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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 929

## Text

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
EIT SIMEON ONOD os cavsncsceccsnisccshoneicchesicc bee ck i
SESS ESSA ay ogee eR a rT
TABLE OF CITED AUTHORITIES... iV
RES ER Ne ee RR RRC l
SIGIR Ne ree eae ee 2
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

A-12

[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.

A-18

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

A-22

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

A-23

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.)

A-27

§ [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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1280%3A1. Public record. Not legal advice.