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January 16, 1957


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, which provides:

    "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,
  § 459(c)(1).

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).

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 ...

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