Anthony v. Basic American Foods, Inc., C 84-1228 TEH.

• Decision Date: 15 November 1984
• Docket Number: No. C 84-1228 TEH.,C 84-1228 TEH.
• Citation: 600 F. Supp. 352
• Court: U.S. District Court — Northern District of California
• Parties: Don L. ANTHONY, Jr., Plaintiff, v. BASIC AMERICAN FOODS, INC., Defendant.

600 F. Supp. 352

Don L. ANTHONY, Jr., Plaintiff, v. BASIC AMERICAN FOODS, INC., Defendant.

No. C 84-1228 TEH.

United States District Court, N.D. California.

November 15, 1984.

Michael J. Tonsing, Asst. U.S. Atty., Marshall Salzman, Staff Atty., Dept. of Labor, San Francisco, Cal., William H. Berger, Dept. of Labor, Atlanta, Ga., for plaintiff.

F. Bruce Dodge, Karl Olson, Morrison & Foerster, San Francisco, Cal., for defendant.

ORDER

THELTON E. HENDERSON, District Judge.

In this action both parties have moved for summary judgment on the question of whether the defendant violated the Veterans Reemployment Rights Act. The motion was taken under submission by the Court without oral argument on November 5, 1984. For reasons discussed below, the Court holds that plaintiff is entitled, as a matter of law, to prevail on this question. The Court also denies defendant's summary judgment motion on the question of whether its liability to plaintiff terminated with the sale of its Redwood City distributorship.

Discussion

The case turns on the interpretation of the Veterans Reemployment Rights Act ("The Act"), specifically 1) whether its protections extend to leaves for reservists as long as 4½ months or whether it is limited to leaves of 3 months duration and 2) if there is no strict 3 month limit, was the plaintiff's leave here nonetheless "unreasonable?"

1) Is there a three month limit on leaves of absence?

The relevant portions of the Act, 38 U.S.C. § 2021 et seq., are as follows: Section 2024(d), which refers to the rights of reservists and National Guardsmen, provides that

Any employee ... shall upon request be granted a leave of absence for the period required to perform active duty for training or inactive duty training in the Armed Forces of the United States. Upon such employee's release from a period of such active duty for training or inactive duty training or upon such employee's discharge from hospitalization incidental to that training, such employee shall be permitted to return to such employee's position with such seniority status, pay and vacation as such employee would have had if such employee had not been absent for such purpose.

Section 2021(b)(3), also applicable to reservists and Guardsmen states that

Any person ... shall not be denied 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.

Defendant's central argument is one of statutory construction. Admittedly, there is no express language in § 2024(d) which says that only a leave of absence for 3 months or less shall be granted. However, 2024(d) applies to employees not covered by 2024(c). Subsection (c) in turn provides that a reservist who is ordered to an initial training period of not less than 3 months shall be entitled to reemployment rights and benefits. Thus, defendant says, 2024(d) applies to short-term training periods; 2024(c) applies to periods over 3 months; and plaintiff's 4½ month leave was therefore outside the coverage of section (d).

Plaintiff says that by its express terms, the statute places no limit on the time, nature or frequency of training which will entitle reservists and National Guardsmen to reemployment rights. The distinction between (c) and (d), plaintiff continues, is not based on length of training but rather the type of training. Section (c) refers to initial active duty for training; section (d) deals with active duty for training or inactive duty training.

The case law on this precise issue, despite the protestations of the parties, is not dispositive. Both sides find unwarranted significance from the fact that no court has either 1) upheld a leave over 3 months or 2) denied a leave over 3 months on the grounds that it was unauthorized by the statute. Basically, the issue has not been squarely confronted.

