United States Court of Appeals
For the First Circuit
No. 01-2054
GARY W. LAPINE,
Plaintiff, Appellee,
v.
TOWN OF WELLESLEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert B. Collings, U.S. Magistrate Judge]
Before
Lynch, Circuit Judge,
Campbell and Bownes, Senior Circuit Judges.
James A. Goodhue with whom Grindle, Robinson & Goodhue and
Albert S. Robinson, Town Counsel for the Town of Wellesley were
on brief for appellant.
Paul M. Sushchyk for appellee.
September 4, 2002
CAMPBELL, Senior Circuit Judge. The Town of Wellesley
("Town") appeals from the judgment of the magistrate judge. The
magistrate judge held that Gary Lapine ("Lapine") is entitled to
reemployment as a police officer with the Town pursuant to the
Veterans’ Reemployment Rights Act ("VRRA"), 38 U.S.C. §§ 4301-4306
(Supp. II 1992) amended by Uniformed Services Employment and
Reemployment Rights Act of 1994, 38 U.S.C. § 4301, et seq. (Supp.
V 2002).1 The court awarded monetary damages with prejudgment
interest. We affirm.
I. Background
Lapine served as a commissioned officer in the United
States Army from July 7, 1974, through August 30, 1976. Lapine
stipulated that, at this time, he "became aware of veteran’s rights
to reemployment benefits" under the VRRA. Upon discharge from
active duty, he transferred to the United States Army Reserve in
1
The Veterans’ Reemployment Rights Act ("VRRA") was originally
codified at 43 U.S.C. § 2021, et seq., pursuant to the Vietnam
Veterans’ Readjustment Assistance Act of 1974, Pub. L. No. 93-508,
Title IV, § 404(a), 1974 U.S.C.C.A.N. (88 Stat. 1578) 1818, 1837.
In 1992, the VRRA was renumbered, pursuant to the Veterans'
Benefits Act of 1992, at 38 U.S.C. § 4301, et seq., Pub. L. No.
102-568, § 506(a), 1992 U.S.C.C.A.N. (106 Stat.) 4320, 4340. The
Uniformed Services Employment and Reemployment Rights Act of 1994
("USERRA"), Pub. L. No. 103-353, 1994 U.S.C.C.A.N. (108 Stat. 3149)
2449, significantly amended the VRRA and the content of 38 U.S.C.
§ 4301, et seq., but provided that the amendments would only be
effective "with respect to reemployments initiated on or after" 60
days after its effective date (October 13, 1994). Lapine initially
sought reemployment with the Town in a letter dated June 26, 1992,
and first asserted his rights under the VRRA in 1993. Thus, the
VRRA, and not the USERRA, applies to this action. Our citations
herein to the VRRA provisions codified under 38 U.S.C. § 4301, et
seq., are to those provisions as they existed prior to the USERRA
amendments, except as we may otherwise specify.
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which he served as a commissioned officer until, after twice being
passed over for a promotion, he was honorably discharged in 1989.
In February 1990, Lapine enlisted in the Army Reserve as a sergeant
and was assigned to the 94th Military Police Company in Manchester,
New Hampshire.
After his discharge from active duty with the United
States Army, Lapine joined the Wellesley Police Department in May
of 1977. He served with the police department for approximately
thirteen years until, on April 30, 1990, in a letter to the then-
chief of police John Fritts, he announced that he was resigning.
In the letter he gave May 13, 1990, as the effective date of his
resignation. The letter reflected Lapine’s acute dissatisfaction
with the working conditions of the Department. The letter read in
full as follows:
Dear sir:
I am writing to inform you of my intent
to resign from the Wellesley Police
Department. As you may or may not already
realize, I have not been satisfied with the
working conditions of the department for
several years now. Only the opportunity to
secure other employment prevented me from
resigning earlier, and possibly, the hopes
that the conditions would change. However, as
you know, the conditions have not changed, nor
do you or I expect them to in the future.
Your mishandling of major incidents in
the past few years has been deplorable, and
has placed your patrolmen in jeopardy. Your
handling of the weapons procurement has left
half of your department with outmoded service
weapons. Your continual persecution of
certain police officers in your department has
led to a hardened polarization between members
of your staff and the rest of the department.
And finally, your response to my request for
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an internal investigation into the theft and
illegal copying of official Wellesley Police
Association documents, and your unauthorized
use of these documents in a public forum, is
not only inexcusable, but has thwarted any
hopes of identifying the perpetrator of the
break-in and larceny. As these documents were
secured in my locker, I feel that my civil
rights have been violated, and that by your
inaction on this matter, that you condone such
activity.
The effective date of my resignation is
May 13th 1990. If there are any vacation or
personal days remaining, I am using this
opportunity to let the department know, that I
would like to be reimbursed for said days.
On April 30, 1990, the day he submitted his resignation
letter, Lapine also completed and submitted an application to the
Wellesley Retirement Board to withdraw his accrued police
retirement benefits. The signed application stated, in pertinent
part, that Lapine had "permanently left the [police] service" and
that it was not his "present intention to accept a position in the
service of the Commonwealth of Massachusetts." When Lapine
withdrew his accrued retirement benefits totaling $31,021.79, he
owed money to the Internal Revenue Service. Lapine used the lump
sum received from the accrued retirement benefits to pay $18,000 to
the Internal Revenue Service in satisfaction of his outstanding
personal tax liability. He used the remainder of the money for
daily expenses and to meet his child support obligations.
Lapine did not, at any time during this period, disclose
to the Town that he was in the process of seeking to enter upon
active duty with the United States Army Reserve. At trial,
however, he testified that his resignation from the police
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department was prompted, at least in part, by plans to do just
that. Lapine testified that, in early April 1990, he had contacted
Sergeant Ronald Johnson to determine if there were openings in the
Active Duty Guard Reserve Program ("AGR"). His attorney, Ronald
Johnson (same names, different people), also testified that on or
about April 12, 1990, Lapine informed him that he intended to apply
for active duty. Sergeant Albert Basile, whose task was to recruit
persons for the AGR, testified that, prior to the date of Lapine’s
resignation letter of April 30, 1990, he spoke with Lapine about
entering upon active duty. According to Basile, he told Lapine
that he would make an excellent candidate as a recruiter.
Lapine completed and submitted an application for the AGR
on May 7, 1990, six days before the stated effective date of his
resignation. Six weeks following the April 30 resignation letter,
on June 12, 1990, the United States Recruiting Command at Fort
Sheridan, Illinois sent Lapine a notice that he was being assigned
to active duty. On June 20, 1990, Lapine was issued orders to
report for active duty training for forty days. On July 13, 1990,
Lapine was issued orders to report for active duty on September 10,
1990. His term of active duty was to end on August 30, 1993.
Lapine did not communicate to the Town or to the police department
that he had enlisted in the AGR nor did he indicate that he might
wish to return to the police department at some future time.
