DVA-87-003-RL
7-3100-885-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF VETERANS AFFAIRS
In the Matter of
Harold W. Wood,
Petitioner, FINDINGS_OF_FACT,
CONCLUSIONS AND
V. RECOMMENDATION
Independent School District
No. 691,
Respondent.
The above-entitled matter came on for hearing on October 7, 1986, at the
St. Louis County Courthouse in Virginia, Minnesota. The record in this matter
closed on December 26, 1986. William R. Ojala, President of Local 2780,
American Federation of State, County and Municipal Employees, Box 217, Aurora,
Minnesota 55705, appeared on behalf of the Petitioner, Harold W. Wood
("Employee", "Veteran"). John M. Colosimo, Esq., Greenberg, Colosimo &
Patchin, Ltd., Law Center Building, 301 Chestnut Street, Virginia, Minnesota
55792, appeared on behalf of the Respondent, Independent School District
No. 691 ("Employer", "District"). Gene Miller, Veteran's Preference Officer,
174 Federal Building, Fort Snelling, Minnesota 55111, appeared on behalf of
Veterans Affairs Commissioner William J. Gregg to aid in the development of a
complete record.
Notice is hereby given that, pursuant to Minn. Stat. 14.61 the final
decision of the Commissioner of Veterans Affairs shall not be made until this
Report has been made available to the parties to the proceeding for at least
ten days, and an opportunity has been afforded to each party adversely
affected to file exceptions and present argument to the Commissioner.
Exceptions to this Report, if any, shall be filed with William J. Gregg,
Commissioner of Veterans Affairs, Second Floor Veterans Service Building,
20 West 12th Street, St. Paul, Minnesota 55155.
STATEMENT OF ISSUE
Whether the Petitioner was discharged from his employment as a building
maintenance custodian for Independent School District No. 691 on or before
November 22, 1985, without a hearing to determine incompetence or misconduct,
in violation of Minn. Stat. 197.46.
Based upon all of the records, filings and proceedings herein, the
Administrative Law Judge makes the following:
FINDINGS OF-FACT
1. Harold W. Wood is a 45-year-old veteran of the United States Navy.
He served four years and was honorably discharged with the rank of Boiler
Tech 3 (pay grade E-4) in March, 1967. The Employer stipulates that he is a
qualified veteran within the meaning of Minn. Stat. 197.447.
2. Mr. Hood was employed as a Building Maintenance Repairer by
independent School District No. 691 (Aurora-Hoyt Lakes, Minnesota) between
August 23, 1984 and November 22, 1985. He received his Class "B" Boilerman's
License several weeks after being so employed. He worked the first shift
(6:00 a.m.-2:30 p.m.) at Boase Elementary School in Hoyt Lakes.
3. Throughout the course of his employment, Mr. Wood's salary ($9.05 per
hour) was subsidized by program funds made available through the United States
Veterans Administration, pursuant to the Emergency Veterans Job Training Act
of 1983.
4. As a condition of continuing subsidization by the Veterans
Administration (VA), the Employer filed periodic Certifications of Training
with the VA. On each such occasion (October 10, 1984, January 10, 1985,
April 16, 1985 and July 8, 1985) the District reported to the VA that Mr.
Wood's progress was "satisfactory". In a follow-up call to the District in
December 1984, Veterans Employment Representative John Green, an employee of
the Minnesota Department of Jobs and Training, was informed that Wood was
doing an "excellent" job.
S. Between January 1 and November 1, 1985, complaints were made to Mr.
Wood's supervisor, Bill Koch (the District's Director of Buildings and
Grounds) regarding the quality of Mr. Wood's work. The chief complaint was
that, in general, the Veteran worked too slowly. Koch talked to Wood about
these problems but never issued any written warnings during this period of
time.
