Kaibel v. Mun. Bldg. Comm'n, Civil No. 11–1231 (SRN/JJK).

• Decision Date: 02 November 2011
• Docket Number: Civil No. 11–1231 (SRN/JJK).
• Citation: 829 F.Supp.2d 779
• Parties: Brian KAIBEL, Daniel Dotse, Garfield Campbell, and Rick Iskierka, Plaintiffs, v. MUNICIPAL BUILDING COMMISSION, Mike Opat, individually and in his representative capacity, R.T. Rybak, individually and in his representative capacity, Mark Stenglein, individually and in his representative capacity, and Lisa Goodman, individually and in her representative capacity, Defendants.
• Court: U.S. District Court — District of Minnesota

829 F.Supp.2d 779

Brian KAIBEL, Daniel Dotse, Garfield Campbell, and Rick Iskierka, Plaintiffs,

v.MUNICIPAL BUILDING COMMISSION, Mike Opat, individually and in his representative capacity, R.T. Rybak, individually and in his representative capacity, Mark Stenglein, individually and in his representative capacity, and Lisa Goodman, individually and in her representative capacity, Defendants.

Civil No. 11–1231 (SRN/JJK).

United States District Court, D. Minnesota.

Nov. 2, 2011.

Daniel W. Schermer, Daniel W. Schermer, P.A., Judith K. Schermer, Judith K. Schermer, PLLC, Minneapolis, MN.

Amanda M. Trelstad and Timothy S. Skarda, Minneapolis City Attorney's Office, Minneapolis, MN, for Defendants Municipal Building Commission, Rybak and Goodman.

Charles H. Salter, Hennepin County Attorney's Office, Minneapolis, MN, for Defendants Opat and Stenglein.

MEMORANDUM AND ORDER

SUSAN RICHARD NELSON, District Judge.

This matter is before the Court on Plaintiffs' Petition for a Writ of Mandamus [Doc. No. 6].¹ Defendants oppose the issuance of a writ. For the reasons set forth herein, Plaintiff's petition is granted, to the extent that this Court grants an alternative writ of mandamus.

I. BACKGROUND

Plaintiffs are former tenured security officers who worked in the Minneapolis City Hall building and were employed by Defendant Municipal Building Commission (“MBC”) until their discharge in March 2011.²

In legislation passed in 1903, the Minnesota Legislature created the MBC, which was charged with the care of the Hennepin County and Minneapolis Courthouse and City Hall buildings. Minn.Stat. § 383B.751 (1903) (the “MBC Statute”). The MBC is made up of four members who, for the period relevant to this litigation, include Hennepin County Commissioners Mike Opat and Mark Stenglein, Minneapolis Mayor R.T. Rybak, and Minneapolis City Council Member Lisa Goodman. The MBC members are Defendants in this litigation. The Minnesota Legislature later revised the same statute that created the MBC to include certain protections available to tenured MBC employees upon termination:

Persons employed by the municipal building commission on or before August 1, 1977, or thereafter, and having at least six months service, shall have tenure based on length of service.... No employee after six months continuous employment shall be removed or discharged except upon a majority vote of the members of the municipal building commission for cause, upon written charges and after an opportunity to be heard at a hearing conducted by the municipal building commission. The Minneapolis civil service rules relating to cause for removal shall govern. An employee removed for cause may appeal to district court, which decision shall be final.

Minn.Stat. § 383B.751 (2010).

At the request of the MBC, in late 2009, Minneapolis city employees provided a summary of the City's “baseline security needs for the City Hall/Courthouse facility.” ( See Letter of 12/16/09 from A. Thomas to M. Opat & Executive Summary at 1, Ex. 1 to Affidavit of Tim Skarda.) In prefatory remarks regarding the options for improving security, the authors of the report, Art Thomas, City of Minneapolis Security Manager, and Greg Goeke, Director of Property Services, noted certain perceived shortcomings of the security program in place at the time:

The key to an effective baseline security program is having a dedicated, properly-trained and educated security supervisor/manager to lead the program. It is the opinion of the City's staff that the current MBC Security and Custodial Manager does not posses [sic] the skill set needed for a successful program. The current security staff will continue to lack the proper training and professional direction needed to be successful at their jobs. This will leave both the City and the County at risk.

( Id. at 3.) The authors identified the following three options for improvement in security services: (1) improving the security services provided by the MBC; (2) utilizing the City's Security Management staff to develop and implement improved security; and (3) using Hennepin County's security staff. ( Id. at 3–4.) Noting that Hennepin County had been involved in a successful transition with the City's Library Board, the authors commented that “[s]imilarly, MBC could be transitioned into County employment if deemed to be in the best interest of the involved parties.” ( Id.) The authors of the report recommended the implementation of Option 3, i.e., utilizing Hennepin County's security services, yet contemplated the retention of MBC security staff, stating, “The County's training program is exemplary and employees would have promotional opportunities.” ( Id.) In a Hennepin County Board “Action Request” describing the transition of security services at the City/Hall Courthouse from MBC to the County, the document provides that “[e]xisting MBC security employees will have the opportunity to apply for Hennepin County security positions but are not given preference or guarantee of county employment.” (Hennepin Cty. Bd. Action Request, Ex. J to Schermer Aff.)

