This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Maxine G. Strege,
Independent School District No. 482
Little Falls Community Schools,
Affirmed; motion granted in part
Board of Independent School District No. 482
Neal T. Buethe, Lee M. Friedman, Briggs and Morgan, P.A., 2200 First National Bank Building, St. Paul, MN 55101 (for relator)
John J. O’Donnell, Knutson, Flynn & Deans, P.A., 1155 Centre Pointe Drive, Suite 10, Mendota Heights, MN 55120 (for respondent)
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
After remand by this court and decision by respondent school board that relator was not entitled to back pay, she brings this certiorari appeal. Relator challenges the board’s decision, claiming that (a) she was qualified to be a middle school principal and entitled to back pay for such a position; and (b) she was entitled to back pay for an elementary school principal position because she was wrongfully terminated. We affirm the school board’s decision and grant in part relator’s motion to strike portions of respondent’s brief.
Relator Dr. Maxine G. Strege began working as respondent Independent School District No. 482’s Director of Curriculum and Instruction on September 1, 1986. Her title was later changed to Director of Teaching and Learning.
On February 28, 2000, the school district’s superintendent told Dr. Strege that the school board was going to eliminate her position, but that she “more than likely” would be given the job of principal of Lindbergh Elementary School because the current principal planned to retire at the end of the school year. Dr. Strege interpreted this statement as an offer of that employment, but she did not respond.
The superintendent repeated the “offer” of the Lindbergh position on March 14, 2000. Dr. Strege did not accept or reject the offer at that time. On March 20, 2000, the school board formally discontinued her position effective at the end of the school year. Through her attorney, Dr. Strege responded to the Lindbergh offer on March 24, 2000, stating that she would accept the position upon several conditions. The school board did not accept Dr. Strege’s conditions.
After the Lindbergh principal resigned, the school district sent a letter to Dr. Strege outlining the procedures and terms for obtaining a position as school principal:
The School District will not simply transfer Dr. Strege into a principal position. At this time, no principal position is open since the anticipated resignation/retirement of one principal has not occurred. If, and when, a principal position opens, Dr. Strege may apply for consideration for employment in that position along with and on the same basis as any other candidate that may apply. If selected, Dr. Strege would be employed pursuant to the terms and conditions of the principals’ collective bargaining agreement. Dr. Strege would be employed as a probationary employee pursuant to the provisions of Minn. Stat. § 122A.40.
A few days later, the school district posted an open position for the Lindbergh position, and Dr. Strege asked the superintendent to consider her as a candidate. Dr. Strege was not interviewed for that job, and the school district hired someone else.
During the next three months, the school district offered three different positions to Dr. Strege. On May 25, 2000, the school district offered the Talented and Gifted/Program Assessment and Development position to her as an at-will employee. Dr. Strege rejected the offer. The school district offered the same position to her on June 15, 2000, but with Dr. Strege being employed as a continuing-contract teacher. She rejected this offer. Finally, on July 11, 2000, the school district offered to employ Dr. Strege as a teacher for the second or the fourth grade. Dr. Strege declined the offer. Dr. Strege’s reason for rejecting the employment offers was that none was for a principal position. In May 2001, Dr. Strege learned that she was now also qualified to hold a middle school principal position.
The school board reinstated Dr. Strege to her position of Director of Teaching and Learning, effective July 1, 2001. Between May 2000 and her reinstatement, Dr. Strege applied for a variety of positions in education in Minnesota but was not hired for any of them. During that period she worked part time with the Minnesota Department of Children, Families, and Learning and received unemployment-insurance benefits.
After the school board eliminated Dr. Strege’s position and declined to classify her as a continuing-contract teacher, she sought certiorari review in this court. Strege v. Indep. Sch. Dist. No. 482, No. C1-00-867(Minn. App. Dec. 19, 2000). We held that she was entitled to rights as a continuing-contract teacher, and we remanded for a determination of the positions she was qualified for and whether she was entitled to back pay.
On remand, the school board convened a hearing before a hearing officer. The school board adopted the hearing officer’s findings and conclusions, determining that Dr. Strege had only conditionally accepted the Lindbergh offer; that, because the school board did not accept the conditions, the position lapsed as a matter of law; that Dr. Strege’s reasons for not accepting the other positions offered to her were not sufficient as a matter of law; that Dr. Strege had failed to mitigate her damages; that the school board offered to her all positions that became available after her job was discontinued; and that she is not entitled to back pay. On review, Dr. Strege challenges the school board’s determinations that she is not entitled to back pay and that she failed to mitigate her damages.
D E C I S I O N
The proper standard of review requires that this court determine whether the school board's action was fraudulent, arbitrary, unreasonable, unsupported by substantial evidence, not within its jurisdiction, or based on an error of law. Foesch v. Independent Sch. Dist. No. 646, 300 Minn. 478, 485, 223 N.W.2d 371, 375 (1974).
