Sawyer v. Swift & Co.
| Decision Date | 07 January 1988 |
| Docket Number | No. 85-2801,85-2801 |
| Citation | 836 F.2d 1257 |
| Court | U.S. Court of Appeals — Tenth Circuit |
| Parties | 127 L.R.R.M. (BNA) 2274, 108 Lab.Cas. P 10,274 Charles A. SAWYER, Plaintiff-Appellee, v. SWIFT & COMPANY, Defendant-Appellant. |
William H. Berger, U.S. Dept. of Labor, Atlanta, Ga. (Benjamin L. Burgess, Jr., U.S. Atty.; Robert S. Streepy, Asst. U.S. Atty.; George R. Salem, Deputy Sol. of Labor; John F. Depenbrock, Associate Sol. of Labor, Washington, D.C.; Tedrick A. Housh, Jr., Regional Solicitor, U.S. Dept. of Labor, Kansas City, Mo., with him on the brief), for plaintiff-appellee.
Daniel B. Denk of McAnany, Van Cleave & Phillips, Kansas City, Kan., for defendant-appellant.
Before MOORE and BARRETT, Circuit Judges, and ANDERSON, * District Judge.
Swift & Company (Swift) appeals the Judgment and Order of the United States District Court for the District of Kansas, finding that Swift violated 38 U.S.C. Secs. 2021(b)(3) and 2024(d), the Veterans Reemployment Rights Act (Act), in its treatment of Charles A. Sawyer (Sawyer). Sawyer was an employee of Swift from December 8, 1980, until January 10, 1983, and a member of the Navy Reserves beginning for purposes of this case in October, 1982.
The District Court decided the case on the parties' joint motion for declaratory judgment based on stipulations of fact and deposition testimony. The court's Memorandum and Order appears at 610 F.Supp. 38 (D.Kan.1985). The stipulations considered by the trial court are as follows:
1. Defendant is a corporation maintaining a place of business at 4612 Speaker Road, Kansas City, Kansas.
2. Plaintiff was employed by defendant on December 8, 1980, in an other than temporary position as a mechanic and was discharged on January 10, 1983.
3. Plaintiff joined the Navy Reserve in October, 1982, a component of the Armed Forces of the United States, and was assigned to a Naval Reserve Unit in Memphis, Tennessee. The plaintiff would meet a military transport plane at Richards-Gebaur Airport at 6:00 p.m. on the Fridays preceding his drills for transportation to Memphis.
4. Plaintiff was scheduled to perform inactive duty training with his Naval Reserve Unit in Memphis, Tennessee on December 11 and 12, 1982.
5. Plaintiff attended a second step grievance hearing at Swift & Company on December 9, 1982. Also present at the hearing were Stan Hall, Lucille White, Henry Duron, Ron Lupardus, Steve Dickey, and Pat Holland. Plaintiff contends that at this hearing he gave defendant verbal notice of his make-up drill the first nonholiday weekend in January, 1983. Defendant alleges there was no such notice given.
6. The plaintiff did not work at Swift & Company on Saturday, December 11, 1982.
7. The plaintiff's supervisor at Swift & Company was Jerry Kaprol. Steve Dickey was employed in December, 1982, as Chief Engineer.
8. Plaintiff was a union steward for Local 122, National Brotherhood of Meat Packers and Industrial Workers.
9. Plaintiff rescheduled his make-up inactive duty training originally scheduled at Memphis for December 11 and 12, 1982, with the Naval Reserve Unit at Olathe, Kansas, for January 8 and 9, 1983.
10. The plaintiff's shift at Swift & Company was from approximately 2:00 p.m. to approximately 10:30 p.m. weekdays.
11. Defendant's objection to plaintiff's attending inactive duty training in Memphis was based on the fact that the plaintiff had to leave work early on Fridays preceding reserve drills.
12. On January 6, 1983, defendant posted a list of employees scheduled to work on Saturday, January 8, 1983. Plaintiff's name appeared on this list.
13. Plaintiff attended his make-up inactive duty training at the Naval Reserve Unit, Olathe, Kansas, on January 8 and 9, 1983, and did not report to his scheduled overtime work at Swift & Company on January 8, 1983.
14. Plaintiff attended inactive duty training at the Naval Reserve Unit in Memphis, Tennessee, in October and November, 1982.
15. There were eight mechanics on plaintiff's shift.
16. Every employee assigned to work on January 8, 1983, was a mechanic.
17. The plaintiff had been disciplined on occasions prior to January 10, 1983, for his work attendance record at Swift & Company and was accordingly in the progressive disciplinary mode.
