Lemmon v. Santa Cruz County, Cal.

• Decision Date: 12 May 1988
• Docket Number: No. C-86-20176-SW.,C-86-20176-SW.
• Citation: 686 F. Supp. 797
• Parties: David William LEMMON, Plaintiff, v. COUNTY OF SANTA CRUZ, CALIFORNIA, Defendant.
• Court: U.S. District Court — Northern District of California

686 F. Supp. 797

David William LEMMON, Plaintiff, v. COUNTY OF SANTA CRUZ, CALIFORNIA, Defendant.

No. C-86-20176-SW.

United States District Court, N.D. California, San Jose Division.

May 12, 1988.

Judith A. Whetstine, Asst. U.S. Atty., San Francisco, Cal., William H. Berger, U.S. Dept. of Labor, Atlanta, Ga., of counsel, for plaintiff.

Dwight L. Herr, County Counsel, Jonathan Wittwer, Chief Asst. County Counsel, Santa Cruz, Cal., for defendant.

BACKGROUND

SPENCER WILLIAMS, District Judge.

Santa Cruz County Sheriff's Department initially employed plaintiff David William Lemmon in an "other than temporary position" on November 9, 1967. He had previously been employed as a full-time temporary employee from July 1964 to October 1965. At the time of his permanent employment in 1967, plaintiff was a member of the United States Army Reserve (hereinafter the USAR), having previously served on active duty for training while a temporary employee. Plaintiff achieved the rank of lieutenant while employed with the Sheriff's Department.

On June 28, 1979, plaintiff applied with the USAR for active duty for training as part of the Military Technician Program.¹ The program required a three year tour of duty. Plaintiff was accepted and ordered to begin duty on October 18, 1979 for three years, ending on October 17, 1982. By memorandum dated October 3, 1979, plaintiff requested military leave from the Sheriff's Office for a period of three years.² On October 9, 1979, in a memorandum titled "Acceptance of Resignation," Alfred F. Noren, Sheriff-Coroner, granted plaintiff military leave for three years effective October 16, 1979.³

Plaintiff began special active duty for training as scheduled. However, on August 14, 1980, ten months into his tour, plaintiff was informed by the Department of the Army that his USAR status of special active duty for training would be phased out no later than September 30, 1980.⁴ In the memorandum, plaintiff was given the choice of converting to full-time active duty or terminating special active duty, thus removing him from the USAR Long Tour Management Program. Plaintiff converted to full-time active duty for the remainder of his three year tour.

On January 17, 1982, plaintiff was again contacted by the Department of the Army and informed that he could request a one year extension of his tour.⁵ Plaintiff executed this request and was notified in late May or early June that the Department of the Army had approved the extension and his tour would end on October 17, 1983. By letter dated August 3, 1982, plaintiff informed the defendant that his tour had been extended and requested that his military leave be extended as well.⁶

Plaintiff served on active duty until October 17, 1983, at which time he was honorably discharged. By letter dated October 18, 1983, he applied for reemployment with the defendant, but was refused. Pursuant to the Veterans Reemployment Rights Act (hereinafter the VRRA) 38 U.S.C. Sec. 2021, plaintiff seeks reinstatement as a lieutenant, a rate of pay and seniority reflecting the level he would have achieved had he been reinstated in October 1983, plus back wages and other lost benefits. This matter comes before the court on plaintiff's motion for summary judgment.

DISCUSSION

Essentially, plaintiff claims he was granted military leave for three years in October 1979, and that as a volunteer for special active duty for training his reemployment rights were protected under 38 U.S.C. Sec. 2024(d). Plaintiff also claims that in August 1980, when the Department of the Army informed him that special active duty for training, would be phased out, it effectively ordered him to convert his military status to full-time active duty. Thus, plaintiff argues, his reemployment rights flow from 38 U.S.C. Sec. 2024(b)(1) instead of Sec. 2024(d). Additionally, plaintiff suggests that his one year extension is covered by Sec. 2024(b)(1) because he remained on full-time active duty during that period. Finally, because the protections provided under the VRRA protect only those who serve in the military for four years or less, plaintiff argues that his initial tour plus the one year extension fall within that limitation.

