Veterans Affairs will
make a final decision after a review of the record. The Commissioner may adopt, reject, or modify
these Findings of Fact, Conclusions, 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 Administrative Law Judge by first class mail or as otherwise
provided by law.
MEMORANDUM
Under the Veterans
Preference Act, no qualified veteran holding a position in public employment
“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] The terms “misconduct” and “incompetence” have been equated with
“just cause,” meaning any cause “touching the qualifications of the officer or
his performance of its duties, showing that he is not a fit or proper person to
hold the office.”[60] The
Under applicable case law, the
discipline that the employer imposed on the veteran may be modified if the
employer acted unreasonably[63] or there are extenuating circumstances that
demonstrate that the discharge was unwarranted.[64] The
purpose of a veterans preference hearing is not merely to review findings and
approve or disapprove the recommended sanction, but to determine, based on the
evidence, what penalty, if any, is justified.
The authority to modify the discipline proposed by the employer is
consistent with granting the veteran a meaningful hearing and ensuring that the
employer does not arbitrarily abuse its power.[65] The
employer bears the burden to show by a preponderance of the evidence that its
conduct was reasonable.[66] To determine whether the City acted reasonably, one must
consider “the veteran’s conduct, the effect upon the workplace and work
environment, and the effect upon the veteran’s competency and fitness for the
job.”[67] The veteran is given the opportunity
to show whether there are any extenuating circumstances that should have
weighed into the employer’s decision to terminate the veteran’s employment.[68] Accordingly, the City must show that it reasonably
exercised its discretion in the selection of discipline.[69]
In this case, the City
acknowledges that the Petitioner has the requisite knowledge and licensure to
serve as an electrician for the City, and that he has no claimed disability or
medical restrictions that affect his ability to perform his job. The City contends that the Petitioner is
“incompetent” to remain in his position solely because of his weight and his
resulting inability to work on the City’s existing ladders or bucket trucks
within the maximum load capacities for that equipment. The City has demonstrated that its
electricians must be able to perform the essential functions of the job, and
that those essential functions generally include being able to go up in bucket
trucks and climb ladders. It is evident
that, in January 2009, the Petitioner exceeded the 350-pound maximum load
capacity of the majority of the City’s bucket trucks and its strongest
ladders. It is also likely that the
Petitioner would have exceeded the capacity of the two 400-pound bucket trucks
if he had to carry a significant amount of equipment with him.
However, the Administrative Law
Judge concludes that, under the particular circumstances of this case, the City
has not shown that its decision to discharge the Petitioner from his position in
January of 2009 due to his inability to work within the maximum load capacities
for this equipment was reasonable and that the Petitioner has demonstrated that
termination at that time was unwarranted due to extenuating circumstances. The Judge reaches this conclusion for the
reasons discussed below.
First, the City did not provide
the Petitioner with adequate notice that his job would be in jeopardy if he did
not lose weight. It is undisputed that
the Petitioner worked as an electrician for the City for more than eight
years. He testified that he was within
50 pounds or less of his current weight at the time he was originally hired by
the City. Despite the fact that the Petitioner
weighed approximately 320 – 380 pounds during the eight years of his employment,
there is no evidence in the record that the Petitioner was informed at any time
prior to late December 2008 or early January 2009 that his weight was an issue and
substantial weight loss would be required to maintain his position. During the time that the Petitioner worked in
the shop, the City did not question his weight or whether he could use a ladder
or bucket truck. In fact, the City
admitted that the Petitioner’s weight simply wasn’t an issue during the prior
five years of his employment, due to the nature of the duties he performed in
the shop. There is no suggestion in the
record that the Petitioner was assigned to the shop because the City felt
compelled to avoid sending him out in the field; to the contrary, Thomas
Piersak, the General Foreman for the City’s electricians, simply said that the
Petitioner was given that job because Mr. Piersak “needed him there at the
time.” Only when the Petitioner was
moved out of the shop in late 2008 and began receiving field assignments did
his weight become a matter of concern.
Even then, the Petitioner was not informed that the foremen were not
giving him certain job assignments because of his weight, nor was he told of
the memorandum Mr. Piersak had received from the foremen regarding their safety
concerns about him.
Second, once the issue was
finally discussed with the Petitioner in late December 2008, the City did not
give him an adequate opportunity to bring his weight down to come within
equipment specifications, but simply terminated his employment in a matter of
weeks. It appears that the City’s human
resources office believed that such a severe sanction was justified at least in
part because, in its view, the Petitioner was merely a “temporary” employee who
could be “released from employment within the sole discretion of the Employer
without regard to seniority or to just cause” under the Letter of Agreement that applied to such employees. Regardless of how the Petitioner is
classified by the City, however, the Administrative Law Judge ruled in her July
30, 2009, Order that the Petitioner is not properly considered a temporary
employee under the VPA, and instead is entitled to the protections of that Act,
including termination only for the reasons permitted under the Act.
