Jordan v. Jones , 84 F.3d 729 ( 1996 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_______________
No. 95-40488
(Summary Calendar)
_______________
DAVID M JORDAN,
Plaintiff-Appellant,
versus
GRANT JONES, District Attorney,
Defendant
and
CARLOS VALDEZ, District Attorney; NUECES COUNTY;
KLEBERG COUNTY,
Defendants-Appellees.
_______________________________________________
Appeal from the United States District Court
For the Southern District of Texas
(C-94-CV-38)
_______________________________________________
May 8, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
David M. Jordan appeals the district court's judgment in the
defendants' favor in his suit alleging a violation of the Veteran's
Reemployment Rights Act ("VRRA" or "the Act"), 38 U.S.C. § 4301 et
*
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in Local Rule 47.5.4.
seq. We affirm the district court's judgment, but we vacate the
district court's award of costs against Jordan.
I
Jordan was a reserve officer called to active duty for
Operation Desert Storm. After he was honorably discharged from the
Armed Forces, Jordan returned to Corpus Christi, Texas to resume
his former position as an assistant district attorney of the 105th
Judicial District of the State of Texas. The district attorney,
Grant Jones, refused to reinstate Jordan because Jones's staff had
discovered very explicit sexual material throughout Jordan's office
while Jordan had been on active duty.
The sexually explicit materials, which the district court
described as "base smut," had been mailed directly to the Kleberg
County District Attorney's official post office box and was
addressed to Jordan.1 Jordan had been receiving these materials at
the office before he left for Desert Storm, and they continued to
arrive after he left. Two secretaries employed by Kleberg County
discovered the materials when they were clearing Jordan's office to
permit a substitute assistant district attorney to use Jordan's
office and handle his case load while he was on duty. Jones
decided that Jordan's conduct was cause for termination because he
believed Jordan's reading materials could subject the district
1
Jordan admitted at trial that he had a stack two-foot high of
sexually explicit magazines, books, and advertisements, many of which were "more
sexually explicit than Hustler and would have been considered shocking to many
people." The district court described the materials which were admitted at trial
as depicting oral-genital contact, homosexual oral-genital contact, and graphic
pictures of heterosexual and homosexual intercourse.
-2-
attorney's office to a Title VII hostile work environment lawsuit.
Jones was also concerned about the negative impact such materials
could have on his office's public image as an effective and
credible arm of law enforcement. After Jordan rejected Jones's
suggestion that Jordan retire quietly, Jones terminated Jordan.
Jordan then filed suit against the defendants for backpay and
reinstatement alleging a violation of the VRRA. After a bench
trial, the district court entered judgment for the defendants and
awarded them costs. On appeal, Jordan argues that the district
court erred (1) by finding that the VRRA did not require Kleberg
County to automatically reinstate him; (2) by finding that Kleberg
County had legally adequate cause to terminate him; (2) by finding
that Nueces County was not Jordan's employer; and (3) by awarding
costs to the defendants.
II
The VRRA provides that a person who leaves a permanent
employment position with a State to perform training and service in
the Armed Forces of the United States shall be restored to his
former or a similar position if he is still qualified to perform
the duties of the position, and he follows certain statutory
requirements.2 38 U.S.C. § 4301(a)(2)(B)(I). Section
4301(b)(1)(A) provides that veterans who have been restored to
their former positions cannot be discharged for one year after
2
The Act requires that the returning veteran receive a certificate
demonstrating satisfactory completion of military service and make application
for reemployment within ninety days after he is discharged. 38 U.S.C. § 4301(a).
-3-
reemployment without cause. 38 U.S.C. § 4301(b)(1)(A).
The district court held that Kleberg County did not violate 38
U.S.C. § 4301(a)(2)(B) when it refused to reinstate Jordan because
Jordan did not leave the district attorney's office in good
standing. The district court concluded that since Kleberg County
could have fired Jordan for cause before he left for active
service, § 4301(a)(2)(B) did not require Kleberg County to
reinstate Jordan after he returned. Jordan argues that
§ 4301(a)(2)(B) grants returning veterans a mandatory right of
reinstatement regardless of whether they left their job in good
standing or not. In the alternative, Jordan contends that even if
he did not have a mandatory right of reinstatement, he was not on
notice that his conduct was prohibited; therefore, Kleberg County
did not have legally sufficient cause to terminate him.
"The Veterans' Act was drafted with the intent to shield a
serviceman from discrimination by his employer, not to arm him with
a sword to punish his employer for some perceived wrong unconnected
to his status." Burkart v. Post-Browning, Inc., 859 F.2d 1245,
1250 (6th Cir. 1988). Congress intended the VRRA to protect
veterans and reservists from "discharge without cause" resulting
from the veteran or reservist status, not to give employee veterans
and reservists a preference over other employees. Monroe v.
Standard Oil Co., 452 U.S. 549, 560-61, 101 S. Ct. 2510, 2516-17,
69 L. Ed. 2d 226 (1981) (internal quotations marks omitted).
Jordan argues that Kleberg County had a mandatory duty under
the VRRA to reinstate him when he returned from active service.
-4-
However, an employer can terminate or refuse to reinstate a veteran
or reservist once he returns from active service or training, if
the employer had legally sufficient cause to terminate the employee
at the time that he left. See Burkart, 859 F.2d at 1248 (holding
that because reservist only gave his employer fifteen minutes'
notice of his intent to leave for three weeks of training, the
employer had sufficient cause to refuse to reinstate the reservist
when he returned from training); Sawyer v. Swift & Co., 836 F.2d
1257, 1260-61 (10th Cir. 1988) (holding that employer properly
terminated reservist for cause because reservist failed to give his
employer adequate notice of his intent to leave for training).
