Filed: Mar. 27, 1996
Latest Update: Mar. 02, 2020
Summary: _ No. 95-2084 _ Duane D. Paisley, * * Plaintiff-Appellant, * * v. * * Appeals from the United States City of Minneapolis, * District Court for the * District of Minnesota. Defendant-Appellee, * * Minneapolis Police Relief * Association, * * Intervenor-Defendant. * _ No. 95-2175 _ Duane D. Paisley, * * Plaintiff-Appellee, * * v. * * City of Minneapolis, * * Defendant-Appellant, * * Minneapolis Police Relief * Association, * * Intervenor-Defendant. * _ No. 95-2177 _ Duane D. Paisley, * * Plainti
Summary: _ No. 95-2084 _ Duane D. Paisley, * * Plaintiff-Appellant, * * v. * * Appeals from the United States City of Minneapolis, * District Court for the * District of Minnesota. Defendant-Appellee, * * Minneapolis Police Relief * Association, * * Intervenor-Defendant. * _ No. 95-2175 _ Duane D. Paisley, * * Plaintiff-Appellee, * * v. * * City of Minneapolis, * * Defendant-Appellant, * * Minneapolis Police Relief * Association, * * Intervenor-Defendant. * _ No. 95-2177 _ Duane D. Paisley, * * Plaintif..
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___________
No. 95-2084
___________
Duane D. Paisley, *
*
Plaintiff-Appellant, *
*
v. *
* Appeals from the United States
City of Minneapolis, * District Court for the
* District of Minnesota.
Defendant-Appellee, *
*
Minneapolis Police Relief *
Association, *
*
Intervenor-Defendant. *
___________
No. 95-2175
___________
Duane D. Paisley, *
*
Plaintiff-Appellee, *
*
v. *
*
City of Minneapolis, *
*
Defendant-Appellant, *
*
Minneapolis Police Relief *
Association, *
*
Intervenor-Defendant. *
___________
No. 95-2177
___________
Duane D. Paisley, *
*
Plaintiff-Appellee, *
*
v. *
*
City of Minneapolis, *
*
Defendant, *
*
Minneapolis Police Relief *
Association, *
*
Intervenor-Defendant- *
Appellant. *
___________
Submitted: December 15, 1995
Filed: March 27, 1996
___________
Before BOWMAN and LOKEN, Circuit Judges, and WOLLE,* District Judge.
___________
BOWMAN, Circuit Judge.
Duane D. Paisley appeals from the order of the District Court1
granting summary judgment to the City of Minneapolis and to the Minneapolis
Police Relief Association on his claims for
*The HONORABLE CHARLES R. WOLLE, Chief Judge, United
States District Court for the Southern District of
Iowa, sitting by designation.
1
The case was adjudicated by The Honorable Ann D.
Montgomery, United States Magistrate Judge for the District of
Minnesota, upon the consent of the parties pursuant to 28 U.S.C.
§ 636(c)(1) (1994).
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reinstatement, with seniority, to the City's police department and for
payment for sick leave and vacation time, and for pension benefits, all as
accrued from January 16, 1980. Paisley's claims were made pursuant to the
Veterans' Reemployment Rights Act, 38 U.S.C. §§ 2021-2027 (1988 & Supp. III
1991),2 but the court concluded that he had waived whatever rights he may
have had under the Act. The City and the Relief Association cross-appeal,
arguing that the court erred, notwithstanding its decision to grant summary
judgment in their favor, by holding that Paisley came within the Act in the
first place. We affirm the summary judgment.
I.
Paisley joined the National Guard in 1965, and until 1980, apart from
occasional longer-term training, he served the traditional reserve
component duty of thirty-nine days of training a year--one weekend a month
plus fifteen consecutive days of active duty for training. In 1973,
Paisley began work as a patrolman with the City's police department. Late
in 1979, he requested, and was granted, a two-year leave of absence from
his employment with the City to go on active duty with the National Guard.
In 1981, Paisley requested a two-year extension of his leave, citing as
authority 38 U.S.C. § 2024(b)(1), which permitted reemployment
2
The Veterans' Reemployment Rights Act was renumbered 38
U.S.C. §§ 4301-4307 (Supp. IV 1992) in October 1992. Pub. L. No.
102-568, § 506(a), 1992 U.S.C.C.A.N. (106 Stat.) 4320, 4340.
