Green v. Oktibbeha County Hospital, EC80-35-LS-O.

• Decision Date: 28 August 1981
• Docket Number: No. EC80-35-LS-O.,EC80-35-LS-O.
• Citation: 526 F. Supp. 49
• Parties: James O. GREEN, III, Plaintiff, v. OKTIBBEHA COUNTY HOSPITAL, Defendant.
• Court: U.S. District Court — Northern District of Mississippi

526 F. Supp. 49

James O. GREEN, III, Plaintiff, v. OKTIBBEHA COUNTY HOSPITAL, Defendant.

No. EC80-35-LS-O.

United States District Court, N. D. Mississippi, E. D.

August 28, 1981.

Falton O. Mason, Jr., Asst. U. S. Atty., Oxford, William Burger, U. S. Dept. of Labor, Atlanta, Ga., L. K. Cooper, Jr., U. S. Dept. of Labor, Birmingham, Ala., for plaintiff.

Jeffrey A. Walker, Fuselier, Ott, McKee, Flowers, Jackson, Miss., for defendant.

MEMORANDUM OPINION

SENTER, District Judge.

This case came on for trial on July 30, 1981, before the court sitting without a jury. Plaintiff James O. Green, III, brought this action pursuant to 38 U.S.C. § 2021 et seq. (Veterans' Reemployment Rights Act), seeking both reinstatement to his former position with Defendant Oktibbeha County Hospital as well as lost wages and other benefits accruing to him because of the hospital's failure to reemploy him after his service on initial active duty for training with the Mississippi Army National Guard.

The court having heard the evidence, having observed the demeanor of the witnesses on the stand and otherwise having been fully advised in the premises hereby rules that the hospital violated Section 2024(c) of the Act when it failed to reemploy plaintiff after his period of initial active duty for training. This memorandum order represents the court's findings of fact and conclusions of law as required under Rule 52 of the Federal Rules of Civil Procedure.

FINDINGS OF FACT

Plaintiff James O. Green, III, was originally employed by Defendant Oktibbeha County Hospital on August 14, 1975, as an office clerk in a part-time capacity while attending Mississippi State University.

In July, 1976, plaintiff obtained the full-time position of credit manager and in November, 1976, was promoted to the position of business office manager. The title of this position was changed in January, 1978, to patient accounts manager, with responsibility over the data processing, insurance and business offices.

While working at Oktibbeha County Hospital and residing in Starkville, Mississippi, plaintiff became reacquainted with then Captain (now Major) Charles Carter of the Mississippi Army National Guard, who serves as the Operating and Training Specialist for his battalion (2nd Battalion, 114th Field Artillery) headquartered in Starkville, Mississippi. Plaintiff and Major Carter had previously been acquaintances at Mississippi State University, where plaintiff had served in the R.O.T.C.

On several occasions during May and June, 1978, plaintiff and Major Carter discussed the possibility of plaintiff joining the Mississippi Army National Guard.

In early July, 1978, Major Carter discussed with plaintiff the position of Physicians' Assistant with the National Guard. The position was part-time and involved the supervision of the weekend and summer camp training of the medical section of the Guard unit and would not interfere with normal civilian employment. There was a current open slot in Major Carter's unit for a Physicians' Assistant.

Sometime shortly prior to July 14, 1978, plaintiff had a conversation with Mr. Arthur C. Kelly, Director of Oktibbeha County Hospital, in the hospital parking lot, during which plaintiff informed Mr. Kelly of his intent to join the Mississippi Army National Guard and of his desire to get into the Physicians' Assistant School, which would encompass a two-year program beyond the four month initial active duty for training. Plaintiff asked Mr. Kelly for his opinion about the Physicians' Assistant program and asked if Mr. Kelly would write a letter of recommendation to help plaintiff get into the Physicians' Assistant program. At this time, both plaintiff and Mr. Kelly knew that Physicians' Assistants were not licensed to practice in Mississippi. Plaintiff, to this time, does not know which states have legalized the position.

Mr. Kelly responded by writing a letter dated July 14, 1978, to Sgt. Hardin of the Mississippi Army National Guard which read as follows:

It is my pleasure to recommend very highly James O. Green to the National Guard as a candidate for Physicians Assistants School. Jim has worked in a very responsible position for the past year and a half and has fulfilled his responsibility very admirably. He matured very rapidly in his job and at this point has been delegated a great deal of responsibility without direct supervision.

We at Oktibbeha County Hospital will regret the loss of his services, however, I understand that this is a great opportunity to advance in a career of his choice. Should you desire any further information, please feel free to contact me.

