Graham v. Hall-McMillen Co., Inc.

• Decision Date: 09 May 1996
• Docket Number: Civil Action No. 3:94CV116-D-A.
• Citation: 925 F. Supp. 437
• Parties: Elmer M. GRAHAM, Plaintiffs, v. HALL-McMILLEN COMPANY, INC., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

925 F. Supp. 437

Elmer M. GRAHAM, Plaintiffs, v. HALL-McMILLEN COMPANY, INC., Defendants.

Civil Action No. 3:94CV116-D-A.

United States District Court, N.D. Mississippi, Western Division.

May 9, 1996.

Jim M. Greenlee, Assistant United States Attorney, Oxford, Mississippi, Channah S. Broyde, United States Department of Labor, Atlanta, Georgia for Plaintiffs.

William O. Rutledge, III, New Albany, Mississippi, Lester F. Sumners, New Albany, Mississippi, for Defendant.

BENCH OPINION

DAVIDSON, District Judge.

This matter came to trial before the undersigned on April 8, 1996, in Oxford, Mississippi. The plaintiff, Elmer M. Graham, brought suit against Hall-McMillen Company, Inc. ("Hall-McMillen" or "HMC"), for violations of the Veterans' Reemployment Rights Act ("VRRA"), 38 U.S.C. §§ 2021 et seq.¹ The court sets out below its findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

FACTUAL FINDINGS

Hall-McMillen,² founded in 1980, produces machine parts for use by other companies in building a final product. Elmer M. ("Mike") Graham worked for the company as a machinist from its inception until approximately May, 1988. At that time he voluntarily resigned to take a job elsewhere. In October, 1988, Hall-McMillen rehired Graham, and he worked there as a machinist until February 5, 1992.

At trial, the testimony differed as to the circumstances surrounding Graham's rehiring. Apparently, Graham approached Larry Kain, a personal friend with whom he attended church and an HMC employee, and inquired as to whether he could get his job back at HMC.³ After much prodding by Kain, and upon Graham's promise to leave if requested with no questions asked, David McMillen, HMC's President and General Manager, reluctantly agreed to rehire Graham in October, 1988.⁴

Prior to his rehiring, Graham had joined the Tennessee Air National Guard ("TANG") in 1988. Pursuant to his Guard orders, Graham attended active duty for training with TANG from January 20 to January 24, 1992. Following this training, Graham returned to work on Monday, January 27, 1992. On Friday, January 31, 1992, Larry Kain tendered a check to Graham for the previous week. The check, introduced into evidence as Plaintiff's Exhibit 2, indicates that Graham had been paid vacation pay for the time he missed work due to military training. On the check's stub, under the column marked "Earnings" appear the words "Vacation Hours." Across from "Vacation Hours," the stub indicates that forty (40) hours were debited from Graham with forty-eight (48) remaining for the year.

The crux of this litigation centered on the different interpretations given this check. The defendant presented witnesses who testified that Graham had previously requested vacation pay for the time he would be gone for military duty, and that he did not lose any vacation time, only vacation pay.⁵ According to the defense, HMC has always had a flexible time policy wherein an employee may receive holiday or vacation pay at a different time than when that employee actually takes holiday or vacation time. For instance, an employee could work on a holiday, but elect not to receive holiday pay at that time and then later take a paid leave day. In the plaintiff's situation, the defendant submitted that even though Graham had been paid vacation pay for five days, his five days of vacation time had not been debited. He could still take the time without pay, since he had already been paid earlier.

On the other hand, Graham testified that he did not request vacation pay for his military time and that HMC tried to make him take "vacation" (meaning vacation time and vacation pay) for his military responsibilities. On January 31, 1992, he protested these actions as being violative of the VRRA and initially refused to accept the check. When David McMillen noticed his protestations on the floor of the machine shop, McMillen called Graham into his office and requested his resignation within two (2) weeks. Both sides presented evidence that Graham refused to resign, saying that HMC would have to fire him. The situation escalated on February 5, 1992, when Graham recorded a conversation he had with Larry Kain at work. After Kain informed McMillen of these actions, McMillen again called Graham into his office and terminated his employment on the spot.

HMC offered several defenses at trial in explanation of its actions as not violating the VRRA. The first, as noted supra, hinged on the court's interpretation of the check issued Graham and the circumstances surrounding its issuance — e.g., vacation pay versus vacation time. The court finds that Graham did not request vacation pay for his military time of January 20 through January 24, 1992. The evidence lends its weight to this finding. First of all, the check itself indicates that forty (40) "Vacation Hours" were subtracted from Graham's schedule following his military duty in January. The court was not persuaded by the defense's argument that "Vacation Hours" meant hours of pay only.