Two years later, in July 1992, Lapine contacted the new
chief of police of the Wellesley Police Department, Thomas
O’Loughlin ("O’Loughlin"), indicating, for the first time, that he
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might wish to return to the police force. Specifically, Lapine
wrote "to explore the opportunity or feasibility of re-employment
with the Wellesley Police Department." O’Loughlin immediately
responded to Lapine’s letter stating that he was reluctant "to
consider the use of the reinstatement process to hire police
officers."
A year later, in July 1993, Lapine again wrote to
O’Loughlin requesting to be reinstated. For the first time, he
explicitly invoked the VRRA as the basis for his reinstatement,
giving formal notice that he had been serving with the Army Reserve
on active duty. O’Loughlin refused to reinstate Lapine stating,
among other things, that it was his "belief that you are not
entitled to the protections you assert."
After his discharge from the AGR on August 30, 1993,
Lapine continued to assert his rights under the VRRA through the
United States Department of Labor, Office of Veterans' Employment
Training Services. In February 1994, Lapine requested that his
case be referred to the United States Department of Justice. As a
result, the Department of Labor ceased representing Lapine’s
interest in March 1994. A year later, in March 1995, the United
States Attorney declined Lapine’s request for representation.2
2
Pursuant to the VRRA, 38 U.S.C. § 4302, the United States
Attorney or comparable official, "if reasonably satisfied that the
person so applying is entitled to such benefits, shall appear and
act as an attorney for such person in the amicable adjustment of
the claim or in the filing of any motion, petition, or other
appropriate pleading and the prosecution thereof . . . ." Id.
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On October 12, 1995, Lapine filed with the district court
the instant complaint against the Town asking the court to order
his reemployment as a police officer and to award damages for the
Town’s alleged violation of the VRRA. Two years later, a three-day
bench trial was held before Chief Magistrate Judge Collings. In
its subsequent decision, the court expressly found that Lapine had
left his job "in order voluntarily to enter on active duty with the
military"; that he was eligible for VRRA reemployment rights; that
he was qualified to perform the position of police officer; and
that he had not waived his right to reemployment. In the end, the
court ordered the Town to reinstate Lapine as a patrolman with a
pay grade commensurate with the seniority and status he would have
achieved had he not entered upon active duty. Further, the court
required the Town to allow Lapine to make whatever payments he
would have made into his pension fund had he begun as a new
employee on May 13, 1990. In addition, Lapine was to receive back
pay from August 1993 to the date of reinstatement as well as
vacation pay with prejudgment interest. Judgment for Lapine was
entered in the amount of $173,403.29, representing wages and
vacation pay, with an additional $40,078.15 in prejudgment
interest. This appeal followed.
II. Did Lapine Meet the VRRA's Statutory Preconditions for
Entitlement to Reemployment Rights?
The Town of Wellesley argues on appeal that Lapine does
not qualify under the terms and provisions of the VRRA for
entitlement to reemployment with the Wellesley police. It insists
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that the magistrate judge misinterpreted the VRRA as a matter of
law and that even on the court's own interpretation its factual
findings were unsupported.
While the Town varies its arguments, the essence of its
claim of legal error seems to be that 38 U.S.C. § 4304(b)(1), the
statute then applicable to reservists, like Lapine, required that
he leave his civilian employment in direct response "to an order or
call to active duty."3 Since Lapine did not receive his order to
report to active duty prior to tendering his resignation from the
Wellesley Police Department, the Town contends that his pre-
resignation intent to join the military after resigning, followed
by his post-resignation order for active duty, were insufficient to
trigger reemployment rights under the statute. The Town also
argues that, even if an individual's pre-resignation intent to go
on active duty is enough to secure reemployment rights under the
VRRA, "the overwhelming evidence demonstrates that Lapine did not
resign his job as a police officer in order to enter onto active
duty, but rather, because he was extremely dissatisfied with his
working conditions and wished to withdraw his retirement fund [to
pay obligations to the IRS and his ex-wife]."
3
The Town makes a parallel argument under VRRA, 38 U.S.C. §
4301(a), an older and somewhat differently worded provision
granting reemployment rights to service men and women other than
reservists. That statute, see infra, granted reemployment rights
to a veteran who "leaves a position . . . in order to perform
military duty." The Town argues that like "leaving in response to
an order or call" this language "connotes . . . that there is a
prior military commitment already in place." In the Town's view,
since Lapine left before he had been accepted for active duty, his
mere intent to go on active duty was not enough.
-8-
The difficulty with the Town's statutory argument is that
it is supported neither by the plain language of the applicable
provision of the VRRA nor by the provision's legislative history.
Similarly, we disagree that there was insufficient evidentiary
support for the court's finding that Lapine resigned in order to go
on active duty - although it is unquestionable that dissatisfaction
with his police job under the then-chief was a major motivating
factor.
A. Plain Language of the VRRA
We begin with the language of the statutory provision
granting reemployment rights to reservists who, like Lapine,
initiated reemployment prior to December 13, 1994.4 See Brady v.
Credit Recovery Inc., 160 F.3d 64, 66 (1st Cir. 1998) (noting
statutory language is the starting point for every case involving
statutory construction). If statutory language is plain,
permitting only one construction, there is no occasion to seek out
congressional intent by reference to legislative history or other
extrinsic aids. United States v. Meade, 175 F.3d 215, 218 (1st
Cir. 1999). The applicable, relevant provision here is section
4304(b)(1) of the VRRA,5 providing as follows:
Any person who, after entering the employment
on the basis of which such person claims
restoration or reemployment, enters upon
active duty (other than for the purpose of
4
See supra, n.1.
5
As already noted, supra, n.1, Lapine initially sought
reemployment with the Town in a letter dated June 26, 1992, and
first asserted his rights under the VRRA in 1993.
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determining physical fitness and other than
for training), whether or not voluntarily, in
the Armed Forces of the United States . . . in
response to an order or call to active duty
shall, upon such person’s relief from active
duty under honorable conditions, be entitled
to all of the reemployment rights and benefits
provided for by this chapter . . . .
The Town argues that the foregoing language allows
reemployment rights only to those reservists who left their
civilian employment in response to an order or call to duty
received while their civilian employment was still in progress.
Any such express restriction would have to be derived, if at all,
from the statute's reference to "any person who . . . enters upon
active duty . . . in response to an order or call" "after entering
the employment on the basis of which such person claims restoration
or reemployment." But while the statute speaks of the order or
call as occurring "after" entering the relevant civilian
employment, it does not specify that the order or call must
necessarily be timed so as to arrive while the civilian employment
is still ongoing. It would not be inconsistent with the statutory
language if the order or call were to occur after as well as before
resignation. The express language of the statute nowhere
specifically links an individual's entry upon active duty (in
response to an order or call) to his exit from civilian employment.
The phrase "enters upon active duty" - not some phrase such as
"leaves his employment" - modifies the phrase "in response to an
order or call to active duty."
