Greathouse v. Babcock and Wilcox Company, Civ. A. No. C 73-645 Y.

• Decision Date: 06 June 1974
• Docket Number: Civ. A. No. C 73-645 Y.
• Citation: 381 F. Supp. 156
• Parties: Gary Lee GREATHOUSE, Plaintiff, v. The BABCOCK AND WILCOX COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Ohio

381 F. Supp. 156

Gary Lee GREATHOUSE, Plaintiff, v. The BABCOCK AND WILCOX COMPANY, Defendant.

Civ. A. No. C 73-645 Y.

United States District Court, N. D. Ohio, E. D.

June 6, 1974.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Paul Brickner, Asst. U.S. Atty., Cleveland, Ohio, for plaintiff.

William A. Ziegler, Jr., New York City, for defendant.

MEMORANDUM OPINION AND ORDER

CONTIE, District Judge.

This matter was tried before the Court on plaintiff's allegations that the defendant company violated his rights under Section 9 of the Military Selective Service Act of 1967 as amended, Title 50, U.S.C.App. § 459(c)(1) by dismissing him without cause within one year after his return from serving in the Armed Services. In his post trial brief, plaintiff urges the Court to exercise its prerogative under Rule 15(b) of the Federal Rules of Civil Procedure to deem the complaint amended to show a cause of action under Title 50, U.S.C. App. § 459(b)(2)(B)(i) for refusal to reemploy plaintiff after he had made timely application for reemployment.

The defendant asserts three affirmative defenses. One, plaintiff's action was not timely filed, thus barring plaintiff from any recovery. Two, plaintiff was not qualified for reemployment because he deliberately falsified his employment application and his pre-employment medical history form, knowing that any misrepresentations or omission on the medical form could be cause for dismissal, in order to induce the defendant company to hire him. Defendant asserts plaintiff had reason to believe that the company would not hire him if they knew the true facts as to his medical condition. Three, plaintiff was not qualified for reemployment because of a back injury which preexisted his employment with the defendant. Defendant asserts that plaintiff concealed this information from defendant, and further asserts that said medical information was the basis of his discharge from the Army. It is the contention of defendant that plaintiff's condition could be aggravated by the type of work he did to the point of becoming incapacitated.

The defendant further contends that if the Court were to find that plaintiff had been reinstated and then discharged that the latter two defenses would also be just cause for discharge under Title 50, U.S.C.App. § 459(c)(1).

The main thrust of the evidence indicated that plaintiff was never reemployed by the defendant, and thus the Court shall allow amendment of the complaint to reflect a cause of action under Title 50, U.S.C.App. § 459(c)(1) for failure to reemploy so as to conform the pleadings with the evidence.

The following are the Court's findings of fact and conclusions of law, pursuant to Rule 52 of the Federal Rules of Civil Procedure.

1. The Court finds that plaintiff showed that he had been employed by the defendant prior to his induction into the Service, that he was given a valid certificate of completion of training and service as required by the statute, and that he made timely application for reemployment. The facts illustrate that plaintiff was refused reemployment by the defendant.

2. The Court finds that the defendant met the burden of proving that plaintiff was disqualified for the position he had at the time he applied for a job, said disqualification existing by reason of his falsified employment application and medical history. The proof indicated that plaintiff was unqualified for his position because of his potentially disabling preexisting back condition and continued to be unqualified for the job at the time he entered the service and at the time he applied for reemployment. The Court is further of the opinion that the falsification of the employment application and the medical form as to plaintiff's back condition would be just cause for dismissal within one year of plaintiff's return to his job from the Army, under 50 U.S.C.App. § 459(c)(1). Thus, had plaintiff been rehired, defendant would have had the right to release the plaintiff upon the discovery of the falsified Medical History Form.

3. Plaintiff injured his back in May 1968, while pushing a stalled automobile. (T.34).

4. Plaintiff was hospitalized for a period of fourteen days following this accident. He was placed in traction for what he was told was a "herniated disc" (T.35) or a "slipped disc". (T.48 f).

5. Plaintiff wore no back brace nor received any further therapy or treatment after his release from the hospital. (T.36).

6. Plaintiff has experienced no back pain; however, upon over-exertion he experiences pain which begins at the upper point of his left hip and radiates down to his left ankle. (T.36 ff, 47 ff). This he has been told is from a pinched nerve. (T.36 f, 58 ff).

7. Plaintiff sought employment several places but was refused any position when he informed them of his back problem. (T.42 ff).