Therefore, we hold that if an employer has sufficient cause to
terminate an employee veteran or reservist at the time that he
leaves for active service or training, the VRRA does not require
the employer to reinstate the employee before the employer
terminates him for cause.
An employer can terminate a veteran or reservist for cause if
the discharge satisfies two criteria of reasonableness: (1) "that
it is reasonable to discharge employees because of certain conduct,
and [(2)] that the employee had fair notice, express or fairly
implied, that such conduct would be ground for discharge." Carter
v. United States, 407 F.2d 1238, 1244 (D.C. Cir. 1968). In
assessing the adequacy of an employee's notice, the ultimate issue
is "whether the conduct was or should have been known to the
employee to be prohibited by the employer." Id. at 1246. This is
a question of fact which we review under the clearly erroneous
-5-
standard. Id.Jordan argues that Kleberg County could not terminate him for
cause based on his receipt of sexually explicit materials because
he was not on notice that this behavior was prohibited by his
employer. The trial court specifically found that Jordan knew that
if anyone at the district attorney's office discovered his
collection of sexually explicit materials, he would be terminated.
The court found that Jordan knew that his actions were not within
those reasonably and ordinarily accepted standards of personal
conduct expected of employees in a public district attorney's
office. The evidence at trial demonstrated that Jordan's boss,
Grant Jones, had a policy against having sexually explicit
materials in the office. Jones testified that he developed this
policy after an incident occurred involving the display of a
sexually explicit magazine in one of the offices. The only
evidence to the contrary was Jordan's testimony that he believed he
was allowed to have the materials at the office as long as they
were not on his desk. Given the trial court's superior ability to
assess the credibility of the witnesses, we conclude that the
court's finding that Jordan knew his behavior was prohibited by his
employer was not clearly erroneous. Accordingly, the district
court did not err in concluding that Kleberg County had cause to
terminate Jordan.
III
Jordan next argues that the district court erred in holding
that Nueces County was not his employer and therefore not subject
-6-
to liability under the VRRA. Section 4302 entitles an employee
veteran to file suit against his employer if the employer fails to
comply with the VRRA. The term "employer" in § 4302 should be
broadly construed to include the "one to whom the veteran provides
services and from whom he receives wages," as well as those bodies
to whom a veteran's "employer in the traditional sense, has
delegated certain aspects of the employment relationship." Bunnell
v. New England Teamsters and Trucking Indus. Pension Fund, 486 F.
Supp. 714 (D. Mass. 1980), aff'd, 655 F.2d 451 (1st Cir. 1981).
The testimony at trial indicated that Jordan received his
salary, vehicle, gas, and the furnishings for his office from
Kleberg County. Although Jordan accepted ten guilty pleas and
worked on two cases for the Nueces County office during his three
year period as assistant district attorney, this amount of work is
extremely insignificant in comparison to the seven to eight hundred
cases that Jordan prosecuted for Kleberg County each year. Based
on the foregoing evidence, we conclude that the district court did
not err in concluding that Nueces County was not Jordan's employer.
IV
Finally, Jordan argues that the district court erred in
assessing costs against him. Valdez and Kleberg County concede
that it was error for the court to assess costs against Jordan.
Nueces County cites an irrelevant statute, and simply states that
if the court finds that the award of costs was in error, the error
was harmless.
Section 4302 specifically provides:
-7-
If any employer, who is a private employer of a State or
political subdivision thereof, fails or refuses to comply with
the provisions of [specified sections] of this title, the
[appropriate] district court of the United States . . . shall
have the power, upon 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. . . . Upon application to the
United States attorney or comparable official . . . by any
person claiming to be entitled to such benefits provided for
in such provisions, such United States attorney or official,
if reasonably satisfied that the person so applying is
entitled to such benefits, shall appear and act as 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 specifically to require
such employer to comply with such provisions. No fees or
court costs shall be taxed against any person who may apply
for such benefits. . . .
38 U.S.C. § 4302. One court has interpreted the "no fees shall be
taxed" provision as being controlling only when the plaintiff
applies to and is represented by a United States attorney or a
comparable official. See Newport v. Michelin Aircraft Tire Corp.,
851 F. Supp. 1406, 1408 (W.D.Mo. 1994). Arguably, it is ambiguous
whether the language "any person who may apply for such benefits"
is meant to refer only to a person who makes "an application to the
United States attorney or a comparable official," not one who
pursues his rights under the VRRA through a private attorney.
However, the legislative history accompanying the enactment of a
subsequent provision of the VRRA, which applies to reemployments
initiated on or after the first day after the 60-day period
beginning on Oct. 13, 1994, convinces us that Congress intended
§ 4302 to prevent any person claiming benefits under the VRRA from
being assessed costs. In describing the new provisions, the Senate
-8-
Report states:
New section 4322(c)(2) would provide that no fees or
court costs could be charged or taxed against any
individual pursuing a claim of a violation of his or her
[rights under the VRRA]. If that individual were the
prevailing party, the court could, in its discretion,
award the individual reasonable attorney fees, expert
witness fees, and other litigation expenses when not
represented by the Attorney General. The prohibition
against charging fees or costs exists in present section
4302. The Committee bill would authorize the award of
attorney fees, expert witness fees, and other litigation
expenses as a further effort to make servicemembers whole
and not have them suffer any loss in realizing their
reemployment rights.
S.Rep. No. 158, 103d Cong., 1st Sess. (1993). Accordingly, we
conclude that Congress intended § 4302 to prohibit district courts
from awarding costs against a person who is pursuing a claim of a
violation of his rights under the VRRA irregardless of who
represents him. Therefore, we hold that the district court erred
in awarding costs for the defendants.
V
For the foregoing reasons, we AFFIRM the judgment of the
district court in the defendants' favor and VACATE the award of
costs against Jordan.
-9-