It is true the statute was aimed at reservists who leave
their civilian jobs in order to enter upon active duty, suggesting
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the need for a meaningful connection between the resignation and
the entry upon active duty. But the statutory language does not
spell out the timing and mechanics of the connection. In the
following section of this opinion, we conclude that the legislative
history, the wording of a companion provision of the statute, and
the interpretative case law, provide guidance about the nature of
the required "nexus." But the plain language of section 4304(b)(1)
of the VRRA does not mandate that Lapine's entry upon active duty
had to occur only while he was still in the actual employ of the
Wellesley Police Department. At the very least, section 4304(b)(1)
is open to two interpretations: that the call or order to active
duty will issue during the employment; or, alternatively, that it
may issue after termination of the employment with appropriate
linkage between leaving and entry upon active duty.6
We conclude that the plain language of the applicable
statute did not render Lapine's resignation premature as a matter
of law so as to prevent him from making a valid claim to
reemployment.
6
That Congress never intended section 4304(b)(1) to be read as
restricting reemployment rights to only those who receive a formal
order or call to active duty while still employed is clearly
demonstrated in the legislative history and case law, infra. It is
worth noting that the phrase "after entering the employment on the
basis of which such person claims restoration or reemployment" did
not enter the statute until ten years after the rest of the
language had been adopted. Without the "after entering"
phraseology, there is not even a faint basis to read section
4304(b)(1) as requiring receipt of the order or call to active duty
while still employed. There, moreover, is a total absence of
evidence indicating an intent by Congress to employ the "after
entering" language as a special new restriction, relevant solely to
reservists, on the timing of the order or call, infra.
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B. Statutory History
When faced with a statutory provision lacking in clarity
or one susceptible to more than one interpretation, courts will
look to legislative history to determine legislative intent. A. M.
Capen's Co., Inc. v. Am. Trading & Prods. Corp., 202 F.3d 469, 473
(1st Cir.) cert. denied, 531 U.S. 823 (2000).
Section 4304(b)(1) affording reemployment rights to
reservists is rooted in the history and statutory text of
legislation that, beginning in World War II, provided reemployment
rights to veterans returning from active duty in the Armed Forces.
Hence, section 4304(b)(1) needs to be read, not in isolation, but
in the context of the history and evolution of the entire statute
of which it forms a part. King v. St. Vincent's Hosp., 502 U.S.
215, 221 (1991) (relaying the "cardinal rule that a statute is to
be read as a whole, since the meaning of statutory language, plain
or not, depends on context") (internal citation omitted).
A veteran's right to reemployment was first established
in the Selective Training and Service Act of 1940 ("STSA"). Pub.
L. No. 783, 54 Stat. 885, 890 (1940) (formerly codified at 50
U.S.C. app. § 308). The STSA was aimed primarily at draftees and
voluntary enlistees in World War II.7 Id. This grant of
7
The Town incorrectly argued below that section 4304(b)(1)
applied only to veterans who had entered the service involuntarily.
The magistrate judge rejected this argument and the Town does not
raise it on appeal. The reemployment statutes have uniformly been
read, in the interpretive case law, to apply to those persons who
voluntarily enlisted in the armed services as well as to
involuntary inductees. See, e.g., Foster v. Dravo Corp, 420 U.S.
92, 96 n.6 (1975); Rudisill v. Chesapeake & Ohio Ry. Co., 167 F.2d
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reemployment rights to veterans was premised on Congress’s belief
that an individual, obligated, or willing, to serve in the Armed
Forces, should not be penalized by loss of previous employment
rights upon reentry into civilian life. See, e.g., Kelly v. Ford
Instrument Co., 298 F.2d 399, 404 (2d Cir. 1962); Rudisill v.
Chesapeake & Ohio Ry. Co., 167 F.2d 175, 178 (4th Cir. 1947). The
STSA provided, in pertinent part, that any individual "who leaves
a position (other than a temporary position) in the employ of an
employer in order to perform" military duty has the right to
reemployment. Hence, to trigger reemployment rights Congress
required, as a causal nexus between the act of leaving civilian
employment and entry into the Armed Forces, that the employee have
left his civilian employment in order to perform the military
service, and not for some different object.
Over a decade later, in 1951, the Universal Military
Training Service Act ("UMT") was enacted, marking the beginning of
veterans’ reemployment rights in the era post WWII. Pub. L. No.
51, § 1(s), 1951 U.S.C.C.A.N. (65 Stat. 75) 73, 83 (formerly
codified 50 U.S.C. app. § 459). The UMT was the genesis of the
Reserve forces as these are understood today. It instituted active
duty training programs and expanded the federal government's
abilities to call upon the Reserves for national defense. For the
first time, Congress provided civilian reemployment protection to
reservists who were called up from their civilian jobs to perform
175, 178 (5th Cir. 1948). The "whether or not voluntarily"
language in section 4304(b)(1) carried forward that policy in the
case of reservists.
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active or training duty. Id.8 In so doing, Congress intended to
provide "the same reemployment rights and benefits upon relief as
are provided for persons inducted or enlisted in the Armed Forces."
H.R. Rep. No. 82-271 (1951), reprinted in 1951 U.S.C.C.A.N. 1472,
1502.
In extending reemployment rights to reservists in 1951,
Congress first utilized, in part, the "in response to an order or
call" language that was subsequently incorporated into section
4304(b)(1). This section initially provided that "[a]ny person
who, subsequent to June 24, 1948, enters upon active duty . . . in
response to an order or call to active duty shall . . . be entitled
to all the reemployment rights and benefits" provided under this
chapter, Pub. L. No. 51, § 1(s), 1951 U.S.C.C.A.N. (65 Stat. 75)
73, 83. As we have stated in footnote 6, supra, the further phrase
"after entering the employment on the basis of which such person
claims restoration" was not a part of the initial reservist
statute. It was added in 1961 as a part of revisions extending
reemployment rights to veterans who extended their military
commitment for an additional four years. Pub. L. No. 87-391, § 2,
8
In 1952, the UMT was expanded to include reemployment rights
for National Guardsmen, see Armed Forces Reserve Act of 1952, Pub.
L. No. 476, 1952 U.S.C.C.A.N. (66 Stat. 481) 460; and, in 1955, the
UMT was broadened again to provide protection for reservists who
enlist in a reserve component and perform initial active duty
training, see The Reserve Forces Act of 1955, Pub. L. No. 305, §
262(f), 1955 U.S.C.C.A.N. (69 Stat. 598) 671, 676. This Act was
later deleted by Congress and the protection afforded reservists in
this Act was included, by amendment, to the UMT in 1960. The
amendment also equalized reserve and National Guard reemployment
rights and extended protection to reservists for duty training
beyond the initial training period. See Pub. L. No. 86-632, 1960
U.S.C.C.A.N. (74 Stat. 467) 531.
