Opposition Brief — Jordan v. Valdez

No. 96-229 q

sha ocr 4

Supreme Court of the United States.

aa

October Term, 1995

DAVID M. JORDAN,

Petitioner,

vs.

CARLOS VALDEZ, IN HIS OFFICIAL CAPACITY AS

DISTRICT ATTORNEY FOR NUECES AND KLEBERG

COUNTIES; AND NUECES COUNTY AND KLEBERG

COUNTY,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF IN OPPOSITION FOR RESPONDENTS CARLOS

VALDEZ AS DISTRICT ATTORNEY FOR KLEBERG

COUNTY AND KLEBERG COUNTY

HARVEY FERGUSON, JR.

Counsel of Record

RUDY GONZALES, JR.

GARY E. RAMIREZ

TROY S. GILREATH

CHAVES, GONZALES & HOBLIT, L.L.P.

Attorneys for Respondents

Carlos Valdez as District Attorney

for Kleberg County and Kleberg County

2000 Frost Bank Plaza

802 North Carancahua

Corpus Christi, Texas 78470

(512) 888-9392

(800) 3 APPEAL * (800) 5 APPEAL * (8Uc) BRIEF 21

ervices, inc.

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TABLE OF CONTENTS

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RGIS cc as bokachcuwetesubeshaceeks

A. Course of Proceedings and Disposition of the

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i, . TE, caw ec vecdesG ie weetis

Summary of the Argument ........ccccccccccccsese

Reasons for Denying the Writ ..................05.

I.

Petitioner Has Failed to Articulate a Conflict

Between the Lower Courts’ Opinions and This

Court’s Holding in Carter. Thus, the Lower

Courts Correctly Ruled that Petitioner Was Not

Required to be Reinstated Since There Was

Sufficient Evidence of “Cause” for His

PIO ook cd ce ceccecccseeecusedadins

Petitioner Has Failed to Cite a Single Opinion

Which Conflicts With the Department of Labor

Opinion, Winfree, Or the Opinion Articulated by

the Fifth Circuit Below. Accordingly, Due to

Petitioner’s Behavior Prior to Leaving for

Military Service, This Court Should Come to the

Same Conclusion as the Fifth Circuit and Hold

That Petitioner Is Not Entitled to Reinstatement

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Contents

Page

TABLE OF CITATIONS

Cases Cited:

Burkart v. Post-Browning, Inc., 859 F.2d 1245 (6th Cir.

ROWED onccnccuceseeuseéhobbwkan de huaeeeteeees 13

Carter v. United States of America, 407 F.2d 1238 (D.C.

Cae, BOGS vc cccdsinvussinusacceseehanenaas 6,7,9,10,12

Coffy v. Republic Steel Corp.,447 U.S. 191(1980) .... 13

Cole v. Swint, 961 F.2d 58 (Sth Cir. 1992) ............ 13

Graver Tank & Mfg. Co. v. Linde Air Prods. Co.,336 U.S.

271 (1949), reh’g granted, 337 U.S. 910 (1949),

adhered to in part, reversed in part, 339 U.S. 605

CES) oc ks ccccnscisshauscuaeweeuckcataeeakes 11

Henry v. Anderson County, Tennessee Office of the

Sheriff, 522 F. Supp. 1112 (E.D. Tenn. 1981) .... 8,9, 10,11

Jeffers v. Hanson, 441 So. 2d 283 (La. App. 4 Cir. 1983)

nsentgee states he bauk hb eeeee eee ieen eae 7

King v. St. Vincent's Hospital, 112S.Ct.570(1991) ... 15

Lee v. City of Pensacola, 634 F.2d 886 (Sth Cir. 1981),

overruled on other grounds by King v. St. Vincent's

Hospital, 112S.Ct.S7TO(1991) ......ceccccccece. 15

iii

Contents

Page

Martin v. Capital Cities Media, Inc., 511 A.2d 830 (Pa.

DE cies s de edeachacsedkecncevseatrees 7

McCormick v. Carnett-Partsnett System, Inc., 396 F.

Me CRU RUTS? cicteebercccesecwsees 6,8

Monroe v. Standard Oil Co.,452 U.S.549(1981) ..... 5,13

National Labor Elections Board v. Local Union No. 1229,

International Brotherhood of Electrical Workers, 346

Cc chs dace bs tc.os Fh 6s chee 660 680 0' 7

NLRB vy. Federbush Co., 121 F.2d 954 (2nd Cir. 1941)

Oo OS Se ee eee 15

Turner v. Byers, 562 S.W. 2d 507 (Tex. Civ. App. — El

gS re ey ee 7

Weir v. Anaconda Co., 773 F.2d 1073 (10th Cir. 1985) .. 7

Wimberly v. Labor and Industrial Relations Commission,

EE £3 kis encenseness-chhennseee 6,16

Winfree v. Morrison Incorporated, 762 F. Supp. 1310

DE CEEEED Gababesccccccacscessccccccs 12, 16,17

Statutes Cited:

CURE OEED oa cc cccccesescicsioseseces 1

, LIP Som TAT” Mee eerererreerererrereee 1,5

iv

Contents

Page

Se ies BSED Re cc 0s Ct 0wks adds Ghee enee ues 13,16

a es ED 6ab cack ca bea bekwe osukieee 16

Rules Cited:

Federal Rule of Appellate Procedure 28(6) .......... 12

Federal Rule of Civil Procedure 52(a) ............... 12

Other Authority Cited:

VETERAN’S REEMPLOYMENT RIGHTS HANDBOOK (1970) .. 15

APPENDIX

Appendix A — Findings of Fact and Conclusions of Law

of the United States District Court for the Southern

District of Texas, Corpus Christi Division Entered

PUREE: TOSS Keekus bk n0'os scan ke coeeecaeeeen la

Appendix B — Final Judgment of the United States

District Court for the Southern District of Texas,

Corpus Christi Division Entered June 22,1995 ..... lla

l

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition of the Case

Below.

Petitioner filed suit on February 4, 1994, in the United

States District Court, Southern District of Texas, Corpus

Christi Division, against Defendants Grant Jones, Individually;

Carlos Valdez as District Attorney for Nueces and Kleberg

Counties Texas; Kleberg County; and Nueces County.!

