Eidukonis v. Southeastern Pennsylvania Transp. Authority
| Decision Date | 31 May 1989 |
| Docket Number | No. 88-1506,88-1506 |
| Citation | 873 F.2d 688 |
| Parties | 131 L.R.R.M. (BNA) 2287, 57 USLW 2707, 111 Lab.Cas. P 11,129 Kestutis EIDUKONIS v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Saul H. Krenzel (argued), Philadelphia, Pa., for appellant.
Robert G. Bauer (argued), Abraham, Pressman & Bauer, P.C., Philadelphia, Pa., for appellee.
Before SLOVITER and BECKER, Circuit Judges and BARRY, District Judge. *
In 1986, Congress reaffirmed the integral role that the National Guard and Reserve forces of the United States play in the total force policy of the United States for national defense. See Reaffirmation of Recognition of National Guard and Reserve Forces, Pub.L. No. 99-290, Sec. 1(a)(1), 100 Stat. 413 (1986) (). Congress stated that, "the citizen-military volunteers who serve the Nation as members of the National Guard and Reserve ... require and deserve the support and cooperation of their civilian employers, in order to be fully ready to respond to national emergencies." Pub.L. No. 99-290, Sec. 1(b), 100 Stat. 413 (1986). Congress called upon the nation's employers and supervisors for their support in maintaining a strong Guard and Reserve force by "granting employees a leave of absence from their jobs to participate in military training without detriment to earned vacation time, promotions, and job benefits." Id. at Sec. 1(a)(3).
The specific provisions governing an employee's rights to be absent from work to fulfill military Reserve obligations and the employer's obligations with respect thereto are contained in the Veterans' Reemployment Rights Act, 38 U.S.C. Sec. 2021 et seq. (1982 & Supp.1986). On this appeal, we must decide the standard under which an employee's request for leave from work to carry out an active-duty assignment in the Reserve services should be evaluated. This question is one of first impression for this court.
Kestutis Eidukonis was hired in 1981 as a Production Control Specialist for the Southeastern Pennsylvania Transportation Authority (SEPTA). In 1984, which is the period relevant to this case, there were two other persons in comparable jobs in the department in which Eidukonis worked, all supervised by Ollin Boyd. One of Eidukonis' principal duties was to work on the budget for SEPTA's rail equipment maintenance division.
At the time he was hired, Eidukonis disclosed that he was a member of the United States Army Reserve (Reserve). Eidukonis held the rank of major in that service. As a reservist, Eidukonis had the obligation to attend two weeks of annual training, which he served at Fort Monroe, Virginia. Reservists in Eidukonis' situation must be willing to serve beyond that period but are free to turn down any particular duty offered in the absence of a national emergency without adversely affecting their status in the Reserve as long as they accumulate the 50 "points" a year required to maintain active status in the Reserve. 1
One week after Eidukonis joined SEPTA, he left for five months of military leave, beginning a pattern of prolonged absences from work for military duty. The district court found that he was on military leave for 153 days in 1981, 144 days in 1982, 88 days in 1983, and 180 days from 1984 through the first two months of 1985. During this period, SEPTA had no written employment policy limiting employees' rights to take military leave or defining the manner in which requests should be made or the amount of prior notice required. In each instance, Eidukonis informed his supervisor orally that he planned to take military leave and then confirmed the dates he would be absent in writing. Prior to 1984, Eidukonis' requests were routinely granted without objection or criticism of them.
In 1984, Boyd asked all employees in his department to postpone their summer vacations until completion of a planned move of the department to another location. Eidukonis told Boyd he planned to take his two-week annual Reserve training duty that August, and that he would only take two weeks that year. On the last day of the two-week period, which Eidukonis served at Fort Monroe, he called Boyd and asked to take a week of vacation, which Boyd also approved. Before he went on the two-week tour, Eidukonis had received an offer to come to Fort Indiantown Gap, Pennsylvania, for 26 days to work on a computer project involving the design of a program for the weapons firing ranges at that site. On the last day of his vacation, Eidukonis called Boyd and requested and received permission from Boyd for the 26-day leave. Eidukonis was back at work at SEPTA for one day in September before he left again for the 26 days.