18. The plaintiff was scheduled to work on January 8, 1983, and he did not report for work on such date.
19. The plaintiff returned to work on January 10, 1983, and he was indefinitely suspended, and subsequently discharged by defendant.
The issues thus presented for the trial court's determination were: (1) the responsibility of Swift to allow Sawyer a monthly absence from work on Friday evenings in order to travel from Kansas City to Memphis, Tennessee, for his weekend training drills; (2) whether Sawyer gave Swift adequate notice that he would attend a makeup drill in Olathe, Kansas, on January 8-9, 1983, in lieu of assigned overtime that weekend; and (3) whether Sawyer was terminated as a result of his attending military reserve training on January 8-9, 1983.
The trial court found with respect to the first issue that because 38 U.S.C. Sec. 2024(d) provides that a leave of absence from work "shall upon request be granted ... for the period required to perform ... inactive duty training," Swift was obligated to allow Sawyer to leave early on Fridays to attend training drills. Swift apparently does not dispute this finding. With respect to the other two issues, the trial court found that Sawyer gave adequate notice during the December 9, 1982, second-step grievance hearing that he would be absent the "first nonholiday weekend in January, 1983" for a make-up drill in Olathe, Kansas and that Sawyer was terminated in violation of 38 U.S.C. Sec. 2021(b)(3) 1 as a direct result of attending that drill. The court ordered reinstatement and back pay and ruled that the back pay could not be reduced by the unemployment compensation Sawyer collected after he was fired. Swift has appealed these three determinations.
Our standard of review is set forth in Fed.R.Civ.P. 52(a): "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." This standard may be problematic when the trial court bases its findings of fact upon deposition testimony and stipulations by the parties. Nevertheless, the clearly erroneous standard applies to all cases where the trial court makes findings of fact. Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Anderson summarizes certain general principles that may be gleaned from the cases. The foremost of these is that "[a] finding is clearly erroneous 'when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " Id. at 573, 105 S.Ct. at 1511. On the other hand, the reviewing court may not reverse the trier of fact merely because it might have decided the case differently, nor can it decide factual issues de novo. Id. Finally, where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. Id. at 574, 105 S.Ct. at 1512. Bearing these standards in mind, we will discuss each issue raised by Swift.
The trial court's determination that Sawyer gave adequate notice of his intention to make up his December training drill during the weekend of January 8-9, 1983, is a conclusion of law based on a factual finding that Sawyer did bring the matter up at a second step grievance hearing on December 9, 1982. We do not question the trial court's factual finding, since the evidence was in conflict on this point and the trial court must choose the more credible version. Still, on the basis of the entire record, we do question the court's conclusion.
First, we observe that legal authority on the subject of what constitutes proper notice to an employer under 38 U.S.C. Sec. 2024(d) 2 is sparse. In Blackmon v. Observer Trans. Co., 102 C.C.H. Labor Cases p 11, 450 at 23, 913 (W.D.N.C.1982), the court was asked to decide whether mention of a reserve obligation by a driver at a drivers' meeting convened for general purposes constituted proper notice under the Act. The court sidestepped the issue by finding that because no one could corroborate the employee's contention, the employee had not in fact made the request. We can find no other cases that squarely address such an issue.
In the instant case, we accept the trial court's finding that during a grievance hearing in December, Sawyer brought up the fact that he needed to make up his reserve obligation on "the first nonholiday weekend in January." We also note that the primary purpose of the grievance proceeding was to consider two grievances filed by Sawyer: the first because he was not scheduled to work overtime on a Friday holiday in November, and the second because he was disciplined for not wearing a beard net. We also note that no witness remembered Sawyer giving a specific date. Further, the record shows that later in December, Sawyer gave Patrick Holland, the personnel manager, a copy of his orders for a January 22 drill. The orders contained nothing pertaining to the January 8 drill, nor did Sawyer mention it (R., Vol. VII, pp. 28-30). Finally, when the overtime list was posted on January 6, the evidence is undisputed that Sawyer failed to inform anyone that his name should not have been on the list and that he would not be working on January 8. The trial court excused this, saying it was not unreasonable for Sawyer to fail to remind Swift that he needed the weekend off, in light of the fact that Swift had denied Sawyer time off in December to fly to Memphis. This misses the mark, since the makeup drill was in Olathe and did not necessitate travel time on Friday night....
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