Judge, dissenting.
I believe that the record and the district court’s factual findings conclusively establish that Alber failed to demonstrate “a reasonable certainty that the benefit [of the Interline Clerk position] would have accrued if the employee had not gone into military service.” Coffy v. Republic Steel Corp., 447 U.S. 191, 197, 100 S.Ct. 2100, 2105, 65 L.Ed.2d 53 (1980); see Alabama Power Co. v. Davis, 431 U.S. 581, 589, 97 *1279S.Ct. 2002, 2007, 52 L.Ed.2d 595 (1977). I therefore dissent.
In order to establish that the Interline Clerk position was a perquisite of employment under 38 U.S.C. § 2021(b)(l)(2) (1976), Alber must demonstrate with a “reasonable certainty” that the following sequence of events would have occurred had he not been drafted into military service: 1) that he would have bid on the Interline Clerk position when it opened up in 1967; 2) that Norfolk & Western would have promoted him to that position; 3) that he would have turned down the transfer to Virginia in 1967 and thus obtained “utility” status; and 4) that he would have resigned prior to May 31, 1976, and thus obtained a lump-sum separation allowance. The district court made the following factual findings with regard to this question:
This Court must find for plaintiff if his progression to Interline Switching Clerk would have been a reasonably foreseeable event had he not entered the Armed Forces.. Alabama Power v. Davis, 431 U.S. 581, 97 S.Ct. 2002, 52 L.Ed.2d 595 (1977). The foreseeability of plaintiff’s progression is, under the Contract bid system, largely a question of Alber’s subjective intent to take the affirmative steps necessary to bid for the position and to remain in St. Louis after the position was transferred. Alber’s delay has reduced his claim to a swearing contest inasmuch as these crucial issues must be decided without corroborating witnesses or evidence. It is not at all clear from the record that Alber would have bid upon the position of Interline Clerk, or that if he had bid upon and accepted the Position he would have remained in St. Louis rather than transfer to Virginia. Plaintiff’s self-serving assertions that he would have bid upon the Position and have remained in St. Louis are no more helpful than Norfolk’s evidence that Alb-er did not bid upon certain qualitatively unknown bulletins prior to military service.
Alber v. Norfolk & Western Railway, 489 F.Supp. 654, 656-57 (E.D.Mo.1980).
The majority opinion, however, overlooks these factual findings and reverses the district court on the ground that it failed to apply the legal test of “whether it would have been reasonably certain that Alber would have obtained the claimed status but for his military absence.” Ante at 13. The district court opinion; as quoted above, ante at 16, clearly reveals that the district court did apply this test. The district court, however, erred in relying upon these findings in concluding that Alber’s claim was barred by the doctrine of laches. Alber v. Norfolk & Western, 489 F.Supp. at 657; ante at 1275. The findings, nonetheless, bar Alber’s claim on the merits.1 The crucial decisions by *1280Alber would have had to be made by him long prior to the establishment of the lump-sum separation allowance in May 1976.
I also dissent from the majority’s conclusion that the railroad “had an affirmative contractual duty to inform Alber of all positions bulletined during his absence.” Ante at 8 (footnote omitted). Neither the contract nor VEVRA requires'such an extraordinary duty. In large corporations or in the federal government, the paperwork involved' in developing and maintaining a nationwide list would be titanic. See Vaughn v. Westinghouse Electric Corp., 620 F.2d 655, 662 (8th Cir. 1980) (Gibson, J., dissenting), vacated and remanded, 450 U.S. 972, 101 S.Ct. 1504, 67 L.Ed.2d 808 (1981). VEVRA does not require employers to affirmatively provide preferential treatment for veterans. See Monroe v. Standard Oil Co., - U.S. -, -, 101 S.Ct. 2510, 2517, 69 L.Ed.2d 226 (1981) (construing 38 U.S.C. § 2021(b)(3)).
Finally the record reveals that Alber did not remain in the accounting department at the railroad upon his return from military service in 1968. Shortly after having chosen the highest available accounting position, Alber decided to transfer into the engineering department at a lower wage rate. It is therefore highly unlikely, and definitely not a “reasonable certainty,” that Alber would have continued as an Interline Clerk had the position been offered. Accordingly, I would affirm the district court.
. In McKinney v. Missouri-Kansas-Texas Railroad, 357 U.S. 265, 271-72, 78 S.Ct. 1222, 1226-1227, 2 L.Ed.2d 1305 (1958), the Supreme Court in a similar case involving a predecessor statute to 38 U.S.C. § 2021, stated the following:
However, § 9(c) does not guarantee the returning serviceman a perfect reproduction of the civilian employment that might have been his 'f he had not been called to the colors. Much there is that might have flowed from experience, effort, or chance to which he cannot lay claim under the statute. Section 9(c) does not assure him that the past with all its possibilities of betterment will be recalled. Its 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 service. 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 employment.
Thus, on application for re-employment a veteran is not entitled to demand that he be assigned a position higher than that he formerly held when promotion to such a position depends, not simply on seniority or some other form of automatic progression, but on the exercise of discretion on the part of the employer.
Alber therefore had the burden of proof to establish by a preponderance of the evidence that it was reasonably certain that the four-event sequence over a period of ten years would have occurred had he not been drafted. The law does not allow Alber to sit back and wait for the events to unfurl and then “Monday morning quarterback” his way into the most advantageous financial position.