Trulson v. Trane Co.

• Citation: 738 F.2d 770
• Decision Date: 19 April 1984
• Docket Number: No. 83-1189,83-1189
• Parties: 116 L.R.R.M. (BNA) 2541, 101 Lab.Cas. P 11,064 Jerry C. TRULSON, Plaintiff-Appellant, v. TRANE COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 770

738 F.2d 770

116 L.R.R.M. (BNA) 2541, 101 Lab.Cas. P 11,064

Jerry C. TRULSON, Plaintiff-Appellant, v. TRANE COMPANY, Defendant-Appellee.

No. 83-1189.

United States Court of Appeals, Seventh Circuit.

Submitted April 19, 1984. ^*

Decided May 18, 1984.

James P. Gokey, Johns, Flaherty & Gillette, S.C., LaCrosse, Wis., for plaintiff-appellant.

Thomas S. Sleik, Hale, Skemp, Hanson & Skemp, LaCrosse, Wis., for defendant-appellee.

Before CUMMINGS, Chief Judge, PELL, Circuit Judge, and SWYGERT, Senior Circuit Judge.

PELL, Circuit Judge.

Plaintiff, Jerry Trulson, filed the instant suit to enforce the reemployment rights to which he believes he is entitled as a veteran of military service. The district court granted summary judgment to defendant Trane Co., plaintiff's former employer, after the parties submitted a joint statement of stipulated facts and cross-motions for summary judgment. Plaintiff appeals.

I.

Summary judgment is appropriate when the pleadings and supporting papers on file below demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). All pleadings and supporting papers must be viewed in the light most favorable to the non-moving party. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984); Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983). Many of the facts mentioned below were included in the parties' joint statement of stipulated facts; those that were not are stated in the light most favorable to plaintiff. ¹

Plaintiff's employment with Trane began on July 2, 1973. During his employment, the collective bargaining agreement to which Trulson was bound provided in rule seven:

Repeatedly failing to report for work when physically able to do so. If an employee shall have received five (5) unexcused docking slips within a period of six (6) months of working time, he shall have violated this rule.

The contract further provided:

ANY VIOLATION OF THE RULES AND REGULATIONS NUMBERED SEVEN (7), EIGHT (8), OR NINE (9) BUT NOT INCLUDING 7A SHALL SUBJECT THE EMPLOYEE TO ONE (1) WEEK'S LAYOFF WITHOUT PAY FOR THE FIRST VIOLATION AND DISCHARGE FOR THE SECOND VIOLATION WITHIN A PERIOD OF ONE (1) YEAR OF WORKING TIME.

Sometime late in 1974, Trulson received his fifth unexcused docking slip within six months and was suspended without pay for one week. Plaintiff's tenth unexcused absence within one year occurred on July 2, 1975.

Trane's records show that a notice of docking penalty was served on plaintiff on or about July 11, 1975. The final paragraph of the notice stated:

Our records indicate that this is your fifth unexcused absence since 1/31/75 and your tenth since 10/8/74. Therefore, you are subject to discharge under the contract.

Trulson does not recall receiving this notice. He did not know that he had been terminated for excessive absenteeism until he asked Trane to reinstate him following his discharge from the military.

On July 15, 1975, Trulson expressed to defendant for the first time his intention to enter the military. ² Plaintiff did not return to work for Trane after this date. On August 4, 1975, Trane officially terminated Trulson for having ten unexcused absences in a twelve-month period and sent a notice of termination to his last-known address. The notice was returned and marked "unclaimed" by the Post Office.

Plaintiff signed his enlistment contract on September 9, 1975 and entered the Air Force on October 6, 1975. He received an honorable discharge on October 5, 1979. Within ninety days of his discharge, as required by statute, ³ plaintiff requested reinstatement with Trane. Defendant did not reinstate Trulson, but hired him as a new employee on probationary status. Plaintiff was discharged by Trane in February, 1980, while still on probation. Trulson filed the instant action in 1982.

II.

A veteran's statutory rights to reemployment following military service, see 38 U.S.C. Secs. 2021-2026, ⁴ are contingent on the veteran meeting several criteria set forth in the statute. Although the 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); Barrett v. Grand Trunk Western R.R. Co., 581 F.2d 132, 135 (7th Cir.1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1423, 59 L.Ed.2d 634 (1979), plaintiff bears the burden of proving that he has satisfied the statutory requirements and is entitled to receive reemployment rights, McCarthy v. M & M Transp. Co., 160 F.2d 322, 324 (1st Cir.1947).