Third, the Petitioner had no
history of discipline or performance problems.
His term of employment was continuously extended on a regular six-month
basis for over eight years. The City
admitted in closing argument that the Petitioner had performed good work as an
electrician. There is no evidence of any
refusal to perform a job assignment or any misconduct on his part. Moreover, there is no indication that the
Petitioner’s foremen or managers had any dissatisfaction whatsoever with the Petitioner’s
ability to perform his job duties prior to the time they raised the safety
concern in late 2008.[70]
Based upon all of the evidence,
the City’s decision to terminate the Petitioner’s employment on January 16,
2009, was too harsh of a penalty. The
situation did not warrant the imposition of any sanction on the Petitioner at
that time. Accordingly, the
Administrative Law Judge finds that the City has not shown that termination is
reasonable under the circumstances of this case, and the City did not properly
consider the extenuating circumstances discussed above. While the City may in the future require the
Petitioner to reach a weight that will allow him to work within equipment
specifications, and may terminate his employment if he fails to do so, it is
only reasonable for the City to first provide proper notice to the Petitioner that
his weight is a matter of concern and could lead to his discharge and an
adequate opportunity for him to achieve that weight loss goal.
The Administrative Law Judge
recommends that the Petitioner be reinstated to his position with the City and be
compensated for his lost wages and benefits as if he had held the position
consistently through the date of the Commissioner’s Order, minus (1) two months’ wages attributable to the
Petitioner’s delay in filing his Petition for Relief and proceeding with the
hearing in this matter; and (2) the
amount of unemployment compensation received by the Petitioner between January
16, 2009, and the date of the Commissioner’s Order. The Petitioner is entitled to receive
interest on his back wages at the rate of 6 percent per year calculated from
the time each paycheck was due, as set forth in Minn. Stat. § 334.01, subd. 1.
To determine the amount of wages
owing the Petitioner, the City shall calculate the average number of regular
and overtime hours worked by the Petitioner during the time period of January
1, 2007 – January 1, 2009; assume that the Petitioner worked that amount of
regular and overtime hours during the period of January 16, 2009, through the
date of the Commissioner’s Order; and multiply the average regular and overtime
hours by the regular and overtime hourly rate of pay in effect during that time
period.
During the six-month period
following his reinstatement, the Petitioner should be given work that he is
able to perform while he attempts to bring his weight down. This should not present a difficulty for the
City, since the General Foreman acknowledged at the hearing that there would be
sufficient work for electricians in the Traffic Division to assign the
Petitioner to work that does not involve the use of a bucket truck or
ladder. In addition, Mr. Anderson
testified that he would not have any objection if the Petitioner was assigned
to work in the shop and Mr. Anderson worked outside. If the Petitioner’s weight is not reduced
within six months of his reinstatement to a sufficient level to enable him to
meet equipment specifications, the City will be entitled to take adverse action
against the Petitioner, up to and including discharge. It appears from the evidence presented at the
hearing that a goal weight in the range of 300 - 320 pounds would be adequate[71] but, because the evidence presented at the
hearing only included approximations of the weights of equipment and tools, the
Administrative Law Judge lacks a sufficient basis to set an exact weight to be
achieved. The City should ascertain the
actual weight of equipment and tools and notify the Petitioner of the goal at
the time he is reinstated.
B. L. N.
[1]
Stipulation of Parties; Exhibit 7.
[2] See
[3] Ex. 6.
[4] The exact day in May on which it was received is not
clear on the copy of the Petition for Relief that was attached to the Notice of
Petition and Order for Hearing.
[5] Notice of Petition and
Order for Hearing at 1-2 (emphasis in original).
[6] These rulings were
summarized in a
[7] See
Order of the Administrative Law Judge Regarding Applicability of Veterans
Preference Act to Petitioner’s Position (
[8] Testimony of Petitioner.
[9] Ex. 10, Job Duties.
[10] Ex. 10, Working Conditions.
[11] Testimony of Petitioner.
[12] Exhibit 2; Testimony of Thomas Piersak.
[13] Testimony of Petitioner, T. Piersak.
[14] Testimony of Petitioner, T. Piersak.
[15] Testimony of T. Piersak.
[16] Testimony of Petitioner.
[17] Testimony of Petitioner, T. Piersak.
[18] Testimony of T. Piersak.
[19] Testimony of Petitioner.
[20] Testimony of Petitioner, T. Piersak.
[21] Testimony of T. Piersak.
