Opinion
A15-0794
02-08-2016
Heather Kirchner, Relator, v. County of Nobles, Respondent.
Marshall H. Tanick, Teresa J. Ayling, Hellmuth & Johnson, PLLC, Edina, Minnesota (for relator) Ann R. Goering, Timothy A. Sullivan, Ratwick, Roszak & Maloney, P.A., Minneapolis, Minnesota (for respondent)
This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2014). Remanded; motion denied
Hooten, Judge
Ross, Judge, dissenting Nobles County Administration Marshall H. Tanick, Teresa J. Ayling, Hellmuth & Johnson, PLLC, Edina, Minnesota (for relator) Ann R. Goering, Timothy A. Sullivan, Ratwick, Roszak & Maloney, P.A., Minneapolis, Minnesota (for respondent) Considered and decided by Chutich, Presiding Judge; Ross, Judge; and Hooten, Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
In this certiorari appeal, relator seeks review of the alleged termination of her employment with respondent, as well as respondent's denial of post-termination remedies. Respondent has moved to quash the writ of certiorari, arguing that relator voluntarily resigned and that there is no quasi-judicial decision to support this court's exercise of jurisdiction. We conclude that the county's decision that relator was not entitled to post-termination remedies because she voluntarily resigned is a quasi-judicial decision subject to certiorari review. Because there were irregularities in the county's procedures and the record is insufficient for our review, we remand for a hearing and development of the record as to these issues and whether relator is entitled to pre-termination and post-termination procedures.
FACTS
This writ of certiorari was filed by relator Heather Kirchner, who was employed by respondent County of Nobles as a family and children's social services supervisor from February 27, 2012, until March 16, 2015, the date that she claims she was effectively terminated from her employment. Relator challenges the decision of the county that she voluntarily resigned her position and that she is not entitled to any of the due process procedures associated with termination of employment for cause. She claims that she was terminated or forced to resign and that the county, in violation of its policies and her constitutional right to due process, failed to provide her with pre-termination and post-termination hearings.
The Nobles County Personnel Policy handbook provides guidelines for the discipline and termination of county employees. The handbook requires that "[t]he degree of discipline administered will depend on the severity of the infraction and shall be in accordance with any applicable County policies and procedures as well as local, state or federal laws and regulations" and that "[a]ll discipline shall be for just cause." The most severe discipline, discharge, may be warranted for "serious" or "substantial reasons" or for "less serious" offenses if "the offenses have been documented by the supervisor and appropriate behavioral changes have not resulted from previous progressive disciplinary action."
The handbook provides the following procedures for discharge. "[P]rior to the . . . discharge of any employee," the employee is to be provided, in writing, notice of the reasons for the anticipated discharge and evidence supporting those reasons, an opportunity to respond to the charges with counsel or other representation at a "pre-disciplinary hearing" so that the employee may set forth, orally or in writing, "why the proposed action should not be taken." After the pre-disciplinary hearing, the county is to provide written notice to the employee, which includes the charges against the employee and a general statement of the findings of the hearing. A discharged employee then has a right of appeal to the county's personnel board of appeals, and will be able to present documentation "as to the events and reasons why the discharge may have been unjust."
On March 16, 2015, relator, without any prior notice, was called into a meeting with her supervisor, community services director Stacie Golombiecki, and county administrator Tom Johnson, who presented her with a letter signed by Johnson stating: "This letter constitutes formal notice to you that your employment with Nobles County is hereby terminated, effective immediately." The letter identifies as the bases for relator's discharge that (1) despite multiple reprimands, she continued to treat county employees disrespectfully and unprofessionally; (2) she failed to respond to truancy referrals in a proper and timely manner; and (3) she failed to properly screen child protection reports.
The parties dispute what happened next. The county characterizes the March 16 letter as a "proposed termination letter" and asserts that the meeting was an opportunity for relator to address concerns about her job performance before the county made a final decision whether to terminate her employment. According to the county, upon being presented with the letter, relator spontaneously tendered her written resignation. Relator asserts that, at the March 16 meeting, she was given a choice between termination and resignation, and told that she would be able to receive a payout for her accrued vacation and sick time if she resigned.
