Petition for Writ of Certiorari — Jordan v. Kenton County Board of Education

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IN THE

SUPREME COURT OF THE UNITED STATES

NOVEMBER 11, 1996

ALBERT W. JORDAN PETITIONER

DISABLED VETERAN

VS

KENTON COUNTY OF

KENTUCKY BOARD OF RESPONDENTS

EDUCATION, ET AL

MOTION FOR LEAVE TO PROCEED AS A VETERAN

The petitioner asks for leave to file the attached

petition for a writ of certiorari with an exemption from the

payment of fees or court costs under Supreme Court Rule 40.

The petitioner also requests leave to proceed on papers

as required by Rule 33.2.

Despite his veteran status, petitioner has been

required (under protest) to pay fees in the following

courts:

UNITED STATES COURT FOR THE EASTERN DISTRICT OF KENTUCKY

AT COVINGTON

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Petitioner's declaration in support of this Motion is

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attached hereto. : ! . /

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AFFIDAVIT OR DECLARATION IN SUPPORT OF MOTION FOR LEAVE

TO PROCEED AS A VETERAN

, Albert Jordan, am the petitioner in the above-titled

case. in support of my motion to proceed with an exemption

from the payment of fees or court costs under Supreme Court

Rule 40, and for leave to proceed under papers as required

by Supreme Court Rule 33.2, | claim veteran status, and | am

entitled to redress.

| swear that | am an honorably discharged Navy veteran

with a service-connected disability rating with the

Veteran's Administration of one-hundred per cent.

1 am suing my pre-service employer and the retirement

system in which | am vested so that | recetve each

reemployment right to which | am entitled under 38 U.S.C. s

4301 et. seq. |

| declare under penalty of perjury that the foregoing

is true and correct.

Executed o November! 5, iy oy f

(he FU ote

No.

IN THE

SUPREME COURT OF THE UNITED STATES

NOVEMBER 11, 1996

ALBERT W. JORDAN, DISABLED VETERAN - PETITIONER

vs.

KENTON COUNTY OF KENTUCKY BOARD OF

EDUCATION, ET AL - RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ALBERT W. JORDAN

5855 SOUTH HERRINGER ROAD

ALEXANDRIA, KY 41001

(606) 635-1337

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION ay

TABLE OF AUTHORITIES oa

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 4

STATEMENT OF THE CASE. 5-9

REASONS FOR GRANTING THE PETITION. - 10-14

QUESTIONS PRESENTED. . 15-21

LIST OF PARTIES. 22

CONCLUSION 23

INDEX TO APPENDICES

APPENDIX A U.S. Court of Appeals Decision

APPENDIX B Petition for Rehearing En Banc in U.S. Court

of Appeals

APPENDIX C Decision of U.S. District Court

APPENDIX D Decision of Rehearing in U.S. District Court

APPENDIX E Fact Sheets

JURISDICTION

The date on which the United States Court of Appeals for the

Sixth Circuit decided my case was September 6, 1996.

[x] A timely petition for rehearing en banc was denied by

the United States Court of Appeals for the Sixth Circuit on

the following date: Qctober 23, 1966, a copy of the order

denying rehearing appears at Appendix Bog,

The jurisdiction of this Court is invoked under 28 U.S.C §

1245(1).

2 ° 3

TABLE OF AUTHORITIES

CASES PAGE NUMBER

White's Landing Fisheries, Inc. v. 11

Buchholzer, 29 F. 3d at 321-32 (Sixth Circuit 1994)

Fishgold v. Sullivan Drydock and Repair 10

Corporation, 328 U.S. 275 (1946)

RULE

FED. R. CIV P. 56 Rule 56 (f) is party's need 11

for discovery prior to entry of summary judgment

OTHER

Fact Sheet #6-9409 Appendix E, page 12

Fact Sheet #OASVET 90-10 Appendix E, page 3-4.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

pipe hy iV, Section 2 of the Constitution of the United

ates

“The Citizens of each state shall be entitled to all

Privileges and immunities of Citizens in the several

States.”

Amendment XIV, Section 1. “No state shall make or enforce

any law which shall abridge the privileges and immunities of

citizens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Section 4. The validity of the public debt of the United

States authorized by law including debts incurred for

payment of pensions and bounties for services in suppressing

insurrection and rebellion, shall not be questioned.

Public Law 93-508, December 3, 1974 as Amended by

Public Law 94-286, May 14, 1976 -

Chapter 43 - Veteran's Reemployment Rights

Section 2021 Right to reemployment of inducted persons;

benefits protected

Section 2022 Enforcement procedures

Title 38, United States Code Chapter 43

Chapter 42 - Employment and Training of Veterans

Section 4211 Special Disabled Veteran

Section 4212 Veterans employment emphasis under federa]

contracts

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.

Section 794, and its implementing regulation, 34 C.F.R. Part

104, which prohibit discrimination on the basis of handicap

in any program or activity receiving Federal financial

assistance.

STATEMENT OF THE CASE

Albert Jordan, a teacher and football coach at Scott

High School of Kenton County Board of Education, resigned

from his coaching position after head coach David Browning

tried to prevent him from obtaining the Rank | teaching

credential, along with a considerable raise in salary. The

reason Browning gave for denying Jordan permission to arrive

one hour late for two days of summer practice to attend

classes at the university was that Jordan, a relatively new

teacher, with two master's degrees, would earn as much

salary as Browning, who held a bachelor's degree with

several years of experience. -

Albert Jordan arrived one hour late for practice on two

consecutive days despite David Browning's caiheuee. Coach

Browning, a very short man with a bad complexion and severe

Napoleonic disorder, became so peevish during the following

season that Jordan felt compelled to resign his footbal!

coaching position.

Coach Browning, who frequently boasted that he actively

campaigned for several school board members during

elections, stated he not the administrators micro-managed

Scott High School.

in the meantime Albert Jordan wrote and photographed

for the Kentucky section of The Cincinnati Enquirer and

taught evening courses at several local colleges and

universities. Albert Jordan volunteered to teach journalism

courses and publish the student newspaper which involved a

supplemental contract of several hundred dollars, since he

had extensive training and practical publishing experience.

Despite his best efforts, the administration began

supervising Jordan's classes excessively and nit-picking his

work. Although Albert Jordan received very positive

comments for his evening teaching at the university from the

administration and students, Kenton Board administrators

began giving him lower evaluations.

Because of a lifelong interest in becoming a military

officer and because of the high cost of private pilots

training along with becoming disillusioned with the

education system, Albert Jordan investigated naval aviation.

He qualified, and he was accepted into the flight program at

Naval Air Station Pensacola, Florida.

in the meantime, Albert Jordan was eligible for tenure,

however, the Navy recruiter urged him to resign from

teaching and enter the military as soon as possible. Hoping

to make the Navy a career and to leave education

permanently, Albert Jordan pressed the school board for

salary credit that they had denied him, and when that issue

was resolved, he resigned and he withdrew his retirement

funds from the Kentucky Teacher's Retirement System.

During a line of duty training exercise conducted by

marine corps trainers and supervised by navy officers,

Albert Jordan suffered a laceration to the head, a

concussion, and a dislocated kneecap. As a result Albert

Jordan was diagnosed as having damage to the brainstem,

tinnitus, high blood pressure, and depression among other

related problems. After months of treatment as an

outpatient, the Navy honorably discharged him with a very

vaguely-worded medical sounding discharge, despite not

granting Albert Jordan a medical review.