8. Plaintiff did obtain employment at XX Century Furnace Company by signing a waiver. (T.43, 45).

9. Plaintiff left XX Century Furnace for personal reasons after three or four months. (T.45).

10. Plaintiff filled out a Babcock and Wilcox application for employment July 24, 1969, on which he made no response to the request to explain any physical limitations and on which he at first put XX Century Furnace down in the blank for his last employer and then crossed it out. (Def. Ex. A and T.54).

11. Plaintiff filled out a "General Medical History Form" August 11, 1969, for employment with the defendant. (Def. Ex. B). In response to the following questions he gave negative answers which he knew were incorrect:

A. Have you ever been refused employment because of your health? (T.42 f, 58).

B. Have you ever been treated by or consulted with a practitioner within the past five years? (T.58).

C. Have you ever had or have you now: back trouble? (T.59).

D. Have you ever had any other body injuries? (T.59).

Plaintiff also stated that his only hospitalization was for tonsils (Def. Ex. B) (Q. 14, T.58 f), but he acknowledges a repair of a left inguinal hernia in response to a question on the back of the General Medical History Form. (Def. Ex. B back). The form contains the words "I understand any misrepresentation or omission of information requested in this form, may be cause for discharge" printed in capital letters underlined at the top of the first page and essentially the same language above plaintiff's signature on the back. Above the latter is the sentence "I certify that I have reviewed the foregoing information supplied by me and that it is true and complete to the best of my knowledge." Plaintiff read and understood these clauses at the time he signed the form. (T.60).

12. Plaintiff intentionally tried to conceal his back condition because of his past experience, knowing that in all probability the defendant would not hire him if it knew of his back condition. (T.56).

13. Plaintiff received a cursory physical from Murray M. Bett, M.D., the defendant's medical advisor, who, in reliance upon plaintiff's falsified history and failure to otherwise disclose the back condition, found plaintiff physically fit for work. (T.61 f).

14. Plaintiff was hired by defendant as a grinder painter, which entailed the use of grinders weighing up to 20-30 pounds (T.23, 28 f, 30) with occasional lifting of weights up to 80 pounds (T.87).

15. After six months plaintiff was promoted to a leader which entailed some supervisory duties. (T.23 f, 30 ff).

16. Plaintiff worked for the defendant from August 12, 1969 to July 26 or 27, 1970, at which time he was inducted into the Army. (T.4).

17. Plaintiff experienced no incapacitating difficulties with his back during the period he was employed by the defendant. (T.62).

18. Plaintiff was given a pre-induction physical examination at which time he told the Army doctors of his back condition. However, he was approved for induction into the Army. (T.63).

19. Plaintiff was injured by running into a 4 × 4 after several weeks of basic training. Plaintiff received only transitory bruises from the accident; however, while examining plaintiff, the Army doctors saw his preexisting back injury and found him medically unfit for military service. (T.65).

20. Plaintiff has no service connected disability. (T.65 f).

21. Plaintiff was given an honorable separation from the Army for medical reasons August 6, 1970. (T.6).

22. Plaintiff made application for reinstatement to his position at the defendant's Canton Works August 24, 1970. (T.6).

23. Plaintiff was given a physical examination by Dr. Bett on August 24, 1970, as is company policy for anyone who has been off work for over five days. (T.121).

24. Plaintiff informed Dr. Bett of his previous back problem at this time. (T.69 f). Dr. Bett then performed a straight leg raising test which had a positive result as to the left leg, and he also performed an examination of the lumbar spine which revealed restriction of forward flexion. Dr. Bett found that the results of these tests coupled with plaintiff's history would indicate that plaintiff had a herniated disc with left nerve route irritation. (T.173 f).

25. Plaintiff's condition could be expected to deteriorate if he continued to aggravate his "pinched nerve" by heavy lifting as required by his job with the defendant and may even become disabling. (T.187 f).

26. Plaintiff was given a slip to return to work by Dr. Bett (T.72) and he returned to work August 24, 1970.

27. Dr. Bett sent a memo to Jack R. Canter, Personnel Manager for defendant's Canton Works, which indicated that plaintiff had been discharged from the military for a pre-existing herniated disc; that plaintiff admits to having had back pain and pain down his left leg for which he was hospitalized and placed in traction for two weeks in 1968 and that plaintiff did not report his back difficulties on his pre-employment history. (Def. Ex. F.).

28. Dr. Bett discussed Mr. Greathouse with Mr. Canter on August 26, 1970, after which Mr. Canter determined that plaintiff...