Chaltry v. Ollie's Idea, Inc., M 76-26 CA 2.
| Decision Date | 18 June 1982 |
| Docket Number | No. M 76-26 CA 2.,M 76-26 CA 2. |
| Parties | Kenneth CHALTRY, Plaintiff, v. OLLIE'S IDEA, INC., George Freeman, individually and as an officer of Ollie's Idea, Inc., and Laidlaw and Associates, Inc., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Robert C. Greene, U. S. Atty., Grand Rapids, Mich., Allen H. Bean, U. S. Dept. of Labor, Detroit, Mich., for plaintiff.
Paul E. Petosky, pro per.
George A. Freeman, pro per.
Gifford D. Smith, Marquette, Mich., for defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The plaintiff, Kenneth Chaltry, brings this action under the Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. §§ 2021-2026 (1976), against his former employer, George Freeman, the company which defendant Freeman formed from the assets of his proprietorship, Ollie's Idea, Inc., and the corporation which purchased the assets of Ollie's Idea, Inc., Laidlaw and Associates, Inc. Under the Act, employers, or their successors in interest, are required to restore former employees inducted into the armed forces to their former positions or to positions of like seniority, status, and pay, provided that such employer's circumstances have not so changed as to make reemployment impossible or unreasonable. To be entitled to reinstatement the employee is required to complete his military service satisfactorily, apply for reemployment within ninety (90) days of discharge, and remain qualified for his former position. 38 U.S.C. § 2021 (1976).
Plaintiff Chaltry contends that he was first employed in June, 1970 as a staff announcer at a radio station owned and operated by defendant Freeman. This position allegedly was a non-temporary one which he held until entering the military in July, 1972. In December, 1974, the plaintiff maintains, he received an honorable discharge, and, although he satisfied all other statutory requirements, defendant Ollie's Idea, Inc. refused to reinstate him. He also contends that Laidlaw and Associates, Inc. is liable under the Act as a "successor in interest" to Ollie's Idea, Inc. See 38 U.S.C. § 2021(a)(B)(i) (1976).
The court concludes that judgment should be entered in favor of the plaintiff against defendants Ollie's Idea, Inc. and Laidlaw and Associates, Inc., jointly and severally, in the amount of $19,318.16 based on the findings of fact and conclusions of law as set out below. See Fed. R. Civ. P. 52(a).
1. Defendant Ollie's Idea, Inc. (Ollie's) was a Michigan corporation formed on December 14, 1973 and was doing business as radio station WGON-AM and WQXO-FM with an office and place of business in Munising, Michigan.
2. Defendant George Freeman became president of Ollie's on its date of incorporation and held that position until the company sold its assets to Laidlaw and Associates, Inc. (Laidlaw) in 1977. He also held nearly 100% of the stock in Ollie's.
3. Mr. Freeman had been sole proprietor of radio station WGON-AM and WQXO-FM from December, 1969 until December, 1973 when it was incorporated.
4. Defendant Laidlaw, a North Dakota corporation, agreed to purchase the real and personal assets of Ollie's Idea, Inc., exclusive of cash, receivables, and part of the real estate, in March, 1977 and did in fact purchase the same later that year.1 This transaction was not a sale of corporate stock.
5. Defendant Laidlaw and plaintiff Chaltry have stipulated and agreed that there are no shareholders common to both Ollie's and Laidlaw.
6. Defendant Laidlaw and plaintiff Chaltry further stipulated and agreed that subsequent to Laidlaw's purchase of the station, it continued to operate the station in substantially the same manner with the same equipment. It also continued to employ staff announcers.
7. On July 15, 1981, defendant Laidlaw agreed to sell radio station WGON-AM and WQXO-FM to persons not parties to this suit and did in fact do so the same year.2
8. Plaintiff Chaltry, a resident of Marquette, Michigan, was hired by defendant George Freeman to work at the radio station in 1970 as a staff announcer. His responsibilities included playing records, recording commercials, and working with news reports.
9. On June 6, 1972, the Selective Service System sent plaintiff an "Order to Report for Induction" requiring him to report July 19, 1972 for forwarding to an armed forces induction station.
10. The plaintiff informed his employer, defendant Freeman, of his draft status shortly after receiving notice in early June.
11. After receiving the notice of induction, the plaintiff requested, and was given, a few weeks off from his job in July, 1972. While away he learned that if he enlisted in the military, rather than be drafted, he could defer his induction for 180 days. He therefore chose to enlist.