Once discharged Albert Jordan was informed that he was

legally entitled to his pre-service employment. On June 25,

1982, Albert Jordan applied for reinstatement at Kenton

Board and was denied. He filed a timely claim with the

United States Department of Labor, and in late August

Loretta Townsend of the Department of Labor informed him

that he was going to be rehired, but a female co-worker had

to be fired to make a position. This was done even though a

teacher new to Scott High School was hired in the English

department.

At the reemployment interview -then assistant

superintendent -now superintendent Neal Stiegelmeyer

immediately asked the veteran what the disability was.

Albert Jordan informed Neal Stiegelmeyer orally and on the

new job application, and he requested in writing

accommodations in the form of familiar courses with perhaps

a lighter assignment with some administrative duties in lieu

of teaching duties since the veteran was still suffering and

being treated for physical and mental conditions at the

Veterans Administration Medical Center.

On the first day of school Principal Robert Konnerman

gave Albert Jordan his teaching assignment. The veteran

complained to the principal and the Department of Labor case

worker Loretta Townsend that:

1. Mr. Konnerman stated that he did not want to hear

about handicaps.

2. Albert Jordan was not granted a continuing

contract.

3. Albert Jordan was assigned a homeroom although ©

seniority dictated that he should not be assigned one since

he had had a homeroom for four years.

4. He was not granted a lighter assignment.

5. He was not granted a familiar teaching assignment

6. He was not granted salary credit for the partia

year of teaching plus the time spent in service.

7. He should have been given the supplementa! contrac*

for sponsoring the student newspaper.

in summary the school administration had mace tne

veteran's job more difficult, rather than make the requestec

accommodations.

It was apparent to Albert Jordan that Kenton B8oarc

resented having to comply and early on it estab!ished a

pattern of non-compliance in which it contested each

concession it must make. in the words of Assistant

Principal Robert Storer, "we will do whatever we want unt

some court makes us do otherwise.” This same att ‘uce was

expressed by the Kentucky Teacher's Retirement System

Kenton Board of Education not only failed to take

affirmative action toward the disabled veteran 4s requires

by Sections 503 and 504 of the Rehabilation Act of 1974, it

took negative actions to deny the reemployment rights of the

disabled veteran.

Albert Jordan attempted to exnaust every possibility

for relief in his relentless quest for satisfaction in this

matter. He patiently sought help in a timely manner from

various sections of local, state, and federal government

only to be run around in circles many, many times. The

government, in its many forms, has so far allowed Kenton

Board and Kentucky Teacher's Retirement System to avoid the

cost of providing Albert Jordan his lawful benefits. Kenton

Board and Kentucky Teacher's Retirement System have been

allowed to rely on technicalities that they and the

government have created. By not reviewing this appeal and

restoring the sought after remedy, the Supreme Court is

condoning this miscarriage of justice. Then as a result,

rather than treating disabled veterans and handicapped |

workers fairly, employers can distort the facts and blame

the victims.

REASONS FOR GRANTING THE PETITION

1. The lower courts abused powers of discretion in denying

discovery before summary judgment was granted, which is in

violation of federal procedure law which governs the manner

in which claims are resolved on summary judgment motion.

The general rule is that summary judgment is improper if the

non-movant is not afforded a sufficient opportunity for

discovery. Whites Landing Fisheries, inc. v. Buchholzer.

There is a compelling concern that a party be permitted an

adequate opportunity to discover and present the facts

pertinent to his claims. The district court and the appeals

court denied Albert Jordan discovery, despite his

objections. However to prosecute his case, the veteran

Jordan can obtain the evidence required only through the

powers of discovery. There is no apparent prejudice to the

defendant by conducting discovery. Discovery could possibly

establish that Kenton Board and Kentucky Teacher's

Retirement System would be truly prejudiced in its ability

to defend against this claim. Even more likely, however,

discovery could show that they are discriminating as

alleged. There should be no doubt that Albert Jordan is

prejudiced in his ability to prosecute his claim. This

court should rule that there was abuse of discretion by the

lower courts because discovery was needed and hence summary

judgment was prematurely entered.

2. Kenton Board and Kentucky Teacher's Retirement System

discriminated against Albert Jordan on the basis of

veteran's status and handicap. This constitutes the denial

of equal protection under the Fourteenth Amendment to the

Constitution and the jaws of the United States.

3. This Court should apply the “escalator principle” of a

veteran's seniority established in Fishgold v. Sullivan

which held that the statute does not give the veteran only

the seniority he had when he left, but does give him the

seniority he had when he entered military service plus the

further seniority he would have accumulated if his

emp loyment had continued without interruption by military

service.

4. Another element of the Fishgold decision that this Court

should apply is the Court's declaration that the statute be

liberally construed for the benefit of the veteran, and that

the statute takes precedence over the collective-bargaining

agreement.

5. Most importantly the Court should let Albert Jordan have

“his day in Court.” Thus far the courts have unfairly

dismissed the claim on technicalities before the veteran

could present his case.

6. Kenton Board of Education should be required to show

that it used affirmative action towards the employment of

Albert Jordan. Actually Kenton Board is in violation of

Sections 503 and 504 of the Rehabilitation Act of 1974.

Rather than making job openings available to a known-

Mth hd

ee

Re

disabled veteran (Albert Jordan) Kenton Board has taken

“negative action.” It has not informed the local emp loyment

office of job openings as required by law. Most

nefariously, Kenton Board has hidden and lied about the fact

that it has federal contracts of $10,000 or more to the

Department of Labor. Obviously Kenton Board administrators

prefer to take federal funds and still retain the ability to

hire employees arbitrarily at their own discretion.

7. The Court should require Kenton Board to reemploy Albert

Jordan as a disabled veteran with all of the benefits,

rights, and protections provided to veterans under federal

law, not merely to their interpretations of Kentucky state

statutes as administrators responded to the Department of

Labor in 1982. This would then be constitutional.

8. Veterans rights and protection are being eroded because

veterans are delayed by the government in obtaining

reemployment rights and then the delay is held against them.

Many veterans lose their rights because they are

misinformed, frustrated, and vexed into abandoning their

claims.

9. Many employers, particularly Kenton County Board of

Education, have little or no respect for the federal rights

of veterans by trying to impose state laws that offer less

protection than federal law.

10. Many employers, particularly Kenton County Board of

Education, actually show contempt for the rights of veterans

in the form of negative action instead of affirmative

action.

11. Employers, particularly Kenton Board of Education, want

to frustrate and delay veterans who have a just claim in

order to make those veterans abandon their claims, die, or

commit a legal error that would save the employer the cost

of providing the just relief the veteran seeks.

12. School boards rely on their own interpretations of state

law to deny veterans benefits.

13. State law is vague on many issues pertaining to this

claim.

14. This court should compare the laws of Kentucky to the

laws of the other states in the providing of benefits to

veterans, so as not to penalize a veteran merely for living

in Kentucky if other states provide benefits under the same

circumstances.

15. This Court should compare the decisions of the Sixth

Circuit Court of Appeals to other Appeals Courts to provide

a homogeneity of benefits to all veterans, no matter where

they live.

