Lapine v. Town of Wellesley
| Decision Date | 04 September 2002 |
| Docket Number | No. 01-2054.,01-2054. |
| Citation | 304 F.3d 90 |
| Parties | Gary W. LAPINE, Plaintiff, Appellee, v. TOWN OF WELLESLEY, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
James A. Goodhue with whom Grindle, Robinson & Goodhue and Albert S. Robinson, Town Counsel for the Town of Wellesley were on brief for appellant.
Paul M. Sushchyk for appellee.
Before LYNCH, Circuit Judge, CAMPBELL and BOWNES, Senior Circuit Judges.
The Town of Wellesley ("Town") appeals from the judgment of the magistrate judge. The magistrate judge held that Gary Lapine ("Lapine") is entitled to reemployment as a police officer with the Town pursuant to the Veterans' Reemployment Rights Act ("VRRA"), 38 U.S.C. §§ 4301-4306 (Supp. II 1992) amended by Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4301, et seq. (Supp. V 2002).1 The court awarded monetary damages with prejudgment interest. We affirm.
Lapine served as a commissioned officer in the United States Army from July 7, 1974, through August 30, 1976. Lapine stipulated that, at this time, he "became aware of veteran's rights to reemployment benefits" under the VRRA. Upon discharge from active duty, he transferred to the United States Army Reserve in which he served as a commissioned officer until, after twice being passed over for a promotion, he was honorably discharged in 1989. In February 1990, Lapine enlisted in the Army Reserve as a sergeant and was assigned to the 94th Military Police Company in Manchester, New Hampshire.
After his discharge from active duty with the United States Army, Lapine joined the Wellesley Police Department in May of 1977. He served with the police department for approximately thirteen years until, on April 30, 1990, in a letter to the then-chief of police John Fritts, he announced that he was resigning. In the letter he gave May 13, 1990, as the effective date of his resignation. The letter reflected Lapine's acute dissatisfaction with the working conditions of the Department. The letter read in full as follows:
Dear sir:
I am writing to inform you of my intent to resign from the Wellesley Police Department. As you may or may not already realize, I have not been satisfied with the working conditions of the department for several years now. Only the opportunity to secure other employment prevented me from resigning earlier, and possibly, the hopes that the conditions would change. However, as you know, the conditions have not changed, nor do you or I expect them to in the future.
Your mishandling of major incidents in the past few years has been deplorable, and has placed your patrolmen in jeopardy. Your handling of the weapons procurement has left half of your department with outmoded service weapons. Your continual persecution of certain police officers in your department has led to a hardened polarization between members of your staff and the rest of the department. And finally, your response to my request for an internal investigation into the theft and illegal copying of official Wellesley Police Association documents, and your unauthorized use of these documents in a public forum, is not only inexcusable, but has thwarted any hopes of identifying the perpetrator of the break-in and larceny. As these documents were secured in my locker, I feel that my civil rights have been violated, and that by your inaction on this matter, that you condone such activity.
The effective date of my resignation is May 13th 1990. If there are any vacation or personal days remaining, I am using this opportunity to let the department know, that I would like to be reimbursed for said days.
On April 30, 1990, the day he submitted his resignation letter, Lapine also completed and submitted an application to the Wellesley Retirement Board to withdraw his accrued police retirement benefits. The signed application stated, in pertinent part, that Lapine had "permanently left the [police] service" and that it was not his "present intention to accept a position in the service of the Commonwealth of Massachusetts." When Lapine withdrew his accrued retirement benefits totaling $31,021.79, he owed money to the Internal Revenue Service. Lapine used the lump sum received from the accrued retirement benefits to pay $18,000 to the Internal Revenue Service in satisfaction of his outstanding personal tax liability. He used the remainder of the money for daily expenses and to meet his child support obligations.