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1961 U.S.C.C.A.N. (75 Stat. 821) 929. Unexplained in accompanying
legislative materials, the new phrase was presumably meant simply
to identify more plainly the employer against which reemployment
rights could later be asserted. The brief comment relating to the
Act's revised reemployment provisions stated that they were meant
to reinforce the reemployment protections already in existence.
S. Rep. No. 87-1070 (1961), reprinted in 1961 U.S.C.C.A.N. 3319,
3320; see also Trulson v. Trane, 738 F.2d 770, 772 n.4 (7th Cir.
1984) ("The reemployment provisions of this act and its
predecessors . . . are 'substantially identical' and the judicial
precedents developed under the various acts are 'largely
interchangeable.'") (quoting Hanna v. Am. Motors Corp., 724 F.2d
1300, 1306 n.4 (7th Cir. 1984)).
Indeed, the legislative history leads us to two
conclusions relevant to the VRRA provision at issue in the present
case. First, as said, there is nothing in the legislative history
to support a reading of section 4304(b)(1) that would require the
reservists covered by that provision to have received their order
or call to active duty while still employed, even though all other
categories of service persons claiming reemployment rights were not
so restricted. Second, the long-standing language in section
4301(a) of the VRRA affording reemployment rights to non-reservists
who left their civilian positions "in order to perform" military
duty provides a "nexus" equally applicable to reservists claiming
rights under section 4304(b)(1).
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Turning to the first point, the historical evidence is
plain, as already indicated, that in framing reemployment rights
for reservists, Congress meant simply to extend the identical
reemployment rights conferred upon other veterans. See H.R. Rep.
No. 87-271 (1951), reprinted in 1951 U.S.C.C.A.N. 1472, 1501
(discussing the addition of reemployment rights for reservists to
the existing statute and referring to reemployment rights set forth
in section 9 of the Selective Service Act of 1948). In this
regard, the case law that had developed around provisions of the
earlier STSA and the Pub. L. No. 759, §9(g)(2), 62 Stat. 604, 614
(1948) (formerly codified as 50 U.S.C. App. § 459), had allowed for
recovery of previous employment and associated rights by veterans
who had left their civilian jobs prior to their being drafted, or
prior to their voluntary enlisting in the Armed Forces. See, e.g.,
Hayes v. Boston & Maine R.R., 160 F.2d 325, 326 (1st Cir. 1947)
("[W]e think Congress intended the reemployment provisions of the
Act to apply to the man who voluntarily quits his job to enlist or
to make himself available for induction as well as to the man who
is compelled to quit his job because of his induction in the usual
course."); Noble v. Int'l Nickel Co., Inc., 77 F. Supp. 352, 354
(S.D. W. Va. 1948) (finding a veteran who enlisted in the Navy two
weeks after quitting his civilian job eligible for reemployment).
Nowhere in the legislative history is there any suggestion that
Congress somehow intended, in legislating for reservists, and
granting them the identical rights, to impose different
restrictions and eligibility standards as preconditions to
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reemployment. As noted in the previous section, the text of
section 4304(b)(1) is compatible with the issuance of an order or
call to active duty following, rather than prior to quitting
civilian employment, leaving ample room for application of the
above precedents.
Our conclusion that, in the VRRA, Congress had extended
to reservists - without more or less - the same rights as it had
provided to others serving in the Armed Forces is further bolstered
by the statutory text and legislative history of the USERRA.9
USERRA was created to streamline the laws protecting veterans that
had become increasingly complex and cumbersome over the years.
(Indeed, this case illustrates some of those problems). Section
4312 of the USERRA establishes reemployment rights for any "person
whose absence from a position of employment is necessitated by
reason of service in the uniformed services" regardless of whether
his or her service is in the regular or reserve component. There
is nothing in the legislative history to indicate that Congress, by
9
As earlier explained in footnote 1, USERRA postdates the
reemployment provisions applicable to Lapine. We recognize that
the "views of a subsequent Congress found in legislative history
form a hazardous basis for inferring the intent of an earlier one."
Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102,
117 (1980). We do not view the remarks accompanying the USERRA to
be conclusive of the statutory meaning of the earlier adopted VRRA.
However, they are relevant and useful to our current discussion.
Id. at 118 n.13 (noting subsequent history can be considered
relevant and useful but "will not override a reasonable
interpretation of a statute that can be gleaned from its language
and legislative history prior to its enactment."). See also Sykes
v. Columbus & Greenville Ry., 117 F.3d 287, 293-94 (5th Cir. 1997)
("Although a committee report written with regard to a subsequent
enactment is not legislative history with regard to a previously
enacted statute, it is entitled to some consideration as a
secondarily authoritative expression of expert opinion.").
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treating reservists and regular army veterans the same with regards
to reemployment benefits under the USERRA, thought it was departing
from the substance of the law as it had existed in the past.
Indeed, the legislative history accompanying the USERRA was careful
to note changes to the law that represented a deviation from the
VRRA. See H.R. Rep. No. 103-65 (1993), reprinted in 1994
U.S.C.C.A.N. 2449, 2458-62 (discussing changes to time limitations
and imposition of notice requirement).
We accordingly reject the Town's argument that Lapine's
right to reemployment was defeated by the fact that his order to
active duty did not come until after he had left his job with the
Wellesley Police Department.
As for our second point, the statutory history indicates
that section 4304(b)(1) - the reemployment provision applicable to
Lapine - is subject to the same "in order to perform" requirement
made explicit in section 4301(a) - the traditional reemployment
"nexus" applying to other categories of service personnel. It
seems obvious that Congress expected section 4304(b)(1) to require
implicitly a connection between the act of quitting one's civilian
employment and entering upon active duty. Otherwise, Congress's
purpose to benefit only those veterans who leave their civilian
employment so as to serve their country in the Armed Forces would
be exceeded, and employers would be required to reemploy some
former employees for no good reason. Courts have held that an
employee who quits his civilian employment to forestall being
fired, see McCarthy v. M & M. Transp. Co., 160 F.2d 322, 324 (1st
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Cir. 1947), or who quits for personal reasons unrelated to military
enlistment, see Riser v. N. States Power Co., No. 4-71 Civil 483,
1973 WL 959, at *2 (D. Minn. Mar. 2, 1973), cannot, by subsequently
joining the armed forces, force his former employer to take him
back at the end of his tour of duty.
The nexus requirement first adopted in 1940 in the
initial military reemployment statute and carried forward up
through the period of Lapine's claim in 38 U.S.C. § 4301(a),
provided simply that one claiming reemployment benefits must
demonstrate that he left his civilian employment "in order to
perform" military duty. We think this long-established requirement
was also implicit in the case of reservists claiming reemployment
benefits under section 4304(b)(1) even though, unlike section
4301(a), the latter statute did not repeat the specific language.
The magistrate judge correctly so assumed, making the finding that
Lapine "did, in fact, resign from the Wellesley Police Department
in order voluntarily to enter on active duty with the United States
Army Reserve." We discuss below the evidentiary support for that
finding. Suffice it to say, we hold that the magistrate judge
utilized the appropriate legal standard. If properly supported,
the finding sufficed to establish Lapine's compliance with the
nexus standard inherent in the then-applicable reemployment
statute.
