Petition for Writ of Certiorari — Paisley v. City of Minneapolis

eres Court U.S.

PILED

96 22QAC 8 199%

No. 96-pgpace OF THE CLERK

dh the

Supreme Coit of the Hnited States

October Term, 1996

Duane D. Paisley,

Plaintiff-Petitioner,

VS.

City of Minneapolis,

Defendant-Respondent,

Minneapolis Police Relief Association,

Intervenor-Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

SIEBEN, GROSE, VON HOLTUM,

McCOY & CAREY, LTD.

Carol Lynn O'Gara

Counsel of Record

900 Midwest Plaza East

Eighth & Marquette

Minneapolis, Minnesota 55402

(612) 333-4500

Attorneys for Plaintiff-Petitioner

Duane D. Paisley

1996 — Bachman Legal Printing ® (612) 339-9518 @ FAX (612) 337-8053

1)

QUESTION PRESENTED

Whether the Petitioner, Duane D. Paisley, waived his

right of reemployment under 38 U.S.C. § [4324] 2024(d)?

PARTIES

The parties to this proceeding are Duane D. Paisley, The

City of Minneapolis and the Minneapolis Police Relief

Association.

ii

TABLE OF CONTENTS

Page

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SESS ESSA ay ogee eR a rT

TABLE OF CITED AUTHORITIES... iV

RES ER Ne ee RR RRC l

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STATUTORY PROVISIONS INVOLVED... 3

STATEMENT OF THE CASE ..............ccscccccccccsecc-- 3

EASTER SI I 7

TAB F

Page

FEDERAL CASES

King v. St. Vincent's Hospital, 502 U.S. 215, 112 S.Ct. 570

CRIMES. exiicessstabeitconieaanbia ec iveoug antes on comune anroe 7-10

Leonard v. United Air Lines, 972 F.2d 155

PU EA BI vise inccssnsscccivsianscsnctaenvetbtaitechobanciaactesmsan 9

Loeb v. Kivo, 169 F.2d 346 (2d Cir. 1948), cert. denied,

35d US. BEL, DB BEA Bee itsiccisiccccintaeeen 9

McNary v. Haitian Refugee Center, Inc., 498 U.S. 479,

CEE AAA, Bae ae wcrc ns dceavoinataiceenes 8

Smith v. Missouri Pacific Transportation Company,

DEF Fe ee CE Gal, SED. schicken 7,8

U.S. ex rel Reilly v. New England Teamsters, 737 F.2d

120 GetOCe OR aio ee aa 9

FEDERAL STATUTES

OE OU i ee aes 2,3

LED Le By | eR Mn ee PACS rE CeCe re? 3

Ee eas We IRE css sacs seciencniiecs accdanaiinatoks aacapeuusetins hceinehas dane 3

y ik Fe 5 | RP eRoneair ede rnee wires marae tenet 3

BLS ail. Renee Wee tener een GRO ee Rrra Mle DBO rete Tt 3

Se Ren! EE Ee OR. WOR inks cerGcdedinceen 3

0 ee PE EE ssc iiiinccststiigeiocsiodiedsnteing 3

MUAC CRE i, 4, 7,8

PEW he: © INSEE MU cicticliniintcblnnncn ee 9

Uniformed Services Employment and Reemployment

Rights Act of 1994, Pub. L. 103-353 0000... 8

OPINIONS BELOW

The opinion of the Eighth Circuit Court of Appeals is

reported at 79 F.3d 722 (8th Cir. 1996). Pet. App. A-1-A-9.

The opinion of the district court is unreported. Pet. App. A-

10-A-22.

JURISDICTION

The judgment of the Eighth Circuit Court of Appeals was

entered on March 27, 1996. Pet. App. A-1-A-9. A petition

for rehearing was denied on May 10, 1996. Pet. App. A-23.

The Petitioner has prepared this Writ of Certiorari for review

by the United States Supreme Court concerning the March 27,

1996 judgment based on this Supreme Court's jurisdiction

under 28 U.S.C. § 1254.

TORY VISI INVOLVED

The principal statutory provision involved is the Veteran's

Reemployment Rights Act, 38 U.S.C. § [4321] 2021 et. seq.

The full text of the Act is found in the appendix at A-28-A-

45. Also reprinted in the appendix are 28 U.S.C. § 1254 and

32 U.S.C. § 502. Pet. App. A-25-A-27

TA ENT OF THE CASE

This case arose from the denial of Petitioner Paisley's

request to be reemployed as a police officer with the City of

Minneapolis subsequent to military service. Petitioner, Duane

Paisley, commenced this action September 1, 1994 seeking a

declaration of his right to reemployment under the Veterans’

Reemployment Rights Act. He sought this declaration in

federal district court based on the jurisdiction provided under

28 U.S.C. § 1331 and 38 U.S.C. § [4322] 2022.

Petitioner moved for summary judgment, as did the City

of Minneapolis and the Intervenor, Minneapolis Police Relief

Association. The several motions were heard February 1,

1995. The U.S. District Court for the District of Minnesota,

in an Order dated March 31, 1995 and filed April 3, 1995,

denied Paisley's motion for summary judgment, concluding

that, while Paisley had established that he was entitled to

reemployment rights, he had, nevertheless, waived them. Pet.

App. A-10-A-22. The Court granted the motions of the City

and Relief Association. Paisley appealed to the Eighth Circuit

Court of Appeals on the issue of whether he had waived his

reemployment rights. The City of Minneapolis and the Relief

Association filed a cross-appeal on the issue of Paisley's

eligibility for reemployment rights. After hearing the

arguments, on March 27, 1996, the Eighth Circuit Court of

Appeals affirmed the District Court pursuant to its jurisdiction

under 28 U.S.C. § 636(c)(3) and 28 US.C. § 1291.

3

Rehearing was subsequently denied on May 10, 1996. Pet.

App. A-23.

Duane D. Paisley was employed in a permanent position

as a police officer with the City of Minneapolis, beginning in

early June, 1973 and served in that position until January 16,

1980. Pet. App. A-46. He had previously served in the

National Guard, having enlisted on June 9, 1965, prior to his

beginning employment with the City of Minneapolis, Pet.

App. A-46, a municipal employer subject to 38 U.S.C. §

[4324] 2024(d), a federal law which describes the obligations

of a municipal employer with regard to its civilian public

employees who are also members of the military.

Paisley was employed in the permanent position of a

police officer with the City of Minneapolis for approximately 5

1/2 years, when, as of November 1, 1979, his military status

became that of "Active Guard/Reserve", referred to as "AGR".

As a permanent employee of a municipal employer, Paisley

had certain benefits and rights under federal law including the

right to obtain a leave of absence from his position as a police

officer with the City during the continuation of his AGR status

with the National Guard, and to reemployment subject to time

limitations expressed and controlled by federal law. Pet.

App. A-47. Additionally, the applicable employee handbook

for the City of Minneapolis, provided at page 22, that:

As authorized by State Law, you are entitled

to leave without pay during military service

and to reinstatement to your position when

you return During military leave you

continue to earn sick leave, vacation time,

pension and seniority rights as if you were

actually working...

Pet. App. A-50-A-54.

|

Paisley continued in his position of permanent

employment as a police officer with the City of Minneapolis

and in his AGR status with the National Guard, with the City

of Minneapolis having granted him a leave of absence from his

position as a police officer while he worked full time with the

Minnesota National Guard in AGR status. Pet. App. A-47.

On October 17, 1979, the City of Minneapolis indicated

by letter to Paisley that he would remain eligible to compete

for future promotional exams, even though he was on a leave

of absence with the National Guard. On November 15, 1985,

Paisley wrote to the City of Minneapolis requesting to take a

promotional exam, but the City denied his request to take the

Sergeant's examination. Paisley thereafter wrote to the City of

Minneapolis requesting reconsideration of its decision on

November 20, 1985 but to no avail. Pet. App. A-55—A-56.

The inability to sit for promotional examinations had the effect

of depriving Paisley of his right to keep pace with

Opportunities for promotion or seniority advancement with the

Minneapolis Police Department. Pet. App. A-47—A-48.

The initial leave of absence granted by the Minneapolis

Police Department to Paisley was set to expire on January 15,

1986, and therefore on October 18, 1985, desiring to maintain

his AGR status with the National Guard and to work there as

a full-time individual, yet maintain his status with the

Minneapolis Police Department, he wrote to them requesting

that his leave of absence be extended for a period of three

years beginning January 15, 1986. Pet. App. A-57—A-59. The

City of Minneapolis Police Department denied the request.

Confronted with the fact that the City of Minneapolis had

denied his extension of military leave of absence and had

refused his right to take promotional examinations, Paisley felt

he had no alternative but to resign from his position with the

City of Minneapolis Police Department and did so, regretfully,

by letter on December 15, 1985. Pet. App. A-60—A-62.

Paisley met with Minneapolis Police Chief John Laux on

April 27, 1994 to request that he be reemployed.

Subsequently, through his attorney, he requested to be

reemployed on May 6, 1994 and July 15, 1994. Paisley was

released from active duty and honorably separated on

August 31, 1994. Pet. App. A-63-A-66.

ARGUMENT

The Eighth Circuit Court of Appeals decided an important

federal question which conflicts with a decision of this Court:

and, in doing so, has so far departed from the accepted and

usual course of judicial proceedings by sanctioning such a

departure, as to call for an exercise of this Court's supervisory

power.

More specifically, the District Court concluded that

Paisley satisfied the requirements of 38 U.S.C. § [4324] 2024

(d), but had waived his reemployment rights by his "apparent"

choice of a military career. The Eighth Circuit Court of

Appeals affirmed the District Court's finding of waiver and did

not reach the issue of the Petitioner's eligibility for benefits.

Both the District Court and the Court of Appeals were

seduced by the seeming similarity of the facts in Smith v.

i Paci , 313 F.2d 676 (8th

Cir. 1963). This case is of doubtful authority in the light of

this Court's decision in King v. St. Vincent's Hospital, 502

U.S. 215, 112 S.Ct. 570 (1991). The Court of Appeals

attempts to distinguish its decision in the present case from the

decision of this Court in King by basing its decision not on the

length of time the Petitioner ultimately requested as leave from

the City of Minneapolis, but rather on "an intent" to make a

"military career". Neither the facts of this case nor case law,

Supports this determination which the Court of Appeals

ultimately found constituted a waiver of the Petitioner's

reemployment rights.

The Eighth Circuit Court of Appeals decided the Smith

case under the former Selective Training and Service Act of

1940, before a number of substantive changes were made

during the Vietnam era which, among other changes,

extended, for the first time, protection of the federal law to

state and local government employees. Importantly, the

decision predates the inception of the AGR program and the

7

express statutory underpinning, provided by Congress, to

support the program.

The AGR program was initiated in light of this country's

apparent need for a continued defense as its armed forces were

scaled back. The AGR program authorizes members of the

Reserve components, including the National Guard, to serve

full-time tours of duty for the purpose of organizing,

administering, recruiting, instructing, or training the reserve

components. This program requires a significant time

commitment from its members. Paisley served his country

under the AGR program. He served in a pivotal support

capacity training other personnel.

The Smith court imposed a “reasonableness” standard to

determine the appropriateness of a length of leave from

employment, the notion of which was struck down in King for

veterans under 38 U.S.C. § [4324] 2024(d). Accordingly,

Paisley could not have gone "too far" and chosen a “military

career" in that the King court concluded that there were no

durational limits upon military leaves of absence for AGR

personnel.

King is primarily a statutory construction case. The Court

noted that Congress is presumed to legislate with knowledge

of the basic rules of statutory construction. King, 112 S.Ct.

570, 574, n.9 (1991), citing McNary v. Haitian Refugee

Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 898 (1991). The

Court also acknowledged that long leaves of absence could be

"ungainly" and "burdensome" on employers. King, 112 S.Ct.

at 573. However, any durational limit is for Congress to

address. Indeed, Congress has now addressed the issue in

passing the Uniformed’ Services Employment and

Reemployment Rights Act of 1994, which amends Chapter 43

of Title 38 to limit military leaves of absence, generally, to five

years. This legislation took effect December 12, 1994. See

Pub. L. 103-353. This legislation is an express

Se

acknowledgement by the Congress of the need to legislate to

establish an appropriate durational limit in light of King.