The reviewing court cannot substitute its own findings for those of the school board. Downie v. Indep. Sch. Dist. No. 141, 367 N.W.2d 913, 916 (Minn. App. 1985), review denied (Minn. July 26, 1985). A court acts in an appellate capacity by reviewing the school board's record, and the burden of making a sufficient record falls on the school board record to prove its actions were justified. Dokmo v. Indep. Sch. Dist. No. 11, Anoka-Hennepin, 459 N.W.2d 671, 675-76 (Minn. 1990). The record for judicial review consists of the proceedings and actions of the board. Id. at 676. If the school board’s findings are insufficient, the reviewing court can either remand for additional findings or reverse for lack of substantial evidence supporting the decision. Id. at 675. Substantial evidence is evidence upon which reasonable minds can rely in arriving at a conclusion after reviewing the record as whole. Downie, 367 N.W.2d at 916.
Dr. Strege argues that the school board’s action was arbitrary, unreasonable, not supported by substantial evidence, and based on erroneous theories of law because: (1) it failed to make a determination that she was qualified to be a middle school principal and failed to award her full back pay for a middle school principal position; and (2) her right to full back pay was not extinguished by either common law or Minnesota statutes, nor did she fail to mitigate her damages as a matter of law.
Dr. Strege argues that she was entitled to be bumped into a middle school principal position because she had greater seniority than a middle school principal in the district and that, consequently, she should have received back pay equivalent to that position.
In May 2001, Dr. Strege discovered that her existing elementary principal license qualified her to be a middle school principal. The school board concluded that Dr. Strege was “qualified to hold an elementary principal position, an administrative position, and an elementary teaching position as of June 30, 2000.” However, there is no evidence in the record suggesting that Dr. Strege was qualified to be a middle school principal as of her effective termination date, June 30, 2000. She became qualified for such a position as of July 1, 2001. We also find no evidence that in June 2000 Dr. Strege ever asked to be bumped into a middle school principal position. Therefore, we find no error in the school board’s refusal to award Dr. Strege back pay equivalent to a middle school principal’s position.
Right to Back Pay for an Elementary School Principal Position
Dr. Strege argues that she has a right to complete back pay for an elementary principal position, including benefits and interest. She argues that common-law contract rules, with respect to determining her rights to reinstatement and back pay, do not apply to the school board’s initial offer of the Lindbergh Elementary School position and that her response to the offer was not a counteroffer. We disagree.
A contract is formed through a process of offer and acceptance. S O Designs USA, Inc. v. Rollerblade, Inc., 620 N.W.2d 48, 53 (Minn. App. 2000), review denied (Minn. Feb. 21, 2001). An acceptance is valid and creates a binding contract if it is “made in unequivocal and positive terms which comply exactly with the requirements of the offer.” Minar v. Skoog, 235 Minn. 262, 265, 50 N.W.2d 300, 302 (1951) (emphasis omitted). If an acceptance varies from the terms of the offer, it constitutes a counteroffer and operates as a rejection of the offer. Crince v. Kulzer, 498 N.W.2d 55, 57 (Minn. App. 1993). A counteroffer does not give rise to a completed contract until it is accepted by the original offeror. Abrahamson v. Abrahamson, 613 N.W.2d 418, 423 (Minn. App. 2000).
Here, the school board concluded that the superintendent made a bona fide offer to Dr. Strege for the Lindbergh Elementary School principal position on two separate occasions. The board also concluded that Dr. Strege’s March 24 letter was a conditional acceptance to which the board did not respond and that the offer then lapsed as a matter of law. If the time for acceptance of an offer is limited, the limit is absolute and time is of the essence. Callender v. Kalscheuer, 289 Minn. 532, 533, 184 N.W.2d 811, 812 (1971). Under Minnesota law, the school board cannot appoint a new teacher to an open position if there is available a properly licensed teacher who is on unrequested leave of absence (ULA). Minn. Stat. § 122A.40, subd. 11(f) (2000). The teacher on ULA must inform the school board within 30 days of the date of notification that a position is available. Id.
Based on Dr. Strege’s hearing testimony and an affidavit, she understood the superintendent’s statements in February and March 2000 to be bona fide offers of employment to her for the Lindbergh Elementary School principal position. She also states that she did not initially accept or reject the position because the existing principal had not provided her formal resignation nor had the school board officially eliminated Dr. Strege’s position. She thus argues that, because she was not on ULA when the offers were made or even after they were made, she was not bound to respond within 30 days of those offers, nor was she specifically informed that there was a time limit to respond.
The record is clear that the offers were made prior to the elimination of Dr. Strege’s position and that she was never placed on ULA. However, despite her awareness that her position was going to be eliminated, she never unequivocally and unconditionally accepted the school board’s offer for the elementary principal position, but merely indicated her interest to be considered for the position.