In this regard we note that courts have concluded that a
firm pre-resignation intent to enter the military coupled with
actions that promptly effectuated that intent may, in appropriate
-19-
circumstances, establish the causative nexus. See, e.g., Trulson,
738 F.2d at 774; Duey v. City of Eufaula, No. 79-149-N, 1979 WL
1936, at *2 (M.D. Ala. Oct. 31, 1979); Fortenberry v. Owen Bros.
Packing Co., 267 F. Supp. 605, 607 (S.D. Miss. 1966); Noble, 77 F.
Supp. at 354. Thus, a veteran may establish that he left his
civilian employment in order to perform military duty
notwithstanding the timing of the active-duty order or ultimate
commitment - whether before or after resignation. See Trulson, 738
F.2d at 772 (and cases cited therein).
Contrary to the Town's position, therefore, neither the
language of the statute, the legislative history, nor the
surrounding case law suggests that Congress intended that a
veteran, to establish the causative nexus, must have received an
induction notice, signed an enlistment contract, or received an
order or call to active duty prior to his resignation. The case
law is replete with examples of veterans who left their civilian
employment in order to serve in the military before they were
actually compelled, by receipt of an induction notice or similar
order, to do so. See, e.g., Hayes v. Boston & Maine R.R., 160 F.2d
325, 326 (1st Cir. 1947); Noble, 77 F. Supp. at 352, 354; see also
Rudisill, 167 F.2d at 178 (stating rights "not limited to persons
who are forced to leave their positions . . ., but are extended to
all those who leave their positions in order to perform such
service."); Adams v. Mobile County Pers. Bd., No. 81-0524, 1982 WL
1972 at *2 (S.D. Ala. Nov. 24, 1982) (finding veteran eligible for
reemployment because she resigned with the intent of entering upon
-20-
active duty and did so); Jennings v. Ill. Office of Educ., No. 77-
305, 1978 WL 1564 at *1 (S.D. Ill. Feb. 16, 1978) (same); Thompson
v. Chesapeake & O. Ry. Co., 76 F. Supp. 304, 305 (1948) (same).
We agree, therefore, with the magistrate judge that if
Lapine - having found there were active duty openings and that his
chance of being accepted was good - left his job with the Wellesley
police with the intent to go on active duty as soon as the
necessary paperwork could be completed and orders issued, and if -
as clearly happened - he diligently and successfully carried out
this intention, he was entitled to claim reemployment benefits
under the VRRA.
C. Sufficiency of the Evidence
The evidence presented at trial was sufficient to
establish that Lapine left the Wellesley Police Department "in
order to perform" military service. In addition to Lapine’s
testimony, two other individuals testified, without contradiction,
that Lapine had spoken with them about his intent to apply for a
position with the AGR prior to his resignation on April 30, 1990.
Robert Johnson, Lapine’s attorney, testified that on April 12,
1990, Lapine informed him that he wished to enter into active duty.
Albert Basile, a recruiter with the Army Reserves, stated that, in
the latter part of April, he contacted Lapine about entering the
AGR. Basile testified that he informed Lapine he would make an
"excellent candidate" for the AGR. Immediately following his
conversation with Basile, Lapine submitted his resignation. A week
after he submitted his letter of resignation, but before the
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effective date of his resignation as stated in the letter, Lapine
interviewed before a three-member panel for a position with the
AGR. He was selected unanimously and he promptly completed the
necessary paperwork. One month later he received an official
notice that he was being assigned to active duty. Lapine then
entered upon active duty, satisfactorily completed his three-year
tour of duty, and was honorably discharged in August 1993.
The Town argues that Lapine's resignation was not
motivated by his desire to enter the military but rather it was
driven by his acute dissatisfaction with the police department.
The fact that Lapine's decision to leave the police and to join the
Army may have been fueled by more than one motive does not
establish that the magistrate judge erred in determining that he
resigned from the police department in order voluntarily to enter
on active duty with the AGR. To be sure, his pre-resignation
intent to go on active duty followed by his resignation and
subsequent entry on active duty may well have reflected his
distaste for continued police employment. Lapine's letter reflects
profound dissatisfaction with working conditions at the police
department under its then-chief. He apparently regarded the
military as a more attractive alternative. But the combination of
motives, or even the fact that the decisive motive may have been
dissatisfaction with his former job, does not preclude a finding
that he left his position in order to perform military duty. In
the real world, motives are often mixed. This court has long
recognized, especially in labor and employment decisions, that an
-22-
individual's actions may be propelled by mixed motives. See, e.g.,
Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 579 (1st Cir.
1999); NLRB v. E. Smelting and Refining Corp., 598 F.2d 666, 669
(1st Cir. 1979).10 It is not unusual for a person to seek and
accept another job because of dissatisfaction with a previous job.
The evidence here is persuasive that, before resigning,
Lapine formed an intent to go on active duty and acted on that
intent by speaking with Basile before he wrote his letter of
resignation. Word from Basile suggested that his chances of
acceptance were good. In his letter of resignation he says that
"only the opportunity to secure other employment prevented me from
resigning earlier and possibly the hope that conditions would
change." The implication here is that he believed he had at last
found an opportunity to secure desirable other employment, and
that, in order to secure that employment, he was now resigning. To
be sure, he took some risk by terminating his employment prior to
being finally accepted into the AGR program. Still the evidence
indicates his prior intent and that, at the time he resigned, he
was diligently doing what was necessary to join the AGR program and
that he had good reason to believe that he would be accepted as, in
10
That a veteran is protected by the VRRA even if he were
propelled by dual motives to resign from his civilian employment is
supported by the legislative history accompanying the USERRA. The
House Report to the USERRA stated that "an individual who leaves
for two or more reasons, one of which is for military duty, would
continue to be protected." H.R. Rep. No. 103-65 (1993), reprinted
in 1994 U.S.C.C.A.N. 2449, 2458 (citing Adams v. Mobile County
Pers. Bd., No. 81-0524, 1982 WL 1972 (S.D. Ala. Nov. 24, 1982)).
The USERRA's House Report citation is to a case decided under the
VRRA. See, supra, n.9, for weight to be given to a subsequent
Congress's views.
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fact, he was. The evidence is uncontradicted at all relevant
times, both before and after resigning, he intended to join the
military if accepted.
We therefore sustain the finding of the magistrate judge
that Lapine left his position with the Town in order to perform
military service.
D. Qualified to Perform
Next, the Town argues that Lapine is not qualified to
resume the duties of a police officer. The VRRA requires that a
returning veteran be "qualified to perform the duties of such
position or able to become requalified with reasonable efforts by
the employer . . . ." § 4301(a)(2)(B)(i). To be "qualified" to
return to a prior position, the veteran must be both physically
capable of performing the duties of the job and temperamentally
able to work harmoniously with co-workers and supervisors.
