Fann v. Modlin

• Decision Date: 26 January 1988
• Docket Number: No. 87-27-CIV-3.,87-27-CIV-3.
• Citation: 687 F. Supp. 218
• Parties: Jimmy R. FANN, Plaintiff, v. E.C. MODLIN, Director, Cumberland County, North Carolina Department of Social Services, Defendant.
• Court: U.S. District Court — Eastern District of North Carolina

687 F. Supp. 218

Jimmy R. FANN, Plaintiff, v. E.C. MODLIN, Director, Cumberland County, North Carolina Department of Social Services, Defendant.

No. 87-27-CIV-3.

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

January 26, 1988.

William H. Berger, U.S. Dept. of Labor, Atlanta, Ga., Paul M. Newby, Asst. U.S. Atty., Raleigh, N.C., for plaintiff.

Robert P. Joyce, Barber & Joyce, Pittsboro, N.C., for defendant.

ORDER

DUPREE, Senior District Judge.

Plaintiff brings this action alleging that defendant's termination of plaintiff from his position as an Eligibility Specialist I violated the Veterans' Reemployment Rights Act, 38 U.S.C. § 2021. Plaintiff seeks a declaratory judgment that the termination was in violation of this Act, reinstatement, compensation for lost wages and other benefits, pre- and post-judgment interest and costs. The action is before the court on defendant's motion to dismiss on the ground that plaintiff has failed to state a claim upon which relief may be granted. F.R.Civ.P. 12(b)(6). The motion will be denied.

Plaintiff alleges that he, as a member of the North Carolina Army National Guard, sought a two-week military leave from his employer for the purpose of military training during July 24, 1983 through August 6, 1983. Defendant admits in his answer that such leave was denied and plaintiff thereafter was terminated because of "unexcused absence from work."

Plaintiff further alleges that his termination violated the Veterans' Reemployment Rights Act (the Act), 38 U.S.C. § 2021, and in particular, Section 2021(b)(3). Defendant contends plaintiff has failed to allege that he was still qualified for employment within the meaning of the Act and therefore moves for dismissal.

The manifest purpose of the Act is to insure that a veteran or reservist who is forced to be absent from his (or her) civilian employment by reason of military leave will not be penalized upon his return. See Monroe v. Standard Oil Company, 452 U.S. 549, 101 S.Ct. 2510, 69 L.Ed.2d 226 (1981). Subsection (a) of Section 2021 provides for the reemployment of a person who, while in the employ of a government or private employer, leaves his employment by reason of induction into the Armed Forces of the United States. 38 U.S.C. § 2021(a). Such "reemployment" is to be to the same or a similar position if the veteran is "still qualified" for such a position. Id. § 2021(a)(A)(i), (a)(B)(i). If "not qualified to perform the duties of such position, by reason of disability sustained during such military service," then the veteran is to be offered employment in some other position which he is qualified to perform and which will provide like seniority, status and pay, or the nearest approximation thereof. Id. § 2021(a)(A)(ii), (a)(B)(ii). Subsection (b)(3) provides as follows: "Any person who seeks or holds a position described in clause (A) or (B) of subsection (a) of this section 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." Id. § 2021(b)(3) (Supp.1987). The purpose of subsection (b)(3) is "`to prevent reservists and National Guardsmen not on active duty who must attend weekend drills or summer training from being discriminated against in employment because of their Reserve membership ....' S.Rep.No. 1477, 90th Cong., 2d Sess., 1-2 (1968)." Monroe, 452 U.S. at 557, 101 S.Ct. at 2515.

Defendant moves to dismiss the instant complaint on the sole ground that plaintiff has failed to allege that he is "still qualified" for reemployment in his former position. In support of his motion defendant cites to Trusteed Funds v. Dacey, 160 F.2d 413 (1st Cir.1947); Bryan v. Griffin, 166 F.2d 748 (6th Cir.1948); Wonnacott v. Denver & Rio Grande Western Railroad Company, 187 F.2d 607 (10th Cir.1951). The court does not find defendant's citations persuasive because they concern the reemployment of veterans under 38 U.S.C. § 2021(a) and not reservists under Section 2021(b)(3). Independent inquiry further reveals that defendant's motion is without merit.

First, the reference within subsection (b)(3) to "any person who ... holds a position described in clause (A) or (B) of subsection (a)" concerns whether the veteran's previous employer was either a civilian or governmental entity. The court does not read the reference as imposing any "qualified" or "not qualified" determination.

Second, subsection (b)(3) was designed to protect reservists or guardsmen from discharge other than for good cause unrelated to their membership. Weber v. Logan County Home for the Aged, 623 F.Supp. 711, 714 (D.N.D.1985) (citing Monroe, 452 U.S. at 559-60, 101...