3-3100-9589-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF VETERANS AFFAIRS
|
Brownell E. Mack, Petitioner, vs. Hennepin County, Respondent.
|
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION |
The above-captioned matter came on for hearing before Administrative Law Judge Allen E. Giles commencing at 9:30 a.m. on September 13, 1995 at the Office of Administrative Hearings in Minneapolis, Minnesota. The hearing was held pursuant to a Notice of Petition and Order for Hearing dated March 31, 1995. The record closed on November 3, 1995,upon receipt of an update of Mr. Mack’s employment status.
Martin D. Munic, Assistant Hennepin County Attorney, Office of the Hennepin County Attorney, A-2000 Government Center, Minneapolis, Minnesota 55487, appeared on behalf of Respondent, Hennepin County. Thomas Bennett Wilson, III, Attorney at Law Wilson Law Firm, Suite 220, 4933 France Avenue South, Edina, Minnesota 55410, appeared on behalf of Petitioner, Brownell E. Mack.
Notice is hereby given that, pursuant to 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, 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 Bernie Melter, Commissioner of Veterans Affairs, 20 West 12th Street, St. Paul, Minnesota 55155.
STATEMENT OF ISSUES
Whether Petitioner’s actions constituted a voluntary resignation so as to not trigger the notice of right to hearing under the Veterans Preference Act, Minn. Stat. § 197.46 (1994).
Based upon all of the proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. Petitioner is an honorably discharged veteran of the United States Army. He was on active duty from December 30, 1976, through December 12, 1979.
2.On January 28, 1980, Petitioner began working for the County as a Correctional Officer. In 1984, Petitioner transferred to the position of Community Corrections Officer. In 1987, Petitioner became a Probation Officer with the County.
3.As a Probation Officer, Petitioner worked in preparing presentence investigations, in the urinalysis laboratory, in the chemical dependency program of juvenile protection, and in surveillance. In Petitioner’s position, court appearances are required of probation officers at both morning and afternoon detention hearings. Supervisors need to know which probation officers are available on a daily basis to assign work.
4.On January 13, 1994, Bob Mowat, the person responsible for the supervisors in Corrections for the County, transferred Petitioner from the supervision of Jim Seward to the supervision of Simeon Wagner. The memorandum advising Petitioner of the new arrangement states “This change is being implemented in order to provide on-site supervision and to further develop your current work responsibilities.” Exhibit 4.
5.Wagner experienced difficulty with Petitioner leaving work on personal matters. On January 24, 1994, Wagner gave Petitioner a memorandum on absences. The memorandum states:
When you are going to be absent from the office as the result of illness or other reasons, please be advised that it will be necessary for you to contact me and advise me of this. If I am not available it becomes your responsibility to contact the Supervisor of the Day and advise them that you will not be here. A message left with the receptionist will not suffice unless you leave a method by which we may contact you.
It does not appear that I am in possession of your phone number. Would you please provide that to me so that in the future I may contact you to determine the nature and circumstances of any problems you may be having.
Exhibit 5.
1.On July 5, 1994, Petitioner left a message with the receptionist that due to a flooded basement, Petitioner would not be coming to work that day. Petitioner did not contact either Wagner or the supervisor of the day to request time off.
2.On July 6, 1994, Petitioner gave a detention hearing file of his to Carole Wandersee (another probation officer) that was scheduled for that morning. Petitioner advised Catherine Williams (a supervisor) that he was experiencing pain in his hip and needed to see a doctor. Catherine Williams was not the supervisor of the day. Petitioner left work that morning. Petitioner attempted to telephone Ms. Williams again later that day and left a message with her secretary. Williams passed on to Wagner the message, including an estimate that Petitioner would be in to work on July 11, 1994. There was no contact between Petitioner and the County on July 7, 1994, or July 8, 1994. Petitioner’s supervisor called Petitioner’s home on both July 7, 1994 and July 8, 1994, and received no answer.
3.On July 11, 1994, Petitioner left a message that he would be going to a “foot doctor.” Petitioner did not speak with Wagner or the supervisor of the day on July 11. On July 12, 1994, Petitioner left a similar message and again did not speak with any supervisor.
4.Petitioner telephoned his supervisor on July 13, 1994, and advised him that Petitioner had a hip problem. Wagner informed Petitioner that the physician’s statement would be needed to support Petitioner’s absence from work. Wagner told Petitioner to get the documentation to Wagner to allow the County to assess its reaction to the situation. Wagner did not authorize further absence from work. At the end of the pay period concluding July 9, 1994, Petitioner had about one-half hour of sick leave available.