Petitioner’s Original Complaint asserted that Petitioner had

been deprived of his rights pursuant to 38 U.S.C. §§ 2021-2026,

recodified into 38 U.S.C. §§ 4301 ef seg., Veterans

Reemployment Rights Act (hereinafter referred to as “the

VRRA”). Petitioner sought a court order restoring him to his

former position or to a position of like seniority, status and pay

pursuant to the VRRA, and judgment against Respondents for

damages.

After the close of evidence, the trial court granted

judgment in favor of Respondents Carlos Valdez, in his official

capacity as district attorney for Kleberg County, and Kleberg

County? on Petitioner’s claims for damages and restoration

under 38 U.S.C. §§ 4301 et seg., VRRA.* The court also

granted judgment for Respondents Carlos Valdez, in his official

capacity as district attorney for Nueces County, and Nueces

County finding that Respondent Nueces County was not the

1. Mr. Grant Jones is the former district attorney for Nueces and

Kleberg Counties. He was replaced by Mr. Carlos Valdez.

2. Mr. Carlos Valdez as District Attorney for Kleberg County, and

Kleberg County will hereafter be referred to as “Respondents.”

3. Mr. Grant Jones and Mr. Carlos Valdez, in their individual capacities

were dismissed by Petitioner prior to the date of trial.

2

employer of Petitioner. On or about June 22, 1995, the trial

court entered its Findings of Fact and Conclusions of Law, and

signed the final judgment in favor of Respondents Carlos

Valdez, Kleberg County and Nueces County on June 21, 1995.

The final judgment further provided that costs of suit were to be

assessed against Petitioner. Petitioner then appealed the district

courts decision to the United States Fifth Circuit Court of

Appeals.

The Fifth Circuit affirmed the district court’s decision by

finding: (1) that the VRRA did not require Kleberg County to

automatically reinstate him; (2) that Kleberg County had legal

cause to terminate him; and (3) that Nueces County was not

Petitioner’s employer. However, the Fifth Circuit vacated the

district court’s decision to award costs to the Respondents.

Petitioner subsequently filed his Petition for Writ of Certiorari.

B. Statement of the Facts.

The opinion of the Fifth Circuit Court of Appeals correctly

sets forth the facts of this case. The opinion accurately depicts

the gravity of the Petitioner’s actions and the concern and

conscientiousness of the Respondents involved in resolving the

matter. In the interest of making this brief truly brief,

Respondents respectfully direct the Court’s attention to the

appellate court’s opinion.

Pursuant to United States Supreme Court Rule 15.1,

Respondents bring the following statement of facts to correct

the misstatements contained in the Petitioner’s Writ of

Certiorari.

On January 21, 1987, district attorney Grant Jones hired

Petitioner as a permanent assistant district attorney of the 105th

Judicial District of the State of Texas. (R. Vol. 1, p. 2). The

3

105th Judicial District encompasses Nueces, Kleberg and

Kennedy counties in south Texas. Jd. Petitioner was assigned

to work in Kleberg County, where the Commissioner’s Court of

that county created and funded his job. Jd. at 2-3. Petitioner,

besides being an assistant district attorney, was also a reservist

of the United States Armed Forces. /d. at 3. During his

employment with Kleberg County from roughly January 21,

1987, through October 25, 1990, Petitioner would, biannually,

be recalled to active duty as part of his reserve commitment. Jd.

On the occasions of his reserve duty Petitioner would give

notice of his departure, leave to fulfill his obligation, and return

to work. Jd. During these periods, it was understood by both

Petitioner and Respondents that Petitioner’s employment status

was to be “leave without pay.” Jd.

On October 25, 1990, the United States Armed Forces

called Petitioner to active duty for Operation Desert Shield/

Desert Storm. /d. Shortly thereafter Respondents found

graphic, offensive, and explicit sexual literature (including

hardcore pornographic literature, a pictorial sexual positions

book, and a vibrator in the shape of a penis) in Petitioner’s

office. If that was not disgusting enough, Petitioner also kept

pictures, from a closed file, of a partially nude murder victim.

(Supp. R. Vol. 1, pp. 95, 102). Some of the materials which

were admitted at trial showed both heterosexual and

homosexual, oral-genital contact and intercourse. (R. Vol. 1, p.

3). As the trial court so eloquently stated; “[i]t can best be

described as base smut.” Jd. This “smut” was unfortunately

first discovered by two (2) secretaries while they were cleaning

and organizing Petitioner’s office for a substitute assistant

district attorney. Jd. 3-4. Amazingly enough, there was so

much pornography that when boxed, it exceeded six (6) feet in

height. (Supp. R. Vol. 1, p. 207). Possibly, even more surprising

was the fact that the volume of materials was exceeded only by

its filth. See Sealed Exhibits.

4

The majority of the pornography in Petitioners’ office —

with the exception of that which Petitioner purchased himself

— was received through the Kleberg County District

Attorney’s official business post office box address in

Kingsville, Texas. (R. Vol. 1, p. 4). Upon investigation, it

became apparent that Petitioner had been receiving these

materials, for his own personal use, through the mail since late

1987. Id.

Upon the discovery of this pornographic material, Grant

Jones, the district attorney at that time, determined that such

conduct was a legitimate cause for termination. (Supp. R. Vol.

2, p. 48). Mr. Jones’ conclusion was based on his concern of a

possible lawsuit under Title VII of the Civil Rights Act (1964)

after receiving complaints from both female secretaries in the

Kleberg office. More importantly, Mr. Jones was keenly aware

of the negative effect Petitioner’s conduct could have on the

public’s image of the district attorney’s office as an effective

and credible arm of law enforcement. (R. Vol. 1, p.4; Supp. R.

Vol. 1, pp.185-89; Supp. R. Vol. 2, pp. 109-10).