16. Many disability pension providers rely on their own

interpretations of state law to deny benefits.

17. Kenton Board of Education has demonstrated a “pattern of

non-compliance” in which it will administrate by whim until

a court or government agency compels it to comply to rules

which may be costly or inconvenient.

13

18. Kentucky Teacher's Retirement will only pay disability

claims it is compelled to pay.

19. Kenton Board, although it has agreed not to discriminate

against the disabled by receiving federal funds, has shown

contempt and disregard for the civil rights of the

handicapped.

20. The federal government needs to bring Kentucky statutes

pertaining to veterans in line with federal law.

21. This Court can discourage employers from using selective

record-keeping to defeat the rights of disabled veterans and

other handicapped citizens.

QUESTIONS PRESENTED

& in order to enter the Navy, teacher Albert W. Jordan

resigned his position as English/Journalism teacher which

included a supplemental contract for sponsoring the student

newspaper. Should the school system have reinstated him in

his former position at the same rate of pay, including the

supplemental contract, or was it acceptable to assign him

merely the duties of another English teacher who resigned?

2. Albert Jordan maintains that he stated his disabilities

and requested accommodations on his application for

reemployment which is a primary document in a teacher's

employment file. Kenton Board officials reported that this

document along with the previous year's supplemental

contract was missing from the veteran's file and that they

could not remember Mr. Jordan stating his disability or

requesting accommodations. Can an employer use selective

recordkeeping as a defense against providing accommodations

to a handicapped employee?

3. Must the disabled person bear the burden of proving that

he stated his disability and requested accommodations when

key documents which the government requires the employer to

maintain are inexplicably missing? Although it would take a

stretch of the imagination to believe, assuming that Kenton

Board administrators were unaware (as they claim) of Albert

Jordan's handicaps at the outset of his reemployment

(especially since he complained about this to the Department

of Labor) would it be incumbent on Kenton Board to take

positive steps to ascertain what the veteran's handicaps are

and how to accommodate them? Since the Department of Labor

informed Kenton Board it was required to rehire Albert

Jordan because he was injured in the military, would it have

been prudent to require a pre-employment physical which is a

customary hiring practice? Can Kenton Board use ignorance

of the veteran's disabilities as a defense when one takes

into account that the veteran has facial disfigurements for

which the Veterans Administration compensates him?

4. If the disabled veteran's disabilities were not

officially recognized by the Veterans Administration at the

beginning of reemployment, but the Veterans Administration

recognizes the handicaps later retroactively, should the

veteran bear the consequences of being rehired under a

mistake?

5. Should the disabled veteran be reemployed again under

the protection of a disabled status with accommodations?

6. Can the employer use the period of reemployment to

discourage the veteran and drive him off, or must the

veteran be given a fair chance to gain seniority? Can he be

harassed? What constitutes harassment under the Veterans

Reemployment Rights Act?

7. Can the employer merely use the reemployment period to

“prove” that the veteran would not have attained tenure

status if he had not entered military service? As “proof”

that Albert Jordan would not have attained tenure, Kenton

Board provided the Office of Civil Rights three files of

17

teachers who were denied tenure. Would it be more fair and

logical to examine the files of all teachers in the Kenton

County Board system who began teaching in 1978 as did Mr.

Jordan and then make comparisons? Must the reemployed

veteran bear the burden of proving the impossible -- that he

absolutely would have obtained tenure had he stayed on the

job? What if the employer has demonstrated a “pattern of

non-compliance” in which it contests entitlement to every

right or benefit? Can the employer then be trusted to make

a fair assessment on the tenure issue?

8. Albert Jordan protested to Department of Labor what he

considered violations of the employment contract during his

reemployment period. Kenton Board's defense to Department

of Labor investigators was that the administrators were

using the same tactics they had used during Jordan's pre-

service employment. is it permissible under the Veterans )

Reemployment Rights Act for an employer to violate the

employment contract during a veteran's reemployment if it

<A i a Bn este

had done so during pre-service employment?

9. Is a nine-month school term twelve months of

reemployment guaranteed by the Veterans Reemployment Rights

Act?

10. Can an employer “harass” a reemployed veteran with

unlimited evaluation and supervision? How much supervision

is excessive in a teaching situation?

11. What constitutes harassment?

12. How does a veteran's reemployment affect his qualifying

for teacher tenure? Can the employer rely on. claiming that

the reemployed veteran would not have gained tenure based on

subjective after-the-fact judgments if there was no basis or

conduct established and documented before his resignation

and entry into the military?

13. tf a returning veteran who had been injured in the

military is reemployed under protection provided to non-

disabled veterans and he is later retroactively recognized

by the Veterans Administration and Social Security as being

disabled, should he be granted retroactive remedies to non-

compliance?

14. |!f a returning veteran claims he requested reemployment

under the protection provided a disabled status and he did

so on his reapplication for employment and that application

is inexplicably lost by the employer, must the burden of

proof tbe on the veteran to show that this was selective

recordkeeping on the part of the employer? And can an

employer thus hide behind /aches?

15. Can a retirement system repeatedly refuse to provide an

application for disability benefits within a one-year

deadline and later rely on that deadline as a basis for

denial of benefits?

16. 1s a court in error when it refuses to allow Discovery

and then dismisses a Veterans Reemployment Rights claim for

laches? What if the veteran has requested documents from

the Department of Labor under a Freedom of Information Act

request, and the Courts denied the claim on /aches before

the government has provided the information. Note: As of

this date, the Freedom of Information Act request was not

complied with even though the request was made years ago.

17. Can the Office of Civil Rights decision be used to

defeat the claims of a veteran when it relied on anonymous

and unsworn testimony on which the veteran was not able to

cross-examine the witnesses? Should a denial for

representation by the Office of Civil Rights based on a

claim filed under the Rehabilitation Act, 29U.S.c. @ 794,

preclude the veteran from pursuing his rights in federal

court on a claim filed under the Veterans Reemployment

Rights Act 38 U.S.C. § 4031 et. seq?

18. Should the employer be allowed to violate the teachers

contract in denying benefits and protection to a reemployed

veteran?

19. When the Veterans Reemployment Rights Act is in conflict

with state law, which prevails if federal law provides more

benefits or protection than state statutes?

20. Can the employer rely on the doctrine of res judicata to

defeat the rights of a veteran based on an Office of Civil

Rights investigation in which testimony was unsworn, false,

witnesses were afraid to testify, anonymous information was

presented, and witnesses were not compelled to testify or to

be cross-examined?

21. Is a disability pension a benefit protected by the

Veterans Reemployment Rights Act?

19

29

22. Can the doctrine of laches be applied to defeat the

rights of a veteran if the employer and retirement system

did not have “clean hands" and actually contributed to the

delay and the lower courts did not allow Discovery?

23. Can the retirement system refuse to provide or accept an

application in a timely manner because the injury and

resultant disability occurred in the military and not during

teaching employment, and then later use the defense that the

veteran did not submit an application within the one-year

period required by state statute? What if as Mr. Jordan

alleges, the injury occurred in military service, however

the injury became totally disabling after five years of

teaching--the way Social Security recognizes it?

24. Can a retirement system successfully deny a disability

claim by holding a veteran to a one-year statute of

limitations when the full scope of the veteran's

disabilities was not officially recognized until years

later? How does retroactive recognition by Social Security

and Veterans Administration affect the veteran's coverage

under this plan? Shoulsa the veteran suffer the loss of

benefits because the Veterans Administration and Social

Security Administration take years to act?