In December 2010, the MBC voted to approve the new approach for providing security services by contracting with Hennepin County for 2011 security services. (12/16/10 MBC Meeting Minutes, Ex. H to Aff. of Judith Schermer [Doc. No. 9–1].) The MBC therefore entered into an agreement with Hennepin County for the provision of security services for the City Hall/Courthouse. (Agmt., Ex. K to Schermer Aff.)

Plaintiffs were advised by letter in February 2011, that they would be laid off from their respective MBC security positions effective March 12, 2011. ( See, e.g., Letter of 2/23/11 from J. Cervantes to B. Kaibel, Ex. A to Schermer Aff.). The MBC advised Plaintiffs of their right to request a hearing pursuant to the Veterans' Preference Act, if applicable, if they believed that the layoff was not in good faith. ( Id.)

Plaintiff Kaibel apparently asked for a hearing before the MBC, but the MBC denied his request “[d]ue to the circumstances surrounding [his] layoff.” (Letter of 3/9/11 from J. Cervantes to B. Kaibel, Ex. E to Schermer Aff.) The MBC advised Kaibel of his right under Minn.Stat. § 179A.25 to contest his layoff by presenting a grievance to the Commissioner of the Bureau of Mediation Services. ( Id.) Plaintiffs Dotse, Iskierka and Campbell likewise sought a hearing before the MBC, but were told that they were not entitled to such a hearing and could instead contact their union representatives in order to contest their layoffs. (Letter of 3/3/11 from J. Cervantes to D. Dotse, Ex. F to Schermer Aff.; Letter of 3/3/11 from J. Cervantes to R. Iskierka, Ex. G to Schermer Aff.; Letter of 3/3/11 from J. Cervantes to G. Campbell, Ex. 7 to Affidavit of Tim Skarda.) Plaintiffs Dotse and Campbell applied for security officer positions with Hennepin County, but neither proceeded to the final interview stage. (Letter of 5/2/11 from L. Shimmin to D. Dotse, Ex. L to Schermer Aff.; Email of 3/11/11 from K. Comstock to G. Campbell, Ex. M to Schermer Aff.) It is apparently undisputed that Defendants have not paid Plaintiffs wages since March 12, 2011.

On May 9, 2011, Plaintiffs brought suit in Hennepin County District Court, alleging that under Minn.Stat. § 383D.751, Defendants were not permitted to remove Plaintiffs from employment without a majority vote of the MBC for cause, upon written charges, after having an opportunity to be heard at a hearing before the MBC. Plaintiffs seek the issuance of a writ of mandamus that would require Defendants to reinstate Plaintiffs to their former positions retroactive to the date of their discharge, pay the Plaintiffs their unpaid wages and benefits retroactive to the date of their discharge, and pay Plaintiffs' reasonable attorney's fees and costs. (Petition for Writ of Mandamus & Compl. ¶¶ 1–9, Ex. 2 to Notice of Removal [Doc. No. 1–2].) In addition, Plaintiffs allege a claim for the violation of 42 U.S.C. § 1983 and a claim for unpaid wages pursuant to Minn.Stat. § 181.10, § 181.13, and § 181.171. ( Id. ¶¶ 10–15; ¶¶ 16–19.) On May 11, 2011, Defendants removed the case to this Court. (Notice of Removal [Doc. No. 1].)

Defendants oppose Plaintiffs' Petition for a Writ of Mandamus, arguing that mandamus is inappropriate because Defendants are under no legal duty to retain Plaintiffs, nor have Defendants failed to comply with a legal duty. Defendants contend that Plaintiffs' former positions have been eliminated. Moreover, Defendants argue that the decision to eliminate Plaintiffs' positions was entirely within their discretion and mandamus may not be used to compel a ministerial act. Defendants also argue that Minn.Stat. § 383D.751 requires a hearing only when an employee is terminated for cause and that Plaintiffs have an adequate remedy at law.

At the hearing on Plaintiffs' petition, counsel for Defendants characterized Plaintiffs' jobs as having been “eliminated,” arguing that “elimination” removes Defendants' actions from the MBC statute, Minn.Stat. § 383B.751. Following the hearing, the parties engaged in discovery limited to the issue of whether the security positions at the City Hall/Courthouse Building had been eliminated. On September 1, 2011, counsel for Plaintiffs filed supplemental exhibits with the Court, consisting of six documents. (Letter of 9/1/11 from J. Schermer to Judge Nelson [Doc. No. 48]; [Second] Affidavit of Judith K. Schermer [Doc. No. 49], attaching Exs. 1–6.)

Defendants object to both the submission of this discovery, and, to the extent that Plaintiff's transmittal letter contains legal argument, to the submission of additional argument as procedurally improper. (Letter of 9/6/11 from T. Skarda to Judge Nelson [not docketed].) While the Local Rules do not permit the submission of unsolicited memoranda without the Court's leave, L.R. 7.1(g), the Court will consider the exhibits. At the hearing, counsel and the Court referred to the possibility of...