This opinion will be unpublished and

may not be cited except as provided by

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






Anthony Brown,





St. Paul Department of Fire & Safety Services,



Filed December 21, 2004


Gordon W. Shumaker, Judge


Ramsey County District Court

File No. C9-03-003591




John A. Fabian, Nichols Kaster & Anderson, PLLP, 4644 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)


Manuel Cervantes, St. Paul City Attorney, Gail L. Langfield-Seiberlich, Assistant City Attorney, 400 City Hall and Courthouse, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)



            Considered and decided by Shumaker, Presiding Judge; Halbrooks, Judge; and Huspeni, Judge.*


U N P U B L I S H E D   O P I N I O N


Appellant Anthony Brown appeals from a district court order sustaining the decision of the St. Paul Department of Fire and Safety Services to terminate his employment as a firefighter recruit.  Brown argues that (1) the district court erred in determining that there was substantial evidence supporting his termination; (2) the findings and conclusions of the Veterans Preference Board were not supported by substantial evidence in the record; and (3) that the district court failed to consider any extenuating circumstances justifying a modification of the decision to terminate his employment.  Because the district did not err and the findings and conclusions of the Veterans Preference Board are supported by substantial evidence, we affirm.


Anthony Brown is an honorably discharged veteran who entered the firefighter recruit academy with the city of St. Paul on July 8, 2002.  The recruit academy is a twelve-week course encompassing both written skills and physical tasks.  The recruit manual states that recruits will be given weekly written and practical skills examinations and are expected to score a minimum of 75% on those weekly examinations.  Recruits are also given quarterly, midterm, and final written and practical examinations, all of which require a minimum of 75% to pass.  Failure to achieve the minimum standards results in an administrative review to determine continuation in the academy.  In some instances, a recruit is permitted to retest to demonstrate mastery of the material.  However, the retest does not remove the original failure from the recruit’s record.  There are no written guidelines or policies for the administration of retests.  The academy also offered tutoring and mentoring in July 2002 to assist the recruits with their performance on the written skills examinations. 

Brown failed several of the required practical-skills tests, leading to an administrative review conducted by the training chief, human resources, and the chief of operations.  Specifically, Brown failed five tests: (1) mid-term practical circuit examination, (2) week-five written examination, (3) knot tying, (4) first-quarter circuit examination, and (5) donning SCBA (self contained breathing apparatus).  Brown was permitted to retest on all skills except the mid-term practical circuit examination.  An administrative review was conducted on August 2, 2002, at which time Brown was told that any future failures would result in his termination from the academy.  One week after the administrative review, Brown again failed his week-five written test.  After failing the mid-term practical examination on August 16, 2002, Brown was notified by Fire Chief Timothy Fuller of his intent to terminate Brown from the academy.

The fire chief has some discretion to allow an individual to remain in the academy despite poor test scores.  Brown met with Chief Fuller on August 22, 2003, to discuss his test scores and performance in the academy.  Chief Fuller testified that he was keeping an open mind regarding Brown’s termination, although Brown’s locker had been cleaned out two days prior to their meeting.  Despite the meeting, Chief Fuller decided to terminate Brown from the academy.

Brown appealed the chief’s decision to the Saint Paul Civil Service Commission, and, following a two-day hearing, the commission, acting as the Veterans Preference Board, upheld Brown’s termination.  Brown then appealed to the district court in accordance with Minn. Stat. § 197.46 (2002).  The district court granted respondent’s motion for summary judgment, and this appeal followed.


Standard of Review

An appellate court reviews the adequacy of the findings of Veterans Preference Board to determine whether the findings are supported by substantial evidence.  State ex rel. Laux v. Gallagher, 527 N.W.2d 158, 161 (Minn. App. 1995).  “In reviewing the actions of the hearing board, this court is to determine whether or not the hearing board abused its discretion.”  Id.  This court does not accord any deference to the district court’s review of the board.  Id.  “The Veterans Preference Board’s determination of incompetency must be upheld if it is supported by substantial evidence.”  Pawelk v. Camden Township, 415 N.W.2d 47, 50 (Minn. App. 1987).  “Substantial evidence is 1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; 2) more than a scintilla of evidence; 3) more than ‘some evidence;’ 4) more than ‘any evidence;’ and (5) evidence considered in its entirety.”  Id.

1.         Substantial evidence of just cause

            Brown argues that the commission abused its discretion in determining that there was substantial evidence in the record supporting the decision to discharge him from the academy. 

            The Veterans Preference Act states that a veteran may not be removed from a public-sector employment position “except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, in writing.”  Minn. Stat. § 197.46 (2002).  This standard has been equated with the standard for terminating a civil-service employee for just cause.  Caldwell v. City of Minneapolis, 486 N.W.2d 151, 153 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992).  “Just cause” has been further defined by the terms found in the jury instruction guides.  Deli v. Univ. of Minn., 511 N.W.2d 46, 52 (Minn. App. 1994), review denied (Minn. Mar. 23, 1994).  “A termination is for good cause if [employee] breached the standards of job performance that [employer] established and uniformly applied.”  4 Minnesota Practice CIVJIG 432 (1999).  When an honorably discharged veteran is terminated from a public-sector job, the termination decision may be reviewed by the [Veterans Preference Board].  Minn. Stat. § 197.46.  The board determines (1) if the employer has acted reasonably and (2) whether extenuating circumstances exist justifying a modification of the sanction.  In re Schrader, 394 N.W.2d 796, 802 (Minn. 1986).