Petitioner subsequently returned to Corpus Christi and

informed Mr. Jones by letter that he wished to resume his duties

as assistant district attorney in Kleberg County. /d. Although

he had decided not to reinstate Petitioner, Mr. Jones along with

Mr. Roy Hudspeth (the first assistant district attorney) decided

they would meet with Petitioner so he could explain his past

actions. (R. Vol. 1, pp. 4-5). While Mr. Jones would not have

easily restored Petitioner to his former position, he was willing

to hear any explanation why Petitioner kept this disgusting

material in his office and reconsider his decision. Jd. at5. He

delegated the duty of holding the meeting to Mr. Hudspeth, who

scheduled a meeting with Petitioner and explained to him its

purpose. Jd. When Petitioner arrived at the scheduled time, he

declined to discuss the issue, and departed after handing Mr.

5

Hudspeth a self-drafted memorandum on the Veteran’s

Reemployment Rights Act. Jd.

Thereafter, Mr. Jones, by letter, officially terminated

Petitioner for receiving pornographic material through the

official business post office box of the district attorney and the

hoarding of such materials at the district attorney’s office. Jd.

(Supp. R. Vol. 1, pp. 149-50). The letter made it clear that

Petitioner was not being terminated because of his military

obligation. (Supp. R. Vol. 1, pp. 149-50). Subsequent to his

termination Petitioner sought redress by filing suit in district

court.

SUMMARY OF THE ARGUMENT‘

The courts below correctly interpreted the Veteran’s

Reemployment Rights Act in concluding that Petitioner was

justly terminated for cause prior to reinstatemer®. 38 U.S.C.

§§ 4301 et seq. The lower courts’ interpretation must be

examined in light of the legislative intent of Congress, as well

as, the policy concerns articulated previously by this Court. It

has been adduced that the manifest purpose of the VRRA is to

insure that veterans and reservists are not subject to

discrimination by their employers because of their military

duty. Monroe v. Standard Oil Co., 452 U.S. 549 (1981).

Petitioner, however, would have this Court read the statute

to suggest that he is guarante=d reinstatement regardless of the

facts and circumstances existing independent of his military

duty. (Supp. R. Vol. 1, pp. 35-39). Such is not the case. The

protection of the statute is based upon the ordinary and accepted

standards of personal conduct and performance of all

4. Respondents have opted to file a“Summary of the Argument” since

Petitioner failed to provide the Court with this essential material.

6

employees. McCormick v. Carnett-Partsnett System, Inc., 396

F. Supp. 251 (M.D. Fla. 1975). Petitioner, through his use of the

official post office box of the district attorney for the receipt of

pornographic literature and the storage of such at his office,

exceeded the bounds of ordinary acceptable standards of

personal conduct. (Supp. R. Vol. 2, p. 24). Grant Jones, as well

as the current district attorney Carlos Valdez, testified that any

employee would have been terminated for the conduct in which

Petitioner engaged. (Supp. R. Vol. 2, pp. 29, 92). Moreover, to

require Respondents to reinstate Petitioner for any period of

time, no matter how minute, would be considered preferential

treatment which the statute does not impose on the employer.

See Wimberly v. Labor and Industrial Relations Commission,

479 U.S. 511, 517 (1987). Accordingly, the lower courts’

interpretation of the VRRA allowing Petitioner to be

terminated for cause prior to reinstatement should be affirmed.

Petitioner further argues that his termination was not for

cause since he was not given notice that the hoarding of

pornographic literature in the district attorney's office was not

allowed. (Appellant's Brief, p. 30). Petitioner, in order to

establish the notice requirement under cause, relies upon

Carter v. United States of America, 407 F.2d 1238 (D.C. Cir.

1968). The court inCarter determined that discharge for cause

would be upheld if it met two criteria of reasonableness: (1) that

it is reasonable to discharge an employee for certain conduct;

and (2) that the employee had fair notice, express or fairly

implied, that such conduct would be a basis for discharge. Jd. at

1244. Regardless of the fact that Petitioner had received

express notice, any individual with any moral judgment should

have realized that such things as sex, drug paraphernalia, and

hardcore pornography do not belong at the office, much less a

public office. (Supp. R. Vol. 2, p. 128; Supp. R. Vol. 2, p. 94).

Therefore, this Court should affirm the lower courts’ finding

that there was sufficient cause to discharge Petitioner.

7

REASONS FOR DENYING THE WRIT

PETITIONER HAS FAILED TO ARTICULATE A

CONFLICT BETWEEN THE LOWER COURTS’

OPINIONS AND THIS COURT’S HOLDING IN

CARTER. THUS, THE LOWER COURTS CORRECTLY

RULED THAT PETITIONER WAS NOT REQUIRED TO

BE REINSTATED SINCE THERE WAS SUFFICIENT

EVIDENCE OF “CAUSE” FOR HIS TERMINATION.

Petitioner alleges that the Fifth Circuit’s opinion in dealing

with the “cause” issue creates a conflict with the court’s holding

in Carter v. United States of America, 407 F.2d 1238 (D.C. Cir.

1968), and the VRRA. Petitioner argues that Kleberg County

could not terminate him for cause based on his receipt of

sexually explicit materials because he was not on notice that his

behavior was prohibited by Respondents.

“Cause” has been de*ined as a shortcoming in performance

which is detrimental to the discipline and efficiency of the

employer. Weir v. Anaconda Co., 773 F.2d 1073, 1080 (10th Cir.

1985). Cause is also incompetency or inefficiency or some

other cause within the control of the employee which prohibits

him from properly completing his task. Jd. Moreover, a

discharge for cause is one which is not arbitrary or capricious,

nor is it unjustified or discriminatory. Jd.; see also Martin v.

Capital Cities Media, Inc., 511 A.2d 830 (Pa. Super. 1986);

Jeffers v. Hanson, 441 So. 2d 283 (La. App. 4 Cir. 1983); Turner

v. Byers, 562 S.W. 2d 507 (Tex.Civ.App.-El Paso 1978, writ

ref’d n.r.e.); National Labor Elections Board v. Local Union

No. 1229, International Brotherhood of Electrical Workers,

346 U.S. 464 (1953) (all the above referenced cases state the

proposition that the employee was rightfully terminated for

doing injury to his employer’s business).