Paisley's nominal "resignation" in 1985 is anything but the

“clear and unequivocal" indication that he intended to waive

his rights under the Veterans’ Reemployment Rights Act. “It

must be shown that he was aware of the rights he gives up and

that he fully intended to abandon them." Loeb v. Kivo, 169

F.2d 346, 349 (2d Cir. 1948), cert. denied, 335 U.S. 891, 69

S.Ct. 246. There is no indication in the December 15, 1985

letter that Paisley intended to give up his rights. Indeed, on its

face, the letter bespeaks reluctance, regret and compulsion. It

is significant that the letter gives no indication of waiver. This

is the type of document that courts look to for evidence of a

"clear and unequivocal" indication of waiver. U.S. ex rel

Reilly v. New England Teamsters, 737 F.2d 1274, 1278 (2nd

Cir. 1984). The letter, in fact, belies the notion that Paisley

was choosing a military career over his police position. It

recites his diligence in maintaining his police qualifications and

the experience gained in military service which would

contribute to his effectiveness as a police officer.

The United States Department of Labor is the lead agency

providing assistance to veterans seeking reemployment under

the Veterans Reemployment Rights Act. 38 U.S.C. § [4325]

2025. The department has published a "Veterans

Reemployment Rights Handbook" which has been accorded

notice by this Court. See King, 112 S.Ct. at 575, n.14. The

Handbook is cited, approvingly, by the Court in Leonard v.

United Air Lines, 972 F.2d 155, 159 (7th Cir. 1992) for the

proposition that, “[i]n all but the most unusual circumstances,

a veteran cannot expressly or impliedly waive his

reemployment rights before or during military service." Id.

Chapter 22 of the Handbook provides a thorough discussion

of the issue of waivers in the contest of veteran reemployment

rights. Plaintiff commends it to the Court in support of the

conclusion that Plaintiff has not waived his reemployment

rights. See Pet. App. at A-67—A-80.

Based on the Eighth Circuit Court of Appeals departure

from the accepted and usual course of judicial proceedings by

denying a veteran his reemployment rights in direct conflict

with the congressional mandate and in opposition to this

Court's determination in King v. St. Vincent Hospital, the

Petitioner respectfully requests that this Court issue a Writ of

Certiorari to review the opinion of the Eighth Circuit Court of

Appeals filed March 27, 1996.

Dated: August 8, 1996

Respectfully submitted,

SIEBEN, GROSE, VON HOLTUM,

McCOY & CAREY, LTD.

Carol Lynn O’Gara

Counsel of Record

900 Midwest Plaza East

Eighth and Marquette

Minneapolis, Minnesota 55402

(612) 333-4500

Attorneys for Plaintiff-Petitioner

Duane D. Paisley

10

INDEX TO THE APPENDIX

Order of United States Court of Appeals

I os ca seseakiges A-1—A-9

Order of United States District Court

Denying/Granting Motion for Summary Judgment

dated March 31, 1995; filed April 3, 1995 ............. A-10—A-22

Order of United States Court of Appeals

Denying Petition for Rehearing and

Suggestion for Rehearing En Banc

dated May 10, 1996 000... ees cots 2 a A-23

Statutes:

iil cs. ab cused cenbinonsesidicsascohins A-25

an a a a A-26—A-27

ee II ID sca ccdincassvacsncechoseoacce A-28-A-31

3B U.S.C. § £4322) 2022 ..............ccecscsccsscsesess A-32-A-33

Pima OOM E MUMS vivncsicniscsesavesoascassoncers A-34-A-36

Pe Reece OF PORE BOIS casvcasensessscessscsacascccecss A-37-A-41

Pe Faas ERASE OED vsccennescccsccecernnessoscece ee a A-42

38 U.S.C. § [4326] 2026 o.oo. jeetlistacedacnaanes A-43

38 U.S.C. § £4327) 2027... ccccccccescccsceeses A-44—A-45

Affidavit of Duane D. Paisley ...........0..........ccccc000. A-46-A-66

Veterans' Reemployment Rights Handbook ........... A-67—A-80

A-i

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 95-2084

Duane D. Paisley, .

Plaintiff-Appellant, *

*

V. °

* Appeals from the United States

City of Minneapolis, * District court for the

* District of Minnesota.

Defendant-Appellee, *

©

Minneapolis Police Relief *

Association, °

a

Intervenor-Defendant. *

No. 95-2175

Duane D. Paisley, ”

oo

Plaintiff-Appellant, *

*

v. °

cs

City of Minneapolis, ’

s

Defendant-Appellant, *

*

is

Minneapolis Police Relief

Association,

* * *

Intervenor-Defendant.

No. 95-2177

Duane D. Paisley,

Plaintiff-Appellee,

Vv.

City of Minneapolis,

Defendant,

Minneapolis Police Relief

Association,

Intervenor-Defendant-

Appellant.

Se eS Se OS. 2S Se & @C- e e e e ea Se

Submitted: December 15, 1995

Filed: March 27, 1996

A-2

Before BOWMAN and LOKEN, Circuit Judges, and

WOLLE,_” District Judge.

BOWMAN, Circuit Judge.

Duane D. Paisley appeals from the order of the District

Court! granting summary judgment to the City of Minneapolis

and to the Minneapolis Police Relief Association on his claims

for reinstatement, with seniority, to the City's police

department and for payment for sick leave and vacation time,

and for pension benefits, all as accrued from January 16, 1980.

Paisley's claims were made pursuant to the Veterans’

Reemployment Rights Act, 38 U.S.C. §§ 2021-2027 (1988 &

Supp. III, 1991),” but the court concluded that he had waived

“The HONORABLE CHARLES R. WOLLE, Chief Judge, United

States District Court for the Southern District of lowa, sitting by

designation.

' The case was adjudicated by The Honorable Ann D. Montgomery,

United States Magistrate Judge for the District of Minnesota, upon the

consent of the parties pursuant to 28 U.S.C. § 636(c) (1) (1994).

? The Veterans’ Reemployment Rights Act was renumbered 38 U.S.

C. 4301-4307 (Supp. IV 1992) in October 1992. Pub. L. No. 102-568,

506(a), 1992 U.S.C.C.A.N. (106 Stat.) 4320, 4340. (Later amendments,

now codified at 38 U.S.C. §§ 4301-4333 (1994), became effective "with

respect to reemployments initiated on or after the first day after the 60-

day period beginning on" October 13, 1994, and so are not applicable

here. Pub. L. No. 103-353, § 8, 1994 U.S.C.C.A.N. (108 Stat.) 3149,

3175.) Although Paisley's complaint was filed on September 1, 1994, it

refers to sections of the Act as they were numbered before October 1992,

and the District Court opinion followed suit. For the sake of continuity,

we also will refer to the pertinent sections under the numbering scheme

as it existed before it was changed in 1992. Also, to avoid confusion, we

will forego our usual practice of citing United States Code dates

parenthetically when citing sections of the Act as they were numbered

before October 1992.

A-3

whatever rights he may have had under the Act. The City and

the Relief Association cross-appeal, arguing that the court

erred, notwithstanding its decision to grant summary judgment

in their favor, by holding that Paisley came within the Act in

the first place. We affirm the summary judgment.

I.

Paisley joined the National Guard in 1965, and until 1980,

apart from occasional longer-term training, he served the

traditional reserve component duty of thirty-nine days of

training a year--one weekend a month plus fifteen consecutive

days of active duty for training. In 1973, Paisley began work

as a patrolman with the City's police department. Late in

1979, he requested, and was granted, a two-year leave of

absence from his employment with the City to go on active

duty with the National Guard. In 1981, Paisley requested a

two-year extension of his leave, citing as authority 38 U.S.C. §

2024(b)({1), which permitted reemployment following a leave

of absence for active duty service other than for training,

provided that the length of service was no longer than four

years (with certain exceptions not relevant here). The City

granted the request for extension, and then granted another

two-year extension in 1983. In 1985 Paisley asked the City

for a three-year extension of his leave and also asked to be

permitted to take a police department promotional exam,

notwithstanding that he was still on leave from the

department. These requests were denied, and by letter dated

December 15, 1985, Paisley resigned from the police

department.

After his resignation, Paisley remained on active duty with

the National Guard and was offered early retirement from the

Guard in May 1994, the same time he first sought

reemployment with the police department. The City denied his

request for reemployment. In September 1994, Paisley took

A-4

early retirement from the National Guard with the rank of

colonel and filed this lawsuit against the City. The Relief

Association, opposing Paisley's lawsuit, intervened. The

District Court granted summary judgment to the City and to

the Relief Association, and denied Paisley's motion for

summary judgment. Paisley appeals and the City and the

Relief Association cross-appeal. We review de novo, Shannon

v. Ford Motor Co., 72 F.3d 678, 681 (8th Cir. 1996), and now

affirm.

Il.

The facts of the case are not in dispute. For his only issue

on appeal, Paisley argues that the District Court erred as a

matter of law in determining that Paisley waived any

reemployment rights he may have had under the Act when he

resigned his position with the police department in 1985.

We have held that reemployment rights under the Act may

be waived if the employee does so "clearly and unequivocally."

Smith v. Missouri Pac. Transp. Co., 313 F.2d 676, 680 (8th

Cir. 1963). We think that Paisley has done so here. He

requested three two-year leaves of absence from his

employment as a patrolman, and the city granted them all. As

Paisley acknowledged, "There was no requirement that I serve

any time or continue in the National Guard. I could have left

at any time." Paisley Deposition at 19. Still, he sought a

fourth extension, this time for three years, and the City said

no. At that point, Paisley wrote a letter to the police

department wherein he clearly stated, "I hereby tender my

resignation from the Minneapolis Police Department." Letter

from Duane D. Paisley to Minneapolis Police Dep't (Dec. 15,

1985). “Though I am disapointed [sic] to leave the

department at this time, I am very appreciative of the support

that I have been given and the opportunity I have had to

accept several challenging assignments in the military." Id.

A-5

It is clear that Paisley voluntarily extended his active duty

with the Nationa! Guard and that he voluntarily resigned from

the police department in 1985. See Smith, 313 F.2d at 681

(observing as a factor supporting waiver “that the

commitments and requests signed by the Colonel were

executed voluntarily"). Moreover, there is no suggestion that

Paisley did not understand his legal rights under the Act. See

id. Paisley nevertheless argues that he resigned reluctantly and

that he did not intend to give up any statutory employment

rights that he may have had. But Paisley's waiver is not

equivocal simply because the resignation was difficult for him,

or even because the decision was precipitated by the police

department's 1984 refusal to extend his leave or to allow him

to take the promotional exam. Given the choice, he elected to

make his career with the military. His efforts to maintain his

police officer qualifications during his leave of absence--but

before his resignation--do not demonstrate that the waiver

was unclear or equivocal. Further, after he resigned, Paisley

sought and received the pension benefits and refunds to which

he was entitled as a separated police department employee,

clearly indicating his understanding that he had terminated his

employment and moved on to another career. He stayed with

the military until he retired in 1994 with more than fourteen

years of continuous active duty service. Based on the

foregoing facts, we conclude that Paisley “clearly and

unequivocally" waived any statutory reemployment rights he

may have had and opted for a military career rather than a

career with the police department.

Paisley argues that Smith is no longer good law in light of

the Supreme Court's decision in King v. St. Vincent's Hospital,

502 U.S. 215 (1991). In King, the employee sought a three-

year leave of absence from his employment to take a full-time

appointment with the National Guard. His employer denied

the request and sought a declaratory judgment that the three-

year request was unreasonable and that the employee therefore

A-6

had no reemployment rights under the Act. The Supreme

Court held that there was no durational limit on a leave taken

under 38 U.S.C. § 2024(d), and that it would not read a

“reasonableness” limit on the length of a § 2024(d) leave after

which the employee would be entitled to reemployment.*

To the extent Smith can be read to suggest that a leave of

absence for active guard duty must be of a "reasonable" length

to entitle a serviceman to reemployment, we agree that it was

overruled by King, at least for the brief time that King

controlled the question.‘ But there was no issue of waiver in

the King case, so its § 2024 (d) holding has no bearing on the

question of whether a veteran may waive his reemployment

rights--so long as we do not rely on the length of the

employee's absence as a basis for finding a clear and

unequivocal waiver.°

* Under 38 U.S.C. § 2024(d), as reievant here, an employee who

meets the service requirements of the subsection “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 training in

the Armed Forces of the United States," with reemployment rights upon

release. Paisley claims, and the District Court concluded (in a holding

challenged here by the City and the Relief Association, see infra Part III),

that Paisley satisfied the statutory requirements of § 2024(d) and properly

seeks relief under that subsection of the Act.

“With the enactment of the 1994 amendments to the Act, which

inter alia limit cumulative leaves of absence for military service to five

years in order for the employee to qualify for reemployment rights, 38

U.S.C. § 4312(a)(2) (1994), the holding of King v. St. Vincent's Hospital,

502 U.S. 215 (1991), would appear to have only limited, if any,

remaining practical significance in cases arising under the Act.

