Dale O. Tharalson, Relator, vs. Bloomington Independent School District No. 271, Respondent, Commissioner of Veterans Affairs, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-02-2218

 

Dale O. Tharalson,
Relator,
 
vs.
 
Bloomington Independent School District No. 271,
Respondent,
 
Commissioner of Veterans Affairs,
Respondent.

 

Filed June 17, 2003

Affirmed

Wright, Judge

 

Minnesota Department of Veterans Affairs

File No. 15-3100-14990-2

 

 

Dale Tharalson, 9400 Old Cedar Avenue, South, #338, Bloomington, MN  55425-2435 (pro se relator)

 

Kingsley D. Holman, Holman Law Offices, 220 West 98thStreet, Minneapolis, MN  55420 (Respondent Bloomington Independent School District)

 

Department of Veterans Affairs, 206c Veterans Service Building, 20 West 12th Street, St. Paul, MN  55155-2079 (Respondent Commissioner)

 

 

            Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Relator Dale Tharalson appeals from the denial of his petition for relief under the Veterans Preference Act.  The Commissioner of Veterans Affairs determined that, because relator voluntarily resigned from his employment and was a temporary or occasional employee, he was not entitled to a hearing under Minn. Stat. § 197.46 (2002).  We affirm. 

FACTS

 

Dale Tharalson is an honorably discharged United States Army veteran.  In June 1999, Bloomington Independent School District, Number 271 (school district) hired Tharalson as a bus driver.  Three months later, Tharalson requested a leave of absence to move a boat to Florida.  His supervisor, Tom Oestreich, granted Tharalson's leave request.  When Tharalson returned in December 1999, he notified Oestreich of his availability for work.  Tharalson returned to work in January 2000 as a substitute bus driver.

In April 2000, Tharalson requested another leave of absence to sail a boat from Florida to Connecticut.  The trip would not be completed until after the school year.  Oestreich again granted Tharalson's request and directed Tharalson to contact him for the next school year when Tharalson returned.  Tharalson never contacted Oestreich or returned to work. 

Oestreich sent Tharalson letters and attempted to contact Tharalson by telephone every two to three months, leaving messages on each occasion regarding Tharalson's employment with the school district.  Tharalson acknowledged receiving one such call, but he said the message did not refer to future work.  Tharalson never returned any of Oestreich's telephone calls.  At a chance encounter in the summer of 2001, Tharalson told Oestreich that he felt guilty about not returning his call, but Tharalson did not request to return to work for the school district.

In a letter dated February 4, 2002, the school district notified Tharalson that it would recommend that the school board accept his voluntary resignation at a meeting on February 11, 2002.  Tharalson responded by letter dated March 12, 2002, stating that he did not resign and requesting a hearing, pursuant to the Veterans Preference Act (VPA), regarding the school district's actions.  The school district challenged Tharalson's right to a VPA hearing.

On June 17, 2002, Tharalson filed a petition with the Commissioner of Veterans Affairs, claiming a denial of his VPA rights.  Specifically, Tharalson alleged that the school district terminated him without a hearing, in violation of Minn. Stat. § 197.46 (2002).  After a hearing on the petition, an Administrative Law Judge (ALJ) recommended that the commissioner deny Tharalson's request for a VPA hearing.  Because Tharalson never contacted the school district after leaving work in April 2000, the ALJ concluded that Tharalson voluntarily resigned from his position.  The ALJ also determined that, even if Tharalson had not resigned, he would not have been entitled to a hearing under the VPA because of the temporary nature of his employment.  On November 22, 2002, the commissioner adopted the ALJ's findings and recommendation and denied Tharalson's request for relief.  This appeal followed.

D E C I S I O N

 

We review factual determinations of the Commissioner of Veterans Affairs to determine whether they are supported by substantial evidence in the record.  In re Schrader, 394 N.W.2d 796, 801 (Minn. 1986).  "Conflicts in testimony and the weight to be given facts and circumstances as well as the inferences reasonably to be drawn therefrom are matters to be resolved by the agency, not the courts."  Jenson v. Civil Serv. Comm'n, 268 Minn. 536, 538, 130 N.W.2d 143, 146 (1964).  When considering questions of statutory interpretation, we conduct a de novo review of the agency's determination without deference to the agency's expertise.  Arvig Tel. Co. v. N.W. Bell Tel. Co., 270 N.W.2d 111, 114 (Minn. 1978).

Tharalson argues that the commissioner erred in determining that he voluntarily resigned from his position with the school district.  Thus, we must first determine whether the factual findings regarding Tharalson's conduct are supported by substantial evidence.  Tharalson challenges the weight and credibility of the evidence showing that the school district attempted unsuccessfully to contact him.  But these determinations are the province of the agency, not this court on review.  Jenson, 268 Minn. at 538,130 N.W.2d at 146.  Our review of the record establishes that the findings of fact adopted by the commissioner, while controverted, are nevertheless supported by substantial evidence in the record.

We next address whether, in light of the facts, Tharalson was entitled to a VPA hearing.  An honorably discharged veteran cannot be removed from public employment "except for incompetency or misconduct shown after a hearing, upon due notice, upon stating charges, in writing."  Minn. Stat. § 197.46 (2002).  But "a veteran who resigns, voluntarily or involuntarily, without good cause attributable to the employer is not entitled to notice and hearing under the VPA."  Brula v. St. Louis County, 587 N.W.2d 859, 862 (Minn. App. 1999). 

            Here, we must determine whether Tharalson voluntarily resigned from his employment without good cause attributable to the employer.  Our analysis is informed by unemployment compensation insurance cases that address whether an employee who quits is disqualified from receiving unemployment benefits.  Id. at 861.  An employee voluntarily quits when the employee directly or indirectly exercises a free-will choice to leave employment.  Seacrist v. City of Cottage Grove, 344 N.W.2d 889, 891 (Minn. App. 1984) (holding that employee, who voluntarily quit employment rather than face disciplinary proceedings, was disqualified from receiving unemployment benefits).  Whether the employee's decision was 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 nonperformance of an act."  Anson v. Fisher Amusement Corp., 254 Minn. 93, 98, 93 N.W.2d 815, 819 (1958); see also Shanahan v. Dist. Mem'l Hosp., 495 N.W.2d 894, 896 (Minn. App. 1993); Dingmann v. Travelers Country Club, 420 N.W.2d 231, 233 (Minn. App. 1988); Wing-Piu Chan v. Pagoda, Inc., 342 N.W.2d 174, 175 (Minn. App. 1984).

Here, Tharalson failed to take reasonable steps to retain employment.  The school district granted his first leave of absence a month into his employment.  Oestreich told Tharalson to "give us a call when you get back and we'll work something out for you."  Tharalson called that December and was again scheduled to work.  He worked until April, when he took another leave of absence.  When approving the second leave of absence, Tharalson was again directed to contact the school district upon his return to schedule his return to work.  Tharalson did not do so.  Despite the school district's telephone calls to Tharalson on several occasions to inquire about his availability, Tharalson never returned the telephone calls or took any initiative to notify the school district of his availability to work during the 2001-2002 and 2002-2003 school years.  Consequently, Tharalson never returned to work.  Tharalson's decision not to return to work upon his return from the second leave of absence was his free-will choice, completely unattributable to the school district.

On this record, we conclude that the commissioner did not err in determining that Tharalson is not entitled to a VPA hearing because he voluntarily resigned from his employment with the school district.

In light of our decision, we need not address the commissioner's determination that Tharalson is not entitled to a VPA hearing because he was an occasional employee, engaged in intermittent employment.

Affirmed.