8

For example, in McCormick v. Carnett-Partsnett System,

Inc., plaintiff was an employee of defendant until he re-enlisted

with United States Air Force on August 23, 1972, and served

until June 1, 1973, at which time he was honorably discharged.

396 F. Supp. 251 (M.D. Fla. 1975). Upon his return to civilian

life his application for reemployment with the defendant was

denied. Plaintiff turned to the Department of Labor for

assistance, and after negotiations, plaintiff was rehired. Upon

being restored, the plaintiff was subsequently fired for cause

due to work related conduct which included excessive

absenteeism, an extraordinary amount of time in the bathroom,

personal telephone calls, and improper clothing. Jd. at 255-56.

The court held that although the employee may have assumed

that the right to reinstatement was a guarantee and that any

behavior was to be tolerated, such is not the case. Jd. at 256.

The protection of the statute is based upon the veteran’s

compliance with the ordinary and accepted standards of

personal conduct and performance of all employees. Jd. at 256.

Petitioner attempts to stand in the shoes of McCormick and

declare that he is guaranteed reinstatement regardless of the fact

that he was on notice that he would be fired if the hardcore

pornography which he was receiving was ever found. Again,

such is not a reasonable application of the statute.

In Henry v. Anderson County, Tennessee Office of the

Sheriff, the plaintiff sought, among other things, reinstatement

to his former position after the Sheriff’s termination of him

upon returning from his initial active duty with the United

States Army Reserve. 522 F. Supp. 1112 (E.D. Tenn. 1981).

The court held that the Sheriff’s termination of the plaintiff was

for cause since the deputy failed to answer a time check, was

caught reading a novel on duty and for using profane language

to defame the Sheriff's department in front of the jailor. Jd. at

1114. Additionally the court noted that the VRRA does not

ES ———————

9

require a court to disregard those aspects of the basic

employment relationship which would make continued or

renewed employment unreasonable. Jd. at 1115. Therefore, it

should be safe to assume that if profane language used to

defame one’s employer was sufficient to fire a reservist for

cause, surely the moral standards of society have not

deteriorated to the point where maintaining a six (6) foot stack

of hardcore pornographic materials and a sexual device for

personal use would not amount to cause.

Rather than address the hardcore pornographic literature

and the sexual device which Petitioner stored in his office, he

alternatively argues that cause did not exist since he was not

given notice that such materials were prohibited. In order to

establish this notice requirement under the definition of cause,

Petitioner relies upon the decision in Carter. 407 F.2d 1238

(D.C. Cir. 1968). In Carter, where the court vacated and

remanded the trial court’s summary judgment holding that an

employee of the Federal Bureau of Investigation was entitled to

a trial on the question of whether his conduct of engaging in

heterosexual petting and sleeping with a woman, without

sexual intercourse, was understood to be outside ordinary

expected standards of professional conduct. Jd. The court in

Carter determined that discharge for cause would be upheld if it

met two criteria of reasonableness: (1) that it is reasonable to

discharge employees of certain conduct; and (2) that the

employee had fair notice, express or fairly implied, that such

conduct would be grounds for discharge. /d. at 1244.

Since Petitioner failed to address the first element under

Carter, it will be assumed that if Petitioner had such notice then

the materials found in his office would amount to cause

justifying his termination. Even if such issue was addressed,

the case law and facts set forth above should be sufficient to

10

satisfy the first prong of Carter's reasonableness test.°

Therefore, the question is whether Petitioner received notice

either expressly or implicitly that such materials were not

permitted in his office. Former district attorney Grant Jones

remembers establishing a “hardcore” policy that no sexually

implicit materials were to be brought into the office. (Supp. R.

Vol. 2, p. 28). Nevertheless, Carter specifically withheld

requiring that notice be expressed:

The ultimate issue here, which is interwoven

with such questions of fact, is whether the

conduct was or should have been known to

the employee to be prohibited by the

employer.

407 F.2d at 1246.

It should be obvious to any individual with good judgment

that such things as sex, drug paraphernalia, hardcore

pornography, and sexual devices do not belong at the office,

much less a public office. Unfortunately, it appears that this

case is before the Court for no other reason than Petitioner's

lack of moral judgment. (Supp. R. Vol. 1, p.128; Supp. R. Vol.

2, p. 94). Consequently, this Court in Carter held behavior

which is immoral, such as Petitioner's, can be “cause” for

discharge. 407 F.2d at 1245-46.

Although the court in Henry failed to comment on whether

the Sheriff was a publicly elected official, or whether such fact

had any influence on whether the employee’s misconduct

amounted to cause, such facts are relevant in the case at bar. 522

5. Despite Petitioner's protestations, it cannot be seriously disputed

that receipt and maintenance of this kind of base smut by a public official at

his public office would amount to just cause for termination of employment.

OCP Sel 0 A A An

1]

F. Supp. 1112. A district attorney in the State of Texas is a

publicly elected official. His credibility is determined directly

from the public’s perception of him, as well as, his staff. When

an individual takes a position as an assistant district attorney,

that individual relinquishes some freedoms which other

employees may enjoy in other professions. Petitioner, as a

prosecutor, was required to have credibility not only to reflect

favorably upon his employer, but also when standing in front of

juries. (Supp. R. Vol. 2, p. 34). Itis not difficult to imagine how

oxymoronic it would be if Petitioner was required to one day

prosecute an individual for obscene literature. Moreover, in

this day of sexual harassment awareness the district attorney

would be buying a lawsuit if he placed Petitioner in his old job in

a small intimate office, alone, with two young female staff

members. It should be obvious and clear that Petitioners receipt

of pornography through the district attorney’s post office box,

and possession of a vibrator, and a “mass collection” of base

smut at the district attorney's office would amount to notice and

cause.

Furthermore, both the trial court and the court of appeals

found that Petitioner was well aware that if anyone at the

district attorney's office discovered his collection of sexually

explicit materials, he would be terminated. Additionally, the

lower courts findings of cause rested largely on evidentiary

findings, and should therefore be left undisturbed. Evidentiary

findings by a trial court, which are affirmed on appeal, present

no issue deserving of this Court’s attention. See Graver Tank &

Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271, 275 (1949),

reh’g granted, 337 U.S. 910 (1949), adhered to in part,

reversed in part, 339 U.S. 605 (1950) (“A court of law, such as

this Court is, rather than a court of correction of errors in fact

finding, cannot undertake to review concurrent findings of fact

by two courts below in the absence of a very obvious and

exceptional show of error.”).

