Kolkhorst v. Tilghman
| Decision Date | 14 March 1990 |
| Docket Number | Nos. 89-3501,89-3502,s. 89-3501 |
| Citation | 897 F.2d 1282 |
| Parties | 133 L.R.R.M. (BNA) 2807, 58 USLW 2544, 114 Lab.Cas. P 12,028 Eric KOLKHORST, Plaintiff-Appellee, v. Edward TILGHMAN, Commissioner, Baltimore City Police Department; Baltimore City Police Department, Defendants-Appellants, Elizabeth H. Dole, Secretary of Labor, Amicus Curiae. Eric KOLKHORST, Plaintiff-Appellant, v. Edward TILGHMAN, Commissioner, Baltimore City Police Department; Baltimore City Police Department, Defendants-Appellees, Elizabeth H. Dole, Secretary of Labor, Amicus Curiae. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Otho M. Thompson, Associate Sol. (argued), Neal M. Janey, City Sol., and Ambrose T. Hartman, Deputy City Sol. (on brief), Baltimore, Md., for appellants.
Michael Lawrence Marshall (argued), Herbert R. Weiner (on brief), Schlachman, Belsky & Weiner, P.A., Baltimore, Md., for appellee.
Edward T. Morris (argued), Robert P. Davis, Sol. of Labor, John F. Depenbrock, Associate Sol., Barton S. Widom, Deputy Associate Sol., Helene Boetticher (on brief), Counsel for Litigation, U.S. Dept. of Labor, Washington, D.C., for amicus curiae.
Before ERVIN, Chief Judge, WILKINSON, Circuit Judge, and YOUNG, Senior United District Judge for the District of Maryland, sitting by designation.
Eric Kolkhorst ("Kolkhorst"), a police officer, brought this action for declaratory and monetary relief against his employer, the Baltimore City Police Department (the "Department"), and Bishop L. Robinson, the Department's Police Commissioner (the "Commissioner"), contending that his right, under 38 U.S.C. Sec. 2024(d), to become an active member of the Marine Corps reserves was violated by a Department policy limiting to one hundred the number of police officers (other than new hires) who are allowed to join active military reserve units. The district court granted Kolkhorst's motion for summary judgment, holding that the Department's policy violated Section 2024(d). Accordingly, the lower court entered an order directing the Department to permit Kolkhorst to join an active Marine Corps reserve unit, and awarded damages to Kolkhorst in the amount of $4,164 for lost military benefits which he would have earned had he been allowed to train with an active reserve unit. The Department and the Commissioner now appeal that decision, claiming that the court below erred in construing Section 2024(d). Kolkhorst cross-appeals the amount of damages. The Secretary of Labor filed an amicus brief, arguing that Section 2021(b)(3) of the VRRA makes it unlawful for an employer to discriminate against its employees who want to serve as active military reservists. For the reasons articulated below, we affirm the decision of the district court in all respects.
The parties are in general agreement regarding the essential facts of this case. Kolkhorst joined the Department in June of 1982. Prior to becoming a police officer, Kolkhorst had served four years on active duty in the United States Marine Corps, during which time he had attained the rank of Captain. Upon his discharge from active duty in 1977, Kolkhorst became a member of the Marine Corps Ready Reserve (the "Ready Reserve"), which is comprised of the Individual Ready Reserve (the "IRR") and the Selected Marine Corps Reserve (the "Selected Reserve"). Although Kolkhorst previously alternated between the IRR and the Selected Reserve, at the time he applied for his position with the Department, Kolkhorst was a member of IRR. All members of the Ready Reserve may be called to active duty in the event of war, a national emergency or when otherwise authorized by law. The primary distinction between the IRR and the Selected Reserve is that members of the IRR have no required training obligations, although they may participate in training if they wish. In contrast, members of the Selected Reserve must attend monthly drills and participate in an annual two-week training exercise. Thus, when Kolkhorst applied for and commenced his job with the Department, he was not a member of an active military reserve unit, and had no drill or camp obligations to satisfy.
As a result of a settlement reached in an earlier and unrelated case, Kundrat v. Pomerleau, No. 79-2198 (D.Md.1979), the Department, which employs approximately 2900 police officers, established a one hundred person limit on the number of officers who are permitted to join an active military reserve unit. Under the Department's rules, after the one hundred person limit is reached, other officers who request to join the reserves are placed on a waiting list until an opening occurs. An exception is made for those new hires who, at the time of their application for employment with the Department, are members of an active military reserve unit. These individuals are not barred from remaining an active reservist even if the one hundred person maximum has been reached. At the time Kolkhorst applied for his job with the Department, 126 officers were members of an active reservist unit, and 33 officers were on the waiting list.
When Kolkhorst completed his application for employment with the Department, he explained his situation to Department employees who instructed him to indicate on the form that he was not a member of an active military reserve unit which regularly drilled, and that he had no periodic training obligations. Thereafter, on at least two occasions in December of 1985, Kolkhorst applied for permission from the Department to join an active military reserve unit. The Department failed to respond to these applications, and on February 1, 1986, Kolkhorst accepted a three-year assignment to a Selected Reserve Unit. On February 4, 1986, Kolkhorst again submitted a request for permission to join an active reserve unit. The Department denied this request, but placed Kolkhorst on its waiting list for openings on the one hundred person reservist list. Despite the fact that the Department denied his request, Kolkhorst apparently arranged leaves of absence with his immediate superiors to enable him to train on weekends with his reserve unit. This unofficial arrangement worked well for several months.
Problems arose, however, when Kolkhorst received orders to report to Camp Lejeune in North Carolina for annual military training between July 31 and August 16, 1986. Kolkhorst informed his superior officers in late May of his upcoming training exercises. Subsequently, the Department began to inquire into Kolkhorst's reserve status, and on July 8, 1986, the Department orally informed Kolkhorst that his request for leave in order to train had been denied. On July 23, 1986, Kolkhorst received a Departmental memorandum directing him to remove himself immediately from active military reserve status. Kolkhorst complied with this directive on the following day.
On October 3, 1986, Kolkhorst brought this suit in the United States District Court for the District of Maryland, claiming that his right to become an active member of a military reserve unit under the Veteran's Reemployment Rights Act, 38 U.S.C. Secs. 2021-2026 ("VRRA"), was violated by the Department's policy restricting the number of police officers who were eligible to serve as active reservists. Kolkhorst sought both declaratory and monetary relief. The parties filed cross-motions for summary judgment, and on June 13, 1988, the lower court granted summary judgment in favor of Kolkhorst. The court held that the "Department's one hundred person limit on the number of officers who may be active reservists was unlawful," and ordered the Department to grant Kolkhorst's request that he be permitted to join the Selected Reserve. By a revised order dated February 15, 1989, the court also awarded Kolkhorst damages totalling $4,164 as compensation for lost income and benefits that Kolkhorst would have earned by participating in reservist training. These appeals followed.
As a preliminary matter, we note that summary judgments and matters of statutory construction are reviewed de novo on appeal. See Higgins v. E.I. DuPont De Nemours & Co., 863 F.2d 1162, 1166-67 (4th Cir.1988); United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir.1989). Applying the foregoing standard of review to the legal questions presented by this case, we conclude that the Department's reservist policy is inconsistent with the provisions of 38 U.S.C. Sec. 2021(b)(3), that the Department's refusal to grant Kolkhorst's request for military training leave violates the broad protections afforded by 38 U.S.C. Sec. 2024(d), and that an employee may be entitled to compensation for lost pay and benefits under 38 U.S.C. Sec. 2022 in cases where an employer unlawfully refuses to allow a reservist to participate in military training.
The VRRA provides that any employee of a state, or a political subdivision thereof, "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." 38 U.S.C. Sec. 2021(b)(3). In Monroe v. Standard Oil Co., 452 U.S. 549, 559-60, 101 S.Ct. 2510, 2516-17, 69 L.Ed.2d 226, 235-36 (1981), the Supreme Court reviewed the legislative history of Section 2021(b)(3), and concluded that this provision
was enacted for the significant but limited purpose of protecting the employee-reservist against discriminations like discharge and demotion motivated solely by reserve status. Congress wished to provide protection to reservists comparable to that already protecting the regular veteran from "discharge without cause"--to insure that employers would not penalize or rid themselves of returning reservists after a mere pro forma compliance with Sec. 2024(d). And the consistent focus of the administration that proposed the statute, and of the Congresses that considered it, was on the need to protect reservists from the temptation of employers to...
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