Farries v. Stanadyne/Chicago Div., F 85-311.

• Decision Date: 01 October 1985
• Docket Number: No. F 85-311.,F 85-311.
• Citation: 618 F. Supp. 1324
• Parties: John W. FARRIES, Plaintiff, v. STANADYNE/CHICAGO DIV., Defendant.
• Court: U.S. District Court — Northern District of Indiana

618 F. Supp. 1324

John W. FARRIES, Plaintiff, v. STANADYNE/CHICAGO DIV., Defendant.

No. F 85-311.

United States District Court, N.D. Indiana, Fort Wayne Division.

October 1, 1985.

David W. LaMont, Evansville, Ind., John M. Beams, Fort Wayne, Ind., for plaintiff.

Michael G. Cleveland, Karen Gatsis Anderson, Chicago, Ill., G. William Fishering III, Fort Wayne, Ind., for defendant.

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on defendant's ("Stanadyne") Motion to Dismiss. Both parties have fully briefed the issues raised in the motion. For the following reasons, the motion to dismiss will be granted.

This action arises out of Stanadyne's failure to rehire the plaintiff ("Farries") upon Farries' discharge from military service in 1974. According to the allegations of the complaint, Farries had worked for Stanadyne from November, 1968 until July 7, 1970, when he joined the United States Air Force, although an affidavit submitted with Stanadyne's motion to dismiss indicates that Farries was fired on July 2, 1970. Farries served in the Air Force until September, 1973, and then reenlisted. He served until August, 1974, when he was discharged "under other than honorable conditions." In October, 1974, and subsequently in 1975 and 1976, Farries applied for reinstatement at Stanadyne, but was denied such reinstatement. In March, 1977, Farries' discharge was upgraded to "honorable", retroactive to his August, 1974 discharge. Farries again sought reinstatement on several occasions, but was unsuccessful each time.

Farries now sues under the Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. § 2021, et seq., claiming that Stanadyne's refusal to reinstate him violates the Act. Farries filed this suit March 30, 1983, although his in forma pauperis petition was received by the Southern District of Indiana, Evansville Division, on September 23, 1982. Stanadyne moved to dismiss the suit on grounds of improper venue and laches. The case was transferred to this court on July 19, 1985, thereby mooting the venue issue.

Although Stanadyne denominates its motion as a motion to dismiss, it is clear that its argument relies heavily on the affidavit of Arlan G. Anderson, its Manager of Industrial Relations. Proper treatment of the motion requires the court to refer to and rely upon the Anderson affidavit as well. When matters outside the pleadings are presented to and not excluded by the court, a motion to dismiss will be converted into a motion for summary judgment. Fed. R.Civ.P. 12(b)(6).

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may only be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Thus, summary judgment serves as a vehicle with which the court "can determine whether further exploration of the facts is necessary." Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975).

In making this determination, the court must keep in mind that the entry of summary judgment terminates the litigation, or an aspect thereof, and must draw all inferences from the established or asserted facts in favor of the non-moving party. Peoples Outfitting Co. v. General Electric Credit Corp., 549 F.2d 42 (7th Cir.1977). The non-moving party's reasonable allegations are to be accepted as true for purposes of summary judgment. Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215, 1218-19 (7th Cir.1984). A party may not rest on the mere allegations of the pleadings or the bare contention that an issue of fact exists. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). See also Atchison, Topeka & Santa Fe Railway Co. v. United Transportation Union, 734 F.2d 317 (7th Cir.1984); Korf v. Ball State University, 726 F.2d 1222 (7th Cir.1983). See generally C. Wright, Law of Federal Courts, § 99 (4th ed. 1983); 6 Moore's Federal Practice, § 56.15 (2d ed. 1984).

Thus, the moving party must demonstrate the absence of a genuine issue of material fact. The court views all evidence submitted in favor of the non-moving party. Even if there are some disputed facts, where the undisputed facts are the material facts involved and those facts show one party is entitled to judgment as a matter of law, summary judgment is appropriate. Egger v. Phillips, 710 F.2d 292, 296-97 (7th Cir.1983); Collins v. American Optometric Assn., 693 F.2d 636, 639 (7th Cir.1982). Further, if the court resolves all factual disputes in favor of the non-moving party and still finds summary judgment in favor of the moving party is correct as a matter of law, then the moving party is entitled to summary judgment in his favor. Egger, 710 F.2d at 297. See also Bishop v. Wood, 426 U.S. 341, 348, 348 n. 11, 96 S.Ct. 2074, 2079, 2079 n. 11, 48 L.Ed.2d 684 (1976).

