In this case we are asked to decide whether a part-time employee may be awarded backpay and seniority under the Veterans Readjustment Assistance Act as a remedy for missing an opportunity to apply for a full-time position while on military reserve duty training. The magistrate found the claimed benefit was not covered by the Act. We agree and affirm the decision below.
FACTS
Batayola began to work as a part-time bus driver for the Municipality of Metropolitan Seattle (Metro) in May 1980. In February 1982, he took a one month leave of absence for Marine Corps reserve duty training. During his absence, Metro solicited applications from part-time bus drivers for full-time positions. When Batayola returned in March 1982, he was reinstated to his part-time position. He attempted to apply for a full-time position, but Metro refused because the recruitment period had ended.
Metro had received 426 applications for full-time work. The application process included performance evaluations, situational response video tests, and personal interviews. Based on Metro’s cutoff score, only 105 of the 426 applicants proceeded to personal interviews. Successful applicants from the interviews were recommended for full-time positions and selected by seniority for training. Upon completion of the training, 97 applicants became full-time drivers.
During a new recruitment period in 1983, Batayola was selected for a full-time position, worked briefly for Metro, resigned and is no longer employed as a driver. He has no seniority rights with Metro. Metro concedes the selection process in 1983 was almost identical to that used in 1982.
In this action Batayola claimed retroactive seniority and backpay with prejudgment interest from April 2, 1982, the date he would have become a full-time driver had he been selected in the first recruitment period. The magistrate found the claimed benefit was based on merit, not continued employment, and was not a benefit covered by the Veterans Readjustment Assistance Act. Batayola timely appeals the grant of summary judgment for Metro.
STANDARD OF REVIEW
We review de novo a summary judgment ruling on questions of law concerning statutory interpretation. Trinity County Public Utilities District v. Harrington, 781 F.2d 163 (9th Cir.1986).
*357 The Benefit
The Veterans Readjustment Assistance Act of 1974 provides that upon return from military leave, an employee shall be restored “to such position or to a position of like seniority, status and pay.” 38 U.S.C. § 2021(a)(B)(i). The Act applies to reservists as well as returning veterans. 38 U.S.C. § 2024(a)-(b). See also 38 U.S.C. § 2021(b)(3).
The Act incorporates the “escalator principle” described in Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284-85, 66 S.Ct. 1105, 1110-11, 90 L.Ed.2d 1230 (1946). A veteran does not re-enter at the exact point he left his employment, but is entitled to a status he would have enjoyed if he had been employed continuously. 38 U.S.C. § 2021(b)(2).
Batayola contends his right to apply for a full-time position is the benefit protected by the Act because of his status as a part-time employee, but he seeks a retroactive award of the position as a remedy.
A claimed benefit is protected under the Act if it is reasonably certain to occur from continued employment. Tilton v. Missouri Pacific Railroad Co., 376 U.S. 169, 84 S.Ct. 595, 11 L.Ed.2d 590 (1964) (interpreting McKinney v. Missouri-Kansas-Texas R.R., 357 U.S. 265, 78 S.Ct. 1222, 2 L.Ed.2d 1305 (1958)). The Act protects a missed opportunity to transfer only if a plaintiff can show that the transfer would have occurred had he been continuously employed. McKinney, 357 U.S. at 272, 78 S.Ct. at 1226-27.
We reject Batayola’s contention that because he had a right to apply, he also had a right to a full-time position. The selection process was based on merit. He cannot show with reasonable certainty that full-time positions were awarded by virtue of continuous employment. Here, advancement to full-time driver was based on the applicants’ fitness and ability. Considerations of fitness and ability create enough doubt about Batayola’s selection for a full-time position that the reasonable certainty test is not satisfied.
CONCLUSION
The transfers to full-time positions here depended more on fitness and ability than continued employment. Batayola cannot claim it was reasonably certain that, but for his military leave, he would have become a full-time driver based on his continued employment as the Act requires. The magistrate correctly found that the benefit claimed by Batayola here is not covered by the Veterans Readjustment Assistance Act.
AFFIRMED.