12

Finally, Petitioner now raises for the first time on appeal

that the Fifth Circuit applied the wrong standard of review. It

was Petitioner’s burden on appeal to state to the Fifth Circuit the

proper standard of review before each point of error. Fed. R.

App. P. 28(6). For each issue which Petitioner briefed he

correctly stated that the clearly erroneous standard of Federal

Rule of Civil Procedure 52(a) should have applied. Therefore,

Petitioner should be estopped from making any contention that

the Fifth Circuit applied the wrong standard of review or

alternatively, such error has been waived. Accordingly, the

courts below entered a decision which was consistent with this

Court’s holding in Carter and the congressional intent behind

the VRRA.

II.

PETITIONER HAS FAILED TO CITE A SINGLE

OPINION WHICH CONFLICTS WITH THE

DEPARTMENT OF LABOR OPINION, WINFREE, OR

THE OPINION ARTICULATED BY THE FIFTH

CIRCUIT BELOW. ACCORDINGLY, DUE TO

PETITIONER’S BEHAVIOR PRIOR TO LEAVING

FOR MILITARY SERVICE, THIS COURT SHOULD

COME TO THE SAME CONCLUSION AS THE FIFTH

CIRCUIT AND HOLD THAT PETITIONER IS NOT

ENTITLED TO REINSTATEMENT.

The Fifth Circuit’s decision in the case at bar is consistent

with congressional intent, as well as, prior holding of various

federal courts of appeal, including this Court. The lower courts

correctly found that the manifest purpose of the VRRA, which

is to be liberally construed in favor of the reservist, is to insure

that a veteran or reservist who is forced to be absent from his (or

her) civilian employment by reason of military leave will not be

penalized upon his return because of his military status. See

ia

;

a

|

13

Monroe, 452 U.S. 549; Cole v. Swint, 961 F.2d 58, 59 (Sth Cir.

1992) (citing Coffy v. Republic Steel Corp., 447 U.S. 191

(1980)).

Petitioner argues that § 4301(a)(B) grants returning

veterans a mandatory right of reinstatement regardless of

whether they left their jobs in good standing. In the alternative

Petitioner argues that even if he did not have a mandatory right

of reinstatement, he was not on notice that his conduct was

prohibited; therefore, Kleberg County did not have sufficient

cause to terminate him. Petitioner’s only complaint with the

Fifth Circuit's opinion is that they failed to construe the VRRA

as liberally as other courts. Respondents believe that

Petitioner’s contention is that because the lower courts have

failed to rule in his favor, they must therefore not be reading the

applicable statutes liberally enough.

Unfortunately, after a three day trial and appeal to the Fifth

Circuit Court of Appeals, Petitioner still does not realize the

true intent of the VRRA. Congress’ clear intent was to protect

reservists and veterans from unnecessary discrimination

arising from military duty; however, nothing in the legislative

history or the case law indicate that a veteran should be

immunized indiscriminately from all responsibility to his

employer. Burkart v. Post-Browning, Inc., 859 F.2d 1245 (6th

Cir. 1988). In fact, “[t]he Veteran’s Act was drafted with the

intent to shield a serviceman from discrimination by his

employer, not to arm him with a sword to punish his employer

for some perceived wrong unconnected to his status.” Jd. at

1250.

Petitioner attempts to create a conflict among the cases

cited by the district and appellate courts on the ground that those

cases dealt with employees who were first reinstated and then

fired for cause. Petitioner’s argument is based on 38 U.S.C.

§ 4301(a)(B) which provides that:

14

In the case of any person who is inducted

into the Armed Forces of the United States

under the Military Service Act. . . and who

leaves a position (other than a temporary

position) in the employ of any employer in

order to perform such .. . service, and (1)

receives an [honorable discharge] and (2)

makes application for reemployment within

ninety days after such person is relieved

from such ... service ... (B) if such

position was in the employ of a State, or

political subdivision thereof, ... such

person shall:

(i) if still qualified to perform the

duties of such position. . . be restored

by such employer or the employers

successor in interest to such position

or to a position of like seniority,

status, and pay; unless the employer’s

circumstances have so changed as to

make it impossible or unreasonable to

do so.

Petitioner would have the Court read this single statutory

provision in isolation so that the word “shall” would imply that

every veteran, regardless of the circumstances in which he left

for service, would be entitled to automatic reinstatement. His

argument must fail. When interpreting statutory language the

cardinal rule must be followed that a statute is to be read as a

whole for

words are not pebbles in alien juxtaposition;

they have only a communal existence; and

not only does the meaning of each interpret

15

the other, but all in their aggregate take their

purport from the setting in which they are

used.

eee en tae ae

King v. St. Vincent’s Hospital, 112 S. Ct. 570, 574 (1991)

(quoting NLRB v. Federbush Co., 121 F.2d 954, 957 (2nd Cir.

1941). When the VRRA is examined as a whole, Petitioner's

misinterpretation becomes apparent. The legislative intent of

the statute was to protect returning veterans and reservists from

discrimination, not to give them a windfall. See Lee v. City of

Pensacola, 634 F.2d 886, 888 (5th Cir. 1981), overruled on

other grounds by King v. St. Vincent's Hospital, 112 S. Ct. 570

(1991). Tocarry Petitioner’s argument io its logical end would

require an employer in some instances to reinstate a convicted

; murderer or embezzler.® Under such fact scenarios, to require

the employer to reinstate the veteran for any period of time

would be considered preferential treatment which the statute

ONC 00s Nac ables Sap Bi Na Bie Re BND ANGE eS tele

6. The Department of Labor gave the following example:

Branch Manager C is drafted into the Army from his

position with R Finance Company. A month later, an

audit clearly establishes that C had systematically

embezzled about $18,000 of R's funds over a period

of time.