            The record contains sufficient evidence to support the decision to terminate Brown from the academy.  Brown was aware of the academy’s performance expectations and yet failed five of the required tests.  After Brown failed the quarterly skills circuit evolution test, an administrative review was conducted.  Brown was informed at this time that his performance would have to improve or he would be subject to termination.  One week after the administrative review, Brown failed the week-five written test.  Although Brown was allowed to take retests for certain examinations, there is no evidence to support the contention that retests are routinely given.  Further, the retest does not remove the original failure from the recruit’s record.  Finally, Assistant Chief Hawkins testified that Brown was having difficulty keeping up physically with the rest of the recruits, and Captain O’Keefe testified to concerns regarding Brown’s ability to complete the required physical activities.  Therefore, the commission did not abuse its discretion in concluding that Brown’s termination was reasonable.

2.         Consideration of extenuating circumstances

Brown argues that the commission abused its discretion in failing to determine whether extenuating circumstances existed to justify modifying the decision to terminate.  Under Schrader, the commission is required to list those extenuating circumstances it relied upon in modifying a disciplinary sanction “if, in fact, the [commission] concludes that modification is proper.”  394 N.W.2d at 802.  The district court correctly noted that the commission was not required to identify extenuating circumstances because there was no modification of the decision to terminate Brown.  Therefore, the commission did not abuse its discretion.

3.         Findings of fact and conclusions of the commission

            Brown next contends that four findings of fact and two conclusions of the commission were not supported by substantial evidence.

The commission found that “[t]he Fire Department assigned a tutor, Brian Lagos, to help Mr. Brown after the August 2, 2002 review.  Mr. Lagos testified that Mr. Brown did not take full advantage of the opportunity to use the tutor.”  There is sufficient evidence in the record to support the commission’s finding.  Lagos testified that Brown did not spend a significant amount of time at the tutoring and mentoring sessions and appeared to have other things going on that required his attention.  Lagos further testified that at one tutoring session, Brown attended for only five to ten minutes and did not formally request tutoring until August 1, despite failing two required examinations in July.  The evidence supports the commission’s finding that Brown did not maximize the available tutoring and mentoring opportunities. 

            The commission found that Brown “met with Chief Fuller on August 22, 2002.  Based on that meeting and Mr. Brown’s record, Chief Fuller chose to proceed with termination.”  This finding is also supported by the record.  Chief Fuller testified that he spoke with Assistant Chief Hawkins regarding Brown’s performance and progress prior to the August 22 meeting and it was determined that Brown was not able to keep up with the other recruits.  Brown even acknowledged this concern during the meeting, stating that he felt he was not as fast as the younger recruits.  Chief Fuller stated that he was concerned with Brown’s lack of improvement overall and his continued difficulty with the equipment.  Brown argues that the fact that his locker had been cleaned out prior to the August 22 meeting demonstrates that his subsequent termination was predetermined.  However, Chief Fuller testified that he had no idea Brown’s locker had been cleaned out and came to the meeting with an open mind.  Finally, the August 22 meeting was not required by the academy manual and any additional consideration given to Brown’s termination was beyond that which had already been provided through the administrative reviews. 

The commission found that “Captain Michael O’Keefe, an instructor in the Academy who observed Mr. Brown daily, testified that Mr. Brown was slow on laps and on stairs and that Mr. Brown was having trouble keeping up academically and physically.”  Captain O’Keefe testified that Brown did just enough to get through the physical activity and was given an “unsatisfactory” score on his weekly physical fitness evaluation.  Captain O’Keefe further testified that Brown needed to improve his physical conditioning and had been informed of this deficiency in his performance.  Brown argues that the subjective opinions of the trainers were insufficient evidence that his performance was unsatisfactory.  But the academy manual clearly states that the evaluation process includes ongoing observations by the instructor staff and, therefore, the opinions of the trainers were appropriately considered in assessing Brown’s progress.  The commission’s finding is supported by the record.

            The commission found that “Chief Hawkins, Training Chief, testified that Mr. Brown lagged behind in stair climbing and was having problems academically.”  This finding is supported by the record.  Brown’s academic difficulties are evidenced by his failure on five required examinations.  At his first administrative review on August 2, 2002, Brown was further cautioned that his performance would have to improve.  Assistant Chief Hawkins testified that Brown “lagged behind the other recruits on a regular basis.”  The record contains ample support for the conclusion that Brown was struggling with the academy requirements.

            The commission concluded that “Mr. Brown did not meet the minimum requirements set forth in the Recruit Academy Manual.”  This conclusion is supported by the record.  The manual states that failure of a mid-term examination or any two skills test will result in a review to determine the recruit’s continuation at the academy.  Brown repeatedly failed the required academic and practical skills examinations.  At the August 2, 2002, review, Brown was strongly encouraged to improve his performance.  Brown continued to fail to meet the minimum score necessary to pass the required examinations and failed both the week-five written and mid-term practical circuit evolution examinations. 

            The commission also concluded that “the Saint Paul Fire Department administration acted reasonably in giving Mr. Brown adequate training, opportunity to improve and adequate notice of expectations.  The Department had reason to terminate Mr. Brown from the recruit academy based upon his failure to meet the physical and academic requirements for a graduate.”  This conclusion is also supported by the record.  Assistant Chief Hawkins testified that the trainers consider the written test scores, practical scores, as well as daily training observations in making decisions about a recruit’s continuation with the academy.  Given that Brown failed more than one required examination, was offered tutoring and mentoring services but did not take full advantage of them, had a previous administrative review on August 2, 2002, and was observed by the trainers as struggling with the physical demands of the academy, the commission’s conclusion that the department acted reasonably is supported by the record.


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