Notwithstanding the factual dispute over her reasons for doing so, it is undisputed that during the meeting, relator handwrote on a sheet of paper: "Dear Board, I resign from my position as supervisor immediately." The next day, the human-resources director sent relator a letter accepting the resignation.
A few days later, relator submitted a letter to the county administrator, attempting to grieve her separation from employment and requesting that she be reinstated. Relator asserted that the county had failed to follow its policy for employee discipline, that the asserted bases for her termination were unfounded, and that she had been subjected to a hostile work environment. Johnson sent a responsive letter notifying relator that employees who had resigned were not entitled to grievance procedures. Relator then sent a letter to the county's personnel board of appeals requesting that it "look into the allegations in my grievance further." By this time, relator had obtained legal counsel, who also sent a letter to the personnel board of appeals, asserting that relator's resignation was not voluntary and that the county had violated its own policies and relator's constitutional due process rights. Counsel for the county sent a responsive letter, reiterating the county's position that relator had voluntarily resigned and therefore no appeal was available to her.
Relator filed a petition for a writ of certiorari, and the county moved to quash the writ.
DECISION
I.
The threshold issue in this case is whether this court has certiorari jurisdiction. "Certiorari is an 'extraordinary remedy' only available to review judicial or quasi-judicial proceedings and actions; conversely, it is not available to review legislative or administrative actions." Minn. Ctr. for Envtl. Advocacy v. Metro. Council, 587 N.W.2d 838, 842 (Minn. 1999) (MCEA). The "three indicia" of a quasi-judicial action are "(1) investigation into a disputed claim and weighing of evidentiary facts; (2) application of those facts to a prescribed standard; and (3) a binding decision regarding the disputed claim." Id.
It is well-established that a decision by a county to discharge an employee for cause is a quasi-judicial decision subject only to certiorari review. See Willis v. County of Sherburne, 555 N.W.2d 277, 282 (Minn. 1996); Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992). Relator challenges the decision of the county that she voluntarily resigned and therefore is not entitled to any post-termination grievance procedures. Relator claims that at the meeting with her supervisors on March 16, 2015, she was terminated without a pre-termination hearing and that her post-termination resignation was coerced. Relator claims that, because her resignation was coerced, it is to be treated as a discharge for purposes of judicial review. See, e.g., Keyes v. District of Columbia, 372 F.3d 434, 439 (D.C. Cir. 2004); Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 174 (4th Cir. 1988).
On these facts, we conclude that the only issue properly before us for review is whether the county erred by denying relator's request for post-termination remedies. See, e.g., Overseas Commodities Corp. v. Dockman, 389 N.W.2d 254, 257 (Minn. App. 1986) (dismissing appeal as premature when further review was available under city ordinance). In rejecting relator's attempts to appeal her separation from employment, the county, relying on its personnel policies, made a quasi-judicial decision that "[t]he County grievance procedure does not apply to resignations." This application of county policy to specific facts bears the indicia of quasi-judicial decision-making. See MCEA, 587 N.W.2d at 842; see also Meath v. Harmful Substance Comp. Bd., 550 N.W.2d 275, 279 (Minn. 1996) (holding that quasi-judicial decisions are "those administrative decisions which are based on evidentiary facts and which resolve disputed claims of rights"). Accordingly, we conclude that this court has certiorari jurisdiction, and deny the motion to quash the writ.
The county also argues that relator does not have standing to bring a certiorari appeal because she was not aggrieved by the county's acceptance of her resignation, citing Banaszewski v. Indep. Sch. Dist. 199, No. C1-97-1795, 1998 WL 147877 (Minn. App. Mar. 31, 1998). In addition to being nonprecedential, see Minn. Stat. § 480A.08, subd. 3(b) (2014), Banaszewski is inapposite because the employee in that case filed a grievance raising constructive-discharge arguments but then failed to brief a challenge to the adverse grievance decision on appeal. See Banaszewski, 1998 WL 147877, at *1 & n.1. In this case, relator is aggrieved by and has briefed a challenge to the county's decision to treat her separation from employment as a resignation and thus deny her request for post-termination remedies.