It is the finding of the court that Mr. Kelly believed on July 14, 1978, that plaintiff intended to use the National Guard training program to become a Physicians' Assistant and that Mr. Kelly believed plaintiff would not be returning to Oktibbeha County Hospital although Mr. Kelly never identified with full clarity the exact words used by plaintiff which led Mr. Kelly to draw this conclusion.

It is also the finding of the court that plaintiff never purposely intended to lead Mr. Kelly to believe that his joining the National Guard meant he would not be returning to the hospital. The court finds that plaintiff viewed the reference in the July 14, 1978, letter to "loss of services" as referring only to his four month active duty absence.

Plaintiff actually joined the Mississippi Army National Guard on July 31, 1978, and informed Mr. Kelly on that date or the next day.

By orders dated August 31, 1978, plaintiff was ordered to active duty for training for the period beginning September 27, 1978. The orders read that the period would continue until completion of Military Occupation Speciality Training (approximately 4 months but not less than 12 weeks).

On September 8, 1978, plaintiff submitted a Request for Training Duty Leave of Absence to Mr. Kelly to begin on September 25, 1978.

Mr. Kelly wrote a note on the form which read as follows: "Mr. Green, insofar as we are concerned, tendered his resignation by informing us that he intends to enlist in the Guard to pursue training and future employment as a Physician Assistant. Consequently, the job of Manager, which he now holds, was filled immediately. He is currently working out what we consider Termination Notice."

Plaintiff thereupon made it clear to Mr. Kelly at a meeting on September 8, 1978, that he had not resigned in July, 1978, and that he could not understand how Mr. Kelly had arrived at that conclusion.

Plaintiff immediately contacted Major Carter to inform him of Mr. Kelly's note and was told by Major Carter that he had reemployment rights after serving with the National Guard.

No written resignation was ever submitted by plaintiff, nor was one requested. Mr. Kelly testified that it was the policy of the defendant not to accept oral resignations and to require that all resignations be submitted in writing, although a written resignation was not always received. Generally, a two-weeks notice is ordinarily given to defendant for resignations.

In the meantime, since early 1978, Ms. Faye Owens, Mr. Kelly's executive secretary, was being trained in the areas of Mr. Green's responsibilities for the purpose of filling in during the absences of clerical employees or of Mr. Green. Her position as executive secretary to Mr. Kelly was not immediately filled.

On August 7, 1978, Ms. Owens was placed in Mr. Green's position and he was assigned to concentrate on the collection of overdue accounts. His personnel card reflected that he was reassigned as a "collector" on August 7, 1978, at no reduction in pay. Plaintiff testified that he was never informed of this title change, and he continued to refer to himself as patients account manager on hospital forms which were reviewed by Mr. Kelly after August 7, 1978.

The reassignment of plaintiff to the "collector" position was clearly for the benefit of the hospital to allow Ms. Owens to be trained while plaintiff was still present and to have plaintiff perform a job which needed to be done.

At all times, plaintiff's performance with defendant was satisfactory or better, and it is clear that but for plaintiff's entrance onto active duty for training, his employment with defendant would have continued indefinitely.

Plaintiff withdrew his contributions to the hospital's pension fund because he believed the extra money would be needed at his reduced level of pay in the National Guard, even though he was informed that he would forfeit the hospital's share of the contributions.

At no time was plaintiff guaranteed acceptance into the Physicians' Assistant Training program by National Guard officials, nor did plaintiff ever represent to Mr. Kelly that he was guaranteed of attending Physicians' Assistant Training.

Major Carter testified that shortly after plaintiff joined the National Guard on July 31, 1978, plaintiff knew that he could not go straight through from initial active duty for training to Physicians' Assistant school, even if he were accepted, and that he would have to return to the hospital after initial active duty for training.

Plaintiff's last day with the hospital was September 22, 1978, and his personnel card was marked "9/22/78 — Resigned."

After successfully completing basic training at Fort Leonard Wood, Missouri, on November 16, 1978, plaintiff was assigned to Fort Sam Houston, Texas, for his Military Occupation Specialty Training. By orders dated November 29, 1978, plaintiff was informed that his active duty for training would end on January 16, 1979.

Knowing that he would be released from his training duty on January 16, 1978, plaintiff wrote to Mr. Kelly on December 29, 1978, informing Mr. Kelly of the impending release and requesting his reemployment rights under the Act. He indicated he would be available to start work on January 22, 1979.

By letter dated January 8, 1979, Mr. Gary R. Parvin, an attorney representing the...