* We believe, however, that there is a legally significant distinction

between an intent to take a true leave of absence from civilian

employment, the length of which is not subject to a reasonableness

standard, and an intent to make the military a career, which suggests a

choice to forsake one's civilian job and any reemployment rights

attached thereto. As this Court in Smith v. Missouri Pacific

Transportation Co., 313 F.2d 676, 682-83 (8th Cir. 1963), said in

A-7

» 0 et eet ted

Paisley also contends that Smith is not good authority

here because of later "substantive changes” to the Veterans’

Reemployment Rights Act, including bringing government

employers within the strictures of the Act, and the subsequent

“inception of the AGR [active guard reserve] program." Brief

of Appellant at 6. Paisley offers no explanation, however, as to

how statutory amendments subsequent to Smith in any way

call into question the applicability of the doctrine of waiver to

cases of this sort. The Act does not mention waiver and we

have located no cases decided since the Smith opinion was

issued in 1963 that even suggest that the doctrine of waiver is

inapplicable to cases arising under the Act. -

We conclude that the District Court did not err in holding

that Paisley has waived any reemployment rights to which he

may have been entitled under the Act.

J.

summarizing its conclusion that the veteran had waived reemployment

rights:

To render a decision in favor of this plaintiff would be to

recognize and to vest in one in his posture the power, step by

step, as extension-of-duty opportunities present themselves, in

effect to make a career of the service and at the same time to

force his civilian employer to hold or to make a place available

for him throughout the career period and until such time as he

chooses to bring his military life to an end or until it is finally

terminated for him because of age, physical disability, or the

like.

The Smith opinion notes that "[ajppropriate civilian reemployment

protection at the end of a non-career period of service was what our

national legislative body had in mind." Id. at 683. We do not read King,

502 U.S. 215, as being inconsistent with Smith.

A-8

eo

Ill.

For their cross-appeals, the City and the Relief

Association argue that, even had there been no waiver, Paisley

does not come within § 2024(d) of the Act, and that the

District Court erred in concluding otherwise. Our holding in

Part II of this opinion that Paisley waived any statutory rights

he may have had makes it unnecessary for us to consider the

cross-appeals, and we decline to do so.

IV.

We hold that Paisley waived any reemployment rights to

which he may have been entitled under the Act. Accordingly,

the judgment of the District Court in favor of the City and the

Relief Association is affirmed. The cross-appeals of the City

and the Relief Association are dismissed, their resolution being

unnecessary to proper disposition of the case.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH

CIRCUIT.

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

THIRD DIVISION

Civil No. 3-94-1051

Duane D. Paisley,

Plaintiff,

V.

City of Minneapolis,

ORDER

Defendant,

and

Minneapolis Police Relief

Association,

Defendant Intervenor.

Harry A. Sieben, Jr., Esq., appeared on behalf of Plaintiff.

C. Lynne Fundingsland, Esq., appeared on behalf of

Defendant.

Caryn S. Glover, Esq., and Frank J. Walz, Esq., appeared on

behalf of Intervenor.

The above-entitled matter came on for hearing before the

undersigned United States Magistrate Judge on the Ist day of

February, 1995 pursuant to Cross Motions for summary

judgment. See Motions, Doc. Nos. 17, 21 & 24. At the

hearing, all parties agreed that no genuine issues of material

A-10

a

fact exist and that this action is appropriate for resolution on

the Motions for summary judgment.’

BACKGROUND

Plaintiff, Duane D. Paisley, enlisted in the National Guard

in 1965. See Paisley Depo., pp. 5, 9. From 1965 until 1980,

Plaintiff was a traditional Guard member, serving one weekend

a month ard fifteen annual training days with the National

Guard. See Paisley Depo., pp. 10, 12-13.

Plaintiff, upon joining the National Guard, went to basic

training and advanced individual training. He was

commissioned a Second Lieutenant, promoted to First

Lieutenant in 1972, and to Captain in 1976. From 1979 to

1980, Plaintiff was the aide to the Adjutant General and, in

1980, was promoted to the rank of Major. See Paisley Depo.,

pp. 5-6; Paisley Depo., Ex. No. 12.

In 1973, Plaintiff began employment with Defendant, in

its Police Department, as a sworn police officer. See Paisley

Depo., p. 13. In 1979, Plaintiff requested a two-year leave of

absence from his position with Defendant to go on active duty

with the National Guard. The National Guard had offered

Plaintiff this position, which he accepted. See Paisley Depo.,

p. 17.

In 1981, Plaintiff requested that his leave of absence be

extended for an additional two years, until 1984. See Paisley

Depo., 15, 22. In seeking this extension of his leave of

absence, Plaintiff cited to 38 U.S.C. § 2024(b)(1), stating that

"The parties consented to proceed before the undersigned on

October 18, 1994 and an Order of Reference was issued by Judge Richar¢

H. Kyle on December 9, 1994. See, Doc. No. 7. Since the parties

consented to proceed before the undersigned and may appeal directly to

the 8th Circuit Court of Appeals, this decision is issued as an Order

rather than a Report and Recommendation.

A-1]

he believed that provision entitied him to a four-year leave of

absence. See Paisley Depo., p. 36; Paisley Depo. Ex. No. 5.

This additional leave of absence was granted by

Defendant, and Plaintiff remained on active duty with the

National Guard. See Paisley Depo., pp. 22-23; 25. Plaintiff

later requested an additional leave of absence, to extend from

1984 to 1986, to remain on active duty with the National

Guard. See Paisley Depo., p. 25. This request was also

granted by Defendant. See Paisley Depo., p. 25.

Plaintiff could have left his active duty position with the

National Guard when his initial leave of absence expired. See

Paisley Depo., p. 28. Plaintiff voluntarily requested these

leaves of absence so that he could remain in his position with

the National Guard on full-time active duty. See Paisley

Depo., p. 25. It was Plaintiff's preference to remain on active

duty with the National Guard during the period of time he was

on a leave of absence, rather than return to his employment

with Defendant. See Paisley Depo., p. 27.

On October 18, 1985, Plaintiff requested that his leave of

absence which, at that time, extended until January 15, 1986,

be extended for an additional three years from that date. See

Paisley Depo., Ex. No. 6. Defendant denied this request. Also

in 1985, Plaintiff requested that the Defendant allow him

permission to take a promotional examination for the position

of police sergeant with Defendant. See Paisley Depo., Ex.

No. 7. On November 15, 1985, Defendant denied this request.

Id.

On December 15, 1985, Plaintiff tendered his resignation

to Defendant. See Paisley Depo., Ex. No. 8. In Plaintiff's

letter of resignation he wrote, "[t]his difficult decision was

prompted by the recent disapproval of my request for

extension of a military leave of absence to serve on active

duty." Plaintiff went on to state," . . . but for the fact that I

was denied the opportunity to compete in the recent Sergeants

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[sic] promotional examination, my decision might have been

otherwise." See Paisley Depo., Ex. No. 8.

When Plaintiff tendered his resignation to Defendant, his

career plans were to continue serving on active duty with the

National Guard. See Paisley Depo., pp. 39. Plaintiff tendered

his resignation to Defendant knowing, at the time, that he

could have returned to work with Defendant in its police

department. See Paisley Depo., p. 40. After Plaintiff's

resignation, Plaintiff sought, and received, the amount due him

under the pension plan for Defendant's police officers. See

Paisley Depo., p. 49; Paisley Depo. Exs. 9, 10.

Plaintiff remained with the National Guard on active duty

continuously from 1980 until September, 1994. In 1984, he

was promoted to Lieutenant Colonel, and, in 1988, was

promoted to the rank of Colonel. See Paisley Depo., Ex. No.

12.

In May of 1994, Plaintiff was offered early retirement

from the National Guard. See Paisley Depo., p. 7. In the

officer ranks of the National Guard, there is no set retirement

date. See Paisley Depo., p. 8. If a person in those ranks

chooses to leave the National Guard, he or she may do so at

any time. Id.

Also in May of 1994, Plaintiff first sought reemployment

with Defendant. See Paisley Depo., p. 53. Plaintiff sought

reemployment with Defendant at that time because he had then

made a decision to leave active duty with the National Guard.

See Paisley Depo., p. 53. At no time between Plaintiff's

resignation from employment with Defendant (December 15,

1985), and May, 1994, did Plaintiff seek reemployment with

Defendant. See Paisley Depo., p. 54.

Based upon the offer of early retirement, Plaintiff retired

from the National Guard in September of 1994. See Paisley

Depo., pp. 6, 53-54. Plaintiff began receiving a pension based

upon his military service at the time he retired from the

National Guard. See Paisley Depo., p. 7.

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On September 1, 1994, Plaintiff initiated the instant

action, seeking monetary compensation for accumulated sick

leave, vacation time, and pension benefits from January 16,

1980, to date and continuing. Plaintiff also seeks a declaration

of his right to reemployment with Defendant and, in this

action, relies upon the provisions of 38 U.S.C. § 2024(d) to

support his claims.

IS ION

i. STANDARD FOR SUMMARY JUDGMENT.

Rule 56(c) of the Federal Rules of Civil Procedure

provides that summary judgment shall he rendered if there

exists no genuine issue as to any material fact. Summary

judgment is appropriate once the moving party shows the

absence of any material fact.

The United States Supreme Court, in construing Federal

Rule 56(c), stated in Celotex Corp. v. Catrett, 106 S.Ct. 2548,

2552-2553 (1986):

In our view, the plain language of Rule 56(c)

mandates the entry of summary judgment, after

adequate time for discovery and upon motion, against

a party who fails to make a showing sufficient to

establish the existence of an element essential to that

party's case, and on which that party will bear the

burden of proof at trial.

To prevail on a motion for summary judgment, the

moving party does not need to negate the existence of every

fact in dispute. Celotex Corp. v. Catrett, supra. See also,

Inc., 824 F.2d 582, 585 (8th Cir. 1987). Opponents of

summary judgment must point out "specific facts showing that

A-14

there is a genuine issue for trial." Matsushita Electric

Industrial Co., Ltd. v. Zenith Radio Corporation, 106 S.Ct.

1348, 1356 (1986). Hearsay, speculation, and unsworn

materials will be disregarded in evaluating objections to

summary judgment. Barker v. Norman, 651 F.2d 1107 (Sth

Cir. 1981). Evidence offered to defeat summary judgment

must be admissible at trial, or indicate the existence of

admissible evidence. Matsushita, supra. The admissible

evidence must support a reasonable jury finding for the non-

moving party. Anderson v. Liberty Lobby, Inc., 106 S.Ct.

2505 (1986).

Il. PLAINTIFF FALLS UNDER 38 U.S.C. § 2024(D).

Plaintiff claims to be entitled to certain reemployment

rights under the Veterans' Reemployment Rights Act,

specifically 38 U.S.C. § 2024(d).” In order to receive the

benefits of reemployment rights, Plaintiff bears the burden of

proving that he has "satisfied the statutory requirements and is

entitled to receive reemployment rights." Shadle v.

Superwood Corp., 858 F.2d 437, 439 (8th Cir. 1988).

38 U.S.C. § 2024(d) provides in relevant part that:

Any employee not covered by subsection (c) 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 training in the Armed Forces

2 The Veterans' Reemployment Rights Act was formerly codified at

38 U.S.C. § 2021 et seg. and this action was pled under the former

numbering scheme. The Act is now codified at 38 U.S.C. § 4301 et seq.

Since the action was pled under the prior numbering scheme and all

parties cited to that scheme, this Court will also employ the former

numbering scheme throughout its analysis.

A-15

of the United States. Upon such employee's release

from a period of such active duty for training or

inactive duty 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 purposes.

Defendant and Defendant Intervenor contend that Plaintiff

does not fall under this section because he cannot establish

that he was performing active duty for training or inactive duty

training. Instead, they allege that he falls under 38 U.S.C. §

2024(b), which contains an explicit four-year durational limit,

thus preventing Plaintiff from recovering.

However, Defendant's claim must fail because Plaintiff's

Active Guard/Reserve (AGR) service has been statutorily

deemed "active duty for training." See 38 U.S.C. § 2024(f).

38 U.S.C. § 2024(f) provides that:

For the purposes of subsections (c) and (d) of this

section, full-time training or other full-time duty

performed by a member of the National Guard under

section 316, 502, 503, 504 or 505 of title 32 is

considered active duty for training.

Plaintiff's service in the AGR program was performed

under the authority of 32 U.S.C. § 502(f). See Fundingsland

Aff., Ex. B. Consequently, the presence or absence of any

actual training component is immaterial because Congress has

extended the protections of § 2024(d) to those serving in the

AGR program pursuant to 32 U.S.C. § 502(f).