12. When plaintiff Chaltry returned to Munising after taking time off, he informed defendant Freeman that he was not required to report for military duty for another six months and that he wanted to remain with the radio station. The defendant responded that the plaintiff was no longer entitled to a position because he had been replaced.3
13. After being refused reemployment, the plaintiff contacted the Labor Management Services Administration of the United States Department of Labor (LMSA). Mr. Gregory A. Miksa, a compliance officer with LMSA in 1972, investigated the plaintiff's complaint and ultimately met with the plaintiff and defendant Freeman in September, 1972 in Munising.
14. At this meeting the defendant employer informed the plaintiff for the first time that he had been fired. Prior to this meeting the defendant simply had denied the plaintiff's request to work beyond July, 1972.
15. In a letter dated August 21, 1972 to Louis Woiwode, Area Administrator of the Detroit Area Office of LMSA, defendant Freeman had stated that Plaintiff's Ex. 11.
16. At trial defendant Freeman alleged that the plaintiff resigned his position with WGON-AM and WQXO-FM for reasons unrelated to his entering the service. He specifically denied that the plaintiff was on vacation after receiving his draft notice and prior to induction. The defendant also contended that plaintiff Chaltry was actually fired due to poor job performance.
The defendant's inconsistent positions make his testimony on this issue incredible. The record clearly reflects that the plaintiff "resigned" his position at the radio station in anticipation of his military obligation. The court rejects other alternatives for the following reasons: First, there is no evidence to indicate that the plaintiff's allegedly poor job performance warranted dismissal. Second, the plaintiff was not informed that he had been fired until long after his departure when he requested assistance from LMSA. It appears as though the firing explanation was contrived by Mr. Freeman in order to avoid retaining the plaintiff for a few months until he had to report for active duty. Third, in the letter defendant Freeman wrote to Mr. Woiwode he acknowledged a continuing relationship with the plaintiff by stating that the plaintiff would have his job back when he returned from active duty. Finally, there also is evidence that the plaintiff was compensated through the week ending July 27, 1972. This evidence comports with the plaintiff's testimony that he took a two week paid vacation in mid-July. See Plaintiff's Ex. 5.
17. On July 7, 1972 the plaintiff entered the United States Army and was placed on inactive status for 180 days. He began active duty on January 5, 1973 and received an honorable discharge approximately two years later, on December 14, 1974, leaving with the rank of Specialist, Fourth Class.
18. The same month he left the service, the plaintiff returned to Munising and applied for his former position at the radio station. Mr. Paul E. Petosky, Vice President of Ollie's and General Manager of station WGON-AM and WQXO-FM, informed plaintiff Chaltry that no openings were available. A few weeks later the station contacted the plaintiff to fill a temporary vacancy. The plaintiff refused this position.
19. The plaintiff's starting salary in 1970 was approximately $1.45 an hour. On or about January 1, 1972, he began receiving a bi-weekly salary of $140.00 and continued to receive this salary until he left for the Army.
20. While employed at the station during this two-year period, plaintiff Chaltry worked between 35 and 40 hours a week.
21. Staff announcers employed by the station subsequent to plaintiff's departure earned at least the federal minimum wage in effect at the time.
22. After being denied reinstatement, the plaintiff made diligent efforts to secure alternative employment to mitigate his damages.
23. Before purchasing WGON-AM and WQXO-FM in 1977, defendant Laidlaw knew, or should have known, of the plaintiff's claim against defendants Freeman and Ollie's. On November 2, 1977, attorney George Wood advised William A. Heigaard, an attorney and principal in Laidlaw during its acquisition of the radio station from Ollie's, that the plaintiff was a creditor of Ollie's with an undetermined claim.
24. After acquiring the station, defendant Laidlaw carried on the operation of the station without substantial change or interruption. It used the same call letters, format, equipment, and offices.
25. The plaintiff and defendant Laidlaw have stipulated and agreed that the federal minimum wage rates4 from 1977 through 1981 were:
1977 — $2.30/hour
1978 — $2.65/hour
1979 — $2.90/hour
1980 — $3.10/hour
1981 — $3.35/hour
26. The court takes judicial notice that the federal minimum wage5 for 1975 was $2.10 per hour and for 1976 it was $2.30 per hour.
27. If the plaintiff had been employed at the station for 37.5 hours a week and had been paid the applicable federal minimum wage for...
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