United States District Court, Northern District of Illinois
January 16, 1957
PAUL R. WILSON
ILLINOIS CENTRAL RAILROAD COMPANY, A CORPORATION.
The opinion of the court was delivered by: Hoffman, District Judge.
This action has been considered upon the defendant's motion
to dismiss the complaint under the provisions of Rule 12(b),
Federal Rules of Civil Procedure, 28 U.S.C.A.
The action was brought to redress an alleged violation of
the Universal Military Training and Service Act, as amended,
50 U.S.C.A.Appendix, § 459, 62 Stat. 614, Act June 24, 1948,
and, more particularly, to compel the defendant, as the
plaintiff's employer, to recognize the plaintiff's
re-employment rights as a veteran by restoring him to the
seniority status he would have occupied if he had not served in
the armed forces.
In support of his claim, the plaintiff relies upon Section
9(c)(1) of the Universal Military Training and Service Act,
"Any person who is restored to a position in
accordance with the provisions of paragraph (A)
or (B) of subsection (b) [of this section] shall
be considered as having been on furlough or leave
of absence during his period of training and
service in the armed forces, shall be so restored
without loss of seniority, shall be entitled to
participate in insurance or other benefits
offered by the employer pursuant to established
rules and practices relating to employees on
furlough or leave of absence in effect with the
employer at the time such person was inducted
into such forces, and shall not be discharged
from such position without cause within one year
after such restoration." 50 U.S.C.A.Appendix,
Briefly summarized, the plaintiff's complaint alleges that
he was employed as a laborer by the defendant on February 1,
1950, and left this position in order to enter upon military
training and service on December 6, 1950. He was honorably
discharged, it is alleged, on November 22, 1952, and within
the 90-day period provided by the Act applied for
re-employment in compliance with all conditions and
requirements of Section 9.
On December 1, 1952, the complaint continues, the plaintiff
was reinstated by the defendant in the position of a carman
helper rather than in his former capacity as a laborer. The
position of carman helper, it is alleged, is superior to that
of the laborer in the line of promotion established by
defendant's employment policies. It was the defendant's
established and consistent practice, the plaintiff avers, to
advance laborers to open positions as carmen helpers in
strict accordance with their seniority as laborers. Under this
practice, the plaintiff had become eligible for promotion to
carman helper on January 20, 1951, while he was absent in
military service. Upon his return from service, the complaint
states, he was accordingly employed in this advanced position
with the standing upon the scale of seniority he would have
enjoyed had he remained on the job; that is, with seniority as
a carman helper dating from January 20, 1951, when he would
have assumed that position.
On January 16, 1953, the plaintiff alleges, the defendant
changed the plaintiff's seniority date as a carman helper from
January 20, 1951, the date first assigned, to December 1,
1952, the date of plaintiff's re-employment after his release
from service. As a result of this reduction in plaintiff's
seniority, he claims that in the course of a subsequent
reduction in force he was demoted from the position of carman
helper to an inferior position at a lower rate of pay.
The gist of the claim, therefore, is that the defendant, in
adjusting plaintiff's seniority from the date of his
eligibility for promotion to carman helper to the date of his
re-employment, failed to restore him to employment "without
loss of seniority" as required by Section 9(c)(1) of the Act.
The defendant's motion attacks the sufficiency of the
complaint upon six grounds. These grounds, condensed and
summarized, amount to contentions that the alleged practice of
promoting laborers to carmen helpers in accordance with
seniority is not within the purview of the Act, and that the
allegations of the practice do not, therefore, establish a
cause of action under the Act; that the complaint contains
conclusions of the pleader; and that the allegations
are vague, indefinite, and uncertain.
Considering first the branch of the defendant's motion that
attacks the legal sufficiency of the complaint, we note that
under the practice laid down by the Federal Rules of Civil
Procedure disposition of cases solely upon the pleadings is
not encouraged. The office of the motion to dismiss under Rule
12(b)(6) is simply to test whether the allegations of the
complaint, liberally construed, are sufficient to make
admissible enough evidence to support a verdict for the
plaintiff. No technical form of pleading is required so long
as the claim is stated briefly and plainly. If the plaintiff
could recover upon any state of facts which might be proved
under the allegations as laid, the complaint states a claim
upon which relief can be granted and the motion must be
denied. See Mullen v. Fitz Simons & Connell Dredge & Dock Co.,
7 Cir., 1949, 172 F.2d 601, certiorari denied 1949,
337 U.S. 959, 69 S.Ct. 1534, 93 L.Ed. 1758.
The defendant argues that the complaint does not allege that
any contract to which it is a party establishes a right of a
senior laborer to be promoted to carman helper, and that the
alleged practice to that effect is not within the purview of
the act. Both the purpose of Congress and judicial
interpretation refute this claim. In Section 9(c)(2) of the
Act it is provided:
"It is hereby declared to be the sense of the
Congress that any person who is restored to a
position in accordance with the provisions of
[this Section] should be so restored in such
manner as to give him such status in his
employment as he would have enjoyed if he had
continued in such employment continuously from
the time of his entering the armed forces until
the time of his restoration to such employment."