The school board evidently interpreted the statutory 30-day time limit to apply to Dr. Strege and thus determined that her right to accept the position lapsed as matter of law. By not accepting the position in a timely fashion, the district was free to offer the position to someone else. See Shaner v. Indep. Sch. Dist. No. 2884, Red Rock Cent., Minn., 604 N.W.2d 803, 805 (Minn. App. 2000) (once relator declines offer, district is free to offer position to next most senior teacher), review denied (Minn. Mar. 28, 2000) The school board hired an elementary principal from outside of Minnesota.
If a senior teacher whose position is discontinued is licensed for a position held by a less-senior teacher, the senior teacher is entitled to bump the less-senior teacher directly or through a realignment of other staff positions, provided that the senior teacher is appropriately licensed for the position sought.
Moe v. Indep. Sch. Dist. No. 696, 623 N.W.2d 899, 902-03 (Minn. App. 2001) (citation omitted). Because Dr. Strege was more senior than the probationary teacher and was qualified for the elementary principal position, she would have been entitled to bump into that position.
In light of the school board’s failure to place Dr. Strege on ULA, she was not rightfully bumped into the elementary-principal position. Under Minnesota law, “if judicial review eventuates in reinstatement of the teacher, the board must pay the teacher all compensation withheld as a result of the termination or dismissal order.” Minn. Stat. § 122A.40, subd. 17 (2000). See Pearson v. Sch. Bd. of Indep. Sch. Dist. No. 381, 356 N.W.2d 438, 441-42 (Minn. App. 1984) (stating that board shall pay teacher all compensation withheld as a result of termination).
However, it is also established in Minnesota that a wrongfully discharged employee has an obligation to mitigate his or her damages after discharge. Soules v. Indep. Sch. Dist. No. 518, 258 N.W.2d 103, 106 (Minn. 1977); Stevens v. Sch. Bd. of Indep. Sch. Dist. No. 271, 296 Minn. 413, 415, 208 N.W.2d 866, 868 (1973). Generally, if a wrongfully discharged employee fails to make a reasonable effort to pursue or unreasonably declines to accept other employment, the rule of avoidable consequences may prevent the employee from recovering the full amount of the salary. Soules, 258 N.W.2d at 106. The school district has the burden to prove a failure to mitigate. Id. at 107.
Thus, Dr. Strege’s duty to mitigate her damages did not go away. The record is clear that the school board offered Dr. Strege numerous available positions after June 30, 2000, for which she was fully qualified. Dr. Strege stated that she rejected each of these offers because they were not for a principal position and that acceptance would require her to waive her rights to ULA and reinstatement/bumping. The school board determined that her rejections were not sufficient as a matter of law. The evidence supports the school board’s conclusions. See Soules, 258 N.W.2d at 107-08 (noting that teacher’s fear that she would lose tenure with school district if she accepted employment in a private school was insufficient reason to support finding that she made reasonable efforts to secure employment). Nothing in the record suggests that the school board acted in a fraudulent, arbitrary, or unreasonable manner. Because the school board’s findings are supported by substantial evidence and we will not replace them with our own findings, we conclude that Dr. Strege is not entitled to back pay because she failed to mitigate her damages.
Dr. Strege argues that nine passages in the school district’s brief are without accurate citation to or support in the record. Minn. R. Civ. App. P. 128.02 requires that “[e]ach statement of a material fact shall be accompanied by a reference to the record, as provided in Rule 128.03.” Minn. R. Civ. App. P. 128.03 requires that any reference made in the briefs to an appendix or to a portion of the record be cited with specific pages. We have determined that three of the nine passages in the school district’s brief are without support in the record.
First, page 3 of the school district’s brief refers to discussions between counsel and to Dr. Strege’s middle school principal license:
Discussions occurred between counsel relating to various bumping or realignment scenarios proposed by Appellant which would have resulted in Appellant being reassigned to a principal position. Each scenario was flawed because of a license or seniority issue. On June 12, 2001, the School Board was informed that Appellant had obtained a letter from the Department of Children, Families and Learning (“CFL”) that Appellant’s elementary principal license would qualify her for the Middle School Principal position. Consequently, Appellant urged that she bump Dr. Bill Turk (“Turk”), the current Middle School Principal, because she had greater seniority than Turk.
The school district concedes that the first sentence pertaining to discussions between counsel is not in the record and has no objection to striking the sentence from the record. We also do not find the other two sentences in the record. Second, the reference in respondent’ s brief on page 10 to “Mr. Michael Tillman” does not appear in the record. Third, page 20 of the school district’s brief states that when the school district offered Dr. Strege the position of Talented and Gifted/Program Director on May 25, 2000, she would have been retained on the respondent’s seniority list. But the job description for this position explicitly states that the position is “Employee at Will status (employee is not a member of a bargaining unit).” Consequently, we grant Dr. Strege’s motion to strike those portions of the school district’s brief as found on pages 3, 10, and 20. We deny her motion to strike as to the other pages.
Affirmed; motion granted in part.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.