(Later amendments, now codified at 38 U.S.C. §§ 4301-4333 (1994),
became effective "with respect to reemployments initiated on or
after the first day after the 60-day period beginning on"
October 13, 1994, and so are not applicable here. Pub. L. No.
103-353, § 8, 1994 U.S.C.C.A.N. (108 Stat.) 3149, 3175.)
Although Paisley's complaint was filed on September 1, 1994, it
refers to sections of the Act as they were numbered before
October 1992, and the District Court opinion followed suit. For
the sake of continuity, we also will refer to the pertinent
sections under the numbering scheme as it existed before it was
changed in 1992. Also, to avoid confusion, we will forego our
usual practice of citing United States Code dates parenthetically
when citing sections of the Act as they were numbered before
October 1992.
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following a leave of absence for active duty service other than for
training, provided that the length of service was no longer than four years
(with certain exceptions not relevant here). The City granted the request
for extension, and then granted another two-year extension in 1983. In
1985 Paisley asked the City for a three-year extension of his leave and
also asked to be permitted to take a police department promotional exam,
notwithstanding that he was still on leave from the department. These
requests were denied, and by letter dated December 15, 1985, Paisley
resigned from the police department.
After his resignation, Paisley remained on active duty with the
National Guard and was offered early retirement from the Guard in May 1994,
the same time he first sought reemployment with the police department. The
City denied his request for reemployment. In September 1994, Paisley took
early retirement from the National Guard with the rank of colonel and filed
this lawsuit against the City. The Relief Association, opposing Paisley's
lawsuit, intervened. The District Court granted summary judgment to the
City and to the Relief Association, and denied Paisley's motion for summary
judgment. Paisley appeals and the City and the Relief Association cross-
appeal. We review de novo, Shannon v. Ford Motor Co., 72 F.3d 678, 681
(8th Cir. 1996), and now affirm.
II.
The facts of the case are not in dispute. For his only issue on
appeal, Paisley argues that the District Court erred as a matter of law in
determining that Paisley waived any reemployment rights he may have had
under the Act when he resigned his position with the police department in
1985.
We have held that reemployment rights under the Act may be waived if
the employee does so "clearly and unequivocally." Smith v. Missouri Pac.
Transp. Co., 313 F.2d 676, 680 (8th Cir. 1963).
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We think that Paisley has done so here. He requested three two-year leaves
of absence from his employment as a patrolman, and the City granted them
all. As Paisley acknowledged, "There was no requirement that I serve any
time or continue in the National Guard. I could have left at any time."
Paisley Deposition at 19. Still, he sought a fourth extension, this time
for three years, and the City said no. At that point, Paisley wrote a
letter to the police department wherein he clearly stated, "I hereby tender
my resignation from the Minneapolis Police Department." Letter from Duane
D. Paisley to Minneapolis Police Dep't (Dec. 15, 1985). "Though I am
disapointed [sic] to leave the department at this time, I am very
appreciative of the support that I have been given and the opportunity I
have had to accept several challenging assignments in the military." Id.
It is clear that Paisley voluntarily extended his active duty with
the National Guard and that he voluntarily resigned from the police
department in 1985. See
Smith, 313 F.2d at 681 (observing as a factor
supporting waiver "that the commitments and requests signed by the Colonel
were executed voluntarily"). Moreover, there is no suggestion that Paisley
did not understand his legal rights under the Act. See
id. Paisley
nevertheless argues that he resigned reluctantly and that he did not intend
to give up any statutory employment rights that he may have had. But
Paisley's waiver is not equivocal simply because the resignation was
difficult for him, or even because the decision was precipitated by the
police department's 1984 refusal to extend his leave or to allow him to
take the promotional exam. Given the choice, he elected to make his career
with the military. His efforts to maintain his police officer
qualifications during his leave of absence--but before his resignation--do
not demonstrate that the waiver was unclear or equivocal. Further, after
he resigned, Paisley sought and received the pension benefits and refunds
to which he was entitled as a separated police department employee, clearly
indicating his understanding that he had terminated his
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employment and moved on to another career. He stayed with the military
until he retired in 1994 with more than fourteen years of continuous active
duty service. Based on the foregoing facts, we conclude that Paisley
"clearly and unequivocally" waived any statutory reemployment rights he may
have had and opted for a military career rather than a career with the
police department.
