Burkart v. Post-Browning, Inc.

• Decision Date: 20 October 1988
• Docket Number: POST-BROWNIN,No. 87-3403,INC,87-3403
• Parties: 129 L.R.R.M. (BNA) 2679, 57 USLW 2304, 110 Lab.Cas. P 10,770 Richard R. BURKART, Plaintiff-Appellant, v., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1245

859 F.2d 1245

129 L.R.R.M. (BNA) 2679, 57 USLW 2304,

110 Lab.Cas. P 10,770

Richard R. BURKART, Plaintiff-Appellant, v. POST-BROWNING, INC., Defendant-Appellee.

No. 87-3403.

United States Court of Appeals, Sixth Circuit.

Submitted May 13, 1988.

Decided Oct. 20, 1988.

Richard Burkart, Hamilton, Ohio, pro se.

Jay Hill, Swain & Hardin, Cincinnati, for defendant-appellee.

Before ENGEL, Chief Judge, and KEITH and RYAN, Circuit Judges.

ENGEL, Chief Judge.

Plaintiff Richard Burkart appeals a summary judgment of the district court in favor of defendant Post-Browning in Burkart's suit for damages for unlawful termination of his employment brought pursuant to section 404(a) of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. Sec. 2021(a). After a review of the record and careful consideration of the applicable provisions of the Veteran's Act, we affirm the court's finding that Burkart's notice to his employer of pending voluntary leave was inadequate and that he was not discharged in violation of that Act.

I.

In 1983 Burkart was an employee of Post-Browning. During his employment, he also served as a National Guardsman. While on National Guard duty for two weeks in June, Burkart was offered the opportunity to volunteer for additional duty to commence on July 9, 1983. Although he returned to work July 5 with the hope of accepting the volunteer position, he did not formally notify the military unit that he would be attending the camp until July 7 and did not notify his employer until 4:45 p.m. the following day on Friday, July 8. This delayed notice gave the employer only fifteen minutes to prepare for Burkart's pending three week absence. Based largely on his inadequate notice, Post-Browning terminated Burkart. Burkart was notified of his termination upon his return to work three weeks later, on August 1.

Burkart first filed a complaint in the Butler City Common Pleas Court seeking unemployment benefits for the period following his termination from Post-Browning. His claim was denied based on his failure to comply with Ohio Rev.Code Ann. Sec. 5903.061, which requires employees to provide their employers with at least sixty days notice before taking leave. Burkart did not appeal this judgment, but subsequently filed a complaint with the United States District Court for the Southern District of Ohio alleging that he was unlawfully discharged under 38 U.S.C. Sec. 2021(a) of the Vietnam Era Veterans' Readjustment Assistance Act. The magistrate, hearing the case with the consent of both parties, granted Post-Browning's motion for summary judgment. The primary issues raised on appeal concern whether inadequate notice of pending duty is a valid basis for discharge of a member of the reserve armed forces and, if so, whether Burkart's notice was inadequate.

II.

In passing section 404(a) of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. Sec. 2021 et seq., Congress spoke at great length about its desire to protect the reservist from prejudice resulting from his periodic duty. This congressional intent is evident in the plain language of the statute: "Any person who seeks or holds a position [with the reserve Armed Forces] ... shall not be denied hiring, retention in employment, or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces." 38 U.S.C. Sec. 2021(b)(3). The Supreme Court has also recognized this legislative purpose: "The legislative history ... indicates that Sec. 2021(b)(3) was enacted for the significant but limited purpose of protecting the employee-reservist against discriminations like discharge and demotion, motivated solely by reserve status." Monroe v. Standard Oil Co., 452 U.S. 549, 559, 101 S.Ct. 2510, 2516, 69 L.Ed.2d 226 (1981).

Despite Congress' clear intent to protect reservists from unnecessary discrimination arising from military duties, however, nothing in the legislative history or the case law indicates that a reservist is to be immunized indiscriminately from all responsibility to his employer. Section 2024(d), for example, requires that a reservist give at least some notice to the employer before going on military duty: "Any employee [in the reserve component of the Armed Forces] ... shall upon request be granted a leave of absence by such person's employer for the period required to perform active duty for training or inactive duty training in the Armed Forces of the United States" (emphasis added). Although this statutory provision makes no mention of the required adequacy of the notice, it is apparent from the language of the statute that at least some notice by the serviceman is implicit in its command that leave be given "upon request." ¹ The necessity of giving notice has been recognized by other courts as well. For example, in Blackmon v. Observer Transportation Co., 102 Lab.Cas. (CCH) p 11,450 at 23,913 (W.D.N.C., Oct. 28, 1982), the court found that the "[p]laintiff was discharged not because of his military service and obligations, but because of his failure to request a leave of absence from his employer, a statutory requirement which must be met to entitle an employee to the reinstatement rights afforded by the statute."

