Novak v. Mackintosh

• Citation: 919 F. Supp. 870
• Decision Date: 30 January 1996
• Docket Number: No. CIV 95-4051.,CIV 95-4051.
• Parties: Rita J. NOVAK, Plaintiff, v. Donald P. MACKINTOSH and Dakota Industries, Inc., Defendants.
• Court: U.S. District Court — District of South Dakota

919 F. Supp. 870

Rita J. NOVAK, Plaintiff, v. Donald P. MACKINTOSH and Dakota Industries, Inc., Defendants.

No. CIV 95-4051.

United States District Court, D. South Dakota, Southern Division.

January 30, 1996.

COPYRIGHT MATERIAL OMITTED

Bonnie P. Ulrich, U.S. Attorney's Office, Sioux Falls, SD, for plaintiff.

James A. Hertz, Christopherson, Bailin & Anderson, Sioux Falls, SD, for defendant.

ORDER

PIERSOL, District Judge.

Defendants move for summary judgment on the complaint brought pursuant to the Veterans' Reemployment Rights Act, 38 U.S.C. §§ 2021-27.¹ Doc. 36. Defendants allege that Plaintiff's dismissal was unrelated to her military duties and that her failure to return to work or apply for reinstatement after her dismissal jurisdictionally bars her suit. Doc. 37 at 3-4. Defendants request, in the alternative, that Defendant Donald P. Mackintosh be dismissed as an improper party. Doc. 37 at 6. Defendants' Motion for Summary Judgment is denied for the following reasons.

FACTS

Plaintiff Rita Novak, who is represented by the United States Attorney in this action,² began work for Dakota Industries, Inc., on March 28, 1989. Complaint at ¶ 5; Mackintosh Deposition at 27 hereinafter "Mackintosh". Novak was a member of the National Guard at the time she went to work for Dakota Industries, and she served in Operation Desert Storm from November 21, 1990, through June 3, 1991. Complaint at ¶ 6; Order 123-04. Upon her return to Dakota Industries, Novak was reemployed, paid $6.50 an hour, and given reduced responsibilities.³ Complaint at ¶ 6; Mackintosh at 48. For the time period beginning with her departure for Desert Storm and ending with her termination from Dakota Industries, Novak had military obligations on November 19 & 20, 1990,⁴ and on January 24, 1992. Declaration of Mark P. Snoozy, Commanding Officer, 323rd Chemical Company hereinafter "Snoozy", Doc. 47 at ¶ 6.

On January 16, 1992, Novak informed Mackintosh that she would not be at work on January 23, 1992, because she had a dental appointment,⁵ and she informed him that she probably would not be at work on January 24, 1992, because she had a military training class. Answer, Doc. 7 at ¶ 7; Complaint, Doc. 1 at ¶ 7; Declaration of Rita J. Novak, Doc. 48 at 6. On January 22, Mackintosh refused Novak permission to keep the dental appointment, and, with respect to her military obligation, told her that if she was going to obey her training orders, she was to turn in her keys.⁶ Mackintosh at 97-98. Mackintosh called Novak's commanding officer on January 22 and threatened to fire her if she was not at work on Friday, January 24. Snoozy, Doc. 47 at 2; Mackintosh at 97.⁷ Novak kept her dental appointment and her military obligation in Salt Lake City as ordered. Doc. 48 at 7. Novak received a check on January 25 with the notations, "Final Check" and "This represents final and total payment for all amounts due form Dakota Industries, Inc." Doc. 48 at Ex. 6. Novak did not return to work at Dakota Industries, and filed the instant suit on June 8, 1994.

SUMMARY JUDGMENT

The Court must grant Defendants' motion for summary judgment if there is no genuine issue of material fact for trial and Defendants are entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). "There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). "Trial courts should believe the evidence of the party opposing summary judgment and all justifiable inferences should be drawn in that party's favor." Commercial Union Ins. Co. v. Schmidt, 967 F.2d 270, 271 (8th Cir.1992). "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 247, 106 S.Ct. at 2510. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248, 106 S.Ct. at 2510.