5. On July 14, 1994, Petitioner called someone with the County to arrange for a friend to pick up his paycheck on July 15, 1994. Petitioner did not advise anyone as to how long he would continue to be absent from work. Petitioner did not send a physician’s statement with the friend to support his claim that he suffered from an injured hip. Petitioner did not request a leave of absence from anyone with the County to cover the time from July 15, 1994, onward.
6. Petitioner’s hip condition was not bothering him sufficiently to prevent him from working as of July 20, 1994. He did not go to work that day. Petitioner did not contact his supervisor to advise him of this physical improvement.
7. On July 21, 1994, Wagner wrote to Petitioner advising him that, under Article XIV of the County’s contract with the Probation/Parole Officer Unit, Petitioner’s unexcused absences from July 15, 1994, and July 18-20, 1994, constituted a voluntary resignation on Petitioner’s part. Exhibit 1.
8. From July 20 to July 23, 1994, Petitioner was in Fairview hospital for a condition unrelated to his hip. Petitioner was not available for work during this period because he was in an inpatient substance abuse program. Petitioner did not contact anyone with the County between July 14, 1994, and July 21, 1994, to advise the County of his location, to request a leave of absence, or for any other purpose. On July 21, 1994, Wagner received a message that had been left with the receptionist that Petitioner was in Fairview Hospital and that gave a telephone number of a counselor at the hospital. On July 22, 1994, Petitioner talked with Wagner on the telephone. Wagner read the July 21, 1994 letter to Petitioner over the telephone. Petitioner offered no explanation for his absence from work after July 14, 1994. Petitioner did not indicate that, regardless of the letter, he was ready to work. Petitioner has not returned to work since the morning of July 6, 1994.
9. Petitioner applied for and received unemployment compensation. The County contested the initial request for benefits but did not send anyone to attend the hearing conducted after the initial contest.
10. On August 10, 1994, Petitioner wrote to Thomas Lavelle of the Community Corrections Department for the County, informing him that Petitioner intended to appeal the loss of his position and requesting that Petitioner’s personal property be returned. Exhibit 3.
11.In February, 1995, Petitioner filed a petition with the Commissioner of the Minnesota Department of Veterans Affairs. In his petition he complained that he was removed from his position with the County without compliance with the notice and hearing requirements of the Veterans Preference Act.
12.The Commissioner of Veterans Affairs issued a Notice of Petition and Order for Hearing in this matter on March 31, 1995, setting this matter on for hearing before an Administrative Law Judge.
Based on the foregoing Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
13.The Administrative Law Judge and the Commissioner of Veterans Affairs have authority to determine if the Petitioner was removed from his employment without notice of his right to a hearing under the Veterans Preference Act pursuant to Minn. Stat. §§ 197.481 and 14.50 (1992).
14.The Department complied with all relevant substantive and procedural requirements of statute and rule.
15.The County received timely and proper notice of the hearing and the claims asserted by Petitioner.
16.Petitioner is an honorably discharged veteran for purposes of Minn. Stat. §§ 197.447 and 197.46 (1992).
17.Under Minn. Rules pt. 1400.7300, subp. 5 (1993), Petitioner has the burden of proof to establish that he was removed from his employment in violation of Minn. Stat. § 197.46.
18.Article XIV of the employment contract provision between the County and Petitioner 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, provided that 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.
19.Petitioner was absent without leave on July 15, 1994, and July 18-21, 1994. The Petitioner has not shown that either his continued absence or failure to request a leave of absence were due to circumstances beyond his control. Petitioner resigned his position with the County by operation of Article XIV.
20.The County did not remove Petitioner within the meaning of Minn. Stat. § 197.455. The County did not violate any notice or hearing requirements of Minn. Stat. § 197.46. Petitioner voluntarily resigned his employment as of July 21, 1994, and therefore he had no right to a hearing under Minn. Stat. § 197.46.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
RECOMMENDATION
IT IS RECOMMENDED: That the Commissioner of the Minnesota Department of Veterans Affairs dismiss the Petitioner’s Petition with prejudice.
Dated this 12th day of December, 1995.
ALLEN E. GILES
Administrative Law Judge
Reported: Taped; three tapes
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.
MEMORANDUM
Petitioner has alleged that the County violated Minn. Stat. § 197.46 by removing him from his position without informing him of his right to a hearing under the Veterans Preference Act. The statute, which governs the removal of veterans, states, in part, as follows:
. . . 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.
Minn. Stat. § 197.46.
For any notice or hearing right to attach, the veteran must be removed. In this matter, the Petitioner left work, ostensibly to visit a doctor. For the next two work days, the Petitioner did not call his place of employment. During those two days, Wagner called the telephone number he had for Petitioner and received no answer. On the following two work days the Petitioner left messages in the morning with the receptionist that the Petitioner would be going to a doctor. On July 13, 1994, one week after leaving work, Petitioner spoke with his supervisor. The supervisor advised Petitioner that documentation was required for the County to assess the situation. Since Petitioner had been counseled on the proper procedure for being absent from work and Petitioner had not followed that procedure, the assessment to be done was whether to take disciplinary action. Rather than provide the documentation needed to establish a valid medical leave, Petitioner arranged to have his check picked up and had no other contact with the County for another week.