In addition, the District Court, in King v. St. Vincent's

Hospital, 112 S.Ct. 570 (1991), faced with the identical issue

also determined that AGR service pursuant to 32 U.S.C. §

502(f) is considered "active duty for training" for purposes of

A-16

coverage under 38 U.S.C. § 2024(d). King v. St. Vincent's

Hospital, 1989 WL 91134, *4 n.8. Moreover, the Solicitor

General in his brief to the Supreme Court for the petitioner in

the King case, relied on by Defendant, noted the identical

relationship between AGR service under 32 U.S.C. § 502(f)

and coverage under 38 U.S.C. § 2024(d). See Brief for

Petitioner, 1991 WL 521591, ** 8, 9, and 35.

It is thus apparent that Plaintiff properly alleges

reemployment coverage under 38 U.S.C. § 2024(d). His AGR

service pursuant to 32 U.S.C. § 502(f) has been statutorily

deemed "active duty for training." See 38 U.S.C. § 2024(f).

I. PLAINTIFF WAIVED HIS’ RIGHTS TO

REEMPLOYMENT.

Since Plaintiffs reemployment rights are governed by 38

U.S.C. § 2024(d), this Court must look to the breadth of those

rights as interpreted recently by the Supreme Court in the

King case. In King, the plaintiff accepted a full-time AGR

position under 32 U.S.C. § 502(f) with a three-year term. His

employer, St. Vincent's Hospital, rejected his request for a

leave of absence and brought a declaratory judgment action in

the United States District Court for the District of Northern

Alabama to determine whether § 2024(d) provided

reemployment rights after terms as long as the plaintiff's.

King, 112 S.Ct. at 572. Following Eleventh Circuit precedent

which had grafted a reasonableness requirement onto §

2024(d), the District Court determined that Plaintiffs request

for a three-year leave of absence was per S¢€ unreasonable. A

panel of the Eleventh Circuit affirmed. See King, 901 F.2d

1068 (1990). Finally, the Supreme Court reversed. It

determined, through interpreting the statute, that § 2024(d)'s

lack of a durational limit was a deliberate choice by Congress

to provide its protection without imposing a length of service

condition. King, 112 S.Ct. at 574. Thus, "§ 2024(d) places

A-17

no limit on the length of a tour after which [a plaintiff] may

enforce his reemployment rights against [a defendant]." Id.

112 S.Ct. at 575.

However, an issue not before and not touched upon by

the Supreme Court in King is the issue of waiver. Veterans

may waive their reemployment rights if they do so clearly and

unequivocally. Wright v. Ford Motor Co., 196 F.Supp. 538,

540 (E.D.Mich. 1961); Niemiec_v. Seattle Rainier Baseball

Club, 67 F.Supp. 705, 709 (W.D.Wash. 1946). Plaintiff's

decision to pursue a military career rather than a career with

the Minneapolis Police Department constitutes such a waiver.

In Smith _V. Missouri Pacific Transportation Co., 313

F.2d 676 (8th Cir. 1963), the plaintiff served nearly eleven

continuous years in the military before he sought

reemployment from his civilian employer. While in the

military, the plaintiff voluntarily sought and _ received

extensions of his commitments which allowed his prolonged

stay in the service and facilitated his rise to the rank of

Colonel. Id, 313 F.2d at 678. Several months after attaining

the age of sixty, the plaintiff was released from the military and

sought reemployment with his civilian employer. Id. After his

request was denied, he ‘brought suit in federal court under 50

U.S.C.App. § 459 (g)° and, in the alternative, under § 8 of the

Selective Training and Service Act of 1940.‘

The 8th Circuit Court of Appeals affirmed the District

Court's determination that the plaintiff had waived any

reemployment rights he had through choosing to pursue a

military career, rather than a civilian one. Id. 313 F.2d at 682.

* 38 U.S.C. § 2024(d) is a recodification of 50 U.S.C.App. § 459(g).

Lemmon y, Santa Cruz County, Cal., 686 F.Supp. 797, 803 n.9 (N.D.Cal.

1988).

“The 1940 Act assured reemployment for an indefinite term.

However, the Court in Smith determined that waiver of rights was still

possible. Smith, 313 F.2d at 682.

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Cohn cnt,

In reaching his conclusion, then 8th Circuit Court of Appeals

Judge Harry A. Blackmun, wrote that:

In summary, we feel that the plaintiffs claim of

protection under the facts of this case asserts too

much and goes too far. To render a decision in favor

of this plaintiff would be to recognize and to vest in

one in his posture the power, step by step, as

extension-of-duty opportunities present themselves,

in effect to make a career of the service and at the

same time to force his civilian employer to hold or to

make a place available for him throughout the career

period and until such time as he chooses to bring his

military life to an end or until it is finally terminated

for him because of age, physical disability, or the like.

This, we think, was not the intent ot Congress.

Appropriate civilian reemployment protection at the

end of a non-career period of service was what our

national legislative body had in mind.

Id., 313 F.2d at 682-683.

Similarly, in Dahl v. Minneapolis Police Relief

Association, Inc., 187 N.W.2d 671 (Minn. 1971), the

Minnesota Supreme Court confronted with an analogous case

reached the same result. In that case, the plaintiff became

employed by the Minneapolis Police Department in February

1942. Id. One month later, he enlisted in the Army Air Force

and served for approximately three and a half years. Id. He

then returned to the police force and worked from 1945 until

January 1951, when his Minnesota Air National Guard unit

was called to active duty in the Korean conflict. Id. He

served on active duty with the military until April 1967 when

he was discharged with a twenty-year military pension. The

plaintiff could have had a discharge in 1956, but instead chose

to continue his military service until his 1967 discharge. Id.,

A-19

187 N.W.2d at 672. The plaintiff then returned to the police

force for several months in the latter part of 1967, before he

retired and sought a twenty-year police pension. The

defendant denied his request and he brought a declaratory

judgment action in state court. Id. The district court denied

relief, he appealed and the Minnesota Supreme Court affirmed.

Id.

Relying on the Smith case, the Minnesota Supreme Court

determined that the plaintiff had impliedly waived any claim

for pension credit for his military service after the time he

could have been discharged. Id, 187 N.W.2d at 674. The

Court found the plaintiff's claim to be absurd and unreasonable

because:

{i]f plaintiff's position were correct, it would be

possible for a policeman to become employed by the

department, work for 1 day and then go into military

service, come back to his job | day after the 20 years

of military service and qualify for a pension.

Id., 187 N.W.2d at 673.

In the present case, Plaintiff sought and received three

military leaves of absence to pursue active duty in the AGR

program. Upon applying for a further extension of his leave,

he was denied. He could have returned to the Minneapolis

Police Department but instead chose to continue to engage in

his military career. In addition, he sought and received all the

benefits and refunds from the police pension fund to which he

was entitled. He continued his miiitary service until eventually

he took early retirement in 1994 after more than fourteen

years of continuous active duty status in the National Guard.

While it is clear from Plaintiffs December 1985

resignation letter that it was a “difficult decision" for him, it is

apparent that Plaintiff chose a military rather than a civilian

career and that his claim “asserts too much and goes too far."

A-20

Smith, 313 F.2d at 682. Accordingly, his conduct constitutes

a waiver of his reemployment rights and Plaintiff's claim must

fail.© See Smith, supra; and Dahl, supra.

IV. PLAINTIFF'S BREACH OF CONTRACT CLAIM

IS TIME BARRED.

Plaintiffs breach of contract claim against Defendant is

controlled by one of two potentially applicable statutes of

limitations. See Minn. Stat. §§ 541.07(5) and 541.05 subd.

1(2). If Plaintiffs claim is construed as a contract action

against Defendant for failing to follow its personnel policies,

then a two-year statue of limitations would govern. See Minn.

Stat. § 541.07(5) and Portlance v. Golden Valley State Bank,

405 N.W.2d 240 (Minn. 1987). If Plaintiffs claim is

interpreted as a statutory claim, then a six-year limitations

period would apply. See Minn. Stat. § 541.05 subd. 1(2) and

iV , 677

F.Supp. 608 (D.Minn. 1988).

Plaintiff's request to sit for Defendant's promotional exam

was denied in November 1985. He did not institute this action

until September 1, 1994. Since nearly nine years elapsed

between the denial of his request and the commencement of

this action, his claim is barred by either of the two statutes of

limitations which potentially control and it is not necessary for

this Court to determine which is the applicable limitations

’ Plaintiff also asserts claims under Minn. Stat. § 192.26 et seq.

Minn. Stat. § 192.261 subd. 5(b) is modeled after and nearly identical to

38 U.S.C. § 2024(d). In fact, it even references U.S.C. Title 38 for the

meaning of “active duty for training" and “inactive duty for training.“

Minn. Stat. § 192.261 subd. 5(b). The Minnesota statute does not differ

from § 2024(d) in any material way and the analysis applied to § 2024(d)

would be equally germane to Minn. Stat. § 192.261 subd. 5(0). Thus,

through his conduct, Piaintiff has waived any reemployment nights he

had under the Minnesota Statutes.

A-21

period. Consequently, summary judgment in favor of

Defendant and Defendant Intervenor is appropriate as to

Plaintiff's breach of contract claim.

Accordingly, based on the foregoing, and all the files,

records and proceedings herein,

IT IS HEREBY ORDERED that:

1) Plaintiff's Motion for summary judgment (Doc. No

17) is DENIED; and

2) Defendant's and Defendant Intervenor's Motions for

summary judgment (Doc. Nos. 24 & 21) are GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

/s/

ANN D. MONTGOMERY

UNITED STATES

MAGISTRATE JUDGE

Dated: 3/31/95

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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 95-2084/2175/2177MNST

Duane D. Pailey, °

Appellant/Cross-Appellee, *

*

* Order Denying Petition for

City of Minneapolis, et al * Rehearing and Suggestion

* for Rehearing En Banc

Appellee/Cross-Appellant. *

The suggestion for rehearing en banc is denied. The

petition fox rehearing by the panel is also denied.

May 10, 1996

V.

Order Entered at the Direction of the Court:

s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

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28 U.S.C. § 1254

32 U.S.C. § 502

38 U.S.C. § [4321] 2021

38 U.S.C. § [4322] 2022

38 U.S.C. § [4323] 2023

38 U.S.C. § [4324] 2024

38 U.S.C. § [4325] 2025

38 U.S.C. § [4326] 2026

38 U.S.C. § [4327] 2027

A-24

i |

§ 1254. Courts of appeals; certiorari; certified questions

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of any

party to any civil or criminal case, before or after rendition

of judgment or decree;

(2) By certification at any time by a court of appeals of any

question of law in any civil or criminal case as to which

instructions are desired, and upon such certification the

Supreme Court may give binding instructions or require the

entire record to be sent up for decision of the entire matter

in controversy.

(June 25, 1948, ch 646, § 1, 62 Stat. 928; June 27, 1988, P. L.

100-352, § 2(a), (b), 102 Stat. 662.)

I inthe shi. Va inde ath Meta Astin

eo

Pe Soe a es

A-25

§ 502. Required drills and field exercises

(a) Under regulations to be prescribed by the Secretary of the

Army or the Secretary of the Air Force, as the case may be,

each company, battery, squadron, and detachment of the

National Guard, unless excused by the Secretary concerned,

shall—

(1) assemble for drill and instruction, including indoor

target practice, at least 48 times each year; and

(2) Participate in training at encampments, maneuvers,

outdoor target practice, or other exercises, at least 15 days

each year.

However, no member of such unit who has served on active

duty for one year or longer shall be required to participate in

such training if the first day of such training period falls during

the last one hundred and twenty days of his required

membership in the National Guard.

(b) An assembly for drill and instruction may consist of a

single ordered formation of a company, battery, squadron, or

detachment, or, when authorized by the Secretary concerned,

a series of ordered formations of parts of those organizations.

However, to have a series of formations credited as an

assembly for drill and instruction, all parts of the unit must be

included in the series within 30 consecutive days.

(c) The total attendance at the series of formations

constituting an assembly shall be counted as the attendance at

that assembly for the required period. No member may be

counted more than once or receive credit for more than one

required period of attendance, regardless of the number of

formations that he attends during the series constituting the

assembly for the required period.

A-26

(d) No organization may receive credit for an assembly for

drill or indoor target practice unless-

(1) the number of members present equals or exceeds the

minimum number prescribed by the President;

(2) the period of military duty or instruction for which a

member is credited is at least one and one-half hours; and

(3) the training is of the type prescribed by the Secretary

concerned.