On appeal, Burkart appears to recognize this requirement that some notice be given, but nevertheless argues that the absence of any statutory language defining the adequacy of such notice compels the conclusion that any notice, however momentary, is adequate. If section 2024(d) were viewed in isolation from the remainder of the Veteran's Act, we might be tempted to join in Burkart's reading of section 2024(d). However, other provisions of that same statute make it clear that a reservist is not immune from termination. Section 2021(b)(1) provides employers with the discretion to terminate an employee for cause: "Any person who is restored to or employed in a position [with a private employer] ... shall not be discharged from such position without cause within one year after such restoration or reemployment." 38 U.S.C. Sec. 2021(b)(1) (emphasis added). In Carter v. United States, 407 F.2d 1238 (D.C.Cir.1968), the D.C. Circuit provided a thorough analysis of section 2021(b)(1): "We think a discharge may be upheld as one for 'cause' only if it meets two criteria of reasonableness: one, that it is reasonable to discharge employees because of certain conduct, and the other, that the employee had fair notice, express or fairly implied, that such conduct would be ground for discharge." Id. at 1244. More recently, in Anthony v. Basic American Foods, Inc., 600 F.Supp. 352, 355 (N.D.Cal.1984), the district court for the Northern District of California set forth slightly different factors in considering the more specific question of whether a notice is adequate: "[T]he plaintiff's leave request should be evaluated according to whether it was reasonable both in light of 1) the circumstances giving rise to the request and 2) the requirements of the employer."

Under either set of factors, however, we read section 2021(b)(1) as allowing an employer to terminate a reservist for "cause" when, as found here, the reservist deliberately disregards the needs of the employer by giving only fifteen minutes notice prior to an imminent three-week leave, particularly when such short notice could easily have been avoided. As the district court stated in McCormick v. Carnett-Partsnett Systems, Inc., 396 F.Supp. 251 (M.D.Fla.1975):

This was certainly not a case of discrimination against a veteran for exercising his legal rights, nor of a company trying to do indirectly what it could not do directly. Plaintiff seems to have assumed that the right to reinstatement is a guarantee that any behavior on the job must be tolerated. This is obviously not the case; the protection of the statute is based upon the veteran's compliance with the reasonable and ordinarily accepted standards of personal conduct and performance of duty of all employees.

Id. at 256 (citations omitted). In such a case it is not the employee's ties with the armed services which led to his discharge. Rather, the cause of the employee's discharge is his own intentional failure to act responsibly in reporting and informing the employer of his future obligations, regardless of whether these obligations were related to military duty or some other personal need. "If a non-reserve employee in [the employee's] position would be terminated for the same conduct, [the employee's] reserve status cannot insulate him. If, on the other hand, a non-reserve employee would not be terminated for the same conduct, it becomes obvious that the reasons given for termination were pretextual." Sawyer v. Swift & Co., 836 F.2d 1257, 1261 (10th Cir.1988). Burkart's reckless behavior in failing to notify Post-Browning of his pending military leave is thus the direct cause of his subsequent termination, having no relation to the fact that he chose to take the leave.

With regard to the judicially created requirement that the employer give sufficient notice of termination to a reservist, the court in Carter specifically withheld requiring that the notice be express:

The ultimate issue here, which is interwoven with such questions of fact, is whether the conduct was or should have been known to the employee to be prohibited by the employer.

That knowledge may, of course, rest on fair implication, even though not made express, as in the kind of job-related misbehavior that is inconsistent with proper attention to work or proper loyalty to the employment relationship.

Carter, 407 F.2d at 1246 (footnotes omitted). In the context of the record here, fifteen minutes notice of a three week leave was so blatantly detrimental to his employer that Burkart had to know it would trigger his employer's subsequent decision to demote or even to terminate him. By his own testimony Burkart himself plainly recognized the...