This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-1347

Thomas S. Wagner,

Appellant,

vs.

Minneapolis Public Schools, Special

School District No. 1,

Respondent.

Filed January 14, 1997

Reversed.

Norton, Judge

Hennepin County District Court

File No. 95015148

Jesse Gant, III, Gant Law Office, 500 Flour Exchange Building, 310 South 4th Street, Minneapolis, MN 55415 (for Appellant)

J. Dennis O'Brien, Karen A. Janisch, Shawn O. Miller, Rider, Bennett, Egan & Arundel, 2000 Metropolitan Center, 333 South 7th Street, Minneapolis, MN 55402 (for Respondent)

Considered and decided by Norton, Presiding Judge, Huspeni, Judge, and Forsberg, Judge.[*]

U N P U B L I S H E D O P I N I O N

NORTON, Judge

Respondent school district discharged appellant, alleging misconduct. Appellant requested and received a veterans preference hearing before an administrative law judge (ALJ), who recommended that the civil service commission affirm the school district's decision. The civil service commission adopted the ALJ's findings, but found extenuating circumstances and modified the discipline to a 90-day suspension.

The district court reversed the civil service commission and reinstated appellant's discharge. We reverse the district court and reinstate the civil service commission's decision that extenuating circumstances justified suspending appellant, rather than discharging him.

FACTS

In 1989, the school district hired Thomas Wagner, a veteran, as an engineer (custodian). His work record was good, and in May 1994, he was recommended for a promotion.

Wagner was popular with students, and some students stayed after school to help him with his tasks. Upon their request, Wagner gave students A.C. and S.N a dollar when they helped him.

On one occasion, in 1994, Wagner held A.C. and J.C. by the wrists and twirled them around in the gym. A.C. asked him to stop, but he did not stop immediately. A.C. broke loose and then Wagner let go of J.C., who fell to the floor and cried.

In May 1994, Wagner gave A.C. and S.N. permission to go on the school roof. He told them that if anyone saw them, they should say they were looking for tennis balls. Three or four teachers knew the children were on the roof yet did not make them come down; in fact, one teacher asked them to look for a ball.

Two days later, Wagner played "flashlight tag" for about an hour with several children after school in darkened rooms. When the children would not leave at the end of the game, Wagner picked up one child by the elbows to remove her from the building. The next day, Wagner did not allow the children to play tag, and they started splashing water on him. He fended off the water with a piece of plywood and, at one point, he chased the children with a cup of water.

During the school's investigation of the above incidents, the police indicated that Wagner was a suspect in a number of rape cases.[1] The school district discharged Wagner following an investigation and a veterans preference hearing.[2]

D E C I S I O N

A veteran may not be removed from a position with a school district "except for incompetency or misconduct." Minn. Stat. § 197.46 (1994). A veteran is entitled to a hearing to determine whether he was removed for misconduct. Id.

When determining whether Wagner's discharge was appropriate, the civil service commission was required to perform two functions: (1) determine whether the school district acted reasonably in discharging Wagner; and if so, (2) determine whether there were extenuating circumstances that justified modifying the discharge. See In re Schrader, 394 N.W.2d 716, 801-02 (Minn. 1986).

The commission modified Wagner's sanction, providing detailed findings, and the school district appealed the commission's order to the district court, pursuant to Minn. Stat. § 197.46. Although Wagner has appealed from the district court's decision, we independently examine the commission's record and decision. See State ex rel. Laux v. Gallagher, 527 N.W.2d 158, 161 (Minn. App. 1995) (this court does not give any deference to district court's review); Myers v. City of Oakdale, 461 N.W.2d, 242, 244 (Minn. App. 1990). We review the findings of the commission to determine whether they are supported by substantial evidence. Schrader, 394 N.W.2d at 801. We may not substitute our findings "unless manifest injustice would result." Pawelk v. Camden Township, 415 N.W.2d 47, 50 (Minn. App. 1987). We do not resolve conflicts in the evidence or the inferences to be drawn therefrom. State ex rel. Jenson v. Civil Serv. Comm'n of City of Mpls., 268 Minn. 536, 538, 130 N.W.2d 143, 146 (1964).

