Hannah v. Hicks ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SUSAN K. HANNAH,
Plaintiff-Appellant,
v.
DAVID M. HICKS, Commonwealth
Attorney for the City of Richmond, No. 97-1940
Defendant-Appellee,
and
CITY OF RICHMOND,
Defendant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge;
Robert R. Merhige, Jr., Senior District Judge.
(CA-96-733-3)
Argued: January 29, 1998
Decided: September 4, 1998
Before ERVIN and LUTTIG, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: John Bertram Mann, LEVIT & MANN, Richmond, Vir-
ginia, for Appellant. Frank Fletcher Rennie, IV, COWAN & OWEN,
P.C., Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Susan K. Hannah appeals from an order of the district court enter-
ing judgment for David M. Hicks whom she sued under the Veterans'
Reemployment Rights Act. Finding no error, we affirm.
I
Hannah was hired by the Richmond Commonwealth's Attorney's
office in 1992 during Joseph D. Morrissey's tenure. She has been a
member of the United States Naval Reserve since 1982 and was
ordered to six-months' active duty in June, 1993. In November, 1993,
Hicks defeated Morrissey in an election for the position of Common-
wealth's Attorney. Before taking office, Hicks requested that all of
the employees of the Commonwealth's Attorney's office tender resig-
nation letters. Hannah refused.
Hicks was sworn into office on January 3, 1994. Hannah was
released from duty on January 19 and applied for reinstatement to the
Commonwealth's Attorney's office that day. She was told that she
would not be reinstated. Hannah contends that her rights under the
Veterans' Reemployment Rights Act were violated when Hicks
refused to reinstate her and that the district court's conclusion to the
contrary is in error.
II
Hannah's action is governed by the Veterans' Reemployment
Rights Act, 38 U.S.C. §§ 4301-07 (1988 & Supp. V 1993) (amended
1994). Section 4301 mandated:
(a) In the case of any person who is inducted into the
Armed Forces of the United States . . . for training and ser-
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vice and who leaves a position . . . in the employ of any
employer in order to perform such training and service . . .
...
(b) if such position was in the employ of a State, or politi-
cal subdivision thereof, or a private employer, such person
shall--
(i) if still qualified to perform the duties of such
position or able to become requalified with reason-
able efforts by the employer, be restored by such
employer or the employer's successor in interest to
such position or to a position of like seniority, sta-
tus, and pay . . . .
Section 4304(b)(1) extended these reemployment rights to members
of the reserves called to active duty.
While the title of the Act and its breadth of application have
changed over the years, the nature of the rights conferred by the Act
has not changed significantly since its inception. An army appropria-
tions act of 1916 provided that "Government employees . . . who
respond to the call of the President for service shall, at the expiration
of the military service to which they are called, be restored to the
positions occupied by them at the time of the call." Pub. L. No. 64-
242, 39 Stat. 619, 624. The Selective Training and Service Act of
1940 required that persons who left jobs in the private sector for mili-
tary service be restored to their prior positions. Pub. L. No. 76-783,
54 Stat. 885, 890. The Act was renamed and amended a number of
times before it was recodified as 38 U.S.C. #8E8E # 2021-26 by the Viet-
nam Era Veterans' Readjustment Assistance Act of 1974. Pub. L. No.
93-508, 88 Stat. 1578, 1594. This Act extended protection to reserv-
ists and state employees. 88 Stat. at 1598-1600. The reemployment
provision of the 1940 Act is substantially similar to that of the Act
under which Hannah asserts her rights. Cases interpreting past ver-
sions of the Act are therefore illuminating.
The Supreme Court wrote in 1946:
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The Act was designed to protect the veteran in several ways.
He who was called to the colors was not to be penalized on
his return by reason of his absence from his civilian job. He
was, moreover, to gain by his service for his country an
advantage which the law withheld from those who stayed
behind.
Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284
(1946). This "advantage" was that he was not to be laid off without
cause for one year after his return from service. See id. at 284-85,
288-89. In all other respects the returning veteran was treated as if he
were on furlough or had taken a leave of absence. See id. at 284-85.
He gained no preference by his absence. See id. at 286. The theory
that a returning veteran gained advantages in employment by his
absence has been discredited. See Aeronautical Indus. Dist. Lodge
727 v. Campbell, 337 U.S. 521, 526 (1949) ("[T]he Act protects the
furloughed employee from being prejudiced by any change in the
terms of a collective agreement because he is ``on furlough,' but he is
not to be favored as a furloughed employee as against his fellows.
This is the essence of our decision in Fishgold . . . .").
In 1981, the Supreme Court formally buried Fishgold's advantage
language in a footnote noting that even the right not to be discharged
is "better understood as protection against discrimination that would
not have occurred were it not for reserve obligations, than as preferen-
tial treatment accorded solely because of reserve status." Monroe v.
Standard Oil Co., 452 U.S. 549, 561 n.12 (1981).
At issue in Monroe was 38 U.S.C. § 2021(b)(3), which provided
that reemployed reservists were not to be denied retention or promo-
tion because of their reserve obligations; but the Court spoke broadly
of the entire Act: "[T]he legislative history. . . strongly suggests that
Congress did not intend employers to provide special benefits to
employee-reservists not generally made available to other employees"
and rather intended a nondiscrimination measure. 452 U.S. at 561; see
also Kolkhorst v. Tilghman, 897 F.2d 1282, 1285 (4th Cir. 1990).
The cases addressing the seniority rights of returning veterans echo
this discrimination-oriented view of veterans' reemployment rights. In
1958, the Court wrote:
4
Its [the section governing seniority rights] very important
but limited purpose is to assure that those changes and
advancements in status that would necessarily have occurred
simply by virtue of continued employment will not be
denied the veteran because of his absence in the military ser-
vice. The statute manifests no purpose to give to the veteran
a status that he could not have attained as of right, within the
system of his employment, even if he had not been inducted
into the Armed Forces but continued in his civilian employ-
ment.
McKinney v. Missouri-Kansas-Texas R.R. Co., 357 U.S. 265, 272
(1958). The Court has recognized that "[t]he statutory rights of return-
ing veterans are subject to changes in the conditions of their employ-
ment which have occurred in regular course during their absence in
military service, where the changes are not hostile devices discrimi-
nating against veterans." Ford Motor Co. v. Huffman, 345 U.S. 330,
336 (1953).
The reemployment rights conferred veterans are therefore best
understood as antidiscrimination provisions. Congress explicitly
adopted this view in the current version of the Act stating that the
Act's purposes are to encourage service by eliminating disadvantages,
to minimize disruption, and to prohibit discrimination. See 38
U.S.C.A. § 4301 (West Supp. 1998). The House report noted that
"[t]hese are the same purposes that were the basis of the enactment
of the initial provisions in 1940 and have been the basis for all subse-
quent amendments and recodifications." H.R. Rep. No. 103-65, at 20
(1994), reprinted in 1994 U.S.C.C.A.N. 2449, 2453. It is clear that the
provisions of the Act conferring reemployment rights on veterans are
designed to prevent loss by virtue of service, not assure gain.
III
Hannah was not penalized by reason of her absence from her civil-
ian job. She was treated no differently than her fellow employees. All
employees of the Commonwealth's Attorney's office were asked to
resign from their positions. Eleven of thirty-nine people were
employed by Hicks after being considered for retention by his admin-
istration. The majority of Hannah's fellow employees were not reem-
5
ployed by Hicks. To require that Hannah be reemployed by Hicks
would be to give her a benefit that her fellow employees did not
receive. Nothing in the Act confers such an advantage.
The judgment of the district court is affirmed.
AFFIRMED
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