25. Did the lower courts err by assuming that Albert Jordan

abandoned his claim for reemployment by pursuing claims with

the Veterans Administration and Social Security? Cannot a

/eteran simultaneously and continuously pursue reemployment

rights benefits and/or disability benefits with the

21

government, since the Department of Labor informed the

veteran that the employer would be required to either

reemploy or retire him? If the veteran seeks either

reemployment with accommodations or disability retirement,

must he receive neither?

26. Was Albert Jordan's dismissal “for cause” when Kenton

Board did not provide reasons on his dismissal.? Can the

Board legally claim at his firing that the dismissal was

“not for cause”, then later state to the unemployment agency

and the United States Attorney that the dismissal was ‘for

cause’?

27. If this claim poses difficult questions to be resolved

should the Courts give the benefit of doubt to the disabled

veteran by construing the Veterans Reemployment Right Act

liberally?

LIST OF PARTIES

All parties do not appear in the caption of the case

the cover page. A list of ail parties to the proceeding

the Court whose judgment is the subject of this petition

as follows:

Kenton County of Kentucky Board of Education

Kentucky Teacher's Retirement System

CONCLUSION

The petition for a writ of certiorari should be

granted.

November 3, I99G

Date:

eee

No. 95-6569 Ae! PER ED

L.«(TED STATES COURT OF APPE-S SEP =6 1996

FOR THE SIXTH CIRCUIT

LEONARD GREEN, Clerk

ALBERT W. JORDAN, )

)

Plaintiff-Appellant, )

)

v. )

) ORDER

KENTON COUNTY BOARD OF )

EDUCATION; KENTUCKY TEACHERS )

RETIREMENT SYSTEM, )

) NOT RECOMMENDED FOR FULL-TEXT

Defendants-Apoellees. ) PUBLICATION eal

Bixth Cireut Ruie 24 ben's ope Fi pen estat

@ citing in @ prod

Please see Rule 24 befor st be served on other

in the Sixth Circuit if cited, a copy mu

arties and the Court. va aie

ont notice is to be crominently displayed if this Gee

is

is reproduced.

Before: SILER, MOORE, and COLE, Circuit Judges.

Albert W. Jcrdan, a Kentucky resident, appeals pro se the judgment for defendants in

this action filed under the Veterans’ Reemployment Rights Act, 38 U.S.C. §§ 2021-2027 (now

codified at 38 U.S.C. § 4301 et seq.). This case has been referred to a panel of the court

pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously

agrees that oral argument is not needed. Fed. R. app. ?. 34%).

On November 3, 1994, Jordan commenced this action by filing a petition to the district

court to direct the United States Attorney to represent him in an action under -he above Act.

te district court construed this filing as a complaint and denied the petition to direct such

representation, but allowed Jordan to file an amended complaint. In his amended complaint,

Jordan sought reinstatement or disability retirement benefits from the Kenton County Board of

Education (Board) and the Kentucky Teachers Retirement System (Retirement System). He

alleged that the defendants had violated his reemployment rights during the 1982-83 school year.

—

No. 95-6569 A-%

ry

The Board moved to dismiss, raising defenses of laches and issue preclusion, based on a

complaint Jordan had filed in 1988 with the Department of Education Office of Civil Rights

under the Rehabilitation Act, 29 U.S.C. § 794, which had been rejected at the administrative

level. The Retirement System also filed a motion to dismiss for failure to state a claim, pointing

out that Jordan had failed to apply for disability retirement within one year of his last

employment, as required by Ky. Rev. Stat. § 161.661(1). The district court construed the

Board’s motion as one for summary judgment, as it was supported by evidence outside the

pleadings. It granted both motions, finding that laches barred Jordan’s claim and that he had

not filed a timely claim for disability retirement benefits. On appeal, Jordan argues that the

delay in this case is attributable to the government, and that the United States Attorney should

be compelled to represent him.

Upon review, we affirm the judgment for the defendants for the reasons stated by the

district court. The Board was properly granted summary judgment based on the defense of

laches. as Jordan’s inordinate delay in commencing this action resulted in prejudice to the

defendant. See Wells v. United States Steel & Carnegie Pension Fund, Inc., 950 F.2d 1244,

1250 (6th Cir. 1991). Jordan was admittedly aware of all the alleged facts on which he bases

his claim in 1983, yet he did not commence this action until 1994. It appears that he was busy

meanwhile pursuing unemployment benefits and disability benefits from both the Veterans

Administration and the Social Security Administration, in addition to his Rehabilitation Act

claim. All of these proceedings undoubtedly took a long time to resolve, vut mis Coes not

excuse Jordan’s failure to pursue the relief to which he alleges he was entitled under the

Reemployment Act. His argument that the United States Attorney should have been compelled

to represent him is unfounded. The statute provides only that the veteran may request such

representation. Furthermore, the Board demonstrated the prejudice caused by Jordan’s delay,

as most of the school officials mentioned in the complaint have since retired, moved away or

died. and documentation regarding Jordan’s employment has been destroyed. It is therefore

apparent that laches bars this claim for Reemployment Rights. Cf. Farries v. Stanadyne/Chicago

No. 95-6569 A-3

SP

Div., 832 F.2d 374, 380-82 (7th Cir. 1987) (laches applied to bar Reemployment Rights claim

in case of nine-year delay). The Retirement System’s motion to dismiss was also properly

granted, as Jordan simply failed to apply for disability retirement benefits within one year of the

date he last worked, as required by Ky. Rev. Stat. § 161.661(1). The fact that he had inquired

about disability benefits before he became eligible to apply for them did not relieve him of the

requirement of applying after attaining eligibility.

Accordingly, the district court’s judgment is affirmed. Rule 9(b)(3), Rules of the Sixth

Circuit.

ENTERED BY ORDER OF THE COUR!

itil Fu

Cler

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CASE NUMBER 95-6569

ALBERT W. JORDAN APPELLANT

KENTON COUNTY BOARD OF EDUCATION

AND APPELLEES

KENTUCKY TEACHER'S RETIREMENT SYSTEM

ON APPEAL FROM THE EASTERN DISTRICT OF KENTUCKY

COVINGTON DISTRICT

EHAKAEEKA EK AEKH AAA EEAAE AERA ES HEARS KEKE EAA AEE EAE EASE EERE ERE EEE

REQUIRED STATEMENTS FOR REHEARING EN BANC

| express a belief, based on a reasoned and studied professional]

judgnent, that the panel decision is contrary to the following

decision(s) of the United States Court of Appeals for the Sixth Circuit

(or the Supreme Court of the United States) and that consideration by

the full Court is necessary to secure and maintain uniformity of

decisions:

Witty v. Lowisville & Nashville Railroad Co,, 342 F.2d 614, 5] LC

Censeglio v. Pennsylvania Railroad Co., 211 IF. supp 567, 46 LC

17, 948, 51 LRRM 2693 (S.D. N.Y., 1962)

Muscianese v. United States Stee] Corp., 354 F. Supp. 1394, 70 LC

13, 342, 82 LRRM 2922 (E.D. Pa. 1973)

Smith v. Continental Airlines, inc., 70 L1C 13, 501, 82 LRRM 2938

(C.D. Calif., 1973)

Alfarone v. Fairfield Stratos Corp., 218 F. Supp. 446, 47 LC 18,

361, 53 LRRM 2634 (E.D. N.Y., 1963)

Carter v. United States, 407 F. 2d 1238 (C.A. D.C., 1968)

—e

Tilton v. Missouri Pacific Railroad Co., 376 u.S. 169, 48 LC 18,

747, 55 LRRM 2369 (1964);

Brooks v. Missouri Pacific Railroad Co., 376 U.S. 182, 48 LC 18,

948, 55 LRRM 2374 (1964)

| express a belief, based on a reasoned and studied professional

judgnent, that this appeal involves one or more questions of exceptional

importance:

1. How can the motion for surmary judgnent be properly granted

when there was a need for facts because Discovery was not allowed?