[22] Testimony of Petitioner.
[23]
Because Mr. Anderson testified that he became a
permanent employee of the City during 2005, it does not appear that he was one
of the two new hires.
[24] Testimony of Petitioner, T. Piersak, Keith Anderson.
[25] Testimony of Petitioner.
[26] Testimony of T. Piersak; Exhibit 11.
[27] Testimony of T. Piersak.
[28] Testimony of Petitioner, T. Piersak.
[29] Exhibit 12.
[30] Testimony of T. Piersak.
[31] Testimony of Petitioner.
[32] Testimony of T. Piersak.
[33] Testimony of Petitioner; Exhibit 6. The City offered testimony underscoring that
the union did not file a grievance when the Petitioner was discharged. However, the Letter of Agreement regarding
employment of temporary employees (attached as Attachment “B” to the collective
bargaining agreement between the City and the Union) specifies that temporary
employees “shall be at will employees, i.e., they shall serve at the pleasure
of the Employer” and “may be released from employment within the sole discretion
of the Employer without regard to seniority or to just cause.” The Letter of Agreement goes on to specify
that “the release of a temporary employee from employment shall not be subject
to review under the grievance or arbitration provisions of the [collective
bargaining agreement] or the rules and regulations of the Minneapolis Civil
Service Commission.”
[34] Testimony of Petitioner.
[35] Exhibit 9.
[36] Letter of Agreement, ¶ 5 (Ex. 2, Attachment B).
[37] Exhibit 9.
[38] Testimony of Petitioner.
[39] Testimony of Petitioner.
[40] Testimony of Petitioner.
[41] Testimony of Petitioner, T. Piersak, K. Anderson.
[42] Testimony of K. Anderson.
[43] Testimony of T. Piersak, K. Anderson.
[44] The exact date in May is not clearly identified on
the Petition for Relief attached to the Notice of Petition and Order for
Hearing.
[45] Minn. Stat. § 197.447 defines “veteran” for purposes
of the VPA to mean “a citizen of the
United States or a resident alien who has been separated under honorable
conditions from any branch of the armed forces of the United States after
having served on active duty for 181 consecutive days or by reason of
disability incurred while serving on active duty, or who has met the minimum
active duty requirement as defined by Code of Federal Regulations, title 38,
section 3.12a, or who has active military service certified under
section 401, Public Law 95-202. The active military service must be certified
by the
[46] See
[47]
[48] See, e.g., Myers v. City of
[49] Leininger v.
City of
[50] State ex rel
Laux v. Gallagher, 527 N.W.2d 158, 161 (Minn. App. 1995); Myers, 409 N.W.2d at 853; In re Schrader, 394 N.W.2d 796, 802 (
[51] Schrader, 394
N.W.2d at 802.
[52]
Schrader, 394 N.W.2d at 802; Lewis
v.
[53] Schrader, 394 N.W.2d at 802.
[54] Kurtz v. City
of
[55]
Henry v.
Metropolitan Waste Control Commission,
401 N.W.2d 401, 406 (
[56] Hembre v. City
of
[57] See, e.g., Robertson v. Special School District No. 1,
347 N.W.2d 265 (
[58] Henry, 401
N.W.2d at 407.
[59]
[60] Ekstedt v.
[61] See, e.g., Myers v. City of
[62] Leininger v.
City of
[63] State ex rel
Laux v. Gallagher, 527 N.W.2d 158, 161 (Minn. App. 1995); Myers, 409 N.W.2d at 853; Schrader, 394 N.W.2d at 802.
[64] Schrader,
394 N.W.2d at 802.
[65]
[66] Lewis v.
Minneapolis Bd. of Educ., 408 N.W.2d 905, 907 (Minn. App. 1987), review denied (Minn. Sept. 23, 1987); In re Schrader, 394 N.W.2d at 802.
[67] Schrader,
394 N.W.2d at 801-02; Pawelk v.
[68]
Garavalia
v. City of
[69] Schrader,
394 N.W.2d at 802-03 (Simonett, concurring).
[70] The Petitioner’s testimony that his weight gain during the past few years
was attributable at least in part to a medication that he previously took
provides some additional evidence of an extenuating circumstance.
[71] Although some of the City’s ladders have a capacity
of only 300 pounds, it is reasonable to assume that the Petitioner could choose
to use one of the 350-pound ladders.
There is no evidence that workers climbing ladders typically carry heavy
equipment. In addition, the Petitioner
and the City agreed that ladders are used less frequently than bucket
trucks. The Administrative Law Judge
agrees with the City that it does not have an obligation to reserve one of the
two 400-pound bucket trucks for the Petitioner’s use or buy a new truck with a greater
capacity.