Desbrow v. Smart & Final Co.
DESBROW v. SMART & FINAL CO., Limited
- Proceeding
- district
- Area
- civil
- Panel
- Connor (author)
Analysis
The court considered a veteran's claim for re-employment and lost wages under the Selective Service Act, finding that his pre-service employment was temporary and that he had been offered equivalent positions. The court entered judgment for the defendant, denying the veteran's request for reinstatement and compensation.
| What the court decided | The model |
|---|---|
Judgment for the defendant on the claim for re-employment and lost wages.“Judgment is ordered for the defendant, with costs.” | agree with court The court found as a matter of fact that the veteran's employment was temporary because he was hired to cover for a sick employee (Harry Jones) who subsequently returned. The court also found that the defendant offered the veteran three other positions at comparable pay, but the veteran refused them in favor of the specific temporary position he had held. Under the law applicable in 1946 (50 U.S.C.A. Appendix, § 308(e)), a veteran is entitled to reinstatement to the position they would have held but for their service, or to a position of like seniority, status, and pay. Because the veteran's original position was temporary and filled by a returning employee, and because the employer offered equivalent alternative positions, the court's conclusion that the veteran was not entitled to reinstatement to the specific temporary role or damages for the refusal of the alternative offers is consistent with the statutory requirements and the factual findings. |
The order itself: sound — The order is a short bench decision that recites the key facts: the temporary nature of the veteran's employment (covering for a sick employee), the return of the original employee, and the offer of alternative positions at comparable pay. The court applies the statutory standard implicitly by finding that the veteran's specific claim to the temporary position was not supported by the facts (as the position was no longer vacant/temporary in the same sense) and that he was not entitled to damages because he refused equivalent offers. The reasoning is concise but directly addresses the elements of the claim and the defense. It is sound because it relies on factual findings that negate the entitlement to the specific relief sought.
Opinion — Connor
J. F. T. O’CONNOR, District Judge.
The petitioner, Paul Howard Desbrow, brings this action seeking re-employment as a military veteran to a position as bills payable clerk and office manager at $225 per month salary, under the provisions of 50 U.S.C.A.Appendix, § 308(e). He also seeks compensation for his loss of wages suffered by reason of the refusal of such re-employment between January 13, 1946, and July 1, 1946. On the last mentioned date he secured other employment at equal pay.
The sole defense is that the veteran’s former position with defendant company was temporary.
There was considerable conflict in the testimony.
The court finds that Harry Jones, an employee of the defendant company for sixteen years, who occupied the position of office manager and bills payable clerk, had been taken ill in October, 1944, with a serious illness. On November 28, 1944, petitioner, Desbrow, applied to the local manager of defendant company, Julius N. Peterson, for a position. Peterson told Desbrow that Harry Jones was ill and Des-brow was given an opportunity to qualify itntil Jones returned, and was paid the same as Jones had received — a salary of $225 per month.
Desbrow entered the armed forces of the United States on January 15, 1945, and was honorably discharged on December 30, 1945. He requested reinstatement to his former position in January, 1946. Harry Jones had recovered and assumed his duties with the defendant corporation. Desbrow had been employed by the defendant on a temporary basis, and had occupied the position for one month before entering the army.
The evidence further shows that Des-brow was offered three positions, but demanded the position he had held temporarily which, if given to him, would have required the dismissal of Jones. The three positions offered, all on an hourly basis, as required by the Government, would have given Desbrow approximately the same amount of compensation as he had received during his temporary employment.
During the first six months of 1946, Des-brow was employed in various other positions: The War Assets Corporation as price consultant for three weeks at $90 per week, and he testified that since July 1, *5011946, he has been acting as a real estate broker and has received $1,000 per month up to the date of trial.
Judgment is ordered for the defendant, with costs.