The parties do not dispute that Wagner committed misconduct and that the school district acted reasonably in disciplining him. The issue is whether the commission erred by reducing the sanction from a discharge to a 90-day suspension. See Laux, 527 N.W.2d at 163-64 n.3 (noting that appellate court may conclude that extenuating circumstances are insufficient as a matter of law to support modification of sanction). The commission cited five extenuating circumstances in support of its decision to reduce Wagner's sanction.

1. Good employee.

The record supports the commission's finding that Wagner was a good worker, received annual pay increases during his employment with the school district, and was being considered for a promotion just prior to his suspension and subsequent discharge. The record also supports the commission's finding that Wagner "was seen as a good influence on the children" and

was viewed by staff as interacting well with the children and seen as a good role model, someone they trusted to be with impressionable children.

One teacher submitted a letter stating: "I have observed [Wagner] to be very patient, kind, and respectful to students." Another teacher testified that he assumed the students liked Wagner, based on the fact that they stayed after school to be with him. Wagner's supervisor testified that the students seemed to like Wagner. Another teacher, who was also a parent of a student, submitted a letter stating that she had observed Wagner "behaving with my child in much the same way I would ask most people." She characterized Wagner as "a good role model, and someone that I trusted to be with an impressionable child."

2. Lack of prior discipline in six years of employment.

The record supports the commission's finding that the cited misconduct was the first in Wagner's six years of employment; prior to the incidents in May 1994, Wagner had received no discipline.

The supreme court has stated that an employee's length of service may be considered when determining appropriate discipline. Ramsey County Community Human Servs. Dept. v. Davila, 387 N.W.2d 421, 430 (Minn. 1986). In another situation, the court noted that an employee's "long and able service * * * would not be sufficient to justify a discharge." Leininger v. City of Bloomington, 299 N.W.2d 723, 728 (Minn. 1980); see also Laux, 527 N.W.2d at 162-64 (affirming commission's modification of employee's discharge to a 90-day suspension based, in part, upon the employee's length of satisfactory service).

In Davila, the court held that the length-of-service factor was insufficient to support a reduction in discipline because the employee's behavior "was so egregious and continued for such a length of time." Id. at 430. The misconduct in Davila consisted of persistent sexual harassment between 1977 and 1983. Id. at 422-26. In contrast, Wagner's misconduct was limited to a three-day period.

The commission noted that Wagner did not receive a warning or a suspension without pay. The commission cited its civil service rules, which provide that suspensions are appropriate in situations involving misconduct. Minneapolis Civil Service Commission Rule 11.04 C. As the commission pointed out, Rule 11.04 E. states: "Discharge of an employee is appropriate for persistent substandard performance, gross or repeated misconduct, or severe initial misconduct." The record supports the commission finding that Wagner's conduct in May 1994 did not constitute gross or repeated conduct or severe initial conduct requiring discharge.

3. No rule prohibiting interaction with students.

The school district based its decision to discharge Wagner in part on a claim that he had violated Minneapolis Civil Service Rule 11.03 B.18, prohibiting violation of city ordinance or department rules, policies, or procedures. The commission correctly found that the school district had no rules governing staff interaction with students. Moreover, the school district admits that there are no such published rules or policies.

4. Failure to sanction other employees for similar conduct.

The record indicates that school staff knew that students went on the roof; another teacher paid students for helping him with tasks; and the same teacher once lost his temper, grabbed a student's arm and hauled him out of a classroom and into a hall. Those other staff members were not discharged, or even disciplined, for their conduct. The school district's failure to discipline other staff members for similar behavior weakens the school district's argument that Wagner's misconduct was "severe," and supports the commission's reduction in his sanction. See Laux, 527 N.W.2d at 162-64 (affirming modification of discharge based, in part, on the fact that the employer did not discharge other employees for similar conduct).

5. Consideration of unproven criminal accusations and prior criminal convictions.

The commission found that the school district considered Wagner's prior criminal convictions when deciding to discharge him. The evidence on this issue is disputed, but we need not address the parties' arguments, because we conclude the other four extenuating circumstances are sufficient as a matter of law to support the commission's reduction in Wagner's sanction.

Reversed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 2.

[ ]1 Despite the police allegations and DNA testing, Wagner was never charged with committing the rapes.

[ ]2 The school district did not cite the twirling incident in the gym as a reason for the discharge.