Bowlds, Lawrence v. General Motors Mfg ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1907
LAWRENCE BOWLDS, JR.,
Plaintiff-Appellant,
v.
GENERAL MOTORS MANUFACTURING
DIVISION OF THE GENERAL MOTORS
CORPORATION,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:03-CV-5-TS—Theresa L. Springmann, Judge.
____________
ARGUED OCTOBER 25, 2004—DECIDED JUNE 9, 2005
____________
Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Lawrence Bowlds, Jr., a
Vietnam veteran and a victim of the Agent Orange skin dis-
ease, contracted as a result of his military service on behalf
of our country in Vietnam, sued his former employer, General
Motors. Mr. Bowlds claimed that he had been improperly
denied reemployment with the company in violation of both
the Uniformed Services Employment and Reemployment
Rights Act (“USERRA”) and the Veterans’ Reemployment
2 No. 04-1907
Rights Act of 1974 (“VRRA”).1 The district court granted
summary judgment for General Motors, finding that Mr.
Bowlds’s claims under the USERRA accrued before the
statute’s enactment date and that General Motors met its
reemployment obligation under the VRRA by rehiring Mr.
Bowlds after his return from the Vietnam War. Regrettably,
because the USERRA is not retroactive to the time period
concerning Mr. Bowlds’s claims and the VRRA does not
cover an injury incurred after an employer’s initial rehiring
of an employee, we agree with the findings of the district
court and affirm.
I. Background
Mr. Bowlds began his employment with General Motors on
September 27, 1965, at General Motors’ Metal Fabricating
Plant in Marion, Indiana. As a result of the Vietnam War,
Mr. Bowlds was inducted into the United States Army in
January of 1967 and was discharged from active military
service in January of 1969. In February of 1969, General
Motors reemployed Mr. Bowlds in an hourly position. Shortly
after Mr. Bowlds’s return from Vietnam, his physician,
Dr. Gary Dillon, diagnosed him as suffering from a skin dis-
order caused by wartime exposure to the chemical com-
monly known as “Agent Orange,” and on August 1, 1977, as
a result of Dr. Dillon’s recommendation, General Motors
placed Mr. Bowlds on total and permanent disability.
Mr. Bowlds’s medical condition improved in later years,
and on October 6, 1983, Dr. Dillon prepared and signed a
note stating that Mr. Bowlds could return to work as long
1
Mr. Bowlds also initially alleged that General Motors violated
his rights under the Employee Retirement Income Security Act
(“ERISA”). The district court granted summary judgment for the
defendant on this claim, and Mr. Bowlds did not appeal this ruling.
No. 04-1907 3
as he “perform[ed] clean and dry work whenever available.”
Mr. Bowlds presented this note to General Motors, who did
not respond. On March 19, 1984, Dr. Dillon again wrote to
General Motors stating that he had cleared Mr. Bowlds to
work. Once again, General Motors did not respond. Finally,
on August 24, 1989, Dr. Dillon wrote a third letter to
General Motors on Mr. Bowlds’s behalf. On September 5,
1989, General Motors rehired Mr. Bowlds as a tow motor
operator. On May 1, 2002, Mr. Bowlds retired from General
Motors.
Two of General Motors’ actions taken during Mr. Bowlds’s
employment with the company, initial disability retirement,
rehiring, and subsequent retirement are at issue: first,
whether General Motors violated the USERRA and the VRRA
by failing to rehire Mr. Bowlds in 1983, when Dr. Dillon
initially declared that he could return to work; and second,
whether General Motors violated these same statutes by its
calculation of Mr. Bowlds’s retirement pension in 2002.
General Motors based Mr. Bowlds’s pension on service to
the company of 24.8 years, which includes the period from
Mr. Bowlds’s initial hiring in 1965 through his initial dis-
ability retirement in 1977, as well as Mr. Bowlds’s service to
General Motors from his rehiring in 1989 through his final
retirement in 2002. Mr. Bowlds argues that his pension
should be based on 36.7 years, which in addition to the 24.8
years that General Motors has acknowledged would also
include the period from 1977 through 1989 when
Mr. Bowlds was on disability retirement.
On General Motors’ Motion for Summary Judgment, the
district court held that the USERRA did not apply to
Mr. Bowlds’s claims for reemployment between 1983 and
1989, further determining that even if the USERRA did
apply to Mr. Bowlds’s claim, no reasonable reading of that
statute mandated that an employer reemploy a veteran for
a medical leave of absence related to prior military service.
The district court concluded that although Mr. Bowlds’s
claims did arise under the VRRA, that statute was also in-
4 No. 04-1907
applicable to Mr. Bowlds’s claims for the same reasoning as
the USERRA. Finding that General Motors had violated
neither the USERRA nor the VRRA by its decision not to re-
employ Mr. Bowlds during his disability period, the district
court held that General Motors’ calculation of Mr. Bowlds’s
pension also did not violate the USERRA or the VRRA.
II. Analysis
A. Standard of Review
We review de novo a district court’s grant of summary
judgment. Lamers Dairy Inc. v. USDA, 379 F.3d 466, 472
(7th Cir. 2004); Ind. Family & Soc. Servs. Admin. v.
Thompson, 286 F.3d 476, 479 (7th Cir. 2002). Summary
judgment is properly granted when “the pleadings, deposi-
tions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When
determining whether a genuine issue of material fact exists,
we consider evidence in the light most favorable to the
nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). Material facts are
facts that “might affect the outcome of the suit” under the
applicable substantive law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute over material facts is
genuine if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
B. Bowlds’s USERRA Claim
One of the purposes of the USERRA and its predecessor,
the VRRA, is “to prohibit discrimination against persons
because of their service in the uniformed services.” 38 U.S.C.
§ 4301(a)(3) (2005) (USERRA); Yates v. MSPB, 145 F.3d 1480,
No. 04-1907 5
1483 (Fed. Cir. 1998); see also 38 U.S.C. § 2000(1) (1991)2
(VRRA) (“alleviating unemployment and underemployment
among such veterans is a national responsibility”). The
statutes provide that persons inducted into the military
shall be reemployed to their former positions within a cer-
tain period of time. 38 U.S.C. §§ 4312-4313 (2005); 38
U.S.C. § 2021 (1991).
In the case before us, Mr. Bowlds argues that General
Motors violated the USERRA by not reemploying him from
1983 to 1989, when he was on disability retirement. How-
ever, as the district court noted, the President signed the
USERRA into law on October 13, 1994, and the statute
provides that it applies only to reemployment initiated on
or after the first day after the sixty-day period beginning on
October 13, 1994. Uniformed Services Employment and
Reemployment Rights Act of 1994, Pub. L. No. 103-353
§ 8(a). Congress has not directed the courts to apply this
statute retroactively, and the Supreme Court has held that
courts should be extremely hesitant to apply a statute retro-
actively, where Congress has not expressly mandated such
an extension. Landgraf v. USI Film Prods., 511 U.S. 244,
265-75 (1994) (explaining the logic behind this rule and
illustrating its proper application). In addition, several of
our sister circuits have held that courts should not retro-
actively apply the USERRA. E.g., Fernandez v. Dep’t of the
Army, 234 F.3d 553, 557 (Fed. Cir. 2000) (holding that
retroactive application of the USERRA would “impair rights
a party possessed when he acted, increase a party’s liability
for past conduct, or impose new duties with respect to
transactions already completed” (quoting Landgraf, 511
U.S. at 280)); Newport v. Ford Motor Co., 91 F.3d 1164,
2
Congress re-codified the VRRA in October of 1992. See 38 U.S.C.
§§ 4301-4307 (1992). To avoid confusion with the codification of
the USERRA, we shall cite to the pertinent provisions of the
VRRA in accordance with the pre-1992 codification.
6 No. 04-1907
1167 (8th Cir. 1996). Mr. Bowlds’s USERRA claim clearly
accrued well before the application date mandated by
Congress. Therefore, his USERRA claim fails.
C. Bowlds’s VRRA Claim
Next, Mr. Bowlds argues that the district court erred
by holding that General Motors did not violate the VRRA,
the USERRA’s predecessor, by either its calculation of
Mr. Bowlds’s pension or its failure to rehire him between 1983
and 1989. In interpreting a statute, we must first begin
with the text. Community for Creative Non-Violence v. Reid,
490 U.S. 730, 739 (1989); United States v. Miscellaneous
Firearms, Explosives, Destructive Devices & Ammunition,
376 F.3d 709, 712 (7th Cir. 2004). The plain meaning of
legislation should be conclusive, except in the “rare cases
[in which] the literal application of a statute will produce a
result demonstrably at odds with the intentions of its
drafters.” United States v. Ron Pair Enters., 489 U.S. 235,
242 (1989) (quoting Griffin v. Oceanic Contractors, Inc., 458
U.S. 564, 571 (1982)) (alteration in original); see also
Pittway Corp. v. United States, 102 F.3d 932, 934 (7th Cir.
1996) (limiting the courts’ function to the enforcement of a
statute’s terms only where “the statute’s language is plain”
(quoting Ron Pair Enters., 489 U.S. at 241)).
The VRRA states:
(a) in the case of any person who is inducted into
the Armed Forces of the United States . . . for train-
ing and service and who leaves a position . . . in the
employ of any employer in order to perform such
training and service, and . . . (2) makes application
for reemployment within ninety days after such
person is relieved from such training and service or
from hospitalization continuing after discharge for a
period of not more than one year . . . (B) if such
position was in the employ of . . . a private em-
No. 04-1907 7
ployer, such person shall—(i) if still qualified to
perform the duties of such position, be restored . . .
to such position or to a position of like seniority,
status, and pay. . . .”
38 U.S.C. § 2021(a) (1991). The VRRA also requires that
any person who “enters upon active duty . . . shall, upon
[that] person’s relief from active duty under honorable con-
ditions, be entitled to all of the reemployment rights and
benefits [described above]. . . .” 38 U.S.C. § 2024(b)(1) (1991).
Mr. Bowlds argues that the skin injury he suffered begin-
ning in 1977 was service related. As such, Mr. Bowlds
contends that he never left active duty, for purposes of the
VRRA. Therefore, Mr. Bowlds opines that General Motors
was obliged to rehire him in 1983, when his doctor initially
indicated that he could return to work. To bolster his argu-
ment, Mr. Bowlds correctly states that the VRRA does not
provide a clear definition of terms such as “active duty” or
“such training and service.” Mr. Bowlds also notes that the
VRRA fails to provide us with a definition of when a dis-
ability is “service related.” Mr. Bowlds asserts that we
should incorporate the language from another statute, the
Veterans’ Benefits Act, which provides that the term “active
military, naval, or air service” includes “any period of active
duty for training during which the individual concerned was
disabled or died from a disease or injury incurred or aggra-
vated in line of duty.” 38 U.S.C. § 101(24) (1999) (amended
2000). Incorporating the definition of the Veterans’ Benefit
Act into the VRRA, according to Mr. Bowlds, extends his
“active duty” well beyond his actual discharge from the Army.
This argument is without merit. The terms and phrases
in the Veterans’ Benefit Act to which Mr. Bowlds directs us
are not found anywhere within the VRRA. Furthermore, the
VRRA never purports to create reemployment rights after
an employer has already granted the employee disability
8 No. 04-1907
leave. The VRRA does not create such a reemployment right
even if the employee’s current disability is related to his
prior military service.
Mr. Bowlds points us to a number of Supreme Court deci-
sions which held that courts are to interpret various veterans’
statutes liberally. E.g., Fishgold v. Sullivan Drydock &
Repair Corp., 328 U.S. 275, 285 (1946) (holding that courts
should liberally construe the Selective Training and Service
Act of 1940); Coffy v. Republic Steel Corp., 447 U.S. 191, 196
(1980) (holding that courts should liberally construe the
Vietnam Era Veterans’ Readjustment Assistance Act of
1974). However, even though these cases have implored
courts to construe certain veterans’ statutes liberally, they
do not instruct courts to create rights out of whole cloth.
General Motors complied with the VRRA. After
Mr. Bowlds’s military service ended in January 1969,
General Motors promptly rehired him—in February 1969—
back into an hourly position. Over eight years later, on
August 1, 1977, Mr. Bowlds retired on disability. Six years
after Mr. Bowlds’s retirement, and fourteen years after
General Motors had rehired him, his physician wrote a note
stating that he could return to work. Nothing in the VRRA
required General Motors to rehire Mr. Bowlds in 1983, 1984,
or even 1989, the year in which General Motors did rehire
Mr. Bowlds. Simply put, by rehiring Mr. Bowlds immedi-
ately after his discharge from the Army in 1969, General
Motors fulfilled its obligations under the VRRA.
In addition, because General Motors has not violated
Mr. Bowlds’s reemployment rights under the VRRA,
Mr. Bowlds cannot claim that General Motors violated the
VRRA by an alleged miscalculation of his pension time. The
VRRA requires an employer who has violated the Act to
compensate the employee for any “loss of wages or benefits
suffered by reason of such employer’s unlawful action.” 38
U.S.C. § 2022 (1991). However, in order for an employee to
No. 04-1907 9
be eligible under the VRRA for any lost wages or (as in this
case) pension benefits, there must be some type of employer
violation of the Act itself. Id. As our analysis details above,
General Motors did not engage in any violation of the
VRRA.
Although this decision is not favorable towards Mr. Bowlds,
we are most sympathetic towards his medical condition. Mr.
Bowlds served honorably in Vietnam and contracted a skin
ailment as a result of his service there. However, his
remedy is not in the VRRA as it is currently written by
Congress. In his briefs, Mr. Bowlds notes a number of nega-
tive implications for veterans of the law as it is currently
written. For instance, Mr. Bowlds presents a hypothetical
situation in which a veteran returns from Vietnam with a
bullet in his spine and is reemployed by his former com-
pany, only to have the bullet shift two weeks later and thus
necessitate surgery. After surgery, the veteran again
applies for reemployment under the VRRA and is denied by
his erstwhile employer. Unfortunately, this is indeed the
outcome currently mandated by law. The employer con-
cluded its obligation to the veteran through its initial
reemployment action, just as General Motors concluded its
obligation to Mr. Bowlds by initially rehiring him in 1969.
Perhaps Congress will amend the VRRA or the USERRA
to require employers to reemploy veterans who have recov-
ered from injuries sustained as a result of their military
service, even if such injuries occur after the employer has
initially reemployed the employee, and several years after
the employee has left the military. But this is an issue of
public policy, and the onus for a solution lies with Congress,
not the courts.
Again, although we are sympathetic to Mr. Bowlds and to
all veterans put in situations such as his, the VRRA and
USERRA as currently drafted offer him no remedy.
10 No. 04-1907
III. Conclusion
For the reasons stated above, we AFFIRM the district
court’s grant of summary judgment in favor of General
Motors.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-9-05