(e) An appropriately rated member of the National Guard

who performs an aerial flight under competent orders may

receive credit for attending drill for the purposes of this

section, if the flight prevented him from attending a regularly

scheduled drill.

(f) Under regulations to be prescribed by the Secretary of the

Army or Secretary of the Air Force, as the case may be, a

member of the National Guard may—

(1) without his consent, but with the pay and allowances

provided by law; or

(2) with his consent, either with or without pay and

allowances;

be ordered to perform training or other duty in addition to that

prescribed under subsection (a). Duty without pay shall be

considered for all purposes as if it were duty with pay.

(Aug. 10, 1956, ch 1041, § 2, 70A Stat. 610; Oct. 3, 1964, P.

L. 88-621, § 1(1), 78 Stat. 999; Dec. 1, 1967, P. L. 90-168, §

4, 81 Stat. 526; Nov. 17, 1971, P. L. 92-156, Title Ill, §

303(b), 85 Stat. 425.)

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§ [4321] 2021. Right to reemployment of inducted

persons; benefits protected

(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 positivn (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—

(A) if such position was in the employ of the United States

Government, its territories, or possessions, or political

subdivisions thereof, or the District of Columbia, such

person shall—

(i) if still qualified to perform the duties of such position,

be restored to such position or able to become

requalified with reasonable efforts by the employer

duties of such position or to a position of he seniority,

status, and pay; or

(ii) if not qualified to perform the duties of such

position, by reason of disability sustained during such

service, but qualified to perform the duties or able to

become requalified with reasonable efforts by the

employer of any other position in the employ of the

employer, be offered employment and, if such person so

requests, be employed in such other position the duties

of which such person is qualified to perform as will

provide such person like seniority, status, and pay, or

the nearest approximation thereof consistent with the

circumstances in such person's case;

A-28

(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

or able to become requalified with reasonable efforts by

the employer, 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; or

(ii) if not qualified to perform the duties of such position

or able to become requalified with reasonable efforts by

the employer, by reason of disability sustained during

such service, but qualified to perform the duties of any

other position in the employ of such employer or the

employer's successor in interest. be offered employment

and, if such person so requests, be employed by such

employer or the employer's successor in interest in such

other position the duties of which such person is

qualified to perform as will provide such person like

seniority, status, and pay, or the nearest approximation

thereof consistent with the circumstances in such

person's case,

unless the employer's circumstances have so changed as to

make it impossible or unreasonable to do so. Nothing in this

chapter [38 USCS 66 2021 [4321] et seq.] shall excuse

noncompliance with any statute or ordinance of a State or

political subdivision thereof establishing greater or additional

rights or protections than the mghts and protections

established pursuant to this chapter [38 USCS §§ 2021 [4321]

et seq. }.

(b)(1)(A) Any person who is restored to or employed in a

position in accordance with the provisions of clause (A)

or (B) of subsection (a) of this section shall be

considered as having been on furlough or leave of

absence during such person's period of training and

service in the Armed Forces, shall be so restored or

A-29

reemployed without loss of seniority, shall be entitled to

participate in insurance or other benefits offered by the

employer pursuant to established rules and practices

relating to employees on furlough or leave of absence in

effect with the employer at the time such person was

inducted into such forces, and shall not be dischared

from such position without cause within one year after

such restoration or reemployment.

(B) In the case of employer-offered health insurance, an

exclusion or waiting period may not be imposed in

connection with coverage of a health or physical condition

of a person entitled to participate in that insurance under

subparagraph (A), or a health or physical condition of any

other person who is covered by the insurance by reason of

the coverage of such person, if—

(i) the condition arose before or during that person's

period of training or service in the Armed Forces;

(ii) an exclusion or waiting period would not have been

imposed for the condition during a period of coverage

resulting from participation by such person in the

insurance; and

(iii) the condition of such person has not been

determined by the Secretary to be service-connected.

(2) It is hereby declared to be the sense of the Congress

that any person who is restored to or employed in a

position in accordance with the provisions of clause (A) or

(B) of subsection (a) of this section should be so restored

or reemployed in such manner as to give such person such

Status in the person's employment as the person would have

enjoyed if such person had continued in such employment

continuously from the time of such person's entering the

Armed Forces until the time of such person's restoration to

such employment, or reemployment.

(3) Any person who seeks or holds a position described in

clause (A) or (B) of subsection (a) of this section shall not

A-30

ea panae

be denied hiring, retention in employment, or any

promotion or other incident or advantage of employment

because of any obligation as a member of a Reserve

component of the Armed Forces.

(c) The rights granted by subsections (a) and (b) of this section

to persons who left the employ of a State or political

subdivision thereof and were inducted into the Armed Forces

shall not diminish any rights such persons may have pursuant

to any statute or ordinance of such State or political

subdivision establishing greater or additional mghts or

protections.

(Added Dec. 3, 1974, P. L. 93-508, Title IV, § 404(a), 88

Stat. 1594; Oct. 15, 1976, P. L. 94-502, Title VI, § 608(1),

(2), 90 Stat. 2405; Oct. 28, 1986, P. L. 99-576, Title 111, Part

A, § 331, 100 Stat. 3279; March 18, 1991, P. L. 102-12, §

5(a), 105 Stat. 36; April 6, 1991, P. L. 102-25, Title Ill, Part

C, § 340, 105 Stat. 92.)

A-31

§ [4322] 2022. Enforcement procedures

If any employer, who is a private employer or a State or

political subdivision thereof, fails or refuses to comply with the

provisions of section 2021 (a), (b)(1), or (b)(3), or 2024 of

this title [38 USCS § 2021 [4321] (a), (b)(1), or (b)(3) or

2024 [4324]], the district court of the United States for any

district in which such private employer maintains a place of

business, or in which such State or political subdivision thereof

exercises authority or carries out its functions, shall have the

power, upon the filing of a motion, petition, or other

appropriate pleading by the person entitled to the benefits of

such provisions, specifically to require such employer to

comply with such provisions and to compensate such person

for any loss of wages or benefits suffered by reason of such

employer's unlawful action. Any such compensation shall be

in addition to and shall not be deemed to diminish any of the

benefits provided for in such provisions. Upon application to

the United States attorney or comparable official for any

district in which such private employer maintains a place of

business, or in which such State or political subdivision thereof

exercises authority or carries out its functions, by any person

claiming to be entitled to the benefits provided for in such

provisions, such United States attorney or official, if

reasonably satisfied that the person so applying is entitled to

such benefits, shall appear and act as attorney for such person

in the amicable adjustment of the claim or in the filing of any

motion, petition, or other appropriate pleading and the

prosecution thereof specifically to require such employer to

comply with such provisions. No fees or court costs shall be

taxed against any person who may apply for such benefits. In

any such action only the employer shall be deemed a necessary

party respondent. No State statute of limitations shall apply to

any proceedings under this chapter [38 USCS §§ 2021[4321]

et seq. }.

A-32

(Added Dec. 3, 1974, P. L. 93-508, Title IV, §404(a), 88 Stat.

1596; Oct. 12, 1982, P. L. 97-295, § 4(71), 96 Stat. 13 10:

Nov. 8, 1984, P. L. 98-620, Title IV, Subtitle A, § 402(36),

98 Stat. 3060.)

BPA NIE eal ila Bale 88s A SBE SATO

A-33

§ [4323] 2023. Reemployment by the United States,

territory, possession, or the District of Columbia

(a) Any person who is entitled to be restored to or employed

in a position in accordance with the provisions of clause (A) of

section 2021 (a) [38 USCS § 2021 [4321] (a)(A)] and who

was employed, immediately before entering the Armed Forces,

by any agency in the executive branch of the Government or

by any territory or possession, or political subdivision thereof,

or by the District of Columbia, shall be so restored or

reemployed by such agency or the successor to its functions,

or by such territory, possession, political subdivision, or the

District of Columbia. In any case in which, upon appeal of

any person who was employed, immediately before entering

the Armed Forces, by any agency in the executive branch of

the Government or by the District of Columbia, the Director

of the Office of Personnel Management finds that—

(1) such agency is no longer in existence and its functions

have not been transferred to any other agency; or

(2) for any reason it is not feasible for such person to be

restored to employment by such agency or by the District

of Columbia;

the Director shail determine whether or not there is a position

in any other agency in the executive branch of the Government

or in the government of the District of Columbia for which

such person is qualified and which is either vacant or held by a

person having a temporary appointment thereto. In any case

in which the Director determines that there is such a position,

such person shall be offered employment and, if such person

sO requests, be employed in such position by the agency in

which such position exists or by the government of the District

of Columbia, as the case may be. The Director is authorized

and directed to issue regulations giving full force and effect to

the provisions of this section insofar as they relate to persons

entitled to be restored to or employed in positions in the

A-34

yo

— on én

executive branch of the Government or in the government of

the District of Columbia, including persons entitled to be

reemployed under the last sentence of subsection (b) of this

section. The agencies in the executive branch of the

Government and the government of the District of Columbia

shall comply with such rules, regulations, and orders issued by

the Director pursuant to this subsection. The Director is

authorized and directed when the Director finds, upon appeal

of the person concerned, that any agency in the executive

branch of the Government or the government of the District of

Columbia has failed or refuses to comply with the provisions

of this section, to issue an order specifically requiring such

agency or the government of the District of Columbia to

comply with such provisions and to compensate such person

for any loss of salary or wages suffered by reason of failure to

comply with such provisions, less any amounts received by

such person through other employment, unemployment

compensation, or readjustment allowances. Any such

compensation ordered to be paid by the Director shall be in

addition to and shall not be deemed to diminish any of the

benefits provided for in such provisions, and shall be paid by

the herd of the agency concerned or by the government of the

District of Columbia out of appropriations currently available

for salary and expenses of such agency or government, and

such appropriations shall be available for such purpose. As

used in this chapter [38 USCS §§ 2021 [4321] et seq.], the

term “agency in the executive branch of the Government"

means any department, independent establishment, agency, or

corporation in the executive branch of the United States

Government (including the United States Postal Service and

the Postal Rate Commission).

(b) Any person who is entitled to be restored to or employed

in a position in accordance with the provisions of clause (A) of

section 202 1 (a) of this title [38 USCS § 2021 [4321] (a)(A)],

and who was employed, immediately before entering the

A-35

Armed Forces, in the legislative branch of the Government,

shall be so restored or employed by the officer who appointed

such person to the position which such person held

immediately before entering the Armed Forces. In any case in

which it is not possible for any such person to be restored to

or employed in a position in the legislative branch of the

Government and such person is otherwise eligible to acquire a

status for transfer to a position in the competitive service in

accordance with section 3304(c) of title 5 [5S USCS §

3304(c)], the Director of Office of Personnel Management

shall, upon appeal of such person, determine whether or not

there is a position in the executive branch of the Government

for which such person is qualified and which is either vacant or

held by a person having a temporary appointment thereto. In

any case in which the Director determines that there is such a

position, such person shall be offered employment and, if such

person so requests, be employed in such position by the

agency in which such position exists.

(c) Any person who is entitled to be restored to or employed

in a position in accordance with the provisions of clause (A) of

section 2021(a) of this title [38 USCS § 2021 [4321] (a)(A)]

and who was employed, immediately before entering the

Armed Forces, in the judicial branch of the Government, shall

be so restored or reemployed by the officer who appointed

such person to the position which such person held

immediately before entering the Armed Forces.

(Added Dec. 3, 1974, P. L. 93-508, Title IV, § 404(a), 88

Stat. 1596; Oct. 12, 1982, P. L. 97-295, § 4(72), 96 Stat.

1310.)

A-36

————<—— li i _OOOC;S

§ [4324] 2024. Rights of persons who enlist or are called

to active duty; Reserves

(a) Any person who, after entering the employment on the

basis of which such person claims restoration or

reemployment, enlists in the Armed Forces of the United

States (other than in a Reserve component) shall be entitled

upon release from service under honorable conditions to all of

the reemployment rights and other benefits provided for by

this chapter [38 USCS §§ 2021 [4321] et seq.] in the case of

persons inducted under the provisions of the Military Selective

Service Act (or prior or subsequent legislation providing for

the involuntary induction of persons into the Armed Forces), if

the total of such person's service performed between June 24,

1948, and August 1, 1961, did not exceed four years, and the

total of any service, additional or otherwise, performed by

such person after August 1, 1961, does not exceed five years,

and if the service in excess of four fears after August 1, 1961,

is at the request and for the convenience of the Federal

Government (plus in each case any period of additional service

imposed pursuant to law).