At issue in the case before us is the statutory mandate that any person "who is inducted into the Armed Forces of the United States ... for training and service and who leaves a position (other than a temporary position) in the employ of any employer in order to perform [military] training and service" is entitled to reemployment rights with the veteran's prior employer if certain other conditions are met. 38 U.S.C. Sec. 2021(a) (1976). This case raises several questions concerning the interpretation of Sec. 2021(a), but we need only address one issue, as we find it to be dispositive: whether the benefits of the act may apply to persons in non-deferred job classifications who, at the time they are discharged or quit work, intend to enter the military, but have not yet been inducted, signed an enlistment contract or received an order to report.

Trane argues that plaintiff does not have any reemployment rights because he was formally discharged on August 4, 1975, before he signed up with the military on September 9, 1975. Trulson, on the other hand, contends that he quit on July 15, 1975 in order to enter the military. He claims that he intended to enter the military immediately, but was delayed while the Air Force collected and processed waivers concerning Trulson from police departments in cities where he had lived. Plaintiff also denies that he knew, when he told Trane he intended to join the military, that he was about to be discharged for having ten unexcused absences from work. ⁵

A number of reported cases discussing reemployment rights have granted relief to plaintiffs when some sort of formal act linking the plaintiff to military service has occurred prior to the decision by plaintiff not to continue working or the employer's decision to discharge him without cause. For example, in Widel v. Caterpillar Tractor Co., 83 Lab.Cas. (CCH) p 10,605 (S.D.Ia.1978), plaintiff's employer terminated him without cause before his induction date but after plaintiff had signed an enlistment contract with the Air Force and taken an oath of enlistment. In Anglin v. Chesapeake & O. Ry. Co., 77 F.Supp. 359 (S.D.W.Va.1948), plaintiff did not report again for work after being ordered to report for his pre-induction physical examination. Similarly, in Fortenberry v. Owen Bros. Packing Co., 267 F.Supp. 605 (S.D.Miss.1966), aff'd, 378 F.2d 373 (5th Cir.1967), plaintiff's last day of employment was after he was ordered to report for induction. ⁶ These cases seem to be premised on the theory that implicit in the requirement that an employee leave a job "in order to perform" training and service is some element of compulsion, i.e. some event has occurred by which the employee is no longer free to decide whether to perform military service. See, e.g., Fortenberry, 267 F.Supp. at 607 ("The test is whether or not he was required to leave his employment to report for [military duty] ...") (emphasis added); Green, 526 F.Supp. at 54 (same).

There is also a line of cases dealing with employees who were deferred by the draft board because they were employed in work essential to the war effort. These cases generally hold that an employee who resigns his or her job in order to lose his or her deferred classification and enter the military is entitled to veterans' reemployment benefits even though, at the time the employees resigned, they had not signed an enlistment contract, been inducted or ordered to report. See, e.g., Rudisill v. Chesapeake & O. Ry. Co., 167 F.2d 175 (4th Cir.1948); Thompson v. Chesapeake & O. Ry. Co., 76 F.Supp. 304 (S.D.W.Va.1948); Hayes v. Boston & Main R.R., 66 F.Supp. 371 (D.Mass.1946), aff'd, 160 F.2d 325 (1st Cir.1947). Although these employees resigned their employment voluntarily, that was the only course they could follow in order to enter the military; as long as they retained their deferred status, they were prohibited from voluntarily enlisting in the military and were ineligible for induction. Rudisill, 167 F.2d at 176. Significantly, there does not appear to have been any doubt about the employees' motivations for resigning in the cases just cited.

The only cases we have found in which a plaintiff without a deferred classification prevailed although, before his last day of work, he had not signed a contract with, or otherwise joined, the military or had not been ordered to report for a physical or induction, are Noble v. International Nickel Co., Inc., 77 F.Supp. 352 (S.D.W.Va.1948), and Dame v. C.A. Batson Co., 33 Lab.Cas. (CCH) p 71,161 (D.Mass.1957), on motion for new trial, 35 Lab.Cas. (CCH) p 71,718 (D.Mass.1958). The plaintiff in Noble presented evidence that before he quit his job he had talked to many people about his intention of going into the service and had visited the local recruiting office and draft board for information about enlisting. In addition, Noble procured information about the Merchant Marine the day he resigned, received enlistment papers one week later, and signed enlistment papers with the Navy within two weeks after leaving his job. In short, there appeared to be substantial evidence as to Noble's pre-resignation intention. Moreover, Noble acted promptly in acting on that intention. Similarly, although the plaintiff in Dame did not contact the...