6 . In addition to general complaints regarding slow work, complaints
were made regarding not properly cleaning up the gym, for not taking on
obvious chores that were outside his specific job assignment, and for leaving
too much work for the second shift maintenance man. Richard Domanoski, the
Principal at Boase, Sheila Wobbe, the Acting Principal, and Donald Burr, the
other janitor at the school, were the chief sources of complaints. On
July 20, 1985, Mr. Domanoski issued a written complaint, copies of which went
to Mr. Koch and into Mr. Wood's personnel file, against the Veteran for not
keeping a drinking fountain clean.
7. On November 1, 1985, Mr. Koch called a meeting with Mr. Wood, Mr.
Domanoski and Donald Burr. The purpose of the meeting was to review the
Veteran's work performance. Koch covered Wood's slow work pace and the uneven
quality of his work and warned him that unless there was "drastic
improvement", disciplinary action such as time off (as much as two weeks
without pay) and, ultimately, discharge could result. Wood said that he
understood this and would try to improve. Koch also decided, in order to
better compare the work performances of Wood and Burr, to put them on rotating
shifts, since each shift had certain duties specific to it. This meeting,
including the warning to the Veteran, was summarized in a memorandum issued to
Wood on Tuesday, November 5, 1985.
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8. On November 8, 1985, Mr. wood had a problem with starting the boiler
at the Boase School At approximately 6:00 a.m., he called Koch at home and
told the Director of the problem. Koch reviewed some of the starting and
trouble-shooting procedures with Wood and said he would get to Boase as soon
as he could.
At approximately 6:15 a.m., Wood got the boiler started. He called Koch's
house to report this information, but Koch had already left. Koch's wife was
awakened by the call.
9. At approximately 8:00 a.m. on November 8, Koch arrived at Boase
School. He was relieved that Wood had gotten the boiler started, but
expressed irritation to Wood for (1) waking up his wife and (2) not seeming to
understand certain "elementary" terms and operati ons involved in boiler
operation, concepts Koch believed were well known to any licensed boiler
operator. Donald Burr was present for this conversation, and also accompanied
Wood and Koch to the boiler room for a review of starting procedures. Koch
did not raise his voice during the initi a I convers ation with Wood nor during
the boiler-room demonstration.
10. At approximately 8:20 a.m., the three men returned to the custodians'
break room. Koch asked Wood why, if he had been employed for over a year at
the school and had been shown p roper I i ghting and troub le-s hoot ing procedures,
he did not know where the "fire-eye control" was located. Wood said he had
forgotten. Koch then reminded him of the warning issued a week earlier--that
Wood had to improve his job performance or Koch would recommend discipline
and, possibly, termination. He told Wood that he "had a choice". Wood
replied that he had been thinking about quitting since the events of
November 1, and stated that he was "not able to do the job". Koch told him
that it was his (Wood's) decision to make, but that the Administration would
have to prove Wood was not performing his job duties in order to terminate
him. Wood asked about the notice period, and Koch said two weeks' notice was
required under the union contract. When Wood asked, "Who do I tel I?", Koch
said to put it in writing.
I I . Mr. Wood then wrote out a resignation note to the School Board,
effective November 22, 1985. The reason given on the note is: "I am unable
to perform duties of the licensed custodian position". Koch told Wood that he
did not have to resign and that, if the Administration ever tried to fire him,
that he could take his case before the Board. He did not mention any
veteran's preference rights to Mr. Wood. Mr. Koch never raised hi s voice
during this conversation and never threatened Wood with discharge, except to
remind him of the November 1 warning. Koch did not have the authority to
terminate Wood from employment. The Veteran could only be discharged by the
School Board.
1 2 . On November 11, 1985, "he Board of School District No. 691 accepted,
.with regrets", the resignation of Mr. Wood, effective November 22. Earlier
that day, Mr. Domanoski and Thomas Lubovich, the District's Superintendent,
met with Mr. Wood, reminded him of the Board meeting that evening and asked
him whether he really wanted to resign. Wood said, "Yes, I plan to resign, it
is my resignation". Lubovich then asked, "Is this what you want to do?" and
the Veteran replied, "Yes.". Mr. Wood did not appear at the Board meeting,
nor did he ever complain to the District's Administration that Koch had put
any pressure on him to resign.