On returning from military service, C will not be

considered qualified to perform the duties of his pre-

service position or any other position with R

Company which involves access to its funds. For that

matter, since discharge is a usual and reasonable

penalty in such situations, C will not have any

reemployment rights ai all with R. Mere unsub-

stantiated suspicion of embezzlement, however,

would not justify a denial of reinstatement.

VETERAN’ S REEMPLOYMENT RIGHTS HANDBOOK (1970), at 7-36 (Example 3).

PE ET ee

16

does not impose on the employer. See Wimberly v. Labor and

Industrial Relations Commission, 479 U.S. 511, 517 (1987).

Grant Jones, as well as, the current district attorney Carlos

Valdez, testified that any employee would have been terminated

for the same conduct in which Petitioner engaged. (Supp. R.

Vol. 2, pp. 29, 92). Consequently, if Respondents had been

aware of this conduct before Petitioner left for reserve duty, he

would have been terminated for cause. /d. Therefore, similar to

the analogies above, to permit Petitioner restoration of his

duties would extend to him a preferential right of hiring that this

Court and other federal courts have held that the statute does not

provide. Therefore, Petitioner possesses no right to restoration

under § 4301(a)(B).

While this is apparently a case of first impression for this

Court under these particular facts, such facts have been dealt

with before. In Winfree v. Morrison Incorporated, the plaintiff

enlisted in the Marine Corps Reserves, and subsequent to such

enlistment his performance as an employee went steadily

downhill. 762 F. Supp. 1310 (E.D. Tenn. 1990). The defendant

knew the plaintiff was going to the Marines and rather than fire

him, just hoped that he would not come back. Jd. at 1312. Upon

completion of his duty the plaintiff returned seeking to be

restored to his previous position at which point the defendant

sought advice from the Department of Labor as to whether it

was required to reemploy the plaintiff. Jd. The defendant

received advice that it did not have to reemploy the plaintiff,

and acted in accordance. Jd. The plaintiff filed suit claiming

reinstatement under what is now §§ 4301(a)(B) and 4301(b)(3).

The court reasoned that since the defendant’s failure to

reemploy the plaintiff was not causally related to his service in

the military, it was not required to rehire plaintiff. Jd. at 1313.

The Tennessee court therefore read the statute as a whole rather

than in isolated parts with the intent of upholding the policy

concerns of Congress and this Court. Petitioner has failed to

;

F

Le ne ee ee

SE, aera AM ie ie aD Hr lay Bilary MeaSe siB.* ht Ail ditties eal ods &

OLIN: St Sta AE ne A RO

17

cite this Court to a single opinion which conflicts with the

Department of Labor opinion, Winfree or the opinion

articulated by the Fifth Circuit below. Accordingly, due to

Petitioner’s behavior prior to leaving for military service, this

Court should come to the same conclusion as the Fifth Circuit

and hold that Petitioner is not entitled to reinstatement.

CONCLUSION

The case at bar is a single incident which has no bearing on

the development of the law in this area. The various circuits

which have dealt with interpreting the VRRA have consistently

applied the intent of congress and the decisions of this Court to

create a uniform body of law. The Fifth Circuit’s opinion in this

case is consistent with that body of law. Therefore the writ of

certiorari should be denied.

Respectfully submitted,

HARVEY FERGUSON, JR. -

Counsel of Record

RUDY GONZALES, JR.

GARY E. RAMIREZ

TROY S. GILREATH

CHAVES, GONZALES &

HOBLIT, L.L.P.

Attorneys for Respondents

Carlos Valdez as District Attorney

for Kleberg County

and Kleberg County

2000 Frost Bank Plaza

802 North Carancahua

Corpus Christi, Texas 78470

(512) 888-9392

la

: APPENDIX A — FINDINGS OF FACT AND

: CONCLUSIONS OF LAW OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF TEXAS, CORPUS CHRISTI DIVISION

ENTERED JUNE 22, 1995

} IN THE UNITED STATES DISTRICT CGURT

FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

C.A. NO. C-94-038

DAVID M. JORDAN

%

| CARLOS VALDEZ, IN HIS OFFICIAL CAPACITY AS

DISTRICT ATTORNEY FOR NUECES AND KLEBERG

COUNTIES, NUECES COUNTY AND KLEBERG COUNTY

o> beh

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiff David M. Jordan was a reserve officer called to

active duty for Operation Desert Storm. After he was honorably

discharged, he returned to resume his former position as an

assistant district attorney of the 105th Judicial District of the

State of Texas. The district attorney refused to permit it

because, while the plaintiff was on active duty, the district

attorney’s staff found very explicit sexual reading material

throughout the district attorney’s office assigned to the

plaintiff. The plaintiff sued defendants for backpay and

reinstatement alleging a violation of the Veteran’s

Reemployment Rights Act (“VRRA” or “the Act”), 38 U.S.C. §

4301 et seg. After trial to the Court, the Court makes these

findings of fact. Fed. R. Civ. P. 52(a).

|

2a

Appendix A

FINDINGS OF FACT

1. On January 21, 1987, District Attorney Grant Jones

hired the plaintiff as a permanent assistant district attorney of

the 105th Judicial District of the State of Texas. The 105th

Judicial District encompasses Nueces, Kleberg, and Kenedy

counties in south Texas. The Commissioner's Court of the

county in which the assistant district attorney is to serve creates

and funds the assistant’s position, and provides employment

benefits. Kleberg County created the position and paid the

plaintiff's salary and benefits; Nueces County did not. Mr.

Jones assigned the plaintiff to work in the Kleberg County

office and where he worked on Kleberg County cases. During

his tenure, the plaintiff worked on an insignificant number of

Nueces County cases.

2. The plaintiff was a reservist of the United States Armed

Forces. Between January 21, 1987 and October 25, 1990, the

plaintiff, as part of his reservist commitment, would be called to

active duty on a bi-annual basis. On the occasions of his reserve

duty, the plaintiff would give notice of his departure, leave to

perform his duty, and return to resume his work. Another

attorney would cover his work on his cases. The plaintiff did not

quit and get rehired, nor was he ever fired and then rehired.