50 U.S.C.A.Appendix, § 459(c)(2).
Whether the status which would have been attained if the
employee had remained on the job would have resulted from the
compulsions of a legally binding collective bargaining
contract, from an established employment practice known to the
employee which became an implied term of the employment
agreement, or whether from a consistent practice followed
voluntarily by the
defendant, does not affect the plaintiff's right. An
established course of practice may suffice. Morris v.
Chesapeake & Ohio Ry. Co., 7 Cir., 1949, 171 F.2d 579. The
plaintiff claims that under this practice seniority as a
laborer determines promotion to the position of carman helper,
and that seniority as a carman helper determined the right to
retain that position upon a reduction in force. Whether the
alleged practice of promotion is sufficiently settled to link
the two positions in a single chain of seniority, or whether
the two positions are so far separate that no loss of
seniority is involved, must be determined upon the basis of
evidence of the practice, and not upon the bare allegations of
the complaint. See Hewitt v. System Federation No. 152, 7
Cir., 1947, 161 F.2d 545; Diehl v. Lehigh Valley R. R., 1955,
348 U.S. 960, 75 S.Ct. 521, 99 L.Ed. 749, reversing per curiam
3 Cir., 1955, 211 F.2d 95.
The defendant relies upon authorities holding that the Act
does not confer upon the returning veteran immunity from
layoffs or a reduction in force based upon seniority. Fishgold
v. Sullivan Drydock & Repair Corp., 1946, 328 U.S. 275, 66
S.Ct. 1105, 90 L.Ed. 1230. But here the plaintiff complains
not of a layoff in accordance with what he believes to be his
proper seniority, but rather of a demotion resulting from a
reduction in force and directly attributable to the claimed
wrongful denial of seniority rights.
The defendant's argument that the complaint must be
dismissed upon the ground that it contains conclusions of the
pleader is without merit. Conclusions, ultimate facts, and
evidentiary facts as employed in state pleading systems
signify only a descending order of generality of allegation.
What detail is required is a matter of the context of the
fact, and of its relevancy to the heart of the litigation. It
is not the function of the complaint alone to assist the
defendant in its preparation for trial.
"* * * Whether these charges be called
`allegations of fact' or `mere conclusions of the
pleader,' we hold that they must be taken into
account in deciding whether the Government is
entitled to have its case tried." United States
v. Employing Plasterers Ass'n, 1954,
347 U.S. 186, 74 S.Ct. 452, 454, 98 L.Ed. 618. See also
Boerstler v. American Medical Ass'n, D.C.N.D.Ill.
1954, 16 F.R.D. 437, 443.
The same considerations control the defendant's contention
that the complaint is vague, indefinite, and uncertain. Want
of detail in a pleading is not a fatal vice so long as the
complaint is not "so vague or ambiguous that a party cannot
reasonably be required to frame a responsive pleading." Rule
12(e), Federal Rules of Civil Procedure. The complaint here
attached, while not a model of verbal precision, is sufficient
to apprise the defendant of enough to permit it to file an
answer. See Rudolph Wurlitzer Co. v. Atol, D.C.D.Minn. 1952,
12 F.R.D. 173.
The defendant's brief suggests that the plaintiff's claim
may be barred by laches. No motion to dismiss upon this ground
has been presented. Laches is, under Rule 8(c), an affirmative
defense to be pleaded by the defendant in his answer. Where
the bar of the passage of time clearly appears upon the face
of the complaint, the defense has been considered upon a
motion to dismiss. See Berry v. Chrysler Corp., 6 Cir., 1945,
150 F.2d 1002. But the allegations of this complaint do not
establish the defense. Consideration must accordingly await
the orderly presentation of laches by the filing of the
answer. See Topping v. Fry, 7 Cir., 1945, 147 F.2d 715.
The defendant's motion to dismiss is accordingly denied.
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