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13 On or about November 15, 1985, Mr. Wood informed his union steward,
William Ojala, that he wanted to try to get his job back.' A meeting was
scheduled for November 21, between Wood, Ojala and Fred Hudola (then the Union
President) on one side and Lubovich, Koch and Domanoski for the
Administration. The meeting never took place. Wood decided not to have the
meeting because there was "no hope" and he had "no fight left". He told Koch
on November 20 that he did not want the November 21 meeting, and Koch
communicated this to Lubovich.
14. As of November 22, 1985, if Mr. Wood had wanted his job back and then
asked for it, Lubovich and Koch favored his continued employment. Domanoski
was against Wood's continued employment. However, after writing out hi s
resignation, handing it to Koch, and after the resignation was accepted by the
Board, Wood never told Koch, Lubovich, or any other member of the District
Administration that he wanted his lob back.
15. Mr. Wood never filed a grievance procedure, which he had a right to
do under the contract between Local 2780 and the District, wi th respect to his
separation from employment or at any other time. On February 21, 1986, the
Veteran petitioned for a Veterans Preference hearing pursuant to Minn. Stat.
197.481 . In his Petition, Wood alleges that he was denied a hearing
regarding his separation from employment, which separation he characterized as
a "termination". He specifically alleged that Koch left him with no choice on
November 8 after telling him that he (Koch) was going to do everything in his
power to get him (Wood) fired, and that his resignation was given under duress.
Based upon the above Findings of Fact, the Administrative Law Judge makes
the following:
CONCLUSIONS
1. The Administrative Law Judge and the Commissioner of Veterans Affairs
have Jurisdiction in this matter under Minn. Stat. 14.50 and 197.481.
2. The Notice of Hearing was proper and all relevant substantive and
procedural requirements of law or rule have been fulfilled.
3. Any of the foregoing Findings of Fact which should more properly be
designated as Legal Conclusions are hereby adopted as such.
4. The Petitioner, Harold W. Wood, is a veteran within the meaning of
Minn. Stat. 197.447.
5. Independent School District No. 691 has not violated Minn. Stat.
197.46 by denying any preference or privilege granted to Harold Wood under
that statute because the Veteran quit his employment and was not removed from
his employment. The statute grants a right to a hearing to determine
incompetence or misconduct only to veterans who are removed from employment,
'As of the time of the hearing, Hr. Ojala had become the Union President.
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Based upon the foregoing Conclusions, the Administrative Law Judge makes
the following:
RECOMMENDATION
IT IS RECOMMENDED th at the Pet iti on filed by Harold W. Wood on
February 21, 1986 be DISMISSED.
Dated this day of December, 1986.
RICHARD C. LUIS
Administrative Law Judge
NOTICE
Pursuant to 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.
Reported: Taped.
MEMORANDUM
The Petitioner's central contention is that he was forced out of his job,
essentially terminated, and that his resignation was given under duress. He
would be enti tied to a hear ing before a Veterans Preference Board if he was,
in reality, "removed" from his job. After review and analysis of the evidence
before him, the Administrative Law Judge has concluded that Mr. Wood's
resignation was bona fide and he was not removed from his position as a
janitor at Boase Elementary School. Therefore, he is not entitled to a
Veterans Preference hearing to determine if he was removed for incompetence or
misconduct.
The key event in this c ase is the convers ation, between Mr. Wood and his
supervisor, Bill Koch, on November 8, 1985. Donald Burr, Wood's co-worker,
witnessed the conversation. The testimony given by Koch and Burr differs from
Wood's recollections. Findings of Fact Nos. 9, 10 and 11 constitute the
result of the Judge's decision to believe the accounts of Koch and Burr, as
opposed to the testimony offered by Harold Wood, regarding certain key details.