Trusteed Funds, Inc. v. Dacey, 160 F.2d 413, 420-21 (1st Cir.
1947); Preda v. Nissho Iwai Am. Corp., 128 F.3d 789, 792 (2d Cir.
1997). The Town does not dispute that Lapine is physically
qualified to perform his duties; rather the Town asserts that he is
"temperamentally" unqualified to work as a police officer.
To support its position, the Town relied on several
incidences of Lapine’s improper conduct during his thirteen-year
tenure as a police officer. The Town asserted that Lapine’s pre-
service conduct exhibited an inability to work harmoniously within
the police department. Behavior occurring prior to entering upon
active duty can be the basis for finding a veteran no longer
-24-
qualified for reemployment. Doane v. Martin, 164 F.2d 537, 539
(1st Cir. 1947). The Town presented evidence that Lapine was the
subject of several disciplinary actions while in the Town’s employ.
The most egregious conduct, including a physical altercation with
another officer, placing a chemical irritant on a superior’s
uniform, and failing to assist citizens calling the station for
help, occurred in 1981 and 1983 - nearly a decade before his
resignation. In each instance, Lapine was disciplined according to
departmental policy but not fired.
The magistrate judge ruled that the conduct in question
was too far removed from Lapine’s date of resignation to deem
Lapine unqualified for reemployment under the VRRA. The Town had
disciplined Lapine after each incident and had chosen not to
terminate him. Moreover, closer to Lapine’s date of resignation,
he received favorable employee evaluations in which he was
described as "definitely above average" and "conscientious," and
was given several service commendations. In addition, Chief
O’Loughlin, the current chief of police, testified that, upon
review of Lapine’s personnel file, he would have no basis to
terminate him from the police force.
The magistrate judge’s conclusion is supported by the few
cases that have addressed this issue. Courts have held that a
veteran is not qualified to return to his former position if he
demonstrates extreme or dangerous behavior. See, e.g., Doane, 164
F.2d at 539; Dacey, 160 F.2d at 420; Preda, 128 F.3d at 792; Green
-25-
v. Tho-Ro Prods., 232 F.2d 172, 173 (3d Cir. 1956); Winfree v.
Morrison Inc., 762 F. Supp. 1310 (E.D. Tenn. 1990).
In Dacey there was evidence that, upon his return from
service, Dacey had threatened to "rule or ruin" the company and to
"mow down" opposition. 160 F.2d at 421. In addition, he had made
unsupported charges regarding the officers and directors. Id.
Likewise, in Green, the returning veteran was deemed unqualified
when he engaged in fraudulent behavior described as "active and
gross provocation and wrongdoing." 232 F.2d at 174 (citing
McClayton v. W. B. Cassell Co., 66 F. Supp. 165, 175 (D. Md.
1946)). In Winfree, a veteran was found unqualified because he
brought weapons to work, threatened to kill fellow employees and
served liquor to underage patrons. 762 F. Supp. at 1313.
We find no error in the magistrate judge’s conclusion
that Lapine was not temperamentally disqualified from continuing
his duties as a police officer. To be sure, Lapine’s early conduct
during his tenure with the Wellesley Police Department was at times
questionable and the tenor of his letter of resignation suggests a
short fuse and, quite possibly, an unprofessional manner of dealing
with his employer. At the time of his resignation, however, Lapine
was described by his superiors as an above average and
conscientious police officer. Given these positive reviews, as
well as the fact that the department did not terminate him after
his egregious acts but allowed him to stay on for a number of years
during which no similar incident occurred, we can see no adequate
basis for overturning the magistrate judge’s finding that he was
-26-
qualified. Nor are we in a position, at this juncture, to
sufficiently evaluate the factors surrounding his angry letter of
resignation so as to conclude, from the letter alone, that he was
tempermentally unsuited.
III. Waiver
The Town argues that even if we were to determine that
Lapine meets the statutory requirements of the VRRA, entitling him
to claim a right to reemployment, he nonetheless waived that right
by his conduct at the time he resigned from the Wellesley Police
Department. The Town predicates the waiver on his letter of
resignation indicating his profound dissatisfaction with the police
department and, by implication, his intention not to return; his
withdrawal of his pension funds coupled with the signed statement
that he had permanently left the police service; and his failure to
notify the Town that he planned to enter upon active duty with the
Army Reserve. To these facts might be added Lapine's stipulation
that he was aware of his reemployment rights under the VRRA before
he quit the police force and the further fact that he was a mature
and experienced veteran when he resigned.
As the magistrate judge noted, the foregoing factors make
for a fairly powerful argument that Lapine impliedly waived
prospectively his VRRA reemployment rights. Nonetheless, the
magistrate judge rejected the argument and so, ultimately, do we.
We begin with the assumption that, while the VRRA does
not expressly provide for a waiver of reemployment rights, there
are circumstances in which valid waivers may occur. After a
-27-
veteran has completed his military service he may make statements,
or engage in conduct, that in effect, surrender his right to be
reemployed. See, e.g., Carmalt v. Gen. Motors Acceptance Corp.,
302 F.2d 589, 590 (3d Cir. 1962) (concluding veteran waived claim
to reemployment where he said "all right" when informed that he
could not be taken back and thereafter entered upon various other
employments); Couture v. Evergreen Int'l Airlines, 950 F. Supp.
614, 620-21 (D. Del. 1996) (finding waiver of reemployment right to
former position when veteran accepted a different position with
same employer upon discharge); Hayes v. Tenn. Dep't of
Conservation, 750 F. Supp. 298, 305 (E.D. Tenn. 1990) (finding
waiver of reemployment rights under the Act by accepting a more
lucrative position with a construction firm within two weeks of the
time he returned from the service) aff'd 915 F.2d 1571 (6th Cir.
11
1990).
11
In limited circumstances, courts have concluded that a
veteran had waived his reemployment rights through conduct
exhibited later during his military service rather than immediately
after his discharge. See Woodman v. Office of Pers. Mgmt., 258
F.3d 1372, 1378 (Fed. Cir. 2001); Paisley v. City of Minneapolis,
79 F.3d 722, 724 (8th Cir. 1996); Smith v. Missouri Pac. Transp.
Co., 313 F.2d 676, 682 (8th Cir. 1963). In each case, the veteran
voluntarily extended his commitment to military service for many
years after his original active duty commitment expired. The
provision of the statute under which the veterans sought
reemployment did not contain an explicit time limit for active duty
commitments. Woodman, 258 F.3d at 1377 (recognizing no explicit
time limit for leaves of absence under § 4304(d)); Paisley, 79 F.3d
at 725 (same). Under these facts, courts concluded that the
veteran had abandoned his civilian career for a career in the
military. Because the statute was designed to protect "non-career
servicepersons" the veteran was deemed to have waived his right to
reemployment. See Woodman, 258 F.3d at 1377 (concluding "Congress
intended both VRRA and USERRA to apply only with respect to non-
career military service"). The facts of the instant case do not,
of course, bear any resemblance to the foregoing. Lapine notified
-28-
It is considerably less clear, however, that an
individual at the threshold of entry upon military service can, at
that time, prospectively waive his future right to reemployment.