Mow can the doctrine of Jaches be properly applied when the

want discovery to determine whether the defendant Kenton

was truly orejudiced?

~~ shes Se apolied wnen it was proven that defendant

awe ~ ~~

oe re = 334 mot have “clean hands” by causing the

s+ as 3a defense for the Kenton Board of

san hands” and selectively maintained

> is arc - " » the Gelay the entire scope of which was not

. ow can laches be applied when goverrment officials did not

have “clean hands” when they with-neld information and misinformed the

veteran Albert Jordan?

6. How can the U.S. attorney Louis DeFalaise not be held

accountable when he deliberately prevented Albert Jordan from filing a

pro-se action in U.S. District Court by misrepresenting the truth in

1983?

7. How can the courts properly dismiss Albert Jordan's claim for

disability benefits on the grounds that application was not made in a

timely manner when the Retirement System refused to accept one so that

it could later deny him benefits on that basis?

8. How can Albert Jordan receive a fair hearing when fact-finding

through Discovery was not permitted probably so that the true workings

of the Department of Labor and other agencies be revealed as their

underhanded methods would come to light?

9. How can a veteran get a fair hearing when the employer and the

retirement system are permitted to misrepresent the facts, and the

courts are eager to accept their false version of the truth?

10. How can the legal system itself not be held partially

responsible for the delay when private attorneys distorted the truth and

added to delay when they are paid by the hour?

11. How can the courts find that Albert Jordan caused an

inordinate delay when the truth is Albert Jordan went to the goverrment

in 1983 and has continuously sought to get relief while the Kenton Board

of Education, the Retirement System, and the goverrment delayed?

meee

Albert Jordan wr

pro se

Ce a

——

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CASE NUMBER 95-6569

ALBERT W. JORDAN APPELLANT

DISABLED VETERAN

vs.

KENTON COUNTY BOARD OF EDUCATION —

AND APPELLEES

KENTUCKY TEACHER'S RETIREMENT SYSTEM

ON APPEAL FROM THE EASTERN DISTRICT OF KENTUCKY

COVINGTON DISTRICT

PETITION FOR REHEARING EN BANC

Comes now the appellant, Albert W. Jordan, requesting a rehearing

en banc. in the Sixth Circuit Appeals Court's decision no comment or

discussion addressed the issues brought forth by the appellant.

in particular, the Appeals Court could explain the fairness of

requiring the veteran to submit an application for disability retirement

when the teacher's retirement system steadfastly refused to accept one

in a timely manner. This is in effect requiring the impossible, after

the fact.

Furthermore, the en banc panel could explain the fairness of

requiring the veteran to provide evidence of his continuous effort to

seek justice in this matter when the federal goverrment in al! its

various forms has refused to cooperate by submitting its records or by

compelling hostile witnesses to testify under oath. How can the

appellant document his case when there was no Discovery or powers of

subpoena?

Basically the System sets up the veteran for a default by keeping

him in the dark by disinformation or misinformation or no information.

When asked specific information relevant to a reemployment rights claim,

the administrators “dummy up.” Coincidentally no administrators in the

federal goverrment seem to know of any veteran whose situation is even

remotely similar to mine because my situation ( which involves a veteran

who cannot get his employer and retirement plan to provide benefits) is

so very rare. Common sense would say that out of the millions of

veterans that been discharged, surely many of them encountered some

resistance in obtaining reemployment rights. No one in the goverrment

has complied with my many requests for information on this subject.

Apparently by the appellate court's decision to prevent full publication

of my case it intends to suppress my testimony so that veterans who

follow me will not benefit fram reading about Albert Jordan's

experience. it is obvious that regardless of what is proven, the

goverrment would find some basis for denial, no matter how far it would

have to stretch.

Therefore this appellant honorably requests the Court to publish

the full text of these proceedings in order for the truth to be told

about how veterans are treated. This case has nothing to do with

justice or fairness; rather it is about whip-sawing and distorting and

repressing the facts so that the government can blame the victim.

Possibly you can convince yourselves and each other and the public

that this was a fair hearing, but | shall never be convinced. Even if

there is a settlement in my favor, | believe it will be too little, too

late, and it will come only after many years of the worst imaginable

mental anguish.

Respectfully submitted,

CMs FU) Qe bern

Albert W. Jordan

CERTIFICATION

+4

| hereby certify that | have, this } ee day of September, 1996

mailed a copy of the foregoing to:

James M. Baker, Esq.

479 Versailles Road

Frankfort, KY 40601

and

Donald J. Ruberg

209-C Thomas More Park

P.O. Box 1741]

Covington, KY 41017-0411

\ QAbetW Nae,

Albert W. Jordan

5855 S. Herringer cae

Alexandria, KY 41001

606-635-1337

No. 95-6569 APPENDIX ® -g

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT FILED

OCT 25 1996

LEONARD GREEN, Clerk

ALBERT W. JORDAN,

Plaintiff-Appellant,

v. ORDER

KENTON COUNTY BOARD OF EDUCATION, ET AL.,

Defendants-Appellees.

BEFORE: SILER, MOORE, and COLE, Circuit Judges.

The court having received a petition for rehearing en banc, and the petition having been

circulated not only to the original panel members but also to all other active judges of this court,

and no judge of this court having requested a vote on the suggestion for rehearing en banc, the

petition for rehearing has been referred to the original panel.

The panel has further reviewed the petition for rehearing and concludes that the issues

raised ‘in the petition were fully considered upon the original submission and decision of the case.

Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

ema. yun re

Leonard Green, Clerk VE

APPEXDIZ Cet <i Ehi. DISTRICT of KENTUCKY

FILED

UNITED STATES DISTRICT COURT eT 11 1995

EASTERN DISTRICT OF KENTUCKY

AT COVINGTON AT COVINGTON

CLERK, U5. cus uTMER

CIVIL ACTION NO. 94-202 S. OISTRICT CouRT

ALBERT W. JORDAN PLAINTIFF

vs.

KENTON COUNTY BOARD OF EDUCATION

AND

KENTUCKY TEACHERS’ RETIREMENT SYSTEM DEFENDANT

ORDER AND OPINION

This matter is before the court on defendants’ motions to

dismiss (docs. # 14 and #19). For the reasons set forth below, the

Kenton County Board of Ecusation is entitled to summary judgment,

and Kentucky Teachers’ Re-irement System’s motion to dismiss must

be granted.