In addition, Graham's attendance record of 1992, admitted into evidence as Plaintiff's Exhibit 5, indicates HMC counted his military days off as vacation days. The legend on the attendance record defines that "H" indicates a holiday, "V" indicates vacation, "I" indicates illness, etc. Handwritten in on the legend is that an "M" indicates military leave. The days on the attendance history card for January 20 through January 24, 1992, the time Graham was gone for military training, are marked with a "V" for each day. The defendant failed to produce any credible evidence explaining why a "V" for vacation days would be marked on Graham's attendance record other than to indicate vacation days used.

Still further evidence supporting the plaintiff's side of this coin is the taped conversation which took place between Graham and Larry Kain on February 5, 1992. The tape was admitted into evidence as Plaintiff's Exhibit 4.⁶ In discussing the events that transpired the previous Friday, January 31, 1992, the following dialogue took place:

Kain: ... As far as us ever denying you time to be off to go to Guard, I don't guess we've ever said Mike, no, you can't take off. The only thing he's asked you to do is take vacation.

* * * * * *

Kain: Where do you think our company policy is against the law?

Graham: Well, I, I don't want to debate that.

Kain: Well, I don't know that I know how to debate it either, I just, I just don't think, I think the only thing the law asks you to do is us to give you time off to serve with the Guard. We have never denied you time off to serve with the Guard. The only thing we have asked you to do is take vacation for this week.

Graham: No. I have been, I was told that it was not an option. I will take vacation time. Is that not the situation? I don't have a choice.

Kain: No, I'm not giving you a choice.

Tape, Plaintiff's Exh. 4. The court finds that HMC allowed Graham time off to keep his military obligations upon the condition that he take vacation pay and time for the days he would be absent from work.

As a separate line of defense, HMC offered evidence that it fired Graham for cause in November, 1991, before the situation concerning Graham's military duty arose. When HMC rehired Graham in the fall of 1988, McMillen extracted a promise from Graham that if his employment ever became a problem at the shop, McMillen need only request him to leave and and he would do so without question. This verbal agreement was also evidenced by the taped conversation between Graham and Kain on February 5, 1992.

Kain: ... But when he asked you if we didn't discuss when you were employed here that if it ever became a problem you working here that you'd leave. Now, that's what he's asked you to do is leave, and then you said, I don't see any reason to. I don't have to.

Graham: What he said was, all right, I understand that. But the spirit of that agreement was that if I, if I was causing a problem out here in the plant.

Tape, Plaintiff's Exh. 4. The defense presented evidence that McMillen called for that promise to be kept in November, 1991. Apparently, Graham's less-than-stellar performance as an HMC employee finally culminated in McMillen telling Graham to start looking for another job. Graham disputed at trial as to whether this meeting took place at all, much less that he had been told to look for work elsewhere. However, the evidence adduced at trial overwhelmingly indicated that such a meeting did take place.⁷ Even though HMC did tell Graham to find employment elsewhere in November, 1991, that finding is irrelevant in that no time limit was placed on Graham's job search. Graham was not put on notice of his final termination until January 31, 1992, and he was not fired until February 5, 1992.

CONCLUSIONS OF LAW

I. VETERANS' REEMPLOYMENT RIGHTS ACT

Although the specific provisions of the statute at issue in this case are discussed more thoroughly below, the court notes that "the statute is to be liberally construed for the benefit of reservists and guardsmen." Cole v. Swint, 961 F.2d 58, 59 (5th Cir.1992) (citing Coffy v. Republic Steel Corp., 447 U.S. 191, 196, 100 S.Ct. 2100, 2104, 65 L.Ed.2d 53 (1980)); Green v. Oktibbeha County Hosp., 526 F.Supp. 49, 53 (N.D.Miss.1981) (same); Hansen v. Town of Irondequoit, 896 F.Supp. 110, 114-15 (W.D.N.Y.1995) (same and citing cases). Furthermore, the facts of this case present an issue of first impression in that Graham alleged he was fired in violation of § 2021(b)(3) for protesting a violation of § 2024(d). The court's research indicates that most alleged violations of § 2021(b)(3) concern situations where the plaintiff/reservist is either discharged due to his anticipatory absence for military duties or not rehired after returning from military leave. See, e.g., Cole v. Swint, 961 F.2d 58 (5th Cir.1992) (ranch foreman terminated after requesting Saturday off for training); Peel v. Florida...