Wood contends that Koch was mad at him, called him incompetent and said,
"I'm going to do everything in my power to get you fired.". Koch denies this,
and Burr's testimony supports Koch. Wood testified that he then said, "When
do you want the keys?" and Burr left the room. Burr denies that he left.
Wood claims Koch then asked, "Will you resign?", to which he said, "I can't
keep going like this, how do I do it (resign)?". He alleges Koch then gave
him paper and pencil and actually dictated the contents of the resignation
note. The Administrative Law Judge does not believe this account.
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First, Mr Wood did not impress the Administrative Law Judge as being, in
general, a credible witness. His speech was hesitant, he appeared overly
nervous, and he mumbled many key portions of his testimony. His
representative argued that Wood is shy, hesitant and inarticulate by nature,
and the Judge recognizes that the evidentiary hearing setting can be
intimidating, but it is also noted that the witness's demeanor was also
consistent with that of a person who is not telling the truth. In contrast,
Koch and Burr delivered their testimony in a more confident. consistent and
believable fashion.
Second, Mr. Wood never complained to Superintendent Lubovich or any other
school administration official about being forced to resign, and he confirmed,
three days later, to Lubovich and Principal Domanoski that the decision to
resign was his.
Third, on November 20, 1985, the meeting set for the next day between Wood
and his Union Representatives and the Administration was cancelled. The
Administrative Law Judge has found that Wood cancelled the meeting and
communicated this to Koch. Wood testified that Koch told him that the meeting
was cancelled, yet he acknowledges in his testimony that Koch told him the
meeting could be held instead on November 22. He testified that he refused to
meet the next day because he felt that there was no hope left. He testified
that he came to that conclusion because the Administration had postponed the
meeting for one day--a conclusion that simply defies logic and is not
supported by the rest of the testimony. If Wood had wanted his job back, the
postponement of the meeting to discuss that by one day is simply too trivial a
reason to "give up the fight". It is more likely that Wood cancelled the
meeting because he had decided to abide by his original decision to resign.
Even if Wood's version of the November 8 conversation is accepted, the
Administrative Law Judge does not believe that the facts established to arrive
at that version of events entitle Wood to a Veterans Preference hearing. This
is because, even taking the facts in the light most favorable to the
Petitioner, he still resigned and was not removed from his employment. He
knew, or should have known, that Koch did not have the authority to fire him.
Wood testified that Koch told him he could "go before the Board". Therefore,
even if Koch said he would do "everything in his power" to fire Wood, it is
clear, even under Wood's version of the event, that Koch had not fired him.
Wood testified that he wrote out the resignation after Koch said, "Will
you resign?" and that Koch "dictated" the words of the note after he (Wood)
asked how to do it. Such a scenario (which the Administrative Law Judge has
not accepted) may establish a resignation under duress, but it is also
consistent with a neutral inquiry about his (Wood's) intentions, and with a
desire on Koch's part to see to it that, if Wood was quitting, he went about
it properly.
Two Minnesota Court of Appeals cases involving unemployment compensation
claims, where the issue was whether the employee quit or was fired, provide
guidance in analyzing this case if Wood's version of the November 8 incident
is given credence. The first, Ramirez v. Metro Waste Control Commission, 340
N.W.2d 355 (Minn. App. 1983), holds that when an employee resigns from
employment in order to protect his work record from showing a discharge for
tardiness, that action constitutes a voluntary termination of employment, in
the absence of evidence that the employer told the employee that he was fired
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or asked for his resignation. The Court of Appeals held that such was the
case notwithstanding that it was, in fact, likely that the employee would have
been discharged. In that case, Ramirez was told by his supervisor that it was
likely he would be fired, but a formal decision to do so had not yet come down
from the Commission s chain of command when Ramirez presented his resignation
and it was accepted. Quoting from an earlier Minnesota Supreme Court case,
the Court of Appeals described voluntary unemployment as the exercise of "a
free-will choice and control" in terminating the employment. See Anson v.