Plaintiff, Albert W. Jordan, was employed by the Kenton County

Board of Education as 4 teacher and football coach at Scott High

School beginning in August, 1978. In February, 1982, Plaintiff

resigned his position at Scott High School in order to enter the

military. Plaintiff was injured on June 17, 1982, while

participating in activities in the Navy. Plaintiff was honorably

discharged from the Navy after the injury.

Plaintiff applied for his former job as a teacher with the

Kenton County Board of Education. Kenton County rehired Plaintiff,

and he began work on September 2, 1982. Plaintiff objected to the

work load as well as his assignment claiming that his disability

required an easier work load and that he was net reinstated to the

same position. Plaintiff claims that he was harassed by staff at

Scott High School based on his disability as evidenced by the fact

3S)

UG. Uae? |

that he was frequently observed in the classroom by other faculty

members. Kenton County discharged Plaintiff in June, 1963.

As a teacher in Kentucky, Plaintiff was a member of the

Kentucky Teachers’ Retirement System (*KTRS"). KTRS provides

benefits and pensions to disabled or retired teachers in the

Commonwealth.

When Plaintiff resigned from Kenton County to enter the

military on March 2, 1982, he had 3.69 years of service credit with

KTRS. Plaintiff terminated his relationship with KTRS at this time

and received a refund of his retirement distributions on April 12

1982. After Plaintiff was returned to his position with Kenton

County, he reinstated his 3.69 years of service with KTRS

Plaintiff purchased a .31 year of service credit for his military

service and for the balance of the school year 1981-1982 on June

27, 1983. Plaintiff obtained five years of service on June 30

1983, his last day of service for Kenton County.

After Plaintiff was discharged from Scott High School and

denied benefits from KTRS, he sought relief from the United States

Department of Education, Office for Civil Rights under the

Rehabilitation Act of 1973. On August 15, 1988, the Departmen

Education determined that Plaintiff was not entitled to relief. I

addition, Plaintiff was denied disability benefits by KTRS on a

number of occasions dating back to May 2, 1983.

KENTON COUNTY’S MOTION FOR SUMMARY JUDGMENT

As implied above, Kenton County’s motion to dismiss will be

considered as a motion for summary judgment because it relies on

2

GGUS

the affidavit of Neil Stiegelmeyer. Rule 12(b) of the Federal

Rules of Civil Procedure provides that if material outside the

pleadings are presented and not excluded by the Court, the motion

is to be treated as 4 motion for summary judgment as described in

Rule 56 of the Federal Rules of Civil Procedure.

Kenton County argues that Plaintiff is barred by the equitable

doctrine of laches because Plaintiff failed to bring suit until 13

years after the cause of action arose. Kenton County argues that

13 years constitutes inexcusable delay which has prejudiced Kenton

County. For the reasons set forth below, Kenton County’s argument

is well taken.

In v ee ij y , 712 F.2d 1047 (6th Cir.

1983), the plaintiff sued his employer under the Veterans

Preference Act for reinstatement to his position after leave for

military service. The Sixth Circuit stated that the Veterans

Preference Act was analogous to the Veterans Reemployment Act in

that Congress did not provide a statute of limitations for either

statute. In the Veterans Reemployment Act, specifically, Congress

stated that "no state statute of limitations shall apply to any

proceeding under this chapter." 38 U.S.C. § 2022.

To prevail on 4 laches defense, 4 defendant must prove: (1)

the plaintiff's delay in bringing the suit is inexcusable; and (2)

the defendant was prejudiced by the delay. Wells v. United States

Steel & Carnecie Pension Func. Inc. 950 F.2d 1244 (6th Cir. 1992).

In determining whether laches acts to bar an action, the Court

should consider "the length of the delay, the reasons therefor, how

the delay affected the defendant, and the overall fairness of

‘ permitting the assertion of the claim." Stevens, 712 F.2d at 1056.

There is no fixed time period for determining whether laches

operates to bar a claim. Stevens, 712 F.2d at 1056. The Court

must look at the circumstances of the case and determine what is

equitable. However, comparison with a statute of limitations may

be a guide or an element for the Court to consider in determining

whether barring the claim is the equitable result. Goodman v.

McDonnell] Douglas Corp.., 606 F.2d 800 (8th Cir 1979). Whether

laches should be applied is lef to the discretion of the district

judge. Exlangerv. Berkemever, 207 F.2d 832, 840 (6th Cir. 1953).

There are several cases which address the issue of laches as

it applies to the Veterans Reemployment Act and the Selective

Training and Service Act, its predecessor. Delays of the following

lengths of time have been considered unreasonable or inexcusable:

nine years (Ligenfelter v. Keystone Consolidated Industries, Inc.,

691 F.2d 339 (7th Cir. 1982) and Gruca v. U.S. Stee] Corp., 495

F.2d 339 (7th Cir. 1982)); nine years after discharge and six years

after discharge was upgraded to honorable (Farries v.

Standyne/Chicago Division, 832 F.2d 374 (7th Cir. 1987)); seventeen

years (Carmalt_v. General Motors Acceptance Corp.., 302 F.2d 589

(3rd Cir. 1962)).

To the contrary, the delay was not unreasonable where the

plaintiff diligently sought relief from the Department of Labor

within two years of accrual of the action and filed a complaint

within five years. wars v. U.S. ee) rp., $94 F.Supp. 180

ju. UU

(N.D. Ind. 1984). Similarly, delays of two and a half years and

four years were not considered unreasonable. Lemmon v. Santa Cruz,

686 F.Supp. 797 (N.D. Cal. 1988) ; Milacone v. Long Island R.R.Co.,

$82 F.Supp. 973 (S.D.N.¥. 1983).

In Blake v. Columbus, 605 F.Supp. 567 (S.D. Ohio 1984), the

Court held that, under the Veterans Reemployment Act, the

plaintiff’s delay was unreasonable. The Court stated as follows:

The Court believes the period from April 1968 through

July 1971 during which plainctifs was actively negotiating

with defendant to resolve the dispute concerning his

employment status, to be reasonable delay. In addition,

that period of time from December 1975 through September

1976, during which plaintiff was engaged in discussion

with the department concerning his status in “active”

versus "continuous" service is also excusable delay.

Similarly, the pericc between 1981 to 1983 during which

the United States Attorney’s office was attempting to

negotiate a settlement between the parties is not charged

to the plaintiff ..- - However, when coupled with the

subsequent five-year period from 1976 through 1981 in

which the plaintiff sat on his rights, the entire delay

becomes unreasonable.

Id. at 570 (emphasis added) (citations omitted) .

Based on the authorities set forth above, Plaintiff's 13-year

delay in bringing this action was unreasonable. Even though he

proceeded initially before the Department of Labor, that agency

issued its decision in 1988. The Plaintiff waited an additional

five years prior to filing this action. Because Plaintiff “sat on

his rights" for five years after the Department of Labor issued its

decision, Plaintiff's delay is unreasonable.

To prevail on a laches defense, the defendant must prove that

it has been prejudiced by the delay. tev v Va)

Aush., 712 F.2d 1047 (6th Cir. 1982). To establish the recuired

5

UG. ALL

ee

prejudice, Kenton County offers the affidavit of Neil Stiegelmeyer

(doc. #15). This affidavit identifies specific witnesses that are

no longer available and describes specific records that are no

longer in the necessary files. For example, various staff members

are no longer employed by Kenton County; one witness is now

deceased, while another lives in Texas; records in Plaintiff's

personnel file have been limited since the cause of action accrued;

and many notes and documents concerning this matter have been

discarded.