II.
Relator argues that the county erred in denying relator any right to any pre-termination and post-termination hearings and, in doing so, violated her due process rights. On certiorari appeal from a quasi-judicial agency decision, we examine the record to review questions affecting jurisdiction, "the regularity of [the] proceedings, and, as to the merits of the controversy, whether the order or determination in a particular case was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it." Dietz, 487 N.W.2d at 239 (quotation omitted); Anderson v. Comm'r of Health, 811 N.W.2d 162, 165 (Minn. App. 2012), review denied (Minn. Apr. 17, 2012) (quotation omitted). It is the obligation of the county or executive agency to create a sufficient record to prove that its actions were justified. Dokmo v. Indep. Sch. Dist. No. 11 Anoka-Hennepin, 459 N.W.2d 671 (Minn. 1990).
It is well-established that a public employee with a constitutionally protected property right under the Due Process Clause of the Fourteenth Amendment in that employment is entitled to a pre-termination hearing and an opportunity to respond. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541-42, 105 S. Ct. 1487, 1493 (1985); Pelerin v. Carlton County, 498 N.W.2d 33, 36 (Minn. App. 1993), review denied (Minn. May 18, 1993); Conlin v. City of St. Paul, 418 N.W.2d 741, 743-44 (Minn. App. 1988), review denied (Minn. Mar. 30, 1988). "An essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case." Loudermill, 470 U.S. at 542, 105 S. Ct. at 1493 (quotation omitted). The "root requirement" of the Due Process Clause is "that an individual be given an opportunity for a hearing before he is deprived of any significant property interest." Id. (quotation omitted). This pre-termination hearing, now known as a Loudermill hearing, "need not definitively resolve the propriety of the discharge," but should serve as "an initial check against mistaken decisions—essentially a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action." Id. at 545-46, 105 S. Ct. at 1495. "[A]ll the process that is due is provided by a pretermination opportunity to respond, coupled with post-termination administrative procedures . . . ." Id. at 547-48, 105 S. Ct. at 1496. Specific procedural due process requirements are met when a terminated employee is given: (1) notice of the reasons for termination in sufficient detail to enable the terminated employee to present relevant evidence; (2) notice of both the names of those who have made allegations against the employee and the specific nature and factual basis for the charges; (3) a reasonable time and opportunity for the employee to present testimony in his own defense; and (4) a hearing before an impartial board or tribunal. Deli v. Univ. of Minn., 511 N.W.2d 46, 50 (Minn. App. 1994) (quoting Brouillette v. Bd. of Dirs. of Merged Area IX, 519 F.2d 126, 128 (8th Cir. 1975)), review denied (Minn. Mar. 23, 1994).
To have a property interest in a job that is protected under the Fourteenth Amendment, a person must have a legitimate entitlement to continued employment. Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005). Public employees who may be dismissed only for cause have a property interest in their continued employment. Gilbert v. Homar, 520 U.S. 924, 928-29, 117 S. Ct. 1807, 1811 (1997). State public employees, who, under state law, have "a legitimate claim of entitlement" to state employment, are also entitled to these due process protections. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577-78, 92 S. Ct. 2701, 2709 (1972). A "legitimate claim of entitlement" to continued employment may be evidenced by an employment contract. Bolton v. Dep't of Human Servs., 527 N.W.2d 149, 155 (Minn. App. 1995), rev'd on other grounds, 540 N.W.2d 523 (Minn. 1995). A personnel policy handbook may be enforceable as an employment contract or, if the handbook provides that an employee can only be dismissed for cause, it may create an expectation of continued employment. See, e.g., Kulkay v. Allied Cent. Stores, Inc., 398 N.W.2d 573, 576 (Minn. App. 1986) (citing Pine River State Bank v. Metille, 333 N.W.2d 622, 627 (Minn. 1983)), review denied (Minn. Feb. 13, 1987); Cummings v. S. Portland Hous. Auth., 985 F.2d 1, 2 (1st Cir. 1993); Burgess v. Miller, 492 F. Supp. 1284, 1288-89 (N.D. Fla. 1980).
