Opinion
No. C5-96-2289.
Filed April 22, 1997.
Appeal from Veterans Homes Board.
David A. Singer, (for Relator)
Hubert H. Humphrey III, Attorney General, Melissa L. Wright, Assistant Attorney General, (for Respondent)
Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Crippen, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
This is an appeal from the Minnesota Veterans Homes Board's noncertification of a probationary employee. Because the probationary employee did not have a protectible property interest in continued employment and had only a limited right of appeal, we affirm.
FACTS
Judy Willis was hired on May 9, 1996, as a Human Services Technician at the Minnesota Veterans Home in Minneapolis. During her six-month probationary employment, a nurse reported that Willis inappropriately touched her buttocks. Willis's supervisor told her that such touching was inappropriate, must not continue, and that if it did continue, disciplinary action would result.
Two days later the supervisor received a second complaint that Willis had rubbed her pelvis against another nurse. Management was notified of the two incidents and began an investigation. An officer interviewed six employees, including Willis. The investigation revealed other incidents of alleged touching. The final investigative report noted other performance problems. Willis's supervisor informed her on September 13, 1996, that she would not be certified as a permanent employee due to unsatisfactory job performance, but that she could appeal the decision pursuant to the grievance procedure outlined in the collective bargaining agreement.
Six days later Willis requested that the Veterans Homes Board tell her the "truthful reasons" for her noncertification, but the Board informed her that it could not deal with her directly because AFSCME Council 6 was her exclusive representative. The union pursued formal grievance procedures, but Willis's grievance was denied. This appeal followed from the Board's noncertification decision.
DECISION
Review of an administrative decision by certiorari is limited in scope. Dietz v. Dodge County , 487 N.W.2d 237, 239 (Minn. 1992). The reviewing court may only consider matters such as (a) whether the administrative proceedings were regular and fair, (b) whether the decision was made under an erroneous theory of law, (c) whether the decision was arbitrary, oppressive, unreasonable or fraudulent, and (d) whether there was evidence to support the decision. Id. The Board disputes Willis's right to proceed by certiorari, but the Board's motion to dismiss was presented to and denied by a special term panel of this court. Willis v. Veterans Home Board , No. C5-96-2289 (Minn.App. Jan. 14, 1997).
I
Willis argues that her constitutional right of procedural due process was violated when she was denied certification without minimum procedural safeguards. We find no support for this argument.
Procedural due process is not at issue in employment cases unless the employee has a protectible property interest in continued employment. McIntire v. State , 458 N.W.2d 714, 718 (Minn.App. 1990) (dismissing due process claim when plaintiff failed to "demonstrate an independent property interest") (citing Board of Regents v. Roth , 408 U.S. 564, 577, 92 S.Ct. 2701, 2709 (1972)), review denied (Minn. Aug. 7, 1990). State law and Willis's employment contract determine whether she enjoys a protected property interest in her job. See Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077 (1976). State law provides that "[t]here is no presumption of continued employment during a probationary period." Minn. Stat. § 43A.16, subd. 2 (1996). Although the collective bargaining agreement allows probationary employees certain procedural rights, nothing in the collective bargaining agreement altered her status as a purely at-will probationary employee. Willis had no protected property interest in continued employment.
II
Willis also argues that she was denied certain procedural rights granted her by the collective bargaining agreement. First, she alleges that she was questioned about her conduct without union representation at an interview where discipline might result. Second, she alleges that she did not receive a performance evaluation prior to her noncertification. As a result she asserts the Board's decision to deny her certification breached the collective bargaining agreement.
We find no basis for extending direct judicial review for an alleged breach of the collective bargaining agreement. The Uniform Arbitration Act lists the orders in an arbitration proceeding under a public sector collective bargaining agreement from which an appeal may be taken. See Minn. Stat. § 572.26 (1996). The Board's noncertification decision is not a decision that triggers appellate review. Unless the collective bargaining agreement provides for an appeal process different from that provided by the Act, and Willis has not shown that it does, the scope and method of judicial review is limited to that provided in the statute.
Willis argues nonetheless that she should be entitled to judicial review because, as a probationary employee, the collective bargaining agreement limits her right to "grieve" the breach of contract. Even if Willis's rights as a probationary employee are limited by the terms of the collective bargaining agreement, the union negotiated for those rights and Willis is subject to them. Moreover, we may not review Willis's breach of contract claim when the express terms of the agreement grant the union the exclusive right to pursue the grievance procedures. See Eisen v. State Dep't of Pub. Welfare , 352 N.W.2d 731, 734-35 (Minn. 1984).