Troy v. City of Hampton

756 F.2d 1000, 118 L.R.R.M. (BNA) 2996

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 5, 1985
• Docket: Nos. 82-1862, 82-2107
• Status: Published

Opinions

CHAPMAN, Circuit Judge:

These two appeals have been consolidated for en banc consideration. Each case involves the question of whether the seventh amendment guarantees a right to a trial by jury in a suit to enforce a statutory cause of action for reinstatement to employment and compensation for lost wages under the Veterans Reemployment Rights Act (the Act), 38 U.S.C. §§ 2021 et seq. We find that there is no constitutional right to a jury trial under the Act and that to try such an action to a jury was error. We affirm in Blackmon (82-2107) and we reverse and remand in Troy (82-1862).

I

Both Blackmon and Troy claimed rights under 38 U.S.C. § 2024(d)¹ which covers absences from employment for reserve military training and reemployment rights following such absences. Blackmon was' denied relief because the court found that he had not complied with the Act in that he failed to request leave for military training in advance of taking such leave.

Troy was granted leave for military training by his employer, the City of Hampton, but he was discharged, shortly after his return from reserve training, for alleged insubordination. Troy claimed the insubordination charge was pretext and that the real reason for his discharge was retaliation for his taking a six month leave from his employment to engage in military training.

In Blackmon, the district court held that an action brought under the Act was equitable in nature and it denied Blackmon’s request for a jury trial. In the trial to the court, the verdict was for the defendant. In Troy, the district court denied the defendant’s motion for a trial to the court and the ensuing jury trial resulted in a verdict for the plaintiff.

II

Most courts which have considered the rights and remedies created by the Veterans Reemployment Rights Act have found them to be equitable in nature. E.g., Bunnell v. New England Teamsters and Trucking Industry Pension Fund, 486 F.Supp. 714 (D.Mass.1980) aff'd, 655 F.2d 451 (1st Cir.1981), cert. denied, 455 U.S. 908, 102 S.Ct. 1253, 71 L.Ed.2d 446 (1982); Goodman v. McDonnell Douglas Corp., 456 F.Supp. 874 (E.D.Mo.1978), aff'd., 606 F.2d 800 (8th Cir.1979), cert. denied, 446 U.S. 913, 100 S.Ct. 1844, 64 L.Ed.2d 267 (1980); Ufland v. Buffalo Courier Express, 394 F.Supp. 199 (W.D.N.Y.1974).

It is argued that the remedy of back pay is more appropriately characterized as compensatory, legal damage, and therefore warrants a jury trial. While two cases are cited to support this argument, Setser v. Novack Investment Co., 638 F.2d 1137 (8th Cir.1981) and Burt v. Abel, 585 F.2d 613 (4th Cir.1978), they do not apply because each deals with back pay claims derived from other statutory causes of action. Set-ser was brought under 42 U.S.C. § 1981 (1976) and Burt under 42 U.S.C. § 1983 (1976). In the one case that has held that there is a seventh amendment right to a jury trial under the Act, Steffen v. Farmers Elevator Service Co., 109 F.Supp. 16, 20 (N.D.Iowa 1952), the plaintiff sought only monetary relief which the court held to be legal and not reinstatement, which the court found to be equitable.

The Third Circuit has held that the back pay provided as a remedy under 38 U.S.C. § 2022 is legal in nature. See Gruca v. United States Steel Corp., 495 F.2d 1252, 1256-1257 (3rd Cir.1974). This finding was in the context of whether to apply a statute of limitations or the doctrine of laches to an action found to be both legal and equitable. Gruca does not address the jury trial issue. For two reasons, we decline to follow Gru-ca.

First, we are convinced by the 1974 amendments to the Veterans Reemployment Rights Act and the legislative history accompanying these amendments that Congress intended the remedies provided under the Act to be equitable in nature. Included in the 1974 amendments is a provision that no state statute of limitations shall apply to any proceedings under the Act. The report of the Senate Committee on Veterans Affairs contains an explanation of this amendment:

There is also added a provision at the end of this section which reaffirms and reflects more clearly the congressional intent that the legal proceedings under this chapter shall be governed by equitable principles of law, especially by barring the application of state statutes of limitation to any such proceedings. Congress, in 1940, omitted any reference to the application of any time barred defense in cases arising under this law, in part to insure the application of a policy of keeping enforcement rights available to returned veterans as uniform as possible throughout the country. The equity doctrine of laches accomplishes this purpose as nearly as possible, (emphasis added). S.Rep. No. 93-907, 93rd Cong., 2d Sess. at 111-12.

Congressional intent that proceedings be governed by equity principles clearly indicates that Congress found the rights and remedies established by the Act to be equitable in nature.

Second, the remedies provided under the Act are analogous to those provided under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g).² We held in Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.1971) that a back pay award under Title VII is equitable in nature. The Fifth Circuit has described the back pay remedy provided under Title VII as “an integral part of the statutory equitable remedy, to be determined through the exercise of the court’s discretion, and not by a jury.” Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir.1969).

