or suicidal tendencies; and nothing to indicate that he
suffered from any psychological problems which would render him
dangerous as an Olin employee; and that while he had a
passive-aggressive personality, it would in no sense render him
unsuited for employment by Olin.
12. Doctors Powell and Hempel are qualified and credible expert
witnesses whose testimony is not contradicted or discredited in
any way by any evidence before the court.
13. Plaintiff testified to a steady pattern of employment
subsequent to his discharge from the Navy. At the time of trial
he had been married for about four years and had one son. He
had not been hospitalized nor on medication for nervousness or
otherwise since his discharge from the service.
14. There is no evidence before the court having any tendency
to prove that plaintiff is in any degree less mentally or
emotionally qualified or more dangerously unsuited for
reemployment by Olin than any number of other employees whom
Olin has apparently not found it worthwhile to examine and
evaluate in this regard.
CONCLUSIONS OF LAW
1. The court has jurisdiction of the parties and the subject
matter of this cause of action. 50 U.S.C.App. § 459.
2. It is presumed under the law that a veteran, who was
qualified for his employment status upon its termination by his
entry into the active military service of the United States,
remains qualified to claim reemployment upon his discharge from
such active military service. It is further presumed that,
absent interruption of employment by his military induction, he
would have remained in the employ of his employer, would have
performed satisfactorily and would have done all things
necessary to assure himself of employment benefits, including
seniority status. An employer who refuses to reemploy a
discharged veteran who has timely applied for reemployment has
the burden of proving the veteran's disqualification for
reemployment. Brickner v. Johnson Motors, 299 F. Supp. 1005,
1007 (N.D.Ill. 1969), aff'd, 425 F.2d 75 (7 Cir. 1970); Burke
v. Boston Edison Company, 279 F. Supp. 853, 856 (D.Mass. 1968);
Hall v. C. & E. I. R. R., 240 F. Supp. 797, 801 (N.D.Ill. 1964).
3. Defendant has not sustained such burden in this case.
4. The fact of plaintiff's attempted suicide in March 1968, or
plaintiff's other breaches of duty in the service, does not
support any inference that plaintiff is disqualified for
reemployment by Olin, as potentially dangerous or otherwise.
5. The credible evidence of record is consistent only with the
conclusion that plaintiff was qualified for his employment when
employment was interrupted by his military induction, and that
he is now, and at all material times, qualified for
6. Olin's refusal to reemploy plaintiff is a violation of 50
U.S.C.App. § 459(b)(B)(i). Any other holding on this record
would virtually nullify this statutory right of veterans of the
7. Plaintiff is entitled to judgment compelling Olin to offer
him prompt reemployment in the position of Slitter Operator,
the classification which he held, but for plant layoff, when
his employment was interrupted by his military service.
Brickner v. Johnson Motors, supra; Power v. Northern Illinois
Gas Co., 388 F.2d 427, 429 (7 Cir. 1968). There is no evidence
before the court that he would not have actually occupied this
classification long prior to December 1968, but for military
8. Plaintiff is entitled to a judgment against Olin for damages
measured by the difference between his actual earnings received
from other employers and earnings which he would have
received from Olin had he been reemployed as a Slitter Operator
on February 1, 1969. 50 U.S.C.App. § 459(d); Accardi v.
Pennsylvania R. R., 383 U.S. 225, 228, 86 S.Ct.
768, 15 L.Ed.2d 717 (1966); Helton v. Mercury Freight Lines,
Inc., 444 F.2d 365, 367 (5 Cir. 1971). There is insufficient
data before the court to permit accurate computation of such
damages, if any.