This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat.§ 480A.08, subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
Brownell E. Mack,
Commissioner of Veterans Affairs,
Filed September 17, 1996
Department of Veterans Affairs
File No. 3-3100-9589-2
Thomas Bennett Wilson III, Gayle Gaumer, Wilson Law Firm, Suite 220, 4933 France Avenue South, Edina, MN 55410 (for Relator)
Michael O. Freeman, Hennepin County Attorney, Martin D. Munic, Assistant County Attorney, 2000A Government Center, Minneapolis, MN 55487 (for Respondent Hennepin County)
Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Relator Brownell E. Mack appeals the decision of the Commissioner of Veterans Affairs (Commissioner) dismissing his petition under the Veterans Preference Act (VPA) on the ground that Mack was not removed from his employment with Hennepin County. We affirm.
D E C I S I O N
On appeal to this court, the Commissioner's factual findings must be upheld if they are supported by substantial evidence on the record as a whole. Harr v. City of Edina, 541 N.W.2d 603, 605 (Minn. App. 1996). Whether a veteran has been "removed" is ultimately a question of law on which this court is free to exercise its independent judgment. Gorecki v. Ramsey County, 437 N.W.2d 646, 649 (Minn. 1989).
The VPA provides that 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 (1994). A veteran is "removed" from his or her employment when "the effect of the employer's action is to make it unlikely or improbable that the veteran will be able to return to the job." Myers v. City of Oakdale, 409 N.W.2d 848, 850-51 (Minn. 1987). A veteran who is not removed from employment by the employer's actions is not entitled to a hearing on the merits of his or her discharge. Anderson v. City of Minneapolis, 503 N.W.2d 780, 783 (Minn. 1993).
Here, the findings of the Commissioner supported by substantial evidence in the record demonstrate that: (1) Mack's supervisor, Simeon Wagner, experienced difficulty with Mack leaving work on personal matters and warned Mack that he must directly contact Wagner or the supervisor of the day when he would not be at work; (2) on July1994, Mack did not report to work and did not follow the procedure for reporting to the proper supervisor; (3) on July 6, Mack left work and did not follow the procedure for reporting; (4) on July 7 and 8, Mack neither reported to work nor contacted work; (5) on July 11 and 12 Mack left a message that he was going to a foot doctor, but did not speak with any supervisor; (6) on July 13, Mack called Wagner and told him he had a hip problem; Wagner requested medical documentation but did not authorize continued absence from work and Mack did not produce such documentation; (7) at the end of the pay period concluding July 9, Mack had less than one-half hour of sick pay remaining; (8) Mack did not report to work on July 14-15 or July 18-21 and did not advise the county of his location or request a leave of absence; (9) on July 20, Mack did not report to work; and (10) on July 21, Wagner drafted and read a letter to Mack stating that the county deemed Mack to have resigned his employment.
On these facts, we conclude Mack was not removed from his employment within the meaning of Minn. Stat. § 197.46. Mack was a member of the union and does not dispute that the bargaining agreement governing his employment with the county provided that he would be deemed to have resigned if he failed to report to work for three consecutive days without obtaining permission for the proper leave. There is no dispute Mack failed to report for work between July 5 and July 21, 1994, and there is support for the Commissioner's conclusion that he did not have permission for any leave during the time he was absent. Because Mack was not removed from his employment, he was not entitled to the statutory notice and hearing, and the Commissioner properly dismissed his petition.