Appeal from the United States District Court for the Eastern District of Wisconsin. No. 75 C 27 -- Terence T. Evans, Judge.
Bauer and Coffey, Circuit Judges, and Celebrezze, Senior Circuit Judge.*fn* Bauer, Circuit Judge, concurring in part, dissenting in part.
Appellant, cross-appellee, Samuel Hanna, appeals the judgment of the United States District Court for the Eastern District of Wisconsin, awarding him lost wages in the amount of $1,100.74 for the period between December 18, 1970, and February 28, 1971, lost wages in the amount of $8,671.50 for the period between April 24, 1973, and November 14, 1977, and interest in the amount of $408.00. Cross-appellant, American Motors Corp., appeals the district court's ruling that Ford Motor Co. v. EEOC, 458 U.S. 219, 73 L. Ed. 2d 721, 102 S. Ct. 3057 (1982), is inapplicable to this case which arises under the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (prior to 1982 amendment), 38 U.S.C. § 2021 et seq. (1976). We reverse the judgment of the district court as to the award of $8,671.50, and award appellant $28,905.00, plus prejudgment interest in the amount of $15,347.56, for the period between April 24, 1973, and November 14, 1977. In addition, we award the appellant prejudgment interest in the amount of $487.97 on the $1,100.74 in lost wages awarded by the district court for the period between December 18, 1970, and February 28, 1971.
This court has considered appellant Samuel Hanna's complaint against American Motors Corporation ("AMC") on two prior occasions.*fn1 We initially set out the underlying facts in Hanna v. American Motors Corp., 557 F.2d 118 (7th Cir. 1977) (" Hanna I "), thus, for the purpose of this appeal we will only summarily review the facts pertinent to this decision.
On September 14, 1970, Hanna commenced work as an assemblyman at AMC's Kenosha, Wisconsin plant. Hanna earned "approximately $3.75 an hour" attaching bolts, bumper guards, and brake hoses to automobiles as they moved along an assembly line. On