The strongest argument raised by the defendant is based on language from the Supreme Court's opinion in Monroe v. Standard Oil Co., 452 U.S. 549, 101 S.Ct. 2510, 69 L.Ed.2d 226 (1981). There the Court was considering a discrete issue: whether, for an employee who went on weekend and summer (2 weeks) training sessions, an employer was required by § 2021(b)(3) to provide a preferential work schedule. The Court answered that question in the negative, and in the course of its opinion, set forth its view of the structure of the Act. The Court noted that in 1960 a new section had been enacted to deal with "employees who had military obligations less than three months," and that this section was now codified at 38 U.S.C. § 2024(d). The same remark appears in the dissent. From this statement, defendant argues that a 3 month limitation is the proper interpretation of the statute.¹

In response, plaintiff makes two arguments. First, he quite accurately notes that the Supreme Court's discussion of § 2024(d) in Monroe was dicta. Second, he points to recent action by Congress dealing with this issue. The background of that Congressional action is as follows: The Department of Labor, which has the responsibility for administering the Act, traditionally adhered to the view that the statute imposes no restrictions on the length of training periods for which the employee is protected. In 1982, the Department reversed its position and issued a policy memorandum limiting that protection to reservists who had no more than 90 days of training duty every three years. In response, the House passed legislation which would have clarified the period for which an employer must grant a leave of absence under 2024(d), but the Senate never acted on the measure. Subsequently, in the report accompanying separate legislation (the Veterans' Compensation, Education, and Employment Amendments of 1982), Congress addressed the issue of a 90-day limit by stating that the:

committees do not believe that the 90-day limit that the Labor Department has imposed on that period, based on the Solicitor of Labor's October 8, 1981, interpretation of § 2024 of title 38, is well-founded either as legislative interpretation or application of the pertinent case law. Accordingly, the Committees urge the ASVE, upon assuming the responsibility for the reemployment rights program provided in the compromise agreement, to review the situation and take appropriate action to eliminate this arbitrary limitation.

1982 U.S.Code Cong. & Admin.News 2877, 3012, 3020.

The Court finds this Congressional statement persuasive, and concludes that Congress did not intend there to be a strict three month limitation in § 2024(d). Defendant's attempts to minimize the significance of Congress's response are not convincing. Essentially, defendant argues that because the 1982 Congress did not change existing law, its comments are precatory and entitled to no weight. Defendant cites Supreme Court doctrine to the effect that the longstanding judicial interpretation of a law, coupled with Congress's failure to reject the interpretation, "argues significantly in favor of that interpretation";² and, moreover, that the "views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one."³

Defendant's contentions are misleading in all respects. First, this is not a case where existing law had to be rewritten in order for a Congressional statement to have significance. What Congress did was to amplify the meaning of a statutory phrase that remained unchanged. Similarly, this is not nearly a case where there was any "longstanding judicial interpretation" of the law. The Monroe opinion, on which defendant primarily relies, was handed down in 1981. More important, Monroe, as well as the other cases defendant cites, never "interpreted" section (d); they merely referred to that section's provisions in dicta.⁴ In addition, as plaintiff notes, the Ninth Circuit has held that subsequent Congressional interpretation of a statute which remains unchanged is entitled to "special weight, because the inferences flow not from Congressional action or inaction or amendatory legislation, but from explicit Congressional statements of the meaning of a phrase which has remained unchanged during the period in question." Walt Disney Productions v. United States, 480 F.2d 66, 69 (1973), cert. denied sub nom., United States v. Walt Disney Productions, 415 U.S. 934, 94 S.Ct. 1415, 39 L.Ed.2d 493 (1974) (emphasis added). In the Walt Disney case, the Ninth Circuit was well aware of the hazards of relying on subsequent legislative statements for inferring the intent of an earlier Congress, but said it would not ignore such statements where they were clearly relevant. Id. at 68.

2) Was plaintiff's leave request reasonable?

Having decided that the 4½ month leave request is not outside the scope of the Act, we next address whether it should be judged by a standard of reasonableness. The case most closely analagous to this one, Lee v. City of Pensacola, 634 F.2d 886 (5th Cir.1981), adopted such a test, holding that both the length of time and circumstances surrounding the request and the circumstances existing when the reemployment is sought must be reasonable.⁵ Both parties accept the approach used by the Lee court, although the plaintiff says that the Lee test needs to be modified in light of the Supreme Court's statement in Monroe that employers may not rid themselves of the "inconveniences and productivity losses" caused by reservists by discharging them. Monroe v. Standard Oil Co., supra, 452 U.S. at 565, 101 S.Ct. at 2519.

The Court agrees that the 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. However, we are persuaded by plaintiff that in making this analysis, there should be a presumption that the leave is protected under the Act. As plaintiff notes, "It has repeatedly been said that the acts of Congress...