Here, relator was a public employee subject to discharge for just cause and, according to the county's personnel handbook, was entitled to disciplinary procedures that were "in accordance with any applicable County policies and procedures as well as local, state or federal laws and regulations." The handbook set forth procedures that appear to be consistent with the pre-termination and post-termination procedures required in Loudermill. But relator did not benefit from any of these procedural safeguards. Instead, she walked into a meeting with her supervisor and the county administrator and was abruptly handed a letter indicating that her employment was being terminated immediately. Although the county now asserts that this was a proposed termination letter and that the meeting was intended to serve as a pre-disciplinary hearing, relator disputes that she was advised of this at the time of her resignation. Relator also claims that, in violation of its policies, the county denied her request that she have an attorney present. Relator claims that, under these circumstances, her resignation was coerced and tantamount to a termination. There is no evidence in the record that relator was ever given the opportunity to respond to the charges brought against her in the March 16 meeting. While relator subsequently attempted to respond to the charges, the county's response was to ignore the presentation of her side of the story on the basis that she had voluntarily resigned.
Our review of the county's decision must necessarily take into account relator's fundamental due process rights under Loudermill and the alleged failure of the county to afford relator these rights under its policies. While the county may be correct that relator is not entitled to its grievance procedures if she voluntarily resigned, the county has not afforded relator a meaningful opportunity to present her case that her resignation was coerced and that she is entitled to grieve her constructive discharge under the county's post-termination procedures. See Angarita v. St. Louis County, 981 F.2d 1537, 1544 (8th Cir. 1992) (recognizing doctrine of coerced resignation, under which resignations are treated as discharges for purposes of judicial review); Stone, 855 F.2d at 174 (same); see also, e.g., Martin v. Itasca County, 448 N.W.2d 368, 370 (Minn. 1989) (recognizing due process rights of public employees who are subject to discharge only for good cause). That is, if relator's resignation was coerced, her resignation should have been treated as a constructive discharge for purposes of post-termination remedies. See Keyes, 372 F.3d at 439; Stone, 855 F.2d at 174.
The law presumes that employee resignations are voluntary. Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995). If, however, the "resignation was so involuntary that it amounted to a constructive discharge, it must be considered a deprivation . . . triggering the protections of the due process clause." Id. at 1567. The doctrine of constructive discharge, where an employee is coerced to resign as a result of intolerable work conditions, has long been recognized in Minnesota. Continental Can Co. v. State, 297 N.W.2d 241, 251 (Minn. 1980). A resignation is not coerced merely because an employee is given a choice between being terminated and resigning, unless an employer "actually lacked good cause to believe that grounds for termination existed." Stone, 855 F.2d at 174; see also Christie v. United States, 518 F.2d 584, 587-88 (Ct. Cl. 1975).
It is clear from the record both that relator resigned, and that only discharged employees are entitled to post-separation remedies under the county's policies. But, here, the county denied relator's request for post-termination remedies without addressing, much less developing a record upon the assertion that her resignation was coerced. Since relator's due process rights are dependent upon whether her resignation was voluntary or coerced, it only follows that, consistent with the protections afforded to her under the due process clause, she has the right to a hearing as to this threshold issue.
