Nathan D. Schluter, Relator, vs. City of Minneapolis, 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This opinion will be unpublished and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

A04-457

 

Nathan D. Schluter,

Relator,

 

vs.

 

City of Minneapolis,

Respondent,

 

Commissioner of Veterans Affairs,

Respondent.

 

Filed December 28, 2004

Affirmed

Huspeni, Judge*

 

Department of Veterans Affairs

Agency File No. 15-3100-13264-2

 

Steven K. Marden, 2136 Ford Parkway, #359, St. Paul, MN 55116 (for relator)

 

Jay Heffern, City Attorney, Burt T. Osborne, Michael B. Bloom, Michael J. Rugani, Assistants City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN 55402-2453 (for respondent City of Minneapolis)

 

Mike Hatch, Attorney General, Richard L. Varco, Jr., Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent Commissioner of Veterans Affairs)

 

            Considered and decided by Klaphake, Presiding Judge; Stoneburner, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

 

HUSPENI, Judge

 

Relator, a veteran, filed a petition after his employment with respondent ended, alleging that he was denied the notice and hearing required for removal from employment under the Veterans Preference Act, Minn. Stat. § 197.46 (2002).  After finding that relator resigned under respondent's employment rules before respondent terminated his employment, the commissioner dismissed relator's petition.  Because substantial evidence supports the commissioner's findings, we affirm.

FACTS

 

            Relator Nathan Schluter is an honorably discharged veteran eligible for protection under the Veterans Preference Act (VPA), Minn. Stat. § 197.46 (2002).  Respondent City of Minneapolis hired relator as a truck driver in 1990 or 1991.  He resigned in September 1991 to begin eight months of incarceration.  In June 1992, respondent rehired relator as a truck driver, and he became a member of Minnesota Teamsters Public and Law Enforcement Employees' Union, Local 320.

Respondent learned that relator's driver's license might have been suspended for a period when he drove respondent's vehicles and scheduled a department meeting for March 10, 1998, to discuss the situation.  Relator failed to appear at the meeting or to call to reschedule.

            On March 12, 1998, relator did call his supervisor, said he was sick and would be out of work for a few days, and hung up before his supervisor could respond or ask any questions.  In fact, relator had to appear in Ramsey County District Court that day on assault, stalking, and harassment charges relating to incidents with his estranged wife.  That same day, relator was convicted, sentenced to a total of one year and 90 days, and taken to jail.  On March 14, 1998, relator called his supervisor to report that he expected to get work release.  He was later denied work release but failed to inform his supervisor.  Relator never requested a leave of absence; even if he had, respondent's policy does not allow granting leaves of absence for incarceration.

Respondent rescheduled the meeting regarding the possibility that relator might have driven respondent's vehicles without a valid driver's license for April 17, 1998.  Again relator failed to appear or to call and reschedule.  Respondent then sent a letter dated May 4, 1998, to the last address for relator in the computer database, stating that his employment was terminated effective April 17, 1998.  The letter stated several grounds for termination:  failure to report the suspension of a driver's license, absenteeism, failure to be available for call-out, absence without leave, and failure to attend meetings.  Relator denied receiving timely notice of the letter sent to his former residence, which was also the home of his estranged wife.  Relator's union filed a grievance appealing relator's termination; respondent denied the grievance.

            Relator remained incarcerated until early release on December 13, 1998.  In January 1999, he called his supervisor and a union representative attempting to get his job back, but his calls were not returned.  Relator then filed a petition under the VPA.  Respondent moved for summary judgment, which the administrative law judge (ALJ) denied, concluding that an evidentiary hearing should be held to determine whether relator received notice of respondent's termination of his employment.  After a hearing, the ALJ recommended dismissing relator's petition; the Deputy Commissioner of Veterans Affairs adopted the recommendation and dismissed the petition.  Relator appealed, and this court remanded, stating that the Commissioner "did not determine whether [relator] was terminated or whether he involuntarily resigned without good cause attributable to the city."  Schluter v. City of Minneapolis, No. CX-02-208, 2002 WL 31455265, at *1 (Minn. App. Nov. 5, 2002).  In remanding, this court noted:

The question nevertheless remains whether [relator] was terminated by the city or whether he involuntarily resigned by virtue of the civil service rule that an unexcused absence longer than three days will be treated as a resignation. . . . [W]e remand for further findings on whether [relator] was entitled to notice under the VPA before termination or whether he voluntarily or involuntarily resigned, excusing the city from the requirement of notice.

 

Id. at *2.

On remand, the commissioner, adopting the findings, conclusions, and recommendations of the ALJ without modification, determined that relator voluntarily resigned his employment and was therefore not entitled to a veteran's preference removal hearing or any notice of a right to such a hearing.  This certiorari appeal follows.