Paisley argues that Smith is no longer good law in light of the
Supreme Court's decision in King v. St. Vincent's Hospital, 502 U.S. 215
(1991). In King, the employee sought a three-year leave of absence from
his employment to take a full-time appointment with the National Guard.
His employer denied the request and sought a declaratory judgment that the
three-year request was unreasonable and that the employee therefore had no
reemployment rights under the Act. The Supreme Court held that there was
no durational limit on a leave taken under 38 U.S.C. § 2024(d), and that
it would not read a "reasonableness" limit on the length of a § 2024(d)
leave after which the employee would be entitled to reemployment.3
To the extent Smith can be read to suggest that a leave of absence
for active guard duty must be of a "reasonable" length to entitle a
serviceman to reemployment, we agree that it was overruled by King, at
least for the brief time that King controlled the question.4 But there was
3
Under 38 U.S.C. § 2024(d), as relevant here, an employee
who meets the service requirements of the subsection "shall upon
request be granted a leave of absence by such person's employer
for the period required to perform active duty for training or
inactive duty training in the Armed Forces of the United States,"
with reemployment rights upon release. Paisley claims, and the
District Court concluded (in a holding challenged here by the
City and the Relief Association, see infra Part III), that
Paisley satisfied the statutory requirements of § 2024(d) and
properly seeks relief under that subsection of the Act.
4
With the enactment of the 1994 amendments to the Act, which
inter alia limit cumulative leaves of absence for military
service to five years in order for the employee to qualify for
reemployment
rights, 38 U.S.C. § 4312(a)(2) (1994), the holding of King v. St.
Vincent's Hospital, 502 U.S. 215 (1991), would appear to have
only limited, if any, remaining practical significance in cases
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no issue of waiver in the King case,
arising under the Act.
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so its § 2024(d) holding has no bearing on the question of whether a
veteran may waive his reemployment rights--so long as we do not rely on the
length of the employee's absence as a basis for finding a clear and
unequivocal waiver.5
Paisley also contends that Smith is not good authority here because
of later "substantive changes" to the Veterans' Reemployment Rights Act,
including bringing government employers within the strictures of the Act,
and the subsequent "inception of the AGR [active guard reserve] program."
Brief of Appellant at 6. Paisley offers no explanation, however, as to how
statutory
5
We believe, however, that there is a legally significant
distinction between an intent to take a true leave of absence
from civilian employment, the length of which is not subject to a
reasonableness standard, and an intent to make the military a
career, which suggests a choice to forsake one's civilian job and
any reemployment rights attached thereto. As this Court in Smith
v. Missouri Pacific Transportation Co., 313 F.2d 676, 682-83 (8th
Cir. 1963), said in summarizing its conclusion that the veteran
had waived reemployment rights:
To render a decision in favor of this plaintiff would
be to recognize and to vest in one in his posture the
power, step by step, as extension-of-duty opportunities
present themselves, in effect to make a career of the
service and at the same time to force his civilian
employer to hold or to make a place available for him
throughout the career period and until such time as he
chooses to bring his military life to an end or until
it is finally terminated for him because of age,
physical disability, or the like.
The Smith opinion notes that "[a]ppropriate civilian reemployment
protection at the end of a non-career period of service was what
our national legislative body had in mind." Id. at 683. We do
not read King,
502 U.S. 215, as being inconsistent with Smith.
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amendments subsequent to Smith in any way call into question the
applicability of the doctrine of waiver to cases of this sort. The Act
does not mention waiver and we have located no cases decided since the
Smith opinion was issued in 1963 that even suggest that the doctrine of
waiver is inapplicable to cases arising under the Act.
We conclude that the District Court did not err in holding that
Paisley has waived any reemployment rights to which he may have been
entitled under the Act.
III.
For their cross-appeals, the City and the Relief Association argue
that, even had there been no waiver, Paisley does not come within § 2024(d)
of the Act, and that the District Court erred in concluding otherwise. Our
holding in Part II of this opinion that Paisley waived any statutory rights
he may have had makes it unnecessary for us to consider the cross-appeals,
and we decline to do so.
IV.
We hold that Paisley waived any reemployment rights to which he may
have been entitled under the Act. Accordingly, the judgment of the
District Court in favor of the City and the Relief Association is affirmed.
The cross-appeals of the City and the Relief Association are dismissed,
their resolution being unnecessary to proper disposition of the case.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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