See Leonard v. United Airlines, 972 F.2d 155, 159 (1992) ("[W]e do
not think that Congress could have intended that employees would be
able to waive their rights before entering military service.").
While we would not foreclose all possibilities of finding an
express or implied waiver in unique situations arising at that
time, there are strong reasons of policy for ruling out such
prospective waivers in all but the most exceptional circumstances.
The United States Department of Labor ("DOL") states "[i]n all but
the most unusual circumstances, a veteran cannot expressly or
impliedly waive his reemployment rights before or during military
service." Veterans’ Reemployment Rights Handbook, 22-2 (1988 ed.)
(hereinafter "Handbook").
Rights generally do not mature until the
veteran requests reinstatement, and rights not
yet matured will not readily be considered to
have been waived. . . . Even if the veteran,
before or during military service, voluntarily
makes statements or taken [sic] action clearly
indicating an intent not to return to the
employer, a waiver will not be implied from
such statements or conduct because the statute
was intended to keep that possibility open
until the veteran returns to civilian life.
Id.
the new chief that he might want to return to his police job two
years after resigning; and the provision applicable to Lapine,
section 4304(b)(1), contained an explicit four-year time limit.
(The USERRA now limits cumulative leaves of absence for military
service to five years.)
-29-
The DOL is charged with the administration of the VRRA.
38 U.S.C. § 501. While not controlling upon the courts, the DOL's
views are entitled to some consideration. Skidmore v. Swift & Co.,
323 U.S. 134, 138 (1944) (stating that the rulings, interpretations
and opinions of an administrator of an Act "constitute a body of
experience and informed judgment to which courts and litigants may
properly resort for guidance"); see also Monroe v. Standard Oil
Co., 452 U.S. 549, 561 n.14 (1980) (citing to the Handbook in a
case under the Vietnam Era Veterans' Readjustment Allowance Act).
The weight to be given these DOL publications is enhanced by the
longstanding and consistent nature of the position taken regarding
waiver, and its inception so soon after the 1961 legislation.
Skidmore, 323 U.S. at 138; Sykes v. Columbus & Greenville Ry., 117
F.3d 287, 294 (5th Cir. 1997).
We think there are ample reasons supporting the DOL's
Handbook position. Cf., e.g., Alexander v. Gardner-Denver Co., 415
U.S. 36, 50-51 (1973) (concluding there can be no prospective
waiver of an individual's right to equal employment opportunities).
The VRRA was a remedial statute that was designed to aid a
veteran's reentry into civilian life. The statute provided a
veteran with a stated time period within which to seek reemployment
with his or her former employer. 38 U.S.C. § 4301(a) (providing
that a veteran must make application for reemployment within 90
days of honorable discharge). Upon return, the veteran is not
"pressed for a decision immediately on his discharge but has the
opportunity to make plans for the future and readjust himself to
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civilian life." Fishgold v. Sullivan Drydock and Repair Corp., 328
U.S. 275, 284 (1946). Thus, both the statute and case law
anticipate that a veteran will usually make a decision regarding
reemployment when he or she returns from active duty but not
before.
The legislative history of the USERRA, which replaced the
VRRA soon after Lapine asserted his right to reemployment, is
consistent with the DOL's position that ordinarily a veteran should
not be held to make a binding decision about whether or not to
return to his former employment until after the conclusion of
active duty. It is true that USERRA, unlike VRRA, requires a
future claimant to preserve his reemployment right in advance by
notifying his employer that his absence from a position of
employment is necessitated by military service. 38 U.S.C. §
4312(a)(1). Had Lapine been subject to USERRA, his failure to
notify the Town that he was going on active duty would have
defeated his reemployment claim not by waiver but because of
noncompliance with this new statutory condition. Apart from
imposing this condition, however, Congress emphasized in the House
Report accompanying USERRA that the serviceperson's choice whether
or not to return to his former job was to remain open until release
from active service. H.R. Rep. No. 103-65 (1993), reprinted in
1994 U.S.C.C.A.N. 2449, 2459. The House Report quotes from the
Supreme Court's decision in Fishgold for the proposition that
"[o]ne of the basic purposes of the reemployment statute is to
-31-
maintain the servicemember's civilian job as an 'unburned bridge.'"
Thus the House Report states:
The Committee does not intend that the
requirement to give notice to one's employer
in advance of service in the uniformed
services be construed to require the employee
to decide, at the time the person leaves the
job, whether he or she will seek reemployment
upon release from active service. One of the
basic purposes of the reemployment statute is
to maintain the servicemember's civilian job
as an "unburned bridge." Not until the
individual's discharge or release from service
and/or transportation time back home, which
triggers the application time, does the
servicemember have to decide whether to
recross that bridge. See Fishgold, supra, 328
U.S. at 284.
Id.12
We agree with the DOL, therefore, that prospective
waivers of veterans' reemployment rights - while not entirely
foreclosed - are not to be easily inferred and should be reserved
for "the most unusual circumstances." Hence in the instant case,
we ask whether the facts reach the level of the "most unusual
circumstances" necessary to support a prospective waiver. We think
not.
12
The House Committee's policy statement draws no distinction
between maintaining future jobs as "unburned bridges" for
inexperienced volunteers as contrasted with experienced, long-time
reservists like Lapine. Hence, while one can argue that
experienced veterans like Lapine may not deserve the same degree of
protection as a raw recruit against behavior from which a waiver
may be inferred, we are not persuaded that courts should properly
attempt subjective evaluations of each individual's presumed need
for protection in determining whether or not to find a prospective
waiver.
-32-
We note, first of all, that Lapine's intent to waive his
future reemployment rights was less than clearly expressed in his
words and conduct. While his letter of resignation spoke of his
dissatisfaction with working conditions at the Wellesley Police
Department, his complaints were virtually all tied into
dissatisfaction with the leadership of then-Chief Fritts. Lapine
does not attack others than Chief Fritts. There is no suggestion
that Lapine would refuse to return under a new administration more
to his liking. At no time, moreover, did Lapine actually indicate
that he was waiving his future reemployment rights. Generally, the
mere fact of a resignation from civilian employment does not
deprive a veteran of reemployment rights. Winders v. People
Express Airlines, Inc., 595 F. Supp. 1512, 1518 (D.N.J. 1984) (and
cases cited therein). And two years later, while still on active
military duty, Lapine wrote the first of several letters indicating
a possible wish to return.
It is true that Lapine, after he quit, did not notify the
Town in a timely fashion that he had entered upon active military
duty, as would now be required under the USERRA. See 38 U.S.C. §
4312. But the VRRA had no such statutory requirement and, for that
reason, we are not inclined to weigh the absence of notice as a
significant factor indicative of waiver.
