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December 2, 1983


The opinion of the court was delivered by: WERKER


This action arises under the Veteran's Reemployment Rights Act, 38 U.S.C. § 2021-2026 ("the Act"). Plaintiff, Nicholas J. Micalone, seeks reinstatement and compensation for loss of wages and benefits incurred by reason of defendant's alleged unlawful termination of plaintiff's employment as a training specialist. Plaintiff is a resident of Bronx County. Defendant Long Island Railroad Company ("LIRR") is a subsidary of the Metropolitan Transportation Agency and is a Public Authority of the State of New York. The matter was tried before the court on November 15 and November 16, 1983. The following are the court's findings of fact and conclusions of law.


 Plaintiff Nicholas J. Micalone was employed by LIRR on August 18, 1976 as a training specialist with an annual salary of $17,279.08. After his probationary period had ended, plaintiff's annual salary was $20,642.44 or $56.55 a day.JX-H. As a training specialist with the LIRR, Mr. Micalone was an instructor of LIRR apprentices. This position entailed teaching the apprentices to become full electricians. Prior to his employment with LIRR, plaintiff held various positions as an engineer and also was a maintenance manager. See JX-I. Plaintiff has a Bachelor of Science degree in physics with a mathematics minor and a Masters degree in business administration. JX-I. Throughout his employment with LIRR, plaintiff was a member of the New York National Guard. Plaintiff's position with LIRR was other than temporary within the meaning of the Veterans Reemployment Rights Act, 38 U.S.C. § 2021, et seq.

 In March of 1978 and after his probationary period with LIRR had ended, plaintiff was asked by his supervisor, John Martens, to postpone his annual July tour with the National Guard. Plaintiff was told that because the LIRR had procured certain contracts, it anticipated heavy hiring during July and August, 1978. Plaintiff's skills would therefore be required by defendant in training the new employees during that period. As a result of this conversation, plaintiff contacted his Company Commander in the New York National Guard, Lieutenant Verga, explained LIRR's position and requested an alternate tour of duty. Lt. Verga approved the request and plaintiff applied for an alternate tour during August, 1978.

 Thereafter, the National Guard apparently found itself short on new enlistments and in need of recruiters. Mr. Micalone was given a new position in the reserves as Retention NCO. Lt. Verga then insisted that plaintiff serve his original July tour. Upon informing the LIRR of his orders to report, plaintiff's immediate supervisor, Phillip Damm, wrote to Lt. Verga asking that plaintiff's tour be postponed in light of the needs of the LIRR. JX-B. The request was denied, JX-C, and plaintiff served his July 8 to July 22, 1978 tour.

 Apparently, the National Guard failed to cancel the August tour plaintiff had requested earlier that year because upon returning from his July tour, plaintiff found orders to report to Camp Smith on August 1, 1978. The parties disagree as to what occurred after plaintiff returned from the July tour. According to plaintiff's testimony, he immediately showed the August orders to Phillip Damm who suggested that plaintiff apply for vacation time in order to serve the tour. Plaintiff testified that Mr. Damm subsequently advised him to attempt to cancel the tour because training specialists would be needed during the heavy work period in August. Plaintiff was successful in changing only two days of the tour and testified that Mr. Martens, Manager of Human Resources Development, threatened him with job dismissal if plaintiff did not cancel the tour.

 Plaintiff, Mr. Damm, Mr. Miller and Mr. Martens met to discuss plaintiff's request for vacation. According to plaintiff, the discussion centered on his August tour and ended with Mr. Miller stating he would fire plaintiff if the tour was not cancelled.Plaintiff testified that two days later he was directed by Mr. Martens to submit a letter of resignation. Plaintiff submitted the letter to Phillip Damm on August 3, 1978. JX-E.

 Testifying for the defendant, both Mr. Miller and Mr. Martens deny ever having threatened to fire plaintiff or haviang demanded plaintiff's resignation. Each of them testified that the first time they learned of plaintiff's second tour of duty was during the meeting and in the course of their discussion about plaintiff's request for vacation time. Each agree that plaintiff was denied vacation time due to the heavy work load at the LIRR. Mr. Miller testified that plaintiff volunteered for the second tour and that plaintiff chose not to postpone it.

 I find that whether plaintiff was threatened with dismissal is irrelevant to this case.The only significant fact, and one that is not in dispute, is that plaintiff resigned in order to serve his August tour of duty.Plaintiff's letter of resignation specifically states that "I am sending you this note of resignation due to orders for military duty to commence on 4 August 1978." JX-E.The fact that plaintiff received orders dated July 12, 1978 to report for duty on August 1, 1978 convinces me that plaintiff did not volunteer for the August tour in the sense that he could simply choose not to attend the training camp. See JX-D. Plaintiff was required to report and he did.

 After serving the August tour, plaintiff testified that he presented himself to the guard at the personnel department at the LIRR on or about August 28, 1978. The guard directed him to the employment office. Plaintiff appeared at the employment office and explained to a woman in the office that he was there to apply for Veterans Reemployment Rights. Plaintiff testified that the woman noted that he appeared and he left.Defendant claims that plaintiff never presented himself for reemployment. Neither Mr. Miller or Mr. Martens have any personal knowledge that plaintiff ever appeared at the office or requested reinstatement. Mr. Miller testified that if plaintiff had appeared, he would have been notified.

 I find that plaintiff did apply to defendant for reemployment.While neither party inquired into the identities of either the guard or the woman at the employment office at trial, plaintiff's testimony is corroborated by evidence that he spoke to Department of Labor officials concerning his rights to reinstatement and filed a complaint with the Department on August 3, 1978; by a letter received by the defendant from the Department of Labor dated August 23 which refers to plaintiff's complaint, JX-F; and, by a memorandum of a phone call dated August 28, 1978 made by witness Elanor Goldberg of the Department of Labor to defendant's attorney which refers to an offer by the LIRR to "reconsider" plaintiff's reinstatement. JX-K. In light of this, it is apparent that Mr. Miller simply was not told of the communication.

 In addition to the above, defendant was contacted by the Department in early 1979 and defendant's counsel responded by letter dated January 31, 1979. George Foraskis Interviewed plaintiff on Februart 27, 1979. Plaintiff's case was then referred to the Department of Labor's Office of Solicitor on June 12, 1979 which in turn referred the matter to the Department of Justice in August of 1979. Plaintiff testified that he contacted Assistant U.S. Attorney Papper, who had been assigned his case, numerous times over the following months. The Assistant United States Attorney who ultimately filed the complaint in this case, Jorge Guttlein, testified that apparently there were ...

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