(b)(1) 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

of the United States or the Public Health Service 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 [38 USCS §§ 2621 [4321] et

seg.] in the case of persons inducted under the provisions

of the Military Selective Service Act (or pnor or

subsequent legislation providing for the involuntary

induction of persons into the Armed Forces), if the total of

A-37

such active duty performed between June 24, 1948, and

August 1, 1961, did not exceed four years, and the total of

any such active duty, additional or otherwise, 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).

(2) Any member of a Reserve component of the Armed

Forces of the United States who voluntarily or involuntarily

enters upon active duty (other than for the purpose of

determining physical fitness and other than for training) or

whose active duty is voluntarily or involuntarily extended

during a period when the President is authorized to order

units of the Ready Reserve or members of a Reserve

component to active duty shall have the service limitation

governing eligibility for reemployment rights under

subsection (b)(1) of this section extended by such member's

period of such active duty, but not to exceed that period of

active duty to which the President is authorized to order

units of the Ready Reserve or members of a Reserve

component. With respect to a member who voluntarily

enters upon active duty or whose active duty is voluntarily

extended, the provisions of this subsection shall apply only

when such additional active duty is at the request and for

the convenience of the Federal Government.

(c) Any member of a Reserve component of the Armed Forces

of the United States who is ordered to an initial period of

active duty for training of not less than twelve consecutive

weeks shall, upon application for reemployment within thirty-

one days after (1) such member's release from such active duty

for training after satisfactory service, or (2) such member's

discharge from hospitalization incident to such active duty for

training, or one year after such member's scheduled release

from such training, whichever is earlier, be entitled to all

reemployment rights and benefits provided by this chapter [38

A-38

PU Sa OE er

Oe et ee

USCS §§ 2021 [4321] et seq.] for persons inducted under the

provisions of the Military Selective Service Act (or prior or

subsequent legislation providing for the involuntary induction

of persons into the Armed Forces), except that (A) any person

restored to or employed in a position in accordance with the

provisions of this subsection shall not be discharged from such

position without cause within six months after that restoration,

and (B) no reemployment rights granted by this subsection

shall entitle any person to retention, preference, or

displacement rights over any veteran with a superior claim

under those provisions of title 5 [5 USCS §§ 101 et seq.]

relating to veterans and other preference eligibles.

(d) Any employee not covered by subsection (c) of this section

who holds a position described in clause (A) or (B) of section

2021 (a) [38 USCS § 2021 [4321] (a)(A),(B)] 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 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 purposes. 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. Failure to report for work at

such next regularly scheduled working period sha!l make the

employee subject to the conduct rules of the employer

pertaining to explanations and discipline with respect to

absence from scheduled work. If such an employee is

A-39

hospitalized incident to active duty for training or inactive duty

training, such employee shall be required to report for work at

the beginning of the next regularly scheduled work period

after expiration of the time necessary to travel from the place

of discharge from hospitalization to the place of employment,

or within a reasonable time thereafter if delayed return is due

to factors beyond the employee's control, or within one year

after such employee's release from active duty for training or

inactive duty training, whichever is earlier. If an employee

covered by this subsection is not qualified to perform the

duties of such employee's position by reason of disability

sustained during active duty for training or inactive duty

training, but is qualified to perform the duties of any other

position in the employ of the employer or such employer's

successor in interest, such employee shall be offered

employment and, if such person so requests, be employed by

that employer or such employer's successor in interest in such

other position the duties of which such employee is qualified

to perform as will provide such employee like seniority, status,

and pay, or the nearest approximation thereof consistent with

the circumstances in such employee's case.

(e) Any employee not ccvered by subsection (c) of this section

who holds a position described in clause (A) or (B) of section

2021 (a) [38 USCS § 2021 [4321] (a)(A),(B)] shall be

considered as having been on leave of absence during the

period required to report for the purpose of being inducted

into, entering, or determining, by a preinduction or other

examination, physical fitness to enter the Armed Forces.

Upon such employee's rejection, upon completion of such

employee's preinduction or other examination, or upon such

employee's discharge from hospitalization incident to such

rejection or examination, such employee shall be permitted to

return to such employee's position in accordance with the

provisiozis of subsection (d) of this section.

A-40

a eee

aay

(f) For the purposes of subsections (c) and (d) of this section,

full-time training or other full-time duty performed by a

member of the National Guard under section 316, 502, 503,

504, or 505 of title 32 is considered active duty for training.

For the purposes of subsection (d) of this section, inactive

duty training performed by that member under section 502 of

title 32 or section 206, 301, 309, 402, or 1002 of title 37 is

considered inactive duty training.

(g) Any member of a Reserve component of the Armed Forces

of the United States who is ordered to active duty (other than

for training) under section 673b of title 10, United States

Code, whether or not voluntarily, shall be entitled to all

reemployment rights and benefits provided under subsection

(c) of this section for persons ordered to an initial period of

active duty for training of not less than twelve consecutive

weeks; and shall have the service limitation governing

eligibility for reemployment rights under subsections (a) and

(b)(1) of this section extended by his period of such active

duty.

(Added Dec. 3, 1974, P. L. 93-508, Title IV, § 404(a), 88

Stat. 1598; May 14, 1976, P. L. 94-286, § 2, 90 Stat. 518:

Oct. 15, 1976, P. L. 94-502, Title VI, § 608(3), 90 Stat. 2405:

Oct. 17, 1980, P.L. 96-466, Title V, § 511, 94 Stat. 2207:

Oct. 28, 1986, P. L. 99-576, Title VII, § 701(60), 100 Stat.

3296; March 18, 1991, P. L. 102-12, § 8(a)(1), (b)(1), 105

Stat. 38.)

A-41

§ [4325] 2025. Assistance in obtaining reemployment

The Secretary of Labor, through the Office of Veterans’

Reemployment Rights, shall render aid in the replacement in

their former positions or reemployment of persons who have

satisfactorily completed any period of active duty in the

Armed Forces or the Public Health Service. In rendering such

aid, the Secretary shall use existing Federal and State agencies

engaged in similar or related activities and shall utilize the

assistance of volunteers.

(Added Dec. 3, 1974, P. L. 93-508, Title IV, § 404(a), 88

Stat. 1600.)

A-42

§ [4326] 2026. Prior rights for reemployment

In any case in which two or more persons who are entitled to

be restored to or employed in a position under the provisions

of this chapter [38 USCS §§ 2021 [4321] et seq.] or of any

other law relating to similar reemployment benefits left the

same position in order to enter the Armed Forces, the person

who left such position first shall have the prior right to be

restored thereto or reemployed on the basis thereof, without

prejudice to the reemployment rights of the other person or

persons to be restored or reemployed.

(Added Dec. 3, 1974, P. L. 93-508, Title IV, § 404(a), 88

Stat. 1600.)

A-43

§ [4327] 2027. Qualification for employment position

(a) For the purposes of this chapter [38 USCS §§ 2021 [4321]

et seq.], a person shall be considered qualified to perform the

duties of an employment position if such person, with or

without reasonable accommodation, can perform the essential

functions of the position.

(b) For the purposes of subsection (a) of this section, an

employer shall be required to make _ reasonable

accommodations to the known physical or mental limitations

of an otherwise qualified individual with a disability, unless the

employer can demonstrate that the accommodation wouid

impose an undue hardship on the operation of the business of

such employer.

(c) For purposes of subsections (a) and (b) of this section—

(1) the term "employer" means—

(A) until July 26, 1994, a person engaged in an industry

affecting commerce who has 25 or more employees for

each working day in each of 20 or more calendar weeks

in the current or preceding year, and any agent of such

person; and

(B) on and after July 26, 1994, a person engaged in an

industry affecting commerce who has 15 or more

employees for each working day in each of 20 or more

calendar weeks in the current or preceding calendar

year, and any agent of such person;

except that such term does not include the United States, a

corporation wholly owned by the Government of the

United States, an Indian tribe, or a bona fide private

membership club (other than a labor organization) that is

exempt from taxation under section 501(c) of the Internal

Revenue Code of 1986 [26 USCS § 501(c)]; and (2) the

terms “reasonable accommodation" and “undue hardship"

have the meanings given such terms in paragraphs (9) and

A-44

(10), respectively, of section 101 of the Americans with

Disabilities Act of 1990 (42 U.S.C. 1211 1(9) and (10)).

(d) Nothing in this chapter [38 USCS §§ 2021 [4321] et seq.]

shall be interpreted to limit in any way any of the rights

conferred by the Americans with Disabilities Act of 1990.

(Added April 6, 1991, P. L. 102-25, Title Ill, Part C, §

339(a), 105 Stat. 91.)

A-45

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

THIRD DIVISION

Court File No. 3-94-1051

Duane D. Paisley,

Plaintiff,

VS. AFFIDAVIT OF DUANE D. PAISLEY

City of Minneapolis,

Defendant.

STATE OF MINNESOTA )

)ss.

COUNTY OF HENNEPIN )

Duane D. Paisley, being duly sworn under oath, states and

deposes as follows:

1. That, he is the Plaintiff in the within matter and a

resident of Ramsey County and was employed in a permanent

position as a police officer with the City of Minneapolis from

early June, 1973 until January 16, 1980.

2. That, Affiant had enlisted in the National Guard on

June 9, 1965, prior to his employment with the City of

Minneapolis.

3. That, during Affiant's employment with the City of

Minneapolis, on November 1, 1979, and _ continuously

A-46

thereafter, Plaintiffs military status was "Active

Guard/Reserve" or AGR, at a time when his salary with the

City of Minneapolis, was $22,141.50.

4. That, the City of Minneapolis is a municipal employer

subject to 38 U.S.C. §2024(d).

5. That, affiant is a person entitled. to veterans’ re-

employment rights, and specifically to re-employment as a

police officer with the City of Minneapolis without limitation

as to time under King v. St. Vincent Hospital, 112 S.Ct. 570,

575 (1991).

6. That, the applicable employee handbook for the City

of Minneapolis provided at page 22 that:

As authorized by State Law, you are entitled to

leave without pay during military service and to

reinstate to your position when you return.

During military leave you continue to earn sick

leave, vacation time pension and seniority rights

as if you were actually working... .

(Exhibit 1 attached).

7. That, your affiant was afforded military leaves of

absence from the City of Minneapolis during which time he

performed active duty under the authority of 32 U.S.C.

§502(f).

8. That, on October 17, 1979, the City of Minneapolis

indicated in writing that Affiant would be eligible to compete

for future promotional exams. On November 15, 1985, he

wrote the City of Minneapolis requesting to take a

promotional exam, but the City denied the request of Affiant

to take the Sergeant's examination.

9. That, on November 20, 1985, Affiant wrote to the

City of Minneapolis requesting reconsideration (Exhibit 2), but

to no avail. The inability of your Affiant to sit for

examinations deprived or impaired his ability to achieve the

A-47

status he otherwise would have been capable of achieving with

his civilian employer.

10. That, on October 18, 1985, Affiant requested a leave

of absence from the Minneapolis Police Department for a

period of three years, beginning after January 15, 1986

(Exhibit 3), but the City denied the request.

11. That, on December 15, 1985, Affiant wrote to tender

his resignation to the City of Minneapolis due to their denial of

his request for an extension of a military leave of absence, and

their refusal of his ability to take the promotional examination

(Exhibit 4).

12. That, Affiant is a duly licensed and certified police

officer.

13. That, the Affiant met with Police Chief John Laux on

April 27, 1994 to request re-employment. Subsequently,

through his attorney, he requested to be reemployed on May

6, 1994 and July 15, 1994.

14. That, the Affiant has been released from active duty

and honorably separated, effective August 31, 1994, and has

sought to be re-employed with the City of Minneapolis, in

accordance with 38 U.S.C. §[4324]2024(d), without success.

(Exhibit 5)

15. That, the Affiant, having had frequent contact with

the Minneapolis Police Department in his professional duties

as Military Support to Civilian Authorities Officer, and having

maintained professional contacts with his contemporaries

within the Department, and further based upon his

qualifications and abilities, believes that he should be

reemployed, in accordance with the “escalator principle", in

the rank of Captain.

A-48

FURTHER YOUR AFFIANT SAITH NOT.

/s/

Duane D. Paisley

Subscribed and sworn to before me this

3rd_ day of Jan. , 1995.

s/ Sharon K. Parriott

Notary Public

A-49

EXHIBIT "1"

A-50

EMPLOYEE

HANDBOOK

MINNEAPOLIS

CITY OF LAKES

A-51

CIVIL SERVICE COMMISSION MINNEAPOLIS

PERSONNEL DEPARTMENT City of Lakes

312 3rd Avenue South

Minneapolis, Minnesota 55415

January, 1978

This booklet has been prepared to give you general

Information about the conditions of employment with the City.

