Shadle v. Superwood Corp.

• Decision Date: 07 December 1988
• Docket Number: No. 87-2632,87-2632
• Citation: 858 F.2d 437
• Parties: 129 L.R.R.M. (BNA) 2770, 130 L.R.R.M. (BNA) 2072, 103 A.L.R.Fed. 567, 57 USLW 2244, 110 Lab.Cas. P 10,757 Luther Marion SHADLE, Appellee, v. SUPERWOOD CORPORATION, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 437

858 F.2d 437

129 L.R.R.M. (BNA) 2770, 130 L.R.R.M. (BNA) 2072,

103 A.L.R.Fed. 567, 57 USLW 2244,

110 Lab.Cas. P 10,757

Luther Marion SHADLE, Appellee, v. SUPERWOOD CORPORATION, Appellant.

No. 87-2632.

United States Court of Appeals,

Eighth Circuit.

Submitted June 14, 1988.

Decided Oct. 6, 1988.

Rehearing and Rehearing En Banc Denied Dec. 7, 1988.

Frederick S. Ursery, Little Rock, Ark., for appellant.

Charles R. Padgham, Hot Springs, Ark., for appellee.

Before JOHN R. GIBSON and BOWMAN, Circuit Judges, and STUART, Senior District Judge. ^*

BOWMAN, Circuit Judge.

Superwood Corporation appeals an order of the District Court awarding Luther Marion Shadle reinstatement to his former position and $20,000 in back pay plus $3,938.44 in interest pursuant to the Veterans' Reemployment Rights Act ("Act"), 38 U.S.C. Secs. 2021, et seq. We reverse.

Shadle worked for Superwood Corporation from 1973 to 1979, at which time he terminated his employment in order to enlist in the United States Navy. He received his honorable discharge from the Navy on September 26, 1983. On or about November 1, 1983, Shadle traveled to the guard shack at the Superwood Corporation, the place where he had applied in 1973, and requested a job application. The guard explained that Superwood was not hiring as a number of people had been laid off. Shadle then asked to see Jesse Rogers or Harold Henderson, the personnel manager and the plant manager, respectively, and was told that they were not available. After this exchange, he left the plant. Later, around Thanksgiving, he telephoned the plant and asked for Rogers or Henderson. He was told they were not there, and may or may not have left his name and number (he testified he could not remember). His next contact with Superwood did not occur until the summer of 1984, when he spoke directly with Rogers. While there is some dispute as to what transpired at this meeting, it is clear that Shadle did not return to Superwood's employ. ¹

On July 25, 1986, Shadle brought this action, basing his case on the Act, which confers on veterans the right to be reinstated to jobs they held prior to military service if they apply for reemployment within ninety days after their release from service. The case was tried to the District Court without a jury. The court held that a returning veteran has no obligation to inform an employer of his status as a veteran, and, based on Shadle's visit to the guard shack, that he had made "application for reemployment" within the meaning of 38 U.S.C. Sec. 2021(a)(2). The court ordered Superwood to reinstate Shadle and to pay him back wages plus interest.

For reversal, Superwood contends that the trial court erred in holding that Shadle had no obligation to tell his former employer of his status as a veteran. ² We agree.

Section 2021 of 38 U.S.C. provides:

(a) In the case of any person who is inducted into the Armed Forces of the United States under the Military Selective Service Act (or under any prior or subsequent corresponding law) for training and service and who leaves a position (other than a temporary position) in the employ of any employer in order to perform such training and service, and (1) receives a certificate described in section 9(a) of the Military Selective Service Act (relating to the satisfactory completion of military service), and (2) makes application for reemployment within ninety days after such person is relieved from such training and service or from hospitalization continuing after discharge for a period of not more than one year--

....

(B) if such position was in the employ of a State, or political subdivision thereof, or a private employer, such person shall--

(i) if still qualified to perform the duties of such position, be restored by such employer or the employer's successor in interest to such position or to a position of like seniority, status, and pay.

Although this statute is to be liberally construed for the benefit of those who have served their country, Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285, 66 S.Ct. 1105, 1111, 90 L.Ed. 1230 (1946), plaintiff bears the burden of proving that he has satisfied the statutory requirements and is entitled to receive reemployment rights. Trulson v. Trane Co., 738 F.2d 770, 772-73 (7th Cir.1984).

A critical requirement for entitlement to reemployment rights under the Act is that a veteran "make[ ] application for reemployment." 38 U.S.C. Sec. 2021(a)(2). The dispositive issue in this case is whether, as a matter of law, what Shadle did amounts to making an "application for reemployment" within the meaning of Sec. 2021.

No bright-line test has been fashioned to resolve this issue. Rather, a case-by-case determination focusing on the intent and reasonable expectations of both the former employee and employer, in light of all the circumstances, has been held to best serve the goals of the Act. See Baron v. United States Steel Corp., 649 F.Supp. 537, 541 (N.D.Ind.1986).

Here, it is obvious that Shadle intended to apply for reemployment and expected to be given due consideration. But, what of Superwood's intent and reasonable expectations? Instead of addressing this question, the District Court concluded that "it's the corporation's duty to make sure that its applications procedures are such that that kind of information is picked up. It's simply a matter of--it's their burden under the law to be aware of those things." Trial Transcript at 108.

We believe that this interpretation of the statute places an impossible burden on the employer. "Common sense dictates that an employer cannot be required to give every inquiry, regardless of how slight, full consideration and attention." Baron, 649 F.Supp. at 541. What, then, may an employer reasonably expect under the Act? The case law provides some guidance on this issue. For example, while a written application need not be submitted in every situation, see Borseth v. City of Lansing, 338 Mich. 53, 60, 61 N.W.2d 132, 136 (1953), it is clear that an application involves more than a mere inquiry. See Lacek v. Peoples Laundry Co., 94 F.Supp. 399, 401 (M.D.Pa.1950) (no entitlement to reinstatement or lost wages where petitioner merely visits the supervisor and inquires as to conditions in the plant).

It is also instructive to consider the procedures outlined in the Veterans' Reemployment Rights Handbook, a publication of the United States Department of Labor. In Chapter VI, entitled "Applying for Reemployment," the Handbook suggests that the "veteran should identify himself as a former employee returning from military service." U.S. Dep't of Labor, Veterans' Reemployment Rights Handbook 27 (1970). ³ A "mere inquiry about employment possibilities, unless it would reasonably convey the idea of a claim for reemployment, is not enough." Id. See also 5 C.F.R. Sec. 353.401(a)(i) (...