The language of 38 U.S.C. § 2022 states that the district court “shall have the power” to require an employer to comply with the provisions of the Veterans Reemployment Rights Act and to compensate an employee for wages or benefits lost because of the employer’s unlawful action. The back pay remedy provided here is discretionary with the district court and “is an integral part of the equitable remedy of reinstatement,” Smith v. Hampton Training School for Nurses, 360 F.2d 577, 581 n. 8 (4th Cir.1966).

In Pons v. Lorillard, 549 F.2d 950 (4th Cir.1977) we stated that a monetary award for back wages is traditionally a legal remedy. However, that statement referred to an award for back wages under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1976). The relevant portion of that statute describes the remedy which a court may grant for age discrimination as “legal or equitable relief.”

The equitable nature of the remedies under the Act is well described in Ufland v. Buffalo Courier Express, Inc., 394 F.Supp. 199 (W.D.N.Y.1974):

In suits brought under the Veterans Reemployment Act, a veteran sues “as a veteran asserting special rights bestowed upon him in furtherance of the federal policy to protect those who have served in the Armed Forces”. McKinney v. Missouri-Kansas-Texas Railroad Co., 357 U.S. 265, 78 S.Ct. 1222, 2 L.Ed.2d 1305 (1958). Whether the veteran’s claim is for reinstatement and back pay, restitution of seniority rights or wage rate adjustments does not alter the basically equitable nature of the rights asserted. The claim for back wages in this case is, therefore, a derivative of plaintiff’s rights of reinstatement and restoration to his former seniority, status and pay under the Act, rather than a claim at law for damages. Id. at 200-201.

The legislative history of the Veterans Reemployment Rights Act and the decisions of the courts which have considered the issue persuade us that claims under 38 U.S.C. § 2021 et seq. are- equitable in nature and must be tried to the court.

Ill

In Troy it is argued that the use of a jury was either harmless error, or constituted the use of an advisory jury pursuant to Rule 39(c) Federal Rules of Civil Procedure.

In Troy it can be argued that there is no constitutional right to a nonjury trial, and any error in allowing a trial by jury would be harmless. However, this overlooks the clear intent of Congress that suits under this Act should be handled nonjury. A finding of harmless error would be an unclear signal to district courts, which could be misled into allowing jury trials in other actions that clearly require trials to the Bench.

If only one reasonable verdict was possible from the evidence, harmless error would have strong appeal, but such is not the case. From a review of the record this is a very close case and presents a good lesson as to why a bench trial with findings of fact and separately stated conclusions of law under Rule 52, Federal Rules of Civil Procedure is required. In close eases the losing parties’ right to appellate review can be prejudiced where there is a general jury verdict and the appellant was entitled to the benefit of the separate findings and conclusions provided by Rule 52.

Troy argues that since the district court has the power to empanel an advisory jury under Rule 39(c) it is not reversible error for the court to exercise this discretion. In the present case the district court did not use an advisory jury under Rule 39(c), but conducted a normal jury trial with the jury answering “yes” to the question: “Is plaintiff entitled to recover under U.S.C. § 2024(d) (Military Leave: Rehire)”. In Cox v. Babcock and Wilcox Company, 471 F.2d 13 (4th Cir.1972) we held that even the use of an advisory jury did not relieve the court of the necessity of making its own findings and conclusions and that appellate review should occur as if there had been no verdict of an advisory jury. Such was not done by the district judge in Troy.

Therefore, we affirm Blackmon (82-2107) and we reverse Troy (82-1862) and remand Troy for a nonjury trial.

1 . The relevant portion of § 2024(d) provides: Any employee not covered by subsection (c) of this section who holds a position described in clause (A) or (B) of section 2021(a) 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. Upon such employee’s release from a period of such active duty for training or inactive duty training or upon such employee’s discharge from hospitalization incident to the training, such employee shall be permitted to return to such employee’s position with such seniority, status, pay, and vacation as such employee would have had if such employee had not been absent for such purposes.

2 . The relevant portion of the Veterans Reemployment Rights Act, 38 U.S.C. § 2022 states as follows:

If any employer, who is a private employer or a State or political subdivision thereof, fails or refuses to comply with the provisions of section 2021(a), (b)(1), or (b)(3), or section 2024, the district court of the United States for any district in which such private employer maintains a place of business, or in which such State or political subdivision thereof exercises authority or carries out its functions, shall have the power, upon the filing of a motion, petition, or other appropriate pleading by the person entitled to the benefits of such provisions, specifically to require such employer to comply with such provisions and to compensate such person for any loss of wages or benefits suffered by reason of such employer’s unlawful action. Any such compensation shall be in addition to and shall not be deemed to diminish any of the benefits provided for in such provisions.

The relevant portion of 42 U.S.C. § 2000e-5(g) states:

... the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to reinstatement, or hiring of employees, with or without back pay .... or any other equitable relief as the court deems appropriate.