Under 38 U.S.C. Sec. 2021, a person who leaves a position of employment (other than temporary) to serve in the armed forces, receives an honorable discharge and applies for reemployment within ninety days of discharge, is entitled to reinstatement in the same position or a position of like seniority, status, and pay unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so. Although this section applies to inductees, 38 U.S.C. Sec. 2024 extends these rights to persons who enlist or are called to active duty, or reservists. Section 2024(d) provides in pertinent part:

Any employee not covered by subsection (c)⁷ of this section who holds a position described in clause (A) or (B) of section 2021(a) shall upon request be granted a leave of absence by such person's employer for the period required to perform active duty for training or inactive duty for training in the Armed Forces of the United States. Upon such employee's release from a period of such active duty for training or inactive duty training, or upon such employee's discharge from hospitalization incident to that training, such employee shall be permitted to return to such employee's position with such seniority, status, pay, and vacation as such employee would have had if such employee had not been absent for such purpose ... (emphasisi added).

Section 2024(b)(1) provides in pertinent part:

Any person who, after entering the employment on the basis of which such person claims restoration or reemployment, enters upon active duty (other than for the purpose of determining physical fitness and other than for training), whether or not voluntarily, in the Armed Forces or the United States ... in response to an order or call to active duty shall, upon such person's relief from active duty under honorable conditions, be entitled to all of the reemployment rights and benefits provided for by this chapter in the case of persons inducted under the provisions of the Military Selective Service Act (or prior or subsequent legislation providing for the Armed Forces), if the total of such active duty performed ... after August 1, 1961 does not exceed four years (plus in each case any additional period in which such person was unable to obtain orders relieving such person from active duty).

Defendant contends that plaintiff was never covered by the VRRA because plaintiff resigned his position as consideration for a three year military leave. Defendant concedes that plaintiff had a right to reemployment, but argues that it was a contractual right, not a statutory right, and that plaintiff forfeited this right under the contract by choosing to convert to full-time active duty instead of returning to work. The court disagrees and finds that plaintiff did not relinquish his rights under the VRRA when he left defendant's employment.

The court begins its analysis by recognizing that provisions of the Veterans Reemployment Rights Act must be liberally construed in favor of granting rights to the veteran who leaves private employment to serve his country. Coffy v. Republic Steel Corp., 447 U.S. 191, 100 S.Ct. 2100, 65 L.Ed.2d 53 (1980). On October 3, 1979, plaintiff informed the defendant that he had been accepted into military service and required a three year leave of absence. Plaintiff's request for military leave clearly stated the purpose and duration of his request. Mr. Noren should not have been confused as to the nature of the request. Nevertheless, he argues that it was his understanding that plaintiff was resigning his position as consideration for being rehired after three years. In support of this contention, defendant points to the memorandum dated October 9, 1979, titled "Acceptance of Resignation." The title, however, conflicts with the text of the memorandum which reads "this memo will serve as acceptance of your departure from the Sheriff's Office on military leave for three years effective October 16, 1979." Thus, based on the plain meaning of the rewritten instruments, the court finds that defendant knew, or should have known, that it was granting plaintiff a three year military leave of absence.

Moreover, assuming arguendo that plaintiff did resign, his resignation from civilian employment to enter military service should not affect his rights under the VRRA. The general rule is that "a resignation from civilian employment to enter military service does not deprive a veteran of employment rights." Hilliard v. New Jersey Army National Guard, 527 F.Supp. 405 (D.N.J.1981); Accord, Green v. Oktibbeha County Hospital, 526 F.Supp. 49, 54-55 (N.D.Miss.1981); Davis v. Halifax County School System, 508 F.Supp. 966, 969 (E.D.N.C.1981); Micalone v. Long Island Railroad Co., 582 F.Supp. 973, 978 (S.D.N.Y.1983). Therefore, plaintiff's reemployment rights turn on the applicability of the VRRA and are not the result of a contractual agreement entered into by the parties.

Second, defendant contends that, even if plaintiff was covered under the VRRA, a three year leave of absence is too long and, therefore, unreasonable. Defendant's initial premise is that 38 U.S.C. Sec. 2024(d) was never intended to cover leaves of absence for extended periods of time. See Peel v. Florida Dep't of Transportation, 443 F.Supp. 451 (N.D.Fla.1977), aff'd, 600 F.2d 1070 (5th Cir.1979) (defendant argued section 2024(d) was designed to accommodate trainees who were absent for 30, 60, or 90 days). Instead, defendant argues, an employer is required to grant an employee's request for military leave of absence only if it is reasonable as determined by the test outlined in Lee v. City of Pensacola, 634 F.2d 886 (5th Cir.1981).⁸ Although the rule in Lee had not been articulated at the time plaintiff made his...