We reject as illogical relator's argument that she could not resign because she had already been terminated. Although the language of the county's letter indicated that she was terminated "immediately," as we note above, relator was entitled to additional process under the county's policies before a final termination decision could be effective. --------
We conclude that, upon this record, where the county made a unilateral decision that her resignation was voluntary without providing relator a meaningful opportunity to present her case as to whether her resignation was coerced and whether the county had good cause for termination, and where there were alleged procedural irregularities, the county's unilateral decision to prohibit her from its grievance procedures was unreasonable and arbitrary. Honn v. City of Coon Rapids, 313 N.W.2d 409, 416 (Minn. 1981) (explaining that city council's failure to "record any legally sufficient basis for its determination at the time it acted made a prima facie showing of arbitrariness inevitable"). On these facts, we remand this matter to the county for a hearing before the personnel board of appeals for a determination whether relator's resignation was voluntary or not and whether she is entitled to any further pre- or post-termination remedies. See White Bear Rod & Gun Club v. City of Hugo, 388 N.W.2d 739, 742 (Minn. 1986) (remanding for development of record because city's decision "lack[ed] any findings of fact or other explanation of its decision adequate for any judicial review"); cf. Watkins v. Milwaukee Cty. Civil Serv. Comm'n, 276 N.W.2d 775, 780 (Wis. 1979) (holding that civil-service employee who adequately alleged that his resignation was coerced was entitled to hearing before civil-service commission). At this hearing, relator will have the opportunity to present her response to the county's asserted grounds for termination and the county may address whether it had a good faith belief that good cause for termination existed.
Remanded; motion denied. ROSS, Judge (dissenting)
The law directs us to affirm. The county's mishandling of the case cannot constitute constructive discharge because Heather Kirchner confirmed her resignation during a reasonable deliberation period. I believe remanding for more proceedings will merely waste the parties' time and garner the same result. I therefore respectfully dissent.
I would first reconsider and reverse the order of a special-term panel of this court, which struck from the appellate record a letter the county sent to Kirchner recounting what transpired after she wrote her resignation letter. Even without revisiting the order or accepting the letter, I would still affirm, but the letter adds clarity. The letter recalled that the county had given Kirchner until the end of the following day to reconsider her resignation and that Kirchner "followed with a phone call . . . on March 17, 2015, confirming [her] decision to resign." We ought to accept the letter to supplement the record because I believe the decision to strike that document was prematurely made and because failing to include the key document (that surely will be admissible in any hearing on remand) unnecessarily injects a degree of uncertainty about the critical events.
I would next recognize how the county's letter to Kirchner completes the story for the purposes of our review. The letter plainly confirms that the county gave Kirchner the opportunity to reconsider and rescind her resignation decision. Kirchner's failure to avail herself of that opportunity demonstrates that the county conclusively, albeit sloppily, cured any supposed contractual due process defect in its obvious mishandling of the separation. It demonstrates that, regardless of the county's errors in the meeting, Kirchner decided to quit her employment and she confirmed that decision after deliberation on her own, with or without consulting an attorney. It proves a voluntary quit.
These facts will become unquestionable on remand in any hearing in which all of the relevant documents are available. Remanding this case will therefore do little more than require the parties to expend more time and finances to reach the inevitable conclusion that Kirchner freely quit her employment. They demonstrate that she is entitled to no termination hearing either under the county's employment policy or under the constitutional protections of Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487 (1985).
The majority cites three federal cases for the proposition that Kirchner might have resigned involuntarily, coerced by the county, such that she is entitled to a hearing even though she quit her job. To the contrary, the cases decisively defeat that proposition.
In Angarita v. St. Louis County, the Court of Appeals for the Eighth Circuit first explained that a quit is presumed voluntary and that when an employee claims instead that she quit because she was coerced by her employer, the employee must carry a heavy burden to rebut that presumption. 981 F.2d 1537, 1544 (8th Cir. 1992). The employee can prove coercion with evidence that she was given no alternative but to resign, that she did not understand the nature of the choice, that she was not given a reasonable time to choose, or that she was not permitted to select the effective date of the resignation. Id. Similarly, the employee can prove that her resignation was involuntary with evidence that she involuntarily accepted the employer's terms and that the circumstances resulted from her employer's coercive acts. Id.