Title 38, § 2021, gives an employee who was inducted into the military the right to be reinstated in his former position or a position of like seniority, status and pay if he received certification of satisfactory completion of military service and applies for reinstatement within ninety days of discharge. If an employer fails to comply with § 2021, § 2022 allows a district court, "upon the filing of a motion, petition, or other appropriate pleading by the person entitled to the benefits of such provisions," to require the employer to comply with the statute and compensate the veteran for any wages or benefits lost because of the employer's unlawful actions.

Stanadyne argues that Farries' claim under § 2021 is barred by laches because Farries waited almost nine years from the date of his discharge, and six years from the date of his honorable discharge, to file his lawsuit. The Seventh Circuit's opinion in Lingenfelter v. Keystone Consolidated Industries, Inc., 691 F.2d 339 (7th Cir. 1982), is direct precedent on the issue of laches under § 2021. In Lingenfelter, a veteran was denied reinstatement in 1971, was informed that the United States Justice Department would not prosecute his claim in 1974, but waited until 1980 to file his lawsuit. The Seventh Circuit affirmed the district court's finding that the claim was barred by laches.

According to Lingenfelter, "laches is principally a question of the inequity of permitting a claim to be enforced ... laches is based on changes of conditions or relationships involved with the claim." Id. at 340. To accurately measure whether the conditions or relationships have changed, a two-pronged test is used. The defendant must show (1) a lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the defending party. Id.

Under the first prong of the test, the plaintiff bears the burden of explaining its delay in bringing the suit. Id.; Baker Manufacturing Co. v. Whitewater Manufacturing Co., 430 F.2d 1008, 1011-15 (7th Cir.1970). Farries left the Air Force in 1974, but did not begin pursuing his § 2021 rights until sometime after March, 1977, when his discharge was upgraded to "honorable." On December 6, 1978, the Department of Labor issued a letter notifying Stanadyne of Farries' claim. From December, 1978 until June, 1980, the claim was investigated by the Department and negotiations of some kind occurred among Stanadyne, Farries and the government. In June, 1980, Stanadyne's contact with the government ceased, but Farries did not file any court proceedings until September, 1982.

Farries does not attempt to offer an explanation for the delay from 1974 until 1978, when the Department of Labor became involved in investigating the claim. The only conceivable explanation is that Farries had to wait until his discharge was "honorable" before he could invoke § 2021. It is true that § 2021(a) requires that a veteran "receive a certificate described in section 9(a) of the Military Selective Service Act (relating to the satisfactory completion of military service)...." Yet there is nothing to suggest that Farries even went so far as to run up against this provision of § 2021. He did not try to file a § 2022 action against Stanadyne, only to be told that he could not proceed until he had an honorable discharge. Other than repeatedly asking Stanadyne for reinstatement, Farries did nothing to pursue his claim for four years.

Further, even if Farries was waiting for the upgrade of his discharge, Stanadyne had nearly four years of inaction by Farries with which to assess its situation. During those four years, Stanadyne paid an employee to do the work which Farries might have done if he had filed suit within those four years and won. From Stanadyne's perspective, Farries had long since been terminated and was apparently going to press no claim against Stanadyne (as the past four years had indicated).

Once the Department of Labor was informed of the claim, a period of about one and a half to nearly two years of government investigation ensued. The role of delay caused by government investigation of a veteran's claim has received judicial attention in the past.

Under the Act itself, the Secretary of Labor "shall render aid in the replacement in their former positions or reemployment of persons who have satisfactorily completed any period of active duty in the Armed Forces...." 38 U.S.C. § 2025. Despite this statutory mandate to "render aid", the delay caused by such government involvement in reinstatement of veterans has not been viewed kindly by courts confronted with a laches defense. Prior to 1974, courts generally held that the delay caused by government investigations was chargeable to the veteran, so that statutes of limitations were not tolled. See Bell v. Aerodex, Inc., 473 F.2d 869, 873 (5th Cir.1973); Blair v. Page...