Fisher Amusemen Corp , 254 Minn . 93, 98, 93 N.W.2d 815, 819 (1958). The
Court also cited the case of Board of County Commissioners v. Florida
Department of Commerce, 370 So.2d 1209 (Fla. App. 1979), where it was found
that an employee voluntarily terminated his employment "When . . . in the face
of allegations of misconduct (he) chooses to leave his employment rather than
exercise his right to have the allegations determined
The same precedents relied on in the Ramirez case were applied in
Seachrist v. City of_Cottaqe_Grove, 344 N.W.2d 889 (Minn. App. 1984), where a
police sergeant resigned rather than face disciplinary proceedings that would
have adversely affected his application for a police chief job in another
city. In that case, the Cottage Grove police chief demanded the employee's
resignation or the chief would have initiated disciplinary proceedings
immediately, and the Court of Appeals, relying on Anson v. Fisher Amusement
Corp., supra, still held that the separation was voluntary. 'See 344 N.W.2d,
at 891, where the Court holds:
"The question of whether a termination is voluntary or
involuntary is determined 'not by the immediate cause or
motive for the act but by whether the employee directly or
indirectly exercised a free-will choice and control as to
the performance or non-performance of the act'. Anson,
supra; Wing-Piu Chen v.-Pagoda, Inc., 342 N.W.2d 174, 175
(Minn. App. 1984)"
Based upon the Ramirez and Seachrist holdings, Mr. Wood must be viewed as
a person who quit his employment and was not fired. He was informed that the
Board would rule on his case so he knew (or should have known) that Koch alone
could not fire him. Under Ramirez, a resignation in those circumstances is
voluntary even though it is likely that the employee would have eventually
been fired. Under Seachrist, an employee who was forced to resign or be fired
for allegations of misconduct still was held to have resigned when he knew, or
should have known, that any discipline resulting from the alleged misconduct
could be contested. While both such cases involve resignations in the face of
allegations of misconduct, not incompetence, they are still very persuasive in
analyzing the issue in this case. It should be remembered that the above
analysis only comes into play if it is held that Mr. Wood's allegation that
Koch forced him to resign, or in the alternative, was going to do "everything
in his power" to get him fired, is true. However, the Administrative Law
Judge has found that Koch was not yet at that point. He had warned Wood that
progressive discipline could follow if he did not improve his work, but had
gone no further.
At the hearing, Mr. Wood's representative asked the Administrative Law
Judge to take judicial notice of the decisions of the Minnesota Department of
Jobs and Training regarding Wood's separation from employment. He also asked
the Judge to give res judicata effect to the Department's "final" decision.
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The Judge refused to do so at the hearing and, after considering the
post-hearing argument submitted on the issue, it has been decided not to grant
such status to the Jobs and Training determinations.
Although the parties to the case before the Department of Jobs and
Training and in this proceeding are the same, the witnesses testifying in the
two proceedings were different. In addition, the issues are not parallel
The ultimate issue to be determined in the unemployment case was Wood's
eligibility for benefits under Minn. Stat. ch. 268. Under that Code, a person
who quits employment can still be held eligible for benefits if the cause for
separation was "good cause attributable to the employer". Employees do not
have to be discharged in order to "win" such a case. Mr. Ojala argues that
since Mr. Wood won full entitlement to unemployment benefits, he must have
been "involuntarily separated" from his employment. Such a conclusion simply
does not follow. The issue in this case is different. Under Minn. Stat.
197.46, a veteran employed by a school district has a right to a due process
hearing only if he has been "removed" from employment, and the character of
the separation from work (a quit or a discharge) is the ultimate issue. That
decision should only be made on the facts elicited in this record.
Accordingly, the judge has confined his deliberations to what he heard in
Virginia on October 7. If the Commissioner of Veterans Affairs decides to
take notice of the unemployment benefit decision made by the Department of
Jobs and Training, however, the relevant document is being transmitted, under
seal , to him along with the official record accompanying this Report.
R.C.L.
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