It may direct you to more detailed sources of information. If

you should require them. It is not an official rule book nor a

legal document.

The staff of the Civil Service Office is always prepared to

answer any questions that you may have and to help you in

many other ways.

We hope that your employment with the City is a

satisfying and productive experience and that this handbook

will be of genuine assistance to you in your career.

/s/

Brian R. Isaacson

Personnel Director

A-52

Death in the Immediate Family: Three days paid leave

may be granted. In addition to "immediate family" as defined

above. this includes parents-in-law, grandparents, and step-

parents.

Jury Service: Paid leave is allowed for jury service when

fees received are paid to your department.

Military Service: Fifteen calendar days military reserve

duty qualifies for paid leave.

Without Pay

Iiiness: Employees who have exhausted all available sick

leave time may be allowed leave without pay for up to one

year if needed.

Education: Formal study which is closely related to the

employee's duties may be allowed.

Travel: No more than one leave of 90 days or less is

permitted in any five-year period.

Maternity: Maternity leaves without pay will be granted

to females in the classified service for up to six months with no

loss of job rights. In certain circumstances such leave may be

extended to a year. See your supervisor or personnel officer

for details.

Military: As authorized by State Law, you are entitled to

leave without pay during military service and to reinstatement

to your position when you return. During military leave you

continue to earn sick leave, vacation time, pension and

seniority rights as if you were actually working; however, you

do not get credit for "experience" you would have gained in

your job had you not been on military leave, unless the military

service duties were comparable to your job with the City.

Other: Employees may be granted leave to become a

candidate for or accept public office, to take an appointive

position with the City, to become business agent for a union

which primarily represents City employees, and for other

A-53

reasons which the Commission feels are not prejudicial to the

interests of the City.

A-54

EXHIBIT "2"

A-55

DUANE D PAISLEY

3151 BENJAMIN ST.N. E.

MINNEAPOLIS, MINN. 55418

20 November 1985

Mr. Brian Issacson

Personnel Director

Personnel Department

Civil Service Commission

City of Minneapolis

312 3rd Avenue South

Minneapolis, MN 55415

Dear Mr. Issacson:

I am in receipt of your letter of November 15, 1985 wherein

you have communicated the Civil Service Commission's denial

of my request to take the Police Sergeant examination

#13439. It is not evident to me upon what basis my request

has been denied. I sought to take the examination in reliance

upon your assurance, in your letter of October 17, 1979, a

copy of which I have enclosed. that I would be elgible to

compete in future promotional exams. In view of this, |

respectfully request that this decision be reconsidered and

renew my request to take the examination.

Sincerly,

/s/

DUANE D. PAISLEY

A-56

EXHIBIT "3"

A-57

DUANE D PAISLEY

3151 BENJAMIN ST._N. E.

MINNEAPOLIS, MINN. 55418

18 October 1985

Mr. Brian Issacson

Personnel Director

Personnel Department

Civil Service Commission

City of Minneapolis

312 3rd Avenue South

Minneapolis, MN 55415

Re: Request for Continued Military Leave

Dear Mr. Issacson:

I am serving as a Commissioned Officer of the Minnesota

Army National Guard on active duty under terms of a Military

leave of absence from the Minneapolis Police Department.

This leave extends to January 15, 1986. 1 respectfully request

that this leave be extended for a period of three years from

that date.

I have and will continue, to pursue courses of continuing

education for the purpose of maintaining my Police Officers

Standards and Training licence. An extension of my leave of

absence will permit me to advance the important work of the

Minnesota Military Academy where I am a Lieutenant

Colonel, and the Training Administrator. It will also offer a

Battalion level Command. These opportunities for leadership

and service to our Community, State, and Nation are

A-58

consistent with and complement the duties and responsibilites

I am sworn to uphold as a Police Officer.

Thank you for your consideration in this regard.

Very truly yours,

/s/

Duane D. Paisley

A-5S9

EXHIBIT "4"

A-60

DUANE D PAISLEY

3151 BENJAMIN ST_N. E.

MINNEAPOLIS, MINN. 55418

Minneapolis Police Department 15 December 1985

Attention: Personnel

Room 210%

City Hall

Minneapolis, MN 55415

I hereby tender my resignation from the Minneapolis Police

Department. This difficult decision was prompted by the

recent disapproval of my request for extension of a military

leave of absence to serve on active duty. I am very proud of

my record of service to the City of Minneapolis and truly

regret that this compels me to give up my membership on the

force. I have been diligent in maintaining my qualifications as

a police officer while on leave. My assignments in the tilitary

have broadened my experience with significant supervisory

and leadership roles in ways which could have benefited the

Police Department: but for the fact that I was denied the

Opportunity to compete in the recent Sergeants promotional

examination, my decision might have been otherwise. Indeed,

I spent considerable time and effort in preparation for the

exam, anticipating returning to the force with the prospect of a

supervisory position.

Though I am disapointed to leave the department at this time,

I am very appreciative of the support that I have been given

and the opportunity I have had to accept several chailenging

assignments in the military. The Guard and the other Reserve

A-61

components need the support of employers in order to

accomplish their mission of being ready and able to mobilize in

the defense of State and Nation. Over the past several years

the City of Minneapolis has been exemplary in this regard by

accomodating my leave of absence.

Sincerely

/s/

Duane D. Paisley

A-62

A-63

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STATE OF MINNESOTA

DEPARTMENT OF MILITARY AFFAIRS

OFFICE OF THE ADJUTANT GENERAL

VETERANS SERVICE BUILDING

~ SAINT PAUL 55155-2098

ORDERS 78-25 7 JULY 1994

1. PAISLEY, DUANE D 476-46-5317 COL STARC-MN

(-) STATE AREA COMMAND, ST PAUL MN 55101-2597

You are reassigned as shown for separation processing.

Assigned to: U.S. Army Transition Point (WOVPO3), Ft

Leavenworth KS 66027-5080

Reporting date: 31 August 1994

Additional instructions: You will report to the Transition Point

for preprocessing not later than 0800, 12 August 1994.

Your transition leave will commence on 13 August 1994

and conclude on 31 August 1994. You are not authorized

movement of household goods or dependents to Transition

Point.

FOR ARMY USE

Auth: Army Regulation 635-200

18 years act Fed Svc on 1 Nov 81: No

HOR: Mpls MN Pl EAD or OAD: St Pau! MN

Scd date of sep: 31 Aug 94 Comp: ARNG/AGR

MDC: 7B04 PEBD: NA

Format: 430 SPD: RBD

2. PAISLEY, DUANE D 476-46-5317 COL STARC-MN

(-) STATE AREA COMMAND, ST PAUL MN 55101-2597

A-65

You are retired from active service, released from assignment

and duty, and, on the date following, placed on the retired list.

On date placed on the retired list, you are transferred to the

Retired Reserve and assigned to U.S. Army Reserve Control

Group (Retired), U.S. Army Reserve Personnel Center, St

Louis, Missouri 63132-5200.

Effective date: 31 August 1994

Retired grade of rank: Colonel

Date placed on retired list: 1 September 1994

DOB: 20 May 1944

Sex: Male

Retirement type and allotment code: Non-Disability (3)

Component: ARNGUS

Statute authorized retirement: Title 10 USC Section 3911

Other eligible laws: None

Vol Retirement: 16 years, 2 months, 11 days

Section 1405: 18 years, 5 months, 20 days

Basic pay: 29 years, 2 months, 22 days

Completed over 4 years of active service as Enl or.WO: No

Member of the armed forces on 24 Sep 75: Yes

A-66

VETERANS’

REEMPLOYMENT

RIGHTS

HANDBOOK

U.S. Department of Labor

Veterans' Employment and Training

A-67

PREFACE

This Handbook replaces the 1970 edition and is intended

to assist those who are interested in or affected by the

reemployment rights of veterans, reservists, members of the

National Guard, or other persons protected by the veterans’

reemployment rights statute. The basic purpose of that statute

is to ease the transition of veterans from military status back

into the civilian labor force.

These rights are governed by statute as interpreted by

court decisions. Although the Department of Labor and the

Veterans' Employment and Training Service (VETS) do not

have the authority to issue administrative rulings having the

effect of law in this field, the courts have accorded the

Handbook "a measure of weight." The examples in this

Handbook, which are not meant to be exhaustive, but

illustrative only, are based on the Department's analysis of the

statute, court decisions, and the legislative history.

This 1986 edition has utilized much of the 1970 text, with

revisions to reflect amendments to the statute and progression

of the case law. In a departure from the 1970 edition, margin

citations have been added to the text to assist the reader in

locating the pertinent provisions of the statute. All citations

are to Title 38 of the United States Code. When male nouns

and pronouns are used in this Handbook, they should be

deemed to include the female gender as well. Males and

females have equal rights under the statute.

Further Information about reemployment rights may be

obtained at any Veterans’ Employment and Training Service

Office, or by writing to the Veterans’ Employment and

Training Service, Department of Labor, 200 Constitution

Avenue NW, Washington, D.C. 20210.

1986

A-68

VETERANS' REEMPLOYMENT RIGHTS

HANDBOOK

TABLE OF CONTENTS

Chapter Title Page Number

Number

og | ASE ORCS I

Table of Contents o.oo... Ill

PART I

INTRODUCTION

l. Historical Background... l-]

PART II

ELIGIBILITY

2. Who Has Reemployment Rights? .......... 2-1

3. Positions Giving Rise to Rights............. 3-1

4. Purpose in Leaving Position... 4-]

5. Duration of Military Service... 5-1

6. Character of Military Service... 6-1

7. Applying for Reemployment........ 7-1

5. Applicant's Qualifications... 8-1]

9. Changes in Employer's Circumstances. 9-1]

PART III

THE ESCALATOR PRINCIPLE

10. se hear ag ne 10-1]

ll.

12.

13.

14.

15.

16.

17.

18.

19.

Position to be Offered......................00..

Rate of Pay to be Provided ...................

Seniority and Seniority Rights...............

Pensions, Profit-Sharing and Other

Perquisites of Seniority .....................

Vacations, Insurance and Other Fringe

PE vc ioc ticiisd inns

SPECIAL CASES

Disabled Applicants .......................00060.

Reservists and Members of the National

Guard: Initial Active Duty for Training

Reservists and Members of the National

Guard : Tours of Training Duty;

Protection Against Discharge.............

Examinees and Rejectees ......................

PART V

ENFORCEMENT

Waiver of Rights, Remedies, or Defenses

Timeliness in Asserting Claims..............

APPENDICES

Tear ki

United States Supreme Court Decisions...

INDEX

A-70

16-1

17-1

18-1

19-1]

20 - 1

21-1

22-1

23 - 1

I-1

II - 1

CHAPTER TWENTY-TWO

Waiver of Rights, Remedies, or Defenses

Since the rights and remedies created by the

reemployment statute belong to the individual employee, they

can be waived by the individual, in whole or in_ part.

Nevertheless, since the purposes of the statute are remedial,

waivers of rights or remedies will not readily be found to have

occurred, and doubtfi:! cases will be resolved in favor of the

veteran. The burden of proving a waiver is on the party who

claims that a waiver has occurred.

A veteran may waive his rights or remedies either

expressly or impliedly by his conduct. An express waiver,

whether oral or written, must surrender existing rights, not

merely indicate an intention to refrain from claiming rights in

the future. The conduct from which a waiver is implied must

be clearly inconsistent with the pursuit of the right or remedy

in question. Waiver is essentially a matter of intent, and the

proof of an intent to waive must be clear, convincing, specific,

and unequivocal. The veteran must be aware of the rights he

is waiving, and the waiver must be a voluntary act on his part,

not induced by fraud, misrepresentation, or pressure.

Only the veteran, or an agent he has authorized to make a

waiver on his behalf, can waive his statutory rights. The fact

that a union is the duly authorized agent for collective

bargaining purposes, or for pressing grievances under the

contract, does not empower the union to waive the veteran's

rights or remedies under the statute. The Department of

Labor, though charged by law with responsibility for assisting

the veteran in determining and exercising rights under the

Statute, cannot waive any of those rights without specific

authorization from him to do so.

Waiver of one right does not imply waiver of others. A

waiver of rights under a collective bargaining agreement is not

A-71

a waiver of the statutory rights. Demands by the veteran for

greater or other rights than he actually has under the law, if

made with an honest, though mistaken, belief that he is legally

entitled to the rights, does not imply a waiver of the statutory

rights that he actually does have.