The range control program was not finished within the 26-day period, and the Army extended Eidukonis' tour of duty for an additional 140 days, from October 1, 1984 to February 16, 1985, so that he could complete the project. Eidukonis telephoned Boyd the day after the orders were issued, giving SEPTA three days' notice of the extension, and again received Boyd's consent to the extension. Because of the length of that tour of duty, Eidukonis received Army authorization to move his dependents and household goods to his station. Eidukonis testified that he saw the opportunity to save a little money by moving out of his apartment and putting his goods in storage, which the Army paid for.
Boyd believed that he did not have authority to deny Eidukonis' request for military leave. During Eidukonis' last leave, Boyd read an article about a case in Pensacola, Florida, where a reservist's termination from his employment was upheld. 2 Boyd contacted SEPTA's Human Resources Department shortly after he learned of Eidukonis' orders for the 140-day extension and asked what could be done because Boyd was in a "desperate situation" and he needed Eidukonis, who was one-third of his staff, to return. During that tour of duty, SEPTA's Deputy General Manager Wert (who was coincidentally also a major in the Reserves) contacted Eidukonis and, as Eidukonis testified, "accused [him] of abusing SEPTA by taking military leave." App. at 63. Eidukonis knew that Wert also contacted a major in the Adjutant General Corps at Fort Indiantown Gap, expressing concern over Eidukonis' frequent absences from employment due to military tour commitments.
Eidukonis was scheduled to be back at SEPTA following his 140-day leave on Monday, February 18. However, on February 8, 1985 Eidukonis telephoned Boyd and requested an additional 26-day extension of duty for completion of his computer project. He told Boyd he had also arranged for his annual two-week training subsequent to that. Although Eidukonis had mentioned to Boyd the possibility of an additional extension when he visited SEPTA on October 29, he had not told Boyd before February 8 that there was actually any military order that might require him to be in the military beyond February 18. In fact, Eidukonis knew that military orders were issued November 23, 1984, for his two-week annual training tour scheduled to begin March 18, 1985, after the proposed 26-day extension.
According to Eidukonis, on February 8 Boyd orally approved his request for additional leave, and Eidukonis thereupon signified his acceptance of the orders. The district court made no finding of an oral approval. It is undisputed that on February 11, Boyd called Eidukonis and told him his request for an extension was denied. He confirmed that in a letter dated February 11, which informed Eidukonis that if he did not return to work on February 18, the first workday following his scheduled 140-day leave, Eidukonis would place his employment status with SEPTA in jeopardy. See P-16.
Eidukonis consulted with an army legal officer after receiving this letter and was told that SEPTA could not terminate his employment if he continued his military service rather than reporting to work as ordered. On the basis of this advice, Eidukonis did not report for work on February 18, but instead remained at the military base to complete the computer project. SEPTA subsequently suspended and then discharged Eidukonis for failing to follow an order of his supervisor.
The district court found that Eidukonis' termination was based solely on his failure to report back from military duty on February 18 and not on any prior military leaves, failure to provide sufficient notice, breaking of promises about seeking further military duty, or other reason. The court noted that there was evidence in the record that Eidukonis disliked Boyd and other supervisors and once stated that he was requesting additional leave because of SEPTA's failure to grant him a promotion. The court found, however, that what Eidukonis did or failed to do in notifying his supervisor of his extended duty, accepting the extension, and failing to report to work did not amount to bad faith. The court stated that its decision might have been different had Boyd previously established and communicated to Eidukonis certain terms and conditions of duration of leaves and amount of notice required. The court concluded, however, that "[u]nder all the circumstances" Eidukonis' refusal to return to work on February 18 was "not unreasonable," App. at 524, because Eidukonis was in the middle of an important military project, had consistently been granted large amounts of military leave on request without objection in the past, and had been given absolutely no warning or notice that this policy had changed.
The court thus found SEPTA in violation of the Veterans' Reemployment Rights Act, which it interpreted as requiring employers to reinstate employees after military duty unless the employees "acted...
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