D E C I S I O N

Under the Veterans Preference Act (VPA), 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."  Minn. Stat. § 197.46 (2002).  This court reviews a commissioner's factual findings to determine if they are supported by substantial evidence.  Harr v. City of Edina, 541 N.W.2d 603, 605 (Minn. App. 1996).  Relator has the burden to prove by a preponderance of the evidence that respondent terminated his employment or removed him from employment, and that respondent denied his rights under the VPA.  Minn. R. 1400.7300, subp. 5 (2003).

The ALJ determined on remand that relator was not entitled to notice of the veteran's preference hearing because he had voluntarily resigned his employment by virtue of his absence without leave.  In so determining, the ALJ concluded:

10.       [Relator] failed to establish that he was removed from his employment with the City.  Instead, the record shows that he abandoned his employment when he was incarcerated and was absent from work without having an approved leave of absence.  Under the City's Civil Service Rules, this constituted a resignation.

 

11.       [Relator's] resignation was voluntary because his voluntary actions led to his incarceration and job abandonment. 

 

12.       [Relator's] incarceration and voluntary resignation were in no way attributable to the City.

 

The commissioner based his decision on the ALJ's conclusions.  Relator, in challenging that decision, insists that his actions did not constitute resignation from employment, but rather that he was fired by respondent.  We conclude, however, that substantial evidence supports the commissioner's decision, and affirm it.

Respondent's employees are subject to the Minneapolis Civil Service Commission Rules.  Under rule 13.04, "[t]he absence of an employee from duty for a period of three successive days or longer, without leave and without notice to their supervisor of the reason for such absence and of their intention to return, will be considered a resignation."  According to section 14.01 of relator's union agreement with respondent, an employee may receive a leave of absence without pay "when authorized by . . . the Employer pursuant to the provisions of this article upon written application to the employee's immediate supervisor or his/her designated representative.  Except for emergency situations, leaves must be approved in writing by the Employer prior to commencement."

            Here, relator was absent from his job without permission for more than three days due to his incarceration, which, without approved leave and notice, is considered a resignation under Civil Service Commission Rule 13.04.  Relator argues that he did not voluntarily resign because he would have attended work had he not been involuntarily incarcerated.  He also asserts that he gave notice to his supervisor and thereby fulfilled the requirements of rule 13.04.  Neither the facts of this case nor existing caselaw supports relator's position, however.

We find Brula v. St. Louis County, 587 N.W.2d 859 (Minn. App. 1999), review denied (Minn. Mar. 30, 1999), particularly applicable here.  In Brula, a veteran who could no longer attend work due to post-traumatic stress disorder was determined to have resigned without good cause attributable to the employer and therefore was not entitled to notice and a hearing under the VPA.  Id. at 862.  Relator argues that the facts of his case are distinguishable from those in Brula because the resignation in Brula should be deemed to be voluntary and relator's resignation was involuntary.  But we are unable to read Brula as clearly identifying the resignation as voluntary; in fact, we conclude that Brula holds that any resignation by a veteran, whether voluntary or involuntary, eliminates the need to give notice and a hearing under the VPA.  Id. at 863.  Equally important, we believe the veteran in Brula had a much more compelling argument for notice and hearing than relator has, and yet the court found that notice and hearing were not required.  Post-traumatic stress disorder is a condition that afflicts an individual involuntarily.  Although relator here was involuntarily incarcerated, he voluntarily committed the offenses that resulted in his conviction and incarceration.  Thus, if the veteran in Brula resigned and was not removed, relator's actions certainly constitute a resignation.  Moreover, respondent in no way caused relator's incarceration, just as the employer in Brula did not cause the veteran's PTSD.  Contrary to relator's argument, we find Brula to be fully applicable to the circumstances here, and reach the same conclusion as did the court in that case.  Relator's actions constituted a resignation.

Relator also argues that he gave sufficient notice under rule 13.04 by calling his supervisor on the day of his trial to report that he would be absent for a few days.  It is undisputed, however, that relator hung up before his supervisor could approve, deny, or ask any questions about the absence.  The ALJ responded to relator's argument on this issue:

To interpret Rule 13.04 in the manner urged by [relator], an employee could be absent without approved leave for any length of time and the City would not be permitted to treat this absence as a resignation so long as the employee, at some point, told his or her supervisor of the reason for the absence and of his or her intent to return to work.  Such an interpretation would lead to an absurd result and would prevent the City from being able to treat unapproved absences as voluntary resignations.  In essence, employees would be able to grant their own leaves of absence by simply informing their supervisors of their plans.

 

We agree.  Relator has failed to meet his burden to prove that he was removed from employment under the VPA.  He abandoned his position for more than three days, effectuating a resignation under respondent's rules.  Because respondent did not remove relator from his employment, relator was not entitled to notice and a hearing, and the commissioner's findings are supported by substantial evidence.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.