This opinion will be unpublished and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

C2-96-1617

Thomas J. Wangen,

Respondent,

vs.

City of Rochester,

Relator,

Commissioner of Veterans Affairs,

Respondent.

Filed January 28, 1997

Affirmed

Norton, Judge

Office of Administrative Hearings

File No. 5-3100-9755-2

James T. Hansing, 840 Midland Square, 331 Second Avenue South, Minneapolis, MN 55401 (for respondent Wangen)

Terry L. Adkins, Rochester City Attorney, Sarah L. Clayton, Assistant City Attorney, Room One, City Hall, Rochester, MN 55902 (for relator)

Considered and decided by Peterson, Presiding Judge, Norton, Judge, and Willis, Judge.

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

NORTON, Judge

Relator contends the Commissioner of Veterans Affairs erroneously determined that respondent had not voluntarily resigned from his employment and was removed from his position without notice and a hearing in violation of the Veterans Preference Act, Minn. Stat. § 197.46 (1994). We affirm.

FACTS

Respondent Thomas J. Wangen, a 47-year-old, honorably discharged veteran, was a full-time employee of relator City of Rochester (city) working as a buyer for the Rochester Public Utilities (RPU). During the course of an internal investigation in 1992, Wangen told RPU's general manager that his immediate supervisor had sexually harassed him. At the conclusion of the investigation, Wangen's supervisor received a remedial sanction, but retained his employment. As a result of Wangen's cooperation with the investigation, his supervisor became increasingly hostile and harassing.

From 1992 to 1994, Wangen repeatedly complained to RPU's general manager about his hostile working environment. On October 7, 1994, the general manager announced a reorganization of Wangen's department, but did not address how the reorganization would remedy Wangen's continuing complaints. On that same day, Wangen submitted a letter to the general manager outlining his continued concerns and stating only that he would "not report for work at RPU on October 10, 1994."

On October 10, RPU's general manager wrote Wangen a letter indicating that he construed the October 7 letter as a letter of resignation. Wangen's attorney then responded that Wangen had no intention of voluntarily resigning, but intended to resume his duties as soon as RPU agreed to take action regarding his concerns. The city attorney responded that RPU considered Wangen's letter to be a voluntary resignation and that the matter was closed.

Wangen applied for relief under the Veterans Preference Act, Minn. Stat. § 197.46 (1994) (VPA). After a hearing before an administrative law judge (ALJ) on whether Wangen resigned his employment, the ALJ determined that the city had violated the VPA by demoting and removing Wangen without notifying him of his right to a hearing. The Commissioner of Veterans Affairs adopted the ALJ's decision. The city appeals.

D E C I S I O N

The party seeking review on appeal has the burden of proving that the agency decision violates constitutional provisions, exceeds statutory authority, is made on unlawful procedure, is affected by other error of law, is unsupported by substantial evidence in view of the entire record submitted, or is arbitrary and capricious. Markwardt v. State, Water Resources Bd., 254 N.W.2d 371, 374 (Minn. 1977).

The Minnesota Veterans Preference Act provides in part:

No person holding a position by [public] employment * * *, who is a veteran separated from the military service under honorable conditions, 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 position of 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).

In challenging the conclusion that Wangen was removed from employment and entitled to a hearing under the VPA, the city contends that the Commissioner erred in determining that Wangen had not resigned via the October 7 letter. We disagree. Wangen's letter did not state that he was resigning, terminating, or leaving RPU, nor did his conduct reveal any intent to quit his employment. See Lewis v. Equitable Life Assurance Soc., 361 N.W.2d 875, 879 (Minn. App. 1985) (communication about job termination must be particular and definite), aff'd in part, rev'd in part on other grounds, 389 N.W.2d 876 (Minn. 1986).

Further, we are not persuaded by the city's argument that it interpreted the letter as a resignation because it believed that Wangen knew his supervisor was no longer an RPU employee. The city has not directed us to any evidence to support that argument. On the contrary, the record shows that Wangen first learned at the evidentiary hearing that his immediate supervisor had left RPU.

In addition, despite written clarifications from Wangen and his attorney that he was not resigning his position, the city ignored his explanation and continued to insist that he had resigned. The city had also failed to respond to Wangen's repeated complaints about his treatment and work environment. Cf. Peck v. Employment Appeal Bd., 492 N.W.2d 438, 440 (Iowa App. 1992) (holding employee had not evinced intent to leave employment when he left early, because he expressed desire to meet next day with management to discuss grievances about work conditions). This evidence amply supports the Commissioner's determination that Wangen had not resigned.

The Commissioner also found, however, that even if Wangen had intended to resign in the October 7 letter, the circumstances here constitute a constructive discharge. "A constructive discharge occurs when an employee resigns in order to escape intolerable working conditions." Continental Can Co. v. State, 297 N.W.2d 241, 251 (Minn. 1980). The employer must have created the intolerable working conditions "with the intention of forcing the employee to quit." Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir. 1981). The employee must prove the employer intended the reasonably foreseeable consequences of its actions, i.e. the employee's resignation. Hukkanen v. International Union of Operating Eng'rs, 3 F.3d 281, 284-85 (8th Cir. 1993). The court may infer the employer's intent from evidence that the employee's resignation was a reasonably foreseeable result of the employer's conduct. Id. at 285. A reasonable person standard is used to determine whether the conditions were in fact intolerable. Id.

While the hearing officer is clearly required to make findings of fact on which to base a legal conclusion as to whether or not an employee was demoted or removed from an employment position, the ultimate question of whether a removal has occurred is one of law. Accordingly, the decision of the agency is fully reviewable by this court.

Gorecki v. Ramsey County, 437 N.W.2d 646, 649 (Minn. 1989).

The Commissioner found Wangen's immediate supervisor had "deliberately and overtly render[ed] his working conditions intolerable, in order to force him to resign." The record supports this finding. Wangen's immediate supervisor inhibited Wangen's ability to perform his job duties by excluding him from meetings and creating a hostile work environment. Furthermore, the Commissioner found that the city had actual and constructive knowledge of this continued harassment, but failed to remedy the problem. These facts resulted in Wangen's constructive discharge, which constituted a "removal" from his position.

The Commissioner also determined that the city had removed Wangen when it demoted him through department reorganization and failed to inform him of his right to a hearing. When an incumbent veteran is demoted or removed by virtue of a position reclassification, the VPA may be implicated. Id. at 649-59 (holding that where job duties and responsibilities were not in any way affected, position reclassifications did not constitute removal). A veteran is entitled to a hearing before being demoted. See Leininger v. City of Bloomington, 299 N.W.2d 723, 726 (Minn. 1980) (affirming demotion of police officer after board conducted evidentiary hearing and found misconduct). The city claims Wangen's job status remained virtually the same after reorganization, but the facts in the record show that the city eliminated Wangen's department, his supervisory powers, and his assistant, resulting in significant changes in his job.

We reiterate that a veteran "cannot be dismissed or demoted except for 'incompetency or misconduct.'" Id. (quoting Minn. Stat. § 197.46). The city here has not alleged either basis for Wangen's removal. Consequently, his removal, either by constructive discharge, demotion, or both, is per se invalid under Minn. Stat. § 197.46. The Commissioner properly concluded that Wangen was removed from his employment and ordered Wangen be reinstated to his position as a full-time supervisory buyer.

Affirmed.