For these reasons, Kenton County has established that it has

been prejudiced by Plaincitt’s delay in bringing this claim.

Therefore, Plaintiff’s cleim is barred by the equitable doctrine of

laches, and Kenton County’s motion for summary judgment must be

granted.

KTRS’ MOTION TO DISMISS

KTRS argues that Plaintiff’s amended complaint should be

dismissed because Plaintiff failed to conform with the procedures

for collection of disability benefits set forth in K.R.S.

161.661(1). K.R.S. 161.661(1), as it read in June, 1983, provides

as follows:

(1) Amy member who has completed five (5) years of

accredited service in the public schools of Kentucky

after July 1, 1941, may retire for disability and be

granted a disability allowance if found to be eligible as

provided below. Application for disability must be made

within one (1) year of the last contributing service in

Kentucky, and the disability must have ececurred during

the most recent period of employment in a position

covered by the teachers’ retirement system and subsequent

to the completion of five (5) years of teaching service

in Kentucky.

Gr \i3n

K.R.S. 161.661(1). The requirements of this statute may be

summarized as follows: (1) an application for benefits must be made

within one year of the last service performed in Kentucky; (2)

disability must have occurred within the most recent period of

employment; and (3) the teacher must have completed five years of

service prior to becoming disabled. K.R.S. 161.661(1).

Although no Kentucky court has addressed the issue at bar, the

Kentucky Attorney General has issued an opinion addressing a

similar issue. OAG 79-49 (Jan. 22, 1979). In that case, the

plaintiff, who was terminated from his teaching position in June,

1976, brought a civil action challenging his termination. Nearly

two years later, the court determined that his claim was without

merit. The plaintiff first sought disability payments in 1978,

after the judicial proceedings terminated. The Attorney General

stated that the plaintiff could not recover benefits because he

failed to apply for the benefits within the one year statutory

period, stating:

[T]he clear language of the statute [161.661] can not

[sic] be circumvented. It would appear that [the

plaintiff] consciously chose not to comply with the

Statute, and instead proceeded with his attempt to regain

employment. I cannot see any room in the statute to

ignore the one year time limitation requirement.

id.

In the case at bar, KTRS determined that Plaintiff’s last day

of service in Kentucky was June 30, 1983. Under K.R.S. 161.661(1),

Plaintiff was required to file an application with KTRS by June 30,

1984. Plaintiff failed to meet the one year limitation period;

therefore, his claim is barred.

CG USu

c-7

. : Cc~-o

Plaintiff does not argue that he complied with the one year

limitation requirement of the statute. Instead, he argues that he

failed to meet the one year deadline because KTRS refused to

provide him with an application in a4 timely manner. Plaintiff

; asserts that KTRS should be estopped from asserting the time

limitation requirement based on its misconduct.

Based on the Kentucky Attorney General opinion discussed

above, any alleged misconduct or other delay in providing an

application does not dispel the “clear language of the statute."

It is obvious that Plaintiff was aware that he had to file an

application with KTRS, but he failed to do so within the statutory

period. Accordingly, his claim for benefits is barred.

Therefore, the Court being advised, it is hereby ordered as

follows:

1. Kenton County Board of Education’s motion to dismiss

(doc. # 14), which the court considered as a motion for summary

judgment, is granted; and

2. KTRS’ motion to dismiss is granted. A separate judgment

will be entered concurrently herewith.

This _| | at day of October, 1995.

Wb hom 0. gl2bhoran

WILLIAM O. BERTELSMAN, CHIEF JUDGE

QG 009%

LAIN TI MO NAITO SO ENE A A A ON

eT

? ; EASTERN DISTRICT of KEY TUCKy

FIiLEr

Pcie UNITED STATES DISTRICT COURT

. EASTERN DISTRICT OF KENTUCKY v-i 14 1995

AT COVINGTON

AT COVINGTON

LESLIE G. WHITMER

CIVIL ACTION NO. 94-202 CLERK, U. S. DISTRICT COURT

ALBERT W. JORDAN PLAINTIFF

vs.

KENTON COUNTY BOARD OF

EDUCATION, ET AL DEFENDANTS

Pursuant to the Order and Opinion entered concurrently

herewith, and the court being advised,

IT IS ORDERED AND ADJUDGED that the complaint and amended

complaint be, and they are, hereby dismissed, with prejudice, and

stricken from the docket of this court, at the cost of the

plaintiff.

This 11th day of October, 1995.

A Mom © S50 ALY wen

WILLIAM O. BERTELSMAN, CHIEF JUDGE

7) |

APPENDix p

EASTERN DISTRICT of KENTUCKY

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY NOV 2 21995

AT COVINGTON

AT COVINGTON

LESLIE G. WHITMER

CIVIL ACTION NO. 94-202 CLERK, U. S. DISTRICT CouRT

ALBERT W. JORDAN PLAINTIFP

, ORDER

KENTON COUNTY BOARD OF

EDUCATION, ET AL DEFENDANTS

This matter is before the court on the motion of plaintiff for

reconsideration of this court’s Judgment entered herein, and for

reasons stated in this court’s Opinion and Order, entered

concurrently with the Judgment, the court being advised,

IT IS ORDERED that said motion for reconsideration (Doc. #26)

be, and it is, hereby denied.

This ZaA day of November, 1995.

0

WILLIAM O. BERTELSMAN, CHIEF JUDGE

FACTSHEET ®

NATIONAL COMMITTEE FOR EMPLOYER SUPPORT OF THE GUARD AND RESERVE

QUESTIONS AND ANSWERS ABOUT

REEMPLOYMENT RIGHTS

(This Fact Sheet Does Not Address Training Duty)

1. Question: If I left my civilian job to go on active duty in support of a military operation,

will I have the right to get my job back?

Answer: Yes, if you meet the five eligibility requirements under the reemployment law:

1. The job you left must be “other than temporary.” Jobs with federal, state or city/county governments

and private employers are protected.

2. You must have left the job for the purpose of entering active duty.

3. You must serve satisfactorily and be released from active duty.

4. If you were on active duty under the authority of 672 (d), you have 90 days to request reemployment.

Members activated under 673 (b), are advised to apply within 31 days. Jn all cases, you should contact your

employer as soon as possible after release from active duty.

5. Your total amount of active duty (other than training duty) since going to work for your current

employer cannot exceed four years, unless extended by the period of time the President authorizes the call-

up of Reserve units/individuals, or if you cannot obtain orders relieving you from active duty.

2. Question: When I am released from active duty, what do I have to do to get my job back?

Answer: After your release from active duty and within 90/31 days (see Answer 1, part 4 above), go

to your place of employment and tell someone in authority:

1. | used to work here.

2. I left my job to enter active military service.

3. [have been released from active duty under honorable conditions and I want my job back. (Take your

DD-214 or DD-220 Discharge Certificate if you receive one, because it shows the dates and character of

your military service.)

3. Question: Do I lose my reemployment rights if I volunteered for active duty?

Answer: No. Your job is protected as long as you receive orders to perform active duty, whether your

service is voluntary or involuntary.