Petitioner has maintained that Wagner’s statements reasonably led Petitioner to believe that he was on a medical leave of absence. There is no factual basis for any such belief. Petitioner had been aware of his own prior absence problems and his employer’s reaction to those problems. The extent of Petitioner’s absences in July and the lack of both an express request for a leave and an express granting of that leave render unreasonable any belief that such a leave was in effect.
Petitioner’s conduct prior to July 13, 1994, was in violation of the specific procedures he had been counseled to use in obtaining time off from work. This conduct could have resulted in discipline. An employee for the County is obligated to keep the employer informed when the employee is not available for work. Petitioner’s July 13, 1994, call did not create a leave of absence. That call did establish what Petitioner was required to do to obtain a medical leave and perhaps avoid discipline for missing work up to July 13, 1994. Petitioner did not do what was required to establish a valid leave of absence.
In the month of July, Petitioner was at work on one morning for a period of less than two hours. Petitioner contacted his supervisor once prior to July 22, 1994. Petitioner did not comply with the request of the supervisor to provide documentation of his physical condition. When the Petitioner’s hip condition improved, he did not advise his supervisor. When Petitioner became unavailable for work due to his inpatient status at Fairview Hospital for another condition, Petitioner did not contact his supervisor to inform him of that change. For the period from July 14, 1994, to July 21, 1994, Petitioner was absent without leave or excuse from his employment with the County. Petitioner’s absence over this period was not caused by the County. The absence raises the issue of abandonment of employment. The County has incorporated the concept of abandonment of employment in the collective bargaining agreement governing the terms of employment between the Petitioner and the County.
Petitioner has argued that the failure to properly contact his supervisor concerning absences is a matter for discipline, not abandonment. The Petitioner’s conduct certainly would justify discipline. However, there is nothing in the collective bargaining agreement governing the employment relationship here that requires one option over another. The express language of the collective bargaining agreement allows the County to treat three days of consecutive absence without excuse as a resignation and the County has done so.
The effect of a voluntary resignation provision has been examined before in the veterans preference context. Two administrative cases have held that absence from work without excuse does not constitute removal where the applicable contract deems such absence to be a resignation. Hodapp v. St. Louis County, OAH Docket No. 69-3100-6516-2, (Recommendation issued June 24, 1992); Johnson v. Duluth Airport Authority, OAH Docket No. 69-3100-4491-2 (Recommendation issued June __, 1990).
The analyses in Hodapp and Johnson rely upon the language in the Veterans Preference Act requiring that employer remove the veteran before the right to a notice of hearing arises. As the administrative law judge stated:
Where an employee leaves work without authorization or legally cognizable excuse, the employee had abandoned employment and voluntarily terminated the employment relationship. 56 C.J.S. Master and Servant, 40 at 424. Petitioner has not shown that his absence was authorized or for a cognizable excuse. While there may be some hesitancy to say Petitioner “voluntarily” absented himself from the job, the fact is that his voluntary actions led to his incarceration. The County has not taken disciplinary action against Petitioner for this unauthorized absence. It did not refuse to let him work. Under these circumstances, the absence must be treated as a resignation.
Hodapp, at 7.
The effect of abandonment of employment on rights under the Veterans Preference Act was also addressed in Garavalia v. City of Stillwater, 168 N.W.2d 336 (Minn. 1969). In Garavalia, the loss of employment occurred by operation of a statute prohibiting a walkout or strike. While the operative provision has a different source in this matter, the analysis in Garavalia relied upon the doctrine of abandonment. Id. 168 N.W.2d at 343-44.
Petitioner argues that the employer is obligated to inform a veteran when an Article XIV resignation is going to be asserted. There is no such obligation in the contract, the Veterans Preference Act, or caselaw on veterans preference. The contract provision allows an employee the opportunity to show that an absence was beyond the employee’s control. Petitioner has not shown the circumstances to be beyond his control. Petitioner has failed to comply with discovery requests reasonably related to that issue. The Judge has drawn an adverse inference from the Petitioner’s refusal to comply with discovery, as authorized by Minn. Rule 1400.6700, subp. 3(A). To do otherwise would deny the County’s right to due process. Further, Petitioner has failed to meet his burden of proof to show either that he was on an authorized leave of absence or that he was unable to request a leave for reasons beyond his control. There is no basis in the record for finding that Petitioner did not resign by operation of his employment contract.
AEG