State v. Hauser, 33924.

• Decision Date: 09 February 1945
• Docket Number: No. 33924.,33924.
• Citation: 17 N.W.2d 504,219 Minn. 297
• Parties: STATE ex rel. CODUTI v. HAUSER et al.
• Court: Minnesota Supreme Court

17 N.W.2d 504

219 Minn. 297

STATE ex rel. CODUTI v.HAUSER et al.

No. 33924.

Supreme Court of Minnesota.

February 9, 1945.

Appeal from District Court, Hennepin County; W. W. Bardwell, Judge.

Mandamus by the State, on relation of Adeline Coduti, against Walter U. Hauser and others, to compel relator's restoration to the position of social service investigator of Minneapolis in the Division of Public Relief.From a judgment entered in conformity with trial court's order denying relator's motion for judgment on the pleadings and directing a dismissal of her cause, relator appeals.

Reversed with instructions.

Fred A. Ossanna and Carl K. Lifson, both of Minneapolis, for appellant.

R. S. Wiggin, City Atty., and Carsten L. Jacobson, Asst. City Atty., both of Minneapolis, for respondents.

JULIUS J. OLSON, Justice.

Relator by mandamus sought to be restored or reinstated to the position of social service investigator of Minneapolis in the division of public relief.She appeals from an adverse judgment entered in conformity with the trial court's order denying her motion for judgment on the pleadings and directing a dismissal of her cause.

These are the facts: Relator was employed in the classified service of Minneapolis as a social service investigator for the division of public relief of the department of public welfare.She entered upon her work May 5, 1934, following a competitive civil service examination for that position, and continued in that service until November 1, 1941, when, pursuant to her request, a maternity leave of absence for one year was granted.The request for this leave and its grant were made pursuant to civil service Rule X, which provides:

"Section 1.Leave of absence without pay * * *

"(d) Leave in Excess of Six Months.Where a leave of absence without pay has been granted in excess of six months, and it has become necessary for the department head to fill the employe's position beyond the six months' period, employe on leave of absence shall have his name placed on the lay-off eligible list at the termination of his leave, except as provided for in sub-section (c), Military Leave [amended February 24, 1943, by adding the words "and subsection (e)"].

"(e) Maternity Leave.In all cases where leave of absence without pay is granted for expected maternity, leave of absence shall be for a period of one year.Such leave shall begin at least four months before the birth of the child and shall extend for at least eight months thereafter. * * *

"Section 4.Right of Employe to Retain Position.When leave of absence with or without pay is granted, it is with the definite understanding that the employe at the expiration of his leave will be restored to the position vacated by him except as provided for in Section 1, sub-section (d)."

Minneapolis is governed by a home-rule charter, c. 19 of which relates to the establishment of a civil service system for the city.It is the enabling legislation on the subject presently involved.Included in its provisions is the authority granted to the civil service commission to conduct competitive examinations, provide for promotions, and make rules for the conduct of the entire system.

At the time of entering upon her maternity leave, relator was one of some 90 social service investigators employed in the division.All of these, including relator, were permanent employes who had served their full probationary period.Their work was of the same general nature.No one was subject to assignment to a special position within his or her classification; any investigator could do the work of another.

Prior to the granting of relator's leave of absence, the number of persons on relief in the city had been steadily decreasing; hence need for the services of investigators had correspondingly declined.Consequently, their number was reduced as the number of persons on relief decreased.During the time of relator's absence on leave, some 22 of these had been "laid off."Six more had received notice of a "lay-off," effective the day following the expiration of relator's leave.Since that time the staff of investigators has been further reduced.These reductions were made in conformity with Rule XI, which reads:

"Section 1.Lay-off—Reduction of Force.Whenever any permanent position is abolished or it becomes necessary, through lack of work or lack of funds, or other causes, to reduce the number of officers or employes in the classified service in any department or administrative branch, the appointing or employing officer or head of department shall immediately report such lay-off upon the form prescribed and furnished by the Civil Service Commission, and a notice of such lay-off shall be given to the officer or employe laid off.

"Section 2.Order of Lay-off.Except when lay-off is requested by the employe for sickness or other good reason or where the position is abolished, lay-off shall be made in accordance with the following provisions:

* * * * *

"4.Permanent employes; the employe first laid off shall be the employe in a department who was last certified to the class and grade in which the reduction is to be made.

"Section 3. * * *

"(b) Whenever a seniority list has been established by a department for any grade, and approved by the Commission, lay-off shall be made on the basis of seniority, the lowest in line to be laid off first."

As relator's leave of absence was approaching its end but before it expired, she properly notified the department and the superintendent of public relief of her desire to resume her work.This was on October 29, 1942.She reported for work November 2, the date of the expiration of her leave, but was informed that her position was no longer open and that she was being placed on the "lay-off" list.She made frequent demands thereafter, as did her counsel, all of which requests and demands were refused.

When relator reported for duty there were at least 30 social service investigators junior to her in point of service on the seniority list.Eighteen of such juniors were still on the list when this cause was commenced.During the time of relator's absence on leave, as to the personnel in her class so laid off, the seniority basis had been recognized and adhered to, i. e., those at the bottom of the list were laid off and those having priority were retained.

Respondents concede the facts we have recited, but allege that on the subject of maternity leave, Section 1(d) of Rule X was amended February 24, 1943, by adding the following words: "and subsection (e)."At the same time there was added to subsection (e) this proviso:

"* * * Provided, however, that where a maternity leave has been granted and employe's name is placed on the lay-off list at the expiration of said leave as provided in (d), her seniority and original order of certification shall prevail in re-certification to the department from which she has been laid off."

It will be noted these changes were made several months after relator's leave of absence had expired and after she had reported for duty.

The trial court in its memorandum had this to say with respect to relator's competency, faithfulness, and integrity:

"The court feels that some mention should be made of the fact that it appeared during the trial that plaintiff was not dismissed or reinstated by the defendants for any cause going to her integrity or faithfulness, it appearing that at all times she had been ambitious, trustworthy and competent; the action on the part of defendants being for reasons of their own not in any way attacking or criticizing the character of plaintiff or her work."

The city's home-rule charter, c. 19, § 11, provides:

"No officer or employe after six months' continuous employment shall be removed or discharged except for cause, upon written charges and after an opportunity to be heard in his own defense."

It is conceded that relator was not "removed or discharged" for cause.As found by the trial court, she was not dismissed or her reinstatement refused by respondents"for any cause going to her integrity or faithfulness," but, rather and only, that their action was "for reasons of their own not in any way attacking or criticizing the character of plaintiff or her work."(Italics supplied.)

1.The office of a writ of mandamus is well stated in State ex rel. McGill v. Cook, 119 Minn. 407, 411, 138 N.W. 432, 434, Ann.Cas.1914B, 88:

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