In all but the most unusual circumstances, a veteran

cannot expressly or impliedly waive his reemployment rights

before or during military service. Rights generally do not

mature until the veteran requests reinstatement and rights not

yet matured will not readily be considered to have been

waived. An express waiver of future statutory reemployment

rights, if required by the employer as a condition of the

veteran's pro-service employment, is contrary to the public

policy embodied in the statute and is void. Even if the

veteran, before or during military service, voluntarily makes

statements or taken actions clearly indicating an intent not to

return to the employer, a waiver will not be implied from such

statements or conduct because the statute was intended to

keep that possibility open until the veteran returns to civilian

life.

Whether a veteran has waived his rights during the 90-day

application period (31 days in the case of a reservist or

member of the National Guard returning from initial active

duty for training) depends upon whether the potential waiver

occurs before or after he has applied for and obtained a bona

fide offer of reemployment, which is in compliance with his

rights, and is considered by him to be in compliance with his

rights. Until he is properly reemployed or has applied for

reemployment, he can seek or take employment with other

employers and engage in other conduct that might normally be

considered inconsistent with an assertion of an employment

relationship. No waiver will be implied from such actions if

they are followed by an application for statutory rights within

the 90-day period.

A-72

A rejection by the veteran of a proper offer of

reinstatement, including any previously accrued wages, will

amount to a waiver of rights, unless that rejection stems from

a bonafide belief by the veteran that the offer does not comply

with those rights. In that case, the rejection will waive only

future compensation. This is true whether the offer and

rejection occur within the 90-day application period or after

that period has expired. Where the reemployment offered

does not fully comply with the Statutory requirements or is

coupled with conditions not imposed by the law, the veteran's

rejection of the offer does not valve his rights.

Acceptance by the veteran of a reemployment offer which

falls short of full compliance with his rights, even if made does

not waive any rights unless there is clear and convincing

evidence of his intent to waive the right in question, and unless

that intent was formed without misrepresentation, deception,

or duress. ;

After a veteran has been properly reinstated, he will

normally be considered to have waived future Statutory rights

if he voluntarily quits or fails to respond to a notice of recall if

he has been piaced in layoff status. An exception may arise if

he is at some lair time rehired as a new employee, and if by

some action of his employer or a plan administrator, some

benefit related to time spent in military service becomes

available to other employees with similar breaks in service.

The "sliver thread" of seniority is discussed further in Chapter

11,

When a veteran has statutory reemployment rights with

two different employers, the exercising of such rights with one

of them does not waive his rights with the other unless and

until it becomes physically impossible to exercise

reemployment rights with both employers. At that point, the

veteran must choose one employer and valve any future rights

with the other.

A-73

Like the substantive rights provided by the statute, the

procedural remedies that it provides may also be waived by the

veteran, in whole or in part, at any time after he has become

entitled to statutory protection. The procedural remedies

include the right to sue in the United States courts (either

through the United States Attorney or through private

counsel), to compel specific compliance by the employer, and

to recover lost wages and other benefits. For example, even

after suit has been filed for correction of violations plus

compensation, the veteran can waive either the specific relief

or the compensation without also waiving the other.

The veteran does not waive his remedies in the federal

courts by attempting to obtain relief through a contractual

grievance procedure. His participation in final and binding

arbitration proceedings to determine his contractual rights

does not waive his statutory rights.

Occasionally a question arises as to whether an employer,

by reinstating the veteran or otherwise, has waived defenses

that he would otherwise have against a claim by the veteran

under the reemployment statute for the rights and benefits

already accorded. The same general considerations that apply

to waivers of rights or remedies by the veteran also apply to

waivers of defenses by the employer. It is a question of

intention, and the burden of proof is on the party who

contends that a waiver has occurred. Court decisions dealing

with waivers reflect less reluctance to find waivers by

employers than by veterans.

Delay, inactivity, or patience alone by a veteran in

pressing for statutory reemployment rights does imply a

waiver of them. The effect of delay by the veteran is discussed

in Chapter 23.

"Abandonment" and "estoppel," sometimes confused with

"waiver," involve a different principle. Abandonment and

estoppel generally involve some conduct or statement by one

of the parties (employer or veteran) which leads the other

A-74

party to believe that something is true and causes him to act

accordingly. It is the justified belief and action in reliance that

gives rise to "abandonment" or "estoppel."

EXAMPLES

(1) Employee A leaves an other-than-temporary position

with K Company when ordered to report for induction into

military service. K Company then hires Employee B, but only

after requiring B to sign an agreement that he acknowledges

his employment to be temporary and he will not attempt to

claim rights with K Company under the reemployment statute,

since he is replacing an employee who will be entitled to return

to the job. Eighteen months later, B is also drafted and the

company hires C. When A returns and is reemployed, C is

dismissed. When B returns, he applies to K Company for

reinstatement but is told that he has expressly waived

reemployment rights with them.

B cannot claim the job as against A, but he may be

entitled by the law to some other job with K Company,

depending on what would have happened if he had not gone

into military service. The statute expressly protects a

replacement for a veteran, if the replacement employee himself

enters military service. The replacement employee's position is

not considered to be temporary under the statute, and it

cannot be made temporary by private agreement. If no other

factors made B's position with K Company temporary, the

agreement could not make it temporary either. B could not

~vaive future reemployment rights before those rights came

into existence.

(2) Employee D enlists in the Army for three years and

withdraws the vested portion of his account under L

Company's pension plan, which can only be done by quitting

outright. Three years later, he writes to his supervisor stating

that he has reenlisted for another three years and intends to

A-75

make the Army his career; however, six months after his

reenlistment, D receives a medical discharge. He promptly

applies to L Company for reemployment. L Company turns

him down on the ground that by quitting and withdrawing his

pension funds before military service, and by reenlisting with

the admitted intention of pursuing an Army career, he waived

his night to reinstatement.

There has been no effective waiver. The unexpected

developments that occurred here illustrate one reason for the

rule that unmatured reemployment rights cannot easily be

waived. To assure himself of full credit for pension purposes,

D may have to reimburse the fund in light of his previous

withdrawal. Regardless of the status he may have in the

pension plan, his right to full and prompt reinstatement in all

other respects has not been waived.

(3) Because it considers Veteran E's replacement to be a

better employee, Company M refuses to reemploy E when he

returns from military service. E presses a claim for

reinstatement and restoration of his seniority. The complaint

is resolved two months after his application, when E and

Company M agree that he will get his seniority back and a job

paying a little more than the one he had claimed. Soon after

being reemployed, E claims compensation for the wages and

benefits he lost during the two-month delay. Company M

asserts that by accepting the reemployment offer E had waived

any right to compensation.

There has been no waiver of compensation in the absence

of an express understanding on that point. Acceptance of one

right does not imply a waiver of others, even if what is

accepted is in excess of the statutory requirements.

(4) Same situation as in Example 3, except that M's offer to

take E back in his proper position is expressly made

conditional on E's waiving his back pay claim. M knows that

E is broke and needs the job desperately because he has been

unsuccessful in finding other employment. E accepts M's

A-76

terms. Two months later, after E has paid his most pressing

bills, he presses M for the two months of back pay.

E's claim is valid, because the reinstatement offer was not

in full compliance with his rights, and because he waiver of

back pay was procured through duress.

(5) Immediately after release from active duty on

September 15, 1977, Veteran F applies to N Company, his

pre-service employer, for reinstatement. N Company makes a

reinstatement offer which complies with his rights in every

respect. F and N Company agree that F will resume his

employment on Monday, September 25, so that the company

can give ample notice to G, hired to replace F and now being

displaced. In the meantime, F receives an employment offer

from O Company. On Friday, September 22, F calls N

Company to say that he will not be coming to work on the

following Monday and that he will be going to work for O

Company instead. N Company withdraws the termination

notice that it had given to G. After several weeks with O

Company, F finds that empioyment not to his liking, and he

visits N Company to apply for reemployment. This occurs on

December |, within 90 days of F's release from active duty. N

Company will take him back, but only as a new hire without

seniority. F contends that he should be reemployed with

seniority since the statute gave him the right to spend 90 days

before applying for reemployment.

While it is true that the veteran has 90 days to shop

around among employers or to refrain from working or

seeking work during that period, it is also true that once he

enters into an understanding for reinstatement with his pre-

service employer, failing to fulfill that understanding casts

doubt on the good faith of his application for reinstatement.

The conclusion that F has waived his reemployment rights is

justified, because a fully proper reinstatement offer was made,

and F accepted it without reservations, either stated or

implied. Without pressure or misrepresentation, F agreed to

A-77

return to work on a specific date. Then, of his own free will,

he changed his mind. Because of the lack of cohesion of F's

resolve and the chaos that this lack can cause the employer, it

can be concluded that F has waived his nights.

(6) The facts are the same as in Example 5, except that

instead of actually requesting reemployment immediately after

his separation from the military, F merely inquired of N

Company about employment opportunities, and N Company

unilaterally directed F to report on September 25 without

obtaining his agreement to do so.

In this situation, there has been no waiver, and F is

entitled to reinstatement with seniority. His mghts did not

mature until his December | application for reinstatement.

(7) Because of a disagreement as to whether Veteran H's

pre-service position with PQ Company was temporary or

other-than-temporary, and as to whether H had left that

employment for the purpose of entering military service, the

company refuses to reinstate him when he makes a timely

application. The Department of Labor investigates the case

and eventually convinces the company that it was wrong. The

company agrees to reinstate H and to pay back wages in an

amount to be determined later. Then, it is discovered that H

has found a better-paying job with RS Company, a competitor

of PQ, beginning three weeks after H’s reemployment

application at PQ. PQ Company then withdraws its offer of

reemployment and back pay on the ground that by taking

employment with a competitor H has _ waived his

reemployment rights at PQ.

H is still entitled to the offer of reemployment and to

three weeks of back wages. A veteran who is denied

reinstatement has a duty to mitigate his losses by seeking and,

if possible, accepting other suitable employment. Waiver

cannot be found from his acting accordingly.

(8) On January 1, 1983, Employee J left his position with T

Company to enlist in military service for three years. Because

A-78

of slow business, J would have been laid off on July 1, 1983, if

he had not been in military service at the time. The collective

bargaining agreement provides that recall rights are valid for

two years of continuous layoff. Because business remained

slow for several years, it is possible to say with certainty that J

would not have been recalled before July 1, 1985, when his

recall rights would have expired. Business picks up

substantia’'y during the fall of 1985, and several new

employees are hired. J completes his military service on

December 31, 1985, and he applies for reinstatement on

January 20, 1986.

T Company reemploys J with his original seniority date,

thinking that it is required to do so by the reemployment

statute. Other employees who are thus put behind J on the

seniority roster complain to their union and the union files a

grievance. After seeking legal counsel, T Company comes to

understand that the reemployment statute did not insulate J

from the effects to his seniority that would have occurred even

if he had never joined the military. The company settles the

grievance by changing J’s seniority date to January 20, 1986.

J complains to the Department of Labor, saying that the

company has waived its defense by reinstating him with his

pre-service seniority.

T company has not waived its defense. It acted originally

under a mistake of law, and it can correct the mistake when it

is brought to the company’s attention.

(9) Employee AK is laid off by VW Company, but he has

contractual recall rights under a collective bargaining

agreement, in accordance with his seniority. He then obtains

other than temporary employment with X Company, but he

leaves that employment for military service a few months later.

After his release from active duty, he applies to VW Company

for reinstatement, but he is reinstated into layoff status

because, although his seniority has not lapsed, business is still

slow and his seniority still does not entitle him to active

A-79

employment. He then applies to X Company and is reinstated

on the job. Four months later, he gets a recall notice from

VW Company, by registered mail.

If AK does not respond to the recall notice within the

specified time, he waives his reemployment rights with VW

Company. If he responds and goes back to work at VW

Company, leaving his job at X Company, he thereby waives

any further reemployment rights at X Company. If he is

unable to work both places at the same time, the recall notice

forces him to make a choice.

(10) D was a salaried clerk when he left Company R in

1977 for military service. When he returns in 1980 seeking

reemployment, R’s Personnel Manager, Q, tells D that if he

will accept an hourly position on the production line in another

bargaining unit and department, R Company wil! adjust his

seniority in the new department to include his military service.

D accepts the offer and foregoes a reemployment rights claim.

Q retires in 1983, and the new Personnel Manager, X, adjusts

D’s departmental seniority to 1980. There is a reduction in

force, and all employe®’s with departmental seniority dates

after 1979 are laid off. D files a claim with the Department of

Labor. R Company claims that D waived his rights by

accepting the new position.

D's claim is valid. R Company is estopped from asserting

a waiver because R Company induced D to accept the position

by telling him that his Seniority date would be adjusted. D

relied on that statement in accepting the new position and in

dropping his original claim.

A-80