The Angarita court found coercion from facts that do not remotely resemble this case. In that case, the employees presented evidence that, among other things, their employer prohibited them from leaving without first resigning and gave them very little time to decide; they could not select the effective date of their resignation; they were shown no specific complaint about their behavior; they were denied their request to first speak to their supervisors or have them present; they were threatened with disclosure of embarrassing allegations to their families and to the media; the employer interrogated them continuously for several hours and turned off a tape recorder multiple times during the interrogation; they were not told the source of the allegations; and they were threatened with arrest. Id. at 1545. The Eighth Circuit concluded, "[F]rom an objective standard the record clearly depicts facts which support a finding that an employee's will would be overcome under the same or similar circumstances." Id.
This case involves nothing like the overbearing treatment the Angarita employees faced during the employee-management confrontation. Here Kirchner was informed in writing specifically of the multiple circumstances and reasons her employer sought to terminate her employment. And after the confrontation, Kirchner's supervisors gave her a day to reconsider her resignation decision. Even if it is true, as Kirchner alleges, that she was denied the opportunity to consult with an attorney before she wrote her resignation letter, she could not have been "coerced" into resigning because she confirmed her resignation after a reconsideration period during which she had the opportunity to consult with anyone of her choosing—family, friends, coworkers, lawyers.
This case is much more like the Fourth Circuit case cited by the majority and relied upon by Kirchner: Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167 (4th Cir. 1988). The Stone court considered the employee's coercion argument that he "was forced to make the personally and professionally difficult decision whether to resign or face termination proceedings on the spur of the moment, while he was upset and confused and without the advice of counsel or the opportunity to consult family and friends." Id. at 177. Relying on the Stone case, Kirchner insists that she was coerced because she "was given no alternative to resignation other than immediate discharge." But her brief expressly acknowledges that "[s]he was . . . given until the next day to change her mind." The majority does not discuss Kirchner's dispositive acknowledgment of her reconsideration period. And although Kirchner asserts that the period constitutes "an inadequate amount of time to seek legal guidance or research alternatives on her own," she cites no supporting legal authority. And even if that authority exists (I doubt it does) she also does not assert that she unsuccessfully attempted to secure legal advice or explain why it would take more than a day either to obtain it or to consider her options on her own. We should say exactly what the Stone court said under substantially the same circumstances:
[T]he mere fact that [the employee] was forced to choose between the inherently unpleasant alternatives of resignation and possible termination for cause does not itself mean that [the] resignation was submitted under duress, absent evidence that [the employee's] superiors lacked good cause for the threatened termination. That showing has simply not been made here."Id.
This case also mirrors the other federal appellate case cited by the majority, Keyes v. District of Columbia, 372 F.3d 434 (D.C. Cir. 2004). The Keyes court held that even if the employee could prove that her supervisors "acted improperly in proposing to terminate her" by presenting false charges, still her decision to resign could not, as a matter of law, constitute coercion or duress because she did not prove any other element of duress. Id. at 439. Again, we could simply respond to Kirchner's argument by borrowing the relevant language from that court's decision:
On the contrary, the evidence shows that Ms. Keyes was confronted with a difficult choice — i.e., whether to remain an employee and continue to fight the charges or to take early-out retirement and be done with it — but not duress, in deciding to retire. If the charges against Ms. Keyes were baseless, as she maintains, she could have retained her position and successfully defended herself at the hearing she had requested. Id. at 439-40. Kirchner made the difficult choice between maintaining her resignation and rescinding her resignation to face the pending discharge. The pressure was significant, to be sure, but the caselaw informs us that it was not "coercion." Even without the stricken March 30 letter, Kirchner has admitted on appeal that she was given a day to reconsider her decision, and on remand, the stricken letter will be included as evidence to corroborate her admission. The majority rightly details the county's mistakes in the separation process, but it ignores those essential details that render impossible, as a matter of law, a finding of coercion or constructive discharge.