Perhaps the strongest factor suggesting waiver was
Lapine's withdrawal of his funded pension, indicating in writing
when so doing, as the form required, that he had "permanently left
the service" and that he had no "present intention to accept a
-33-
position in the service of the Commonwealth of Massachusetts." It
appears that under Massachusetts law, however, the statements
Lapine made accompanying his pension withdrawal were not an
absolute bar to later reemployment in the state service. See Mass.
Gen. Laws ch. 32, § 3(6)(d) (2001). The statements were not made
under the penalties of perjury. The Town has pointed to no state-
law precedent indicating that Lapine could not legally reconsider
them at a later date, as he has done. Massachusetts laws related
to civil service pensions allow an individual who has terminated
his position and withdrawn his accumulated pension funds to
reimburse the annuity fund upon his reinstatement. See id.
Moreover, a veteran’s withdrawal of his vested employee
pension fund has been held not to necessarily indicate a waiver of
a veteran's federal reemployment rights. Leonard, 972 F.2d at 159;
Handbook, 22-5. The DOL anticipated that an employee may withdraw
his accumulated pension fund prior to entering upon active duty.
Handbook, 22-5. According to the DOL, a veteran’s withdrawal of
his pension funds neither indicates a waiver nor prevents a veteran
from reimbursing the fund upon his return. Id. Given the strong
policy against finding a prospective waiver of a service person's
reemployment rights, we hold that Lapine's pension withdrawal did
not amount to an effective waiver.
The record furthermore indicates no compelling equitable
factors that might lead to a finding of the requisite "most unusual
circumstances." For example, there is no evidence that Lapine's
failure to notify the Town of his order to active duty resulted in
-34-
specific harm to the Town. Nor is there evidence of fraud. See
Hillard v. New Jersey Nat'l Guard, 527 F. Supp. 405 (D.N.J. 1981).
To be sure, Lapine's letter to Chief Fritts was
intemperate, but we are unable to say the circumstances rise to the
level required to find a prospective waiver. We conclude at the
time he resigned that Lapine’s conduct did not signify a clear and
unequivocal waiver of his rights to reemployment involving the
"most unusual circumstances" required for a prospective waiver to
be given effect in this context. We add that Congress’s recent
modification of the reemployment statute requiring employees to
notify their employers that they are entering the military service
should, in the future, make it less likely that a problem of this
nature will reoccur.
IV. Creditable Service
The Town argues that the magistrate judge erred when he
concluded that Lapine was entitled to three years of creditable
service toward his retirement. The final judgment states, in
pertinent part, that:
The defendant, Town of Wellesley, for purposes
of the retirement of the plaintiff, Gary W.
Lapine, shall reinstate him as if he became a
new employee of the Wellesley Police
Department of May 13, 1990 and shall permit
him to make whatever payments he would have
made to the retirement system from May 13,
1990 to the date of judgment . . . .
The Town asserts that it is inappropriate for Lapine to be
permitted to "buy back" into the retirement system for the three
years he was in the military.
-35-
Federal law, and the cases interpreting its provisions,
do not support the Town’s assertion. While Lapine’s reemployment
rights stem from section 4304(b)(1) of the VRRA, the benefits to
which he is eligible upon reemployment are found in section
4301(a). Tirado-Acosta v. Puerto Rico Nat'l Guard, 118 F.3d 852,
854 (1st Cir. 1997). Section 4301(a)(B)(ii) provides that a
veteran, eligible for reemployment, shall be reemployed to a
position of "like seniority, status, and pay."
The Supreme Court has interpreted this provision to mean
that "[The veteran] does not step back on the seniority escalator
at the point he stepped off. He steps back on at the precise point
he would have occupied had he kept his position continuously during
the war." Fishgold, 328 U.S. at 284-85. Pension benefits are
considered a perquisite of seniority protected by the VRRA.
Alabama Power Co. v. Davis, 431 U.S. 581, 591 (1976); Bunnell v.
New Eng. Teamster and Trucking Indus. Pension Fund, 655 F.2d 451,
452 (1st Cir. 1981). "Protecting veterans from the loss of such
rewards when the break of their employment resulted from their
response to the country’s military needs is the purpose of [§
4301]." Davis, 431 U.S. at 594.
Lapine stepped off the "seniority escalator" when he
resigned his position, effective May 13, 1990, in order to perform
military duty. Pursuant to the VRRA, as interpreted by the Court
in Davis, 431 U.S. at 591, he steps back on the elevator as if he
had not been absent for three years. Thus, Lapine is entitled to
-36-
the three years of police service he would have accumulated had he
not terminated his employment to enter upon active duty.
The result is the same under Massachusetts law.
Paragraph 1 of Mass. Gen. Laws ch. 32, § 4(h) provides that the
period of time that a veteran13 is on a leave of absence for
military duty shall be allowed as creditable service for purposes
of pension benefits. Federal law provides that a veteran is
considered to be on a leave of absence during his period of
service. § 4301(b)(1)(A). Specifically, section 4301(b)(1)(A)
provides that any person who is restored to his position:
shall be considered as having been on furlough
or leave of absence during such person’s
period of training and service . . . shall be
so restored or reemployed without loss of
seniority, shall be entitled to participate in
insurance and other benefits offered by the
employer pursuant to established rules and
practices relating to employees on furlough or
leave of absence . . . .
Id. Because Lapine is deemed to have been on a leave of absence,
he is to receive creditable service for the three years he was on
active duty.
Even if paragraph 1 did not apply, paragraph 4 of § 4(h)
provides that:
Notwithstanding any other provision of this
chapter or any other general or special law,
13
Section 4 relies on the definition of veteran contained in
Mass. Gen. Laws ch. 4, § 7, cl. 43 (2001). Pursuant to clause 43,
a person is a veteran if he or she was released from "wartime
service as a Persian Gulf veteran." A "Persian Gulf veteran" is
defined as a person who served between August 2, 1990 and a date to
be determined by presidential proclamation or executive order.
Lapine meets the requirements for veteran under Massachusetts law.
-37-
rule or regulation to the contrary, a member
of service of a retirement system . . . who is
a veteran who served in the Armed Forces of
the United States and who has completed ten or
more years of membership shall be entitled to
credit for active service in the armed
services of the United States; . . . provided
further that such creditable service shall not
be construed to include service for more than
four years . . . .
Lapine was a member of the retirement system for more than ten
years. As a result, his period of active duty is creditable under
this provision as well. Thus, we concur with the magistrate
judge's conclusion that Lapine is eligible for the three years of
creditable service he would have accumulated had he not entered
upon active duty.
V. Conclusion
The decision of the magistrate judge is affirmed.
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Lapine v. Town of Wellesley
Court: Court of Appeals for the First Circuit
Date filed: 2002-09-04
Citations: 304 F.3d 90
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