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July 26, 1973


The opinion of the court was delivered by: Robert D. Morgan, Chief Judge.


This cause arises under Section 9 of the Military Selective Service Act of 1967, as amended, 50 U.S.C.App. § 459. Plaintiff's complaint against defendant, Olin Corporation (impleaded as Olin Mathieson Chemical Corporation), demands judgment requiring Olin to reinstate him as an employee following his military service and to respond to him in damages for prior refusal of his request for reinstatement. Following a bench trial, the merits of the cause are before the court.

As a preface to specifically stated findings of fact, conclusions of law and judgment, this narrative statement of undisputed facts is made with some observations thereon, and on the case in general.

Olin operates a manufacturing plant, at which it has, at all times here material, engaged in the business, among others, of manufacturing shotgun shells and other products involving the use of explosives. On December 5, 1966, plaintiff was employed by Olin in its slitter department as a table operator. He submitted to the customary physical examination by Olin physicians prior to that employment. He subsequently bid, successfully, for the position of slitter operator. Because of plant layoffs imminent when that bid was approved, plaintiff was assigned by Olin to another department as a loading operator on April 3, 1967.

That employment continued until plaintiff was called to active service in the United States Navy on May 4, 1967.

Plaintiff was assigned by the Navy to a base in San Diego, California, for training as a hospital corpsman. Following training he was assigned to duty at Port Hueneme, California, and became a "Hospitalman" at grade E-3. In March 1968, plaintiff attempted suicide with pills and slashing his wrist with a razor because of depression over supposed unfaithfulness of a girl friend. Following a short period of hospitalization and physical recuperation, he returned to his unit, where, however, he was reassigned to the records section instead of to his specialty as hospital corpsman. Unquestionably, that change in his duties led to disciplinary problems which led to plaintiff's subsequent discharge. He was discharged from the Navy "under honorable conditions" on December 20, 1968, having been informed that the reason was "unsuitability."

Within ninety days after that date, plaintiff applied to Olin for reemployment as a slitter operator. Reemployment was refused because of Olin's position that his attempt at suicide during military service rendered him dangerous to fellow employees and to the company in an explosive plant, and that he was thus unsuitable for reemployment.

Subsequently, after examination by two psychiatrists on plaintiff's own behalf, neither of whom was called at the trial by either party, it was agreed between the parties that plaintiff would submit himself for psychological and psychiatric examination at the Madison County Mental Health Center at Alton, Illinois. Such testing and evaluation were done at the Center by Doctors Powell and Hempel, to develop professional opinion on plaintiff's suitability for employment at defendant's plant. Both doctors concluded, and so reported to Olin, that plaintiff, while suffering from "passive-progressive personality," was suited for such employment.*fn1 Both reports were received in evidence by agreement. Notwithstanding these reports, Olin continued its refusal to reemploy plaintiff.

In the interim period between his application for reemployment and the time of trial, plaintiff had been employed in various capacities by hospitals and industrial employers. At the time of trial, plaintiff resided at Dallas, Texas, where he was then employed as a bus driver.

At the trial of the cause, plaintiff testified in his own behalf and presented the testimony of Doctor Powell and Doctor Hempel.

Olin called no witnesses and presented no testimonial evidence except cross-examination. During its cross-examination of Doctor Hempel, it moved the admission of Defendant's Exhibit 2, which is a United States Navy clinical record involving plaintiff. It being shown that that record had been considered by Doctors Powell and Hempel in the course of their evaluation of plaintiff, the same was admitted in evidence, subject to plaintiff's objection that it is hearsay. That exhibit has been considered by the court in that context, only for its bearing upon evaluation of the testimony of Doctors Powell and Hempel.

With that background of undisputed facts, the court finds the specific facts and legal conclusions related to the issue of plaintiff's alleged right to reemployment as follows:


1. Defendant, Olin, a corporation, has an office and large manufacturing facility located at East Alton, in Madison County, Illinois, ...

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