VETERANS REEMPLOYMENT RIGHTS ACT

The Veterans Reemployment Rights Act VRRA was originally enacted to permit reinstatement of veterans of regular military service to positions left or positions of "like seniority, status, and pay." 38 U.S.C. § 2021(a). The Act also protected regular veterans from discharge without cause for one year after reinstatement. 38 U.S.C. §§ 2021(b)(1). Reservists are protected by § 2024(d) which requires employers to grant reservist-employees a leave of absence in order to train. Reservists are further protected by § 2021(b)(3) which extends the protections of § 2021(a) to reservists. 38 U.S.C. § 2021(b)(3). As the Supreme Court stated:

The legislative history thus indicates that § 2021(b)(3) 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 § 2024(d).

Monroe v. Standard Oil Co., 452 U.S. 549, 559-60, 101 S.Ct. 2510, 2516-17, 69 L.Ed.2d 226 (1981).

The motion for summary judgment raises a number of issues. Defendants argue that Novak's failure to return to work or to apply for reinstatement as required by § 2021(a) is a "jurisdictional prerequisite" to the Court hearing a suit brought pursuant to the VRRA. Doc. 37 at 5. This Court is granted jurisdiction over claims brought pursuant to the VRRA by § 2022.⁸ The statutory requirement that a veteran "make application for reemployment within ninety days after such person is relieved from training and service" is found at § 2021(a). Section 2021(a) applies to regular military personnel. Novak is a reservist and therefore § 2021(b)(3) — not § 2021(a) — applies here.⁹ Section 2021(b)(3) does not require application for reemployment.¹⁰

In addition, by Defendants' own interpretation, § 2021(a) applies to periods of "extended military leave." Doc. 37 at 4. There are two absences due to military obligations at issue here: Novak's six-month's service in Desert Storm and her January 24, 1992, training in Salt Lake City. There is no dispute that Novak was reinstated after returning from Desert Storm, although she does dispute whether she was reinstated for "like seniority, status, and pay." With regard to the January 24th absence, a one-day training session is, by no stretch of the imagination, an "extended military leave."

Also with regard to the January 24th training session, Defendants argue that § 2024(d) requires an employee-reservist to return or reapply to work. Defendants cite the Court to that portion of § 2024(d) which reads:

Such employee shall report for work at the beginning of the next regularly scheduled working period after expiration of the last calendar day necessary to travel from the place of training to the place of employment following such employee's release, or within a reasonable time thereafter if delayed return is due to factors beyond the employee's control.

Doc. 37 at 4. Defendants' failed to cite the next sentence which reads:

Failure to report for work at such next regularly scheduled working period shall make the employee subject to the conduct rules of the employer pertaining to explanations and discipline with respect to absences from scheduled work.

38 U.S.C. § 2024(d). Failure to report to work after a training session does not deprive the Court of jurisdiction, nor is it required in order to state a claim under the VRRA.¹¹

Defendants similarly argue that Novak gave Dakota Industries inadequate notice of the January 24 training session, thereby giving cause for her dismissal. Defendants cite Burkart v. Post-Browning, Inc., in which an employee gave his employer 15 minutes notice of three-week training session. 859 F.2d 1245, 1246 (6th Cir.1988). The undisputed facts are that the January 24th training session was discussed as a possibility on January 16, and Novak presented her orders to Mackintosh at 4:30 P.M. on Wednesday, January 22. I find that the notice is not per se unreasonable. Summary judgment is accordingly denied in that Defendants' have failed to demonstrate any jurisdictional or statutory basis for judgment as a matter of law.

In the alternative, Defendants move to dismiss Donald P. Mackintosh from this suit as an improper party as a matter of law. Doc. 36. Defendants cite Fed.R.Civ.P. 17(a) and argue that South Dakota law applies to determine the real party in interest because Mackintosh is a resident of South Dakota. Defendants then cite several South Dakota cases standing for the proposition that a corporate officer is not liable for contractual obligations of the corporation. Doc. 37 at 6. Plaintiff did not respond on the issue.

The VRRA creates a federal cause of action to which federal, rather than state, law applies. See, i.e., 38 U.S.C. § 4302(b) (Supp.1995).¹² Section 2022 of the VRRA provides, "In any such action only the employer shall be deemed a necessary party respondent." This language has been interpreted as preventing the joinder of third parties rather than limiting the parties sued. As one district court explained in determining that a pension fund was an appropriate defendant in addition to the employer:

However, the fact that the Fund is deemed an unnecessary party to Bunnell's action under § 2022 does not mean that it is an improper or impermissible party to the action. Rather, the "necessary party" language allows the plaintiff the choice of whether to sue anyone other than his immediate employer, such as his union or pension fund. It also deprives the employer of the right to bring in such parties or dismiss the action, although they might

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