Davis v. Halifax Cty. Sch. System, 78-5-CIV-8.

• Decision Date: 26 February 1981
• Docket Number: No. 78-5-CIV-8.,78-5-CIV-8.
• Citation: 508 F. Supp. 966
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Percy L. DAVIS, Plaintiff, v. HALIFAX COUNTY SCHOOL SYSTEM, Defendant.

508 F. Supp. 966

Percy L. DAVIS, Plaintiff, v. HALIFAX COUNTY SCHOOL SYSTEM, Defendant.

No. 78-5-CIV-8.

United States District Court, E. D. North Carolina, Wilson Division.

February 26, 1981.

William H. Berger, U. S. Dept. of Labor, Atlanta, Ga., Wendy S. Hildreth, U. S. Dept. of Labor, Nashville, Tenn., Abraham Penn Jones, Asst. U. S. Atty., Raleigh, N. C., for plaintiff.

W. Lunsford Crew, Roanoke Rapids, N. C., for defendant.

ORDER

DUPREE, Chief Judge.

This action arises under the reemployment provisions of the Viet Nam Era Veterans Readjustment Assistance Act, 38 U.S.C. §§ 2021, et seq. Plaintiff, a veteran of the United States Army, was employed as a teacher by defendant school system from November 26, 1973, until the end of the 1974-75 school year. He was sworn into the Army Reserves in April, 1975, with an August, 1975 enlistment date, and he resigned from the school system by letter dated May 15, 1975. Shortly before an honorable discharge in December, 1976, plaintiff applied for reemployment with defendant, but his application was refused. Pursuant to 38 U.S.C. § 2021, et seq., plaintiff seeks reinstatement as a teacher and back pay. Plaintiff has moved for partial summary judgment on the question of liability, and defendant has moved for summary judgment. Because the facts material to the question of liability are undisputed, the motions are ripe for disposition.

Under 38 U.S.C. §§ 2021 and 2024, a person "who leaves a position (other than a temporary position)" of employment to enlist in the military, is honorably discharged, and applies for re-employment within ninety days of discharge, is entitled to reinstatement in the same position or "a position of like seniority, status, and pay ... unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so." 38 U.S.C. § 2021(a). It is undisputed that plaintiff was honorably discharged and that he applied for re-employment within ninety days of discharge. As defenses under the statute, defendant contends that plaintiff's teaching position was only temporary and therefore not protected by 38 U.S.C. § 2021(a), and that circumstances have rendered reinstatement unreasonable. Defendant further contends that plaintiff waived any rights to reinstatement when he resigned his teaching position and that plaintiff left the teaching position for reasons other than enlisting in the military.

Defendant's contention that plaintiff's teaching position was only temporary is without merit. Plaintiff, like all public school teachers in North Carolina, was required to serve three years in a probationary status before acquiring a "career," or tenured position. When he resigned, plaintiff had completed his second probationary year, and defendant had tendered a contract for employment for the third year. Defendant asserts that because the position was probationary, the plaintiff had no right to continuing employment.

A well-developed line of cases under 38 U.S.C. § 2021 and its predecessors has established that a job will not be considered to be temporary if there is a reasonable expectation that the employment would continue for an indefinite period of time. Tilton v. Missouri Pacific Railroad Company, 376 U.S. 169, 84 S.Ct. 595, 11 L.Ed.2d 590 (1964); Collins v. Weirton Steel Company, 398 F.2d 305, 309 (4th Cir. 1968); Skeene v. Village of Moscow, Ohio, 84 CCH Labor Cases 10,678 (S.D.Ohio 1978). Plaintiff had such a reasonable expectation of continuing employment. He was offered a contract for his third probationary year. Furthermore, no teacher in the Halifax County school system who became eligible for "career status" during the four school years, 1974-75, 1975-76, 1976-77 and 1977-78, was denied that status (defendant's answer to plaintiff's interrogatory No. 15). Neither the fact that under state law plaintiff's position was probationary nor the fact that plaintiff could have been dismissed for failure to perform satisfactorily renders his position temporary. See Tilton v. Missouri Pacific Railroad Company, supra; Collins v. Weirton Steel Company, supra; Skeene v. Village of Moscow, Ohio, supra.

Defendant's contention that reinstatement of plaintiff would be unreasonable under the circumstances is also without merit. Defendant contends that school system enrollment has declined, causing the total teaching staff to be reduced by six teachers. Thus, it is contended that to reemploy plaintiff, the system would have to create an unnecessary and useless teaching position.

The statutory exception excusing a refusal to re-employ a veteran where reinstatement would be unreasonable is a very limited exception to be applied only where reinstatement would require creation of a useless job or where there has been a reduction in the work force that would reasonably have included the veteran. Kay v. General Cable Corporation, 144 F.2d 653, 655 (3rd Cir. 1944); Jennings v. Illinois Office of Education, 83 CCH Labor Cases 17,626 (S.D.Ill.1978). It is not sufficient excuse that another person has been hired to fill the position vacated by the veteran nor that no opening exists at the time of re-application. Kay, supra; United States ex rel. Stanley v. Wimbish, 154 F.2d 773, 775 (4th Cir. 1946); Witter v. Pennsylvania National Guard, 462 F.Supp. 299, 305 (E.D.Pa. 1978); Cason v. Emanuel County Board of Education, 85 CCH Labor Cases 20,886 (S.D. Ga.1979). Here, the reduction in the work force was accomplished through normal attrition, and the school system hired a large number of new teachers during the 1975-76 and 1976-77 school years (defendant's answers to plaintiff's interrogatories Nos. 13 and 14). At least two of the newly-hired teachers were hired in plaintiff's area of certification, and at least two other teachers were...