NCESGR

1555 Wilson Boulevard, Suite 200

Arlington, Virginia 22209-2405

(800) 336-4590

{Autovon) 226-1400

(703) 696-1400 €—9409

APPENDIX E p.

NATIONAL COMMITTEE FOR emer SUPPORT OF THE GUARD € RESERVE

4. Question: Do I have to tell my employer when I am going and when I will return?

Answer: No. It is a good idea to give your employer as much information as you can about the length

of your absence when you are ordered to active duty, but sometimes this is impossible. NOTE: If you are

ordered to active duty for training or inactive duty training, however, you must request a leave of absence.

5. Question: Will I have to wait to get my job back?

Answer: No. Your employer should reemploy you when you apply, but sometimes it can take as long

as two weeks for your employer to make the necessary arrangements.

6. Question: What kind of job am I entitled to upon reemployment?

Answer: You are entitled to the job you left or a similar job, with the same seniority, status and rate

of pay you would have had if you had stayed on the job instead of going on active duty. If you would have

been promoted during your absence, you may be entitled to the promotion. If you would have been laid

off, the position/status you return to may be in layoff.

7. Question: Does my employer have to pay me or provide health insurance or other benefits while

I’m on active duty?

Answer: Some employers provide limited paid military leave or make up the difference between

regular and military pay. Most employers have no obligation to provide pay or benefits unless they provide

them to other employees on leave or furlough. The IRS advises that an employer's COBRA obligation to

continue health coverage is the same for Reservists as for other employees (IRS Notice 90-58). Public Law

102-12, signed March 18,1991, stipulates that Reserve Component members and their qualifying

dependents are entitled to immediate reinstatement of company-sponsored health insurance upon return

from military duty. Waiting periods and “pre-existing conditions” exclusions are prohibited. This

protection is effective retroactive to August 1, 1990.

“8. Question: If I apply for reemployment, what’s to keep my employer from reemploying me and

then finding an excuse to get rid of me later?

Answer: The law gives you a period of protection against discharge without cause. If you are fired

during that period, your employer will have to prove that other employees are fired for the same kind of

reason, and that you actually did what the employer accused you of doing. The special period may be six

months or one year, depending upon the legal authority for your active duty.

7 Question: Where can members of the National Guard and Reserve get more information about

their job rights or get help if they feel these rights have been denied?

Answer: For information or assistance on their job rights, Reservists may contact the National

Committee for Employer Support of the Guard and Reserve (NCESGR) toll-free at (800) 336-4590 or for

the nearest office of Veterans’ Employment and Training Service, United States Department of Labor, call

(800) 442-2838.

6—3409

U.S. Department c. Labor

Program Highlights

APPENDIX E p. 3

7

Fact Sheet No. OASVET 90-10

‘-REEMPLOYMENT RIGHTS FOR RETURNING VETERANS -

Under the Veterans’ Reemployment

Rights (VRR) law, a person who leaves

a civilian job in order to enter active

duty in the Armed Forces, voluntarily or

involuntarily, is entitled to return to his

civilian job after his discharge or release

from active duty if he or she meets the

five basic eligibility criteria of the VRR

law:

1. He or she must hold an “other than

temporary” civilian job. (The job need

not be "permanent.")

2. He or she must leave the civilian job

for the purpose of going on active duty.

3. He or she must not remain on active

duty longer than four years, unless the

period beyond four years (up to an

additional year) is "at the request and

for the convenience of the Federal

Government."

4. He or she must be discharged or

released from active duty “under

honorable conditions."

$. He or she must apply for

reemployment with the pre-service

employer or successor in interest within

90 days after separation from active

duty.

A person meeting these criteria is

entitled to reinstatement within a

reasonable time to a position of like

seniority, status, and pay. Additionally,

a returning veteran may be entitled to a

better job than the one he or she left.

In its first case construing the VRR law,

the Supreme Court stated, "[The

returning veteran] does not step back on

the seniority escalator at the point he

stepped off. He steps back on at the

precise point he would have occupied

had he kept his position continuously

during [his military service].". This

explanation, which is known as the

"escalator principle," was later expressly

ratified by Congress. Benefits generally

found to be based on sepiority, i.e.,

length of service, are pensions, pay

increases, missed promotions and missed

transfers. Additionally a veteran who

returns from the service to a different

employer in the same industry covered

by the same multi-employer pension

plan remains covered by that plan and is

entitled to military service pension

credit.

This is one of a series of fact sheets highlignting U.S. Department of Labor programs. tt is intended as a general Cescription onty

and does not carry tne force of legal opinion.

Although the "“escalato. normally goes

Up Or remains in place, there are times

when it goes down. If the employer can

establish that the veteran would have

been downgraded if he had remained

continuously employed, he will be

entitled to reemployment in the lower

job. If the employer can establish that

the veteran would have been laid off in

accordance with seniority, he may be

entitled to "reinstatement" into a layoff

Position, with recall rights. If the

employer can establish that the veteran’s

pre-service employment relationship

would have been severed altogether, the

veteran may be entitled to no job at all,

but he might be entitled to severance

pay. The whole point of the VRR law is

to place the returning veteran in the job

he or she would have attained if he or

sneé had remained continuously

employed instead of going on active

duty. Upon ta

may no ed without cause for

a period of one year.

The VRR law applies to persons who are

inducted (drafted) into the Armed

Forces, to persons who volunteer

directly for active duty, and to Reservists

and members of the National Guard who

are called to active duty voluntarily or

involuntarily. In addition to performing

active duty, reservists and members of

the National Guard also perform initial

APPENDIX E p. 4

active duty training, active duty for

training, and inactive duty training.

nights for

Reemployment Persons

‘performing these kinds of duty is

When a person leaves a civilian job in

order to perform active duty, he or she

is not required to request a leave of

absence or even to noufy the employer

that military service is the reason the

Person is leaving the civilian job,

although such a person should be

encouraged to provide the employer as

much information as possible. However,

a Reservist or member of the National

Guard must request a leave of absence

when he or she leaves the Civilian job to

perform active duty for training or

inactive duty training.

The VRR law is enforced by the

Department of Labor, Veterans’

Employment and Training Service.

Attached is a list of the addresses and

telephone numbers of offices to contact.

If you have any further questions, or if

you desire assistance securing your

reemployment rights, if any, you should

contact the osfice closest to yout

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

ALBERT JORDAN - PETITIONER

DISABLED VETERAN

vs.

KENTON COUNTY OF KENTUCKY-~ RESPONDENT(S)

BOARD OF EDUCATION, ET AL

PROOF OF SERVICE

Alber# UW. Jordan

-P , do swear or declare that

on this date, November 25 , 1996, as required by

Supreme Court Rule 29 | have served the enclosed MOTION FOR

A LEAVE TO PROCEED AS A VETERAN,PETITION FOR A WRIT OF

CERTIORARI on each party to the above proceeding or that

party's counsel, and on every other person required to be

served, by depositing an envelope containing the above

documents in the United States mail properly addressed to

each of them and with first-class postage prepaid.

The names and addresses of those served are as follows:

James M. Baker, Esq. Donald J. Ruberg

479 Versailles Road 209-C Thomas More Park

P.O. Box 17411

Frankfort, KY 40601 Covington, KY 41017-0411

| declare under penalty of perjury that the foregoing is

true and correct.

Executed on November 25 », 19.96. -

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