During these periods, both the defendants and the plaintiff

considered the plaintiff's employment status to be “leave

without pay.”

3. On October 25, 1990, the United States Armed Forces

called the plaintiff to active duty for Operation Desert Shield/

Desert Storm. The plaintiff's tour of duty did not exceed four

years. During this time, voters elected defendant Carlos Valdez

district attorney to succeed Grant Jones as district attorney.

3a

Appendix A

4. Shortly after the plaintiff left for Desert Shield/Desert

Storm, the defendants found exceedingly sexually explicit

reading material and graphic pictorial advertisements to

purchase XXX-rated videotapes in the plaintiff's office. The

materials, some of which were admitted at trial, showed oral-

genital contact, homosexual oral-genital contact, and graphic

pictures of heterosexual and homosexual intercourse. It can

best be described as base smut. Two secretaries employed by

Kleberg County and who worked in the Kleberg County office

found the material as they were clearing the plaintiff's

disheveled office so a substitute assistant district attorney could

use the Kleberg County office to handle the plaintiff's case load

while he was on duty.

5. With the exception of the material the plaintiff

purchased himself, the smut - i.e. pictorial advertisements and

offers to sell sexually explicit videos were mailed to the

Kleberg County District Attorney’s official business post office

box address in Kingsville, Texas. The plaintiff had been

receiving these materials through the mail before he left for

Desert Storm, since late 1987 or 1988. The plaintiff admits that

the materials the defendants discovered were for his personal

use and were not related to any work he had at the Kleberg

County D.A.’s office.

6. Grant Jones decided that this conduct was legitimate

cause for termination. Mr. Jones knew about the developing

Title VII hostile work environment area, and believed that the

materials found in the plaintiff's office could subject the

defendants to Title VII hostile work environment liability. He

was troubled about the public’s image of the district attorney's

office as an effective and credible arm of law enforcement. The

plaintiff was using the district attorney's postal address for

receipt of the material.

4a

Appendix A

7. Meanwhile, in March of 1991 and while on active duty,

the plaintiff returned to Corpus Christi and contacted Mr. Jones.

Mr. Jones informed him that the defendants had discovered the

pornographic material and suggested that the plaintiff resign

quietly and begin to look for another job. On January 27, 1992,

the plaintiff informed Mr. Jones by letter that he wished to

resume his duties as assistant district attorney in Kleberg

County. Except for his poor judgment in this matter, the plaintiff

was qualified to perform the duties of his prior position.

8. Although Mr. Jones had decided not grant the plaintiff's

wish to resume his duties, Roy Hudspeth, the first assistant

district attorney, prevailed on Mr. Jones to meet with the

plaintiff and discuss the matter. While Mr. Jones would not

easily have restored the plaintiff to the position, Mr. Jones was

apparently willing to hear any explanation as to why the

plaintiff kept these materials in his office and reconsider his

decision. He delegated the duty of holding the meeting to Mr.

Hudspeth. Mr. Hudspeth scheduled the meeting with the

plaintiff and explained its purpose. When the plaintiff arrived at

the scheduled time, he declined to discuss the issue. He only

handed Mr. Hudspeth a self-drafted memorandum of law on the

——_

Veteran’s Reemployment Rights Act and then departed. He

refused the opportunity to explain his behavior.

9. By letter dated February 5, 1992, Mr. Jones officially

terminated the plaintiff because the plaintiff maintained these

materials at the district attorney's office and because he

received the materials through the official business post office

box address of the district attorney. The Court finds that the

plaintiff's status as a veteran or as areservist played absolutely

no role in Mr. Jones’ decision that the plaintiff should not be

Kleberg County’s assistant district attorney.

Sa

Appendix A

10. The Court finds that the plaintiff knew that if anyone

discovered his collection, he could be fired. He knew that his

actions were not within those reasonably and ordinarily

accepted standards of personal conduct expected by employees

in a public district attorney’s office.

11. Kleberg County was the plaintiff's exclusive

employer.

CONCLUSIONS OF LAW

1. The Court possess subject matter jurisdiction under 28

U.S.C. § 1331.

2. 38 U.S.C. § 4301 provides veterans certain rights, and

these rights are extended to reservists under 38 U.S.C.

§§ 4301(b)(3) and 4304(b)(2). See e.g., Gulf States Paper Co. v.

Ingram, 811 F.2d 1464, 1468 (11th Cir. 1987). The VRRA is to

be construed liberally in favor of the reservists. Cole v. Swint,

961 F.2d 58, 59 (Sth Cir. 1992) (citing Coffy v. Republic Steel

Corp., 447 U.S. 191, 100 S. Ct. 2100, 2104, 65 L.Ed.2d 53

(1980)).

3. When read together, the Act provides two separatc

protections to reservists. The first protection is found in 38

U.S.C. § 4301(a)(2)(B) which provides that:

In the case of any person who is inducted

into the Armed Forces of the United States

under the Military Selective Service Act. . .

and who leaves a position (other than a

temporary position) in the employer of any

employer in order to perform such ...

|

6a

Appendix A

service, and (1) receives [an honorable

discharge] and (2) makes application for

reemployment within ninety days after such

person is relieved from such. . . service...

(B) if such position was in the

employ of a State, or political

subdivision thereof, . . . such person

shall —

(1) if still qualified to perform

the duties of such position. . . be

restored by such employer or the

employer’s successor in interest

to such position or to a position

of like seniority, status, and pay;

* * *

unless the employer’s circumstances have

so changed as to make it impossible or

unreasonable to do so.

The reservist restored under this section of the statute “shall not

be discharged from such position without cause within one year

after such restoration.” 38 U.S.C. § 4301(b)(1)(A).

4. The second protection is found at 38 U.S.C.

§ 4301(b)(3), which reads:

Any person who seeks or holds a position

described in [4301(a)(2)(B)] shall not be

denied hiring, retention in employment, or

“ ee ee ee ee in

7a

Appendix A

any promotion or other incident or

advantage of employment because of any

obligation as a member of a Reserve

component of the Armed Forces.

The additional protection found in Section 4301(b)(3)

continues for so long as the reservist is associated with a reserve

unit of the Armed Forces. In Monroe v. Standard Oil Co., the

Supreme Court observed that Congress provided protection to

reservists under Section 4301(*)(3) for “the significant but

limited purpose of protecting the employee-reservist against

discriminations like discharge and demotion, motivated solely

by reserve status.” 452 U.S. 549, 559, 101 S.Ct. 2510, 2516, 69

L.Ed.2d 226 (1981) (emphasis added).

5. In reaching its decision, the Court exclusively relies

upon the right to restoration provisions of Section

4301(a)(2)(B). If Section 4301(b)(3) applied, the plaintiff

would not recover its protection because the defendait’s failure

to allow plaintiff to resume his work was not based on the

plaintiff's reserve status. Monroe, 452 U.S. at 559, 101 S.Ct. at

2516.

6. Despite Congress’s intent to provide reservists a

mandatory right of reinstatement, the reservist is not

indiscriminately immune from all responsibility to his

employer. Burkart v. Post-Browning, Co., 859 F.2d 1245, 1247

(6th Cir. 1988). The Court concludes that the mandatory right of

reinstatement contained in 38 U.S.C. § 4301(a)(2)(B) applies

only to reservists who have left the employer in good standing

-—— not those reservists whose conduct, if disclosed to the

employer, would have caused their termination prior to being

called for duty. By implementing the VRRA, Congress

8a

Appendix A

intended to afford reservists “the same treatment afforded their

co-workers without military obligations....” Monroe v.

Standard Oil Co., 452 U.S. 549, 560, 101 S.Ct. 2510, 2517

(1981). The statute does not impose on an employer a

“responsibility to provide preferential treatment.” Jd. at 562,

101 S.Ct. at 2518. See also Wimberly v. Labor and Indus.

Relations Com’n, 479 U.S. 511, 517, 107 S.Ct. 821, 825, 93

L.Ed.2d 909 (1987). “If a non-reserve employee in [the

employee’s position] would be terminated for the same

conduct, [the employee’s] reserve status cannot insulate him.

If, on the other hand, a non-reserve employee would not be

terminated for the same conduct, it becomes obvious that the

reasons given for the termination were pretextual.” Burkart v.

Post-Browning Co., 859 F.2d 1245, 1248 (6th Cir. 1988). Grant

Jones, as well as the current district attorney Carlos Valdez,

testified that any employee would have been terminated for the

same conduct upon which the plaintiff engaged. The plaintiff

would not have left the district attorney’s office for reserve duty

in good standing had the defendant been aware of the plaintiff’s

conduct. To permit plaintiff the restoration of his duties would

extend to a plaintiff a preferential right of hiring that the

Supreme Court and other courts have held that the statute does

not provide. Therefore, the plaintiff possesses no right of

restoration under 38 U.S.C. § 4301(a)(2)(B).

7. The plaintiff's reserve status had absolutely nothing to

do with the employer’s failure to reinstate the plaintiff. Burkart,

859 F.2d at 1248;Clayton v. Blachowske Truck Lines, Inc.,640

F. Supp. 172, 174 (D. Minn. 1986), aff'd per curiam on basis of

district court opinion, 815 F.2d 1203, 1205 (8th Cir. 1987)

Weber v. Logan County Home for the Aged, 623 F. Supp. 711,

714(D.N.D. 1985), aff’d, 804 F.2d 1058 (8th Cir. 1986). In the

instant case, there is no record of hostility to the plaintiff’s

9a

Appendix A

reserve status. In the past, as well as in the case at bar, the

defendant respected the plaintiff’s rights under 38 U.S.C.

§ 4301(b)(3).See Winfree v. Morrison, Inc.,762 F. Supp. 1310,

1313 (E.D. Tenn. 1990).

8. Just like the plaintiff in McCormick v. Carnett-

Partsnett Systems, Inc.,396 F. Supp. 251, 256 (M.D. Fla. 1975),

the plaintiff appears to believe his conduct is insulated from

reproach simply because he is a reservist. As explained by the

district court in McCormick and implied by the Supreme Court

in Monroe, 452 U.S. at 560, 101 S. Ct. at 2517, and Wimberly,

479 U.S. at 517, 107 S.Ct. at 825 this is not the law:

Plaintiff seems to have assumed that the

right to reinstatement is a guarantee that any

behavior on the job must be tolerated. This is

obviously not the case; the protection of the

Statute is based upon the veteran’s

compliance with the reasonable and

ordinarily accepted standards of personal

conduct and performance of duty of all

employees.

McCormick, 396 F. Supp at 256. To hold otherwise would afford

the plaintiff the preferential treatment that the Supreme Court

and other courts have held the statute does not provide. Under

circumstances such as these, the reservist is not entitled to

mandatory and automatic reinstatement as the statute might

otherwise permit.

9. Because Kleberg County was the plaintiff's exclusive

employer, Nueces County is not liable under the VRRA.

10a

Appendix A

10. Defendants Valdez and Kleberg County are free from

liability under VRRA.

ORDERED this 21 day of June, 1995.

s/ H.W. Head, Jr.

H.W. HEAD, JR

UNITED STATES DISTRICT JUDGE

lla

APPENDIX B — FINAL JUDGMENT OF THE UNITED

STATES DISTRICT COURT FOR THE SOUTHERN

DISTRICT OF TEXAS, CORPUS CHRISTI DIVISION

ENTERED JUNE 22, 1995

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

C.A. NO. C-94-038

DAVID M. JORDAN

V.

CARLOS VALDEZ, IN HIS OFFICIAL CAPACITY AS

DISTRICT ATTORNEY FOR NUECES AND KLEBERG

COUNTIES, NUECES COUNTY AND KLEBERG COUNTY

FINAL JUDGMENT

The Court hereby renders final judgment in favor of

defendants Carlos Valdez, Kleberg County, and Nueces County,

and orders that plaintiff take nothing on the above entitled and

numbered suit. Costs are assessed against plaintiff.

ORDERED this 21 day of June, 1995.

s/ H.W. Head Jr.

H.W. HEAD, JR.

UNITED STATES DISTRICT JUDGE