Lapine did not, at any time during this period, disclose to the Town that he was in the process of seeking to enter upon active duty with the United States Army Reserve. At trial, however, he testified that his resignation from the police department was prompted, at least in part, by plans to do just that. Lapine testified that, in early April 1990, he had contacted Sergeant Ronald Johnson to determine if there were openings in the Active Duty Guard Reserve Program ("AGR"). His attorney, Ronald Johnson (same names, different people), also testified that on or about April 12, 1990, Lapine informed him that he intended to apply for active duty. Sergeant Albert Basile, whose task was to recruit persons for the AGR, testified that, prior to the date of Lapine's resignation letter of April 30, 1990, he spoke with Lapine about entering upon active duty. According to Basile, he told Lapine that he would make an excellent candidate as a recruiter.
Lapine completed and submitted an application for the AGR on May 7, 1990, six days before the stated effective date of his resignation. Six weeks following the April 30 resignation letter, on June 12, 1990, the United States Recruiting Command at Fort Sheridan, Illinois sent Lapine a notice that he was being assigned to active duty. On June 20, 1990, Lapine was issued orders to report for active duty training for forty days. On July 13, 1990, Lapine was issued orders to report for active duty on September 10, 1990. His term of active duty was to end on August 30, 1993. Lapine did not communicate to the Town or to the police department that he had enlisted in the AGR nor did he indicate that he might wish to return to the police department at some future time.
Two years later, in July 1992, Lapine contacted the new chief of police of the Wellesley Police Department, Thomas O'Loughlin ("O'Loughlin"), indicating, for the first time, that he might wish to return to the police force. Specifically, Lapine wrote "to explore the opportunity or feasibility of re-employment with the Wellesley Police Department." O'Loughlin immediately responded to Lapine's letter stating that he was reluctant "to consider the use of the reinstatement process to hire police officers."
A year later, in July 1993, Lapine again wrote to O'Loughlin requesting to be reinstated. For the first time, he explicitly invoked the VRRA as the basis for his reinstatement, giving formal notice that he had been serving with the Army Reserve on active duty. O'Loughlin refused to reinstate Lapine stating, among other things, that it was his "belief that you are not entitled to the protections you assert."
After his discharge from the AGR on August 30, 1993, Lapine continued to assert his rights under the VRRA through the United States Department of Labor, Office of Veterans' Employment Training Services. In February 1994, Lapine requested that his case be referred to the United States Department of Justice. As a result, the Department of Labor ceased representing Lapine's interest in March 1994. A year later, in March 1995, the United States Attorney declined Lapine's request for representation.2
On October 12, 1995, Lapine filed with the district court the instant complaint against the Town asking the court to order his reemployment as a police officer and to award damages for the Town's alleged violation of the VRRA. Two years later, a three-day bench trial was held before Chief Magistrate Judge Collings. In its subsequent decision, the court expressly found that Lapine had left his job "in order voluntarily to enter on active duty with the military"; that he was eligible for VRRA reemployment rights; that he was qualified to perform the position of police officer; and that he had not waived his right to reemployment. In the end, the court ordered the Town to reinstate Lapine as a patrolman with a pay grade commensurate with the seniority and status he would have achieved had he not entered upon active duty. Further, the court required the Town to allow Lapine to make whatever payments he would have made into his pension fund had he begun as a new employee on May 13, 1990. In addition, Lapine was to receive back pay from August 1993 to the date of reinstatement as well as vacation pay with prejudgment interest. Judgment for Lapine was entered in the amount of $173,403.29, representing wages and vacation pay, with an additional $40,078.15 in prejudgment interest. This appeal followed.
The Town of Wellesley argues on appeal that Lapine does not qualify under the terms and provisions of the VRRA for entitlement to reemployment with the Wellesley police. It insists that the magistrate judge misinterpreted the VRRA as a matter of law and that even on the court's own interpretation its factual findings were unsupported.
While the Town varies its arguments, the essence of its claim of legal error seems to be that 38 U.S.C. § 4304(b)(1), the statute then applicable to reservists, like Lapine, required that he leave his civilian employment in direct response "to an order or call to active duty."3 Since Lapine did not receive his order to report to active duty prior to tendering his resignation from the Wellesley Police Department, the Town contends that his pre-resignation intent to join the military after resigning, followed...
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