Leo Wood v. Southern Pacific Co. , 447 F.2d 486 ( 1971 )

447 F.2d 486

78 L.R.R.M. (BNA) 2512

Leo WOOD, Appellant,
v.
SOUTHERN PACIFIC CO., Appellee.

No. 25213.

United States Court of Appeals, Ninth Circuit.

Aug. 17, 1971.

Robert Bogason (argued), William R. Denton, San Francisco, Cal., Randolph Karr, Los Angeles, Cal., for appellee.

Before ELY, HUFSTEDLER, Circuit Judges, and BEEKS,1 District judge.

PER CURIAM:

1

Appellant, a veteran returning from military service, appeals from the District Court's judgment in favor of appellee. Appellant claims that the railroad failed to meet its duty under 50 U.S.C. App. 459 to offer him the same job and benefits he would have had if he had not entered the service.

2

Had appellant remained at his job as a fireman, he undeniably would have been given the opportunity to become a switchman. The mere fact that management might have given his work group a different job option is insufficient to withhold it from him now. Brooks v. Mo. Pacific R.R. Co., 376 U.S. 182, 84 S. Ct. 578, 11 L. Ed. 2d 599 (1964); Tilton v. Mo. Pacific R.R. Co., 376 U.S. 169, 84 S. Ct. 595, 11 L. Ed. 2d 590 (1964). If appellant is now denied the same choice of jobs offered to his peers during his absence, he will be penalized for having served his country in the military. Conner v. Penn. R.R. Co., 85 U.S.App.D.C. 223, 177 F.2d 854, cert. denied 339 U.S. 919, 70 S. Ct. 622, 94 L. Ed. 1343 (1949). The requirements of the statute cannot be satisfied 'by giving returning veterans seniority in some general abstract sense and then denying them the perquisites and benefits that flow from it.' Accardi v. Penn. R.R. Co., 383 U.S. 225, 230, 86 S. Ct. 768, 772, 15 L. Ed. 2d 717 (1966).

3

Reversed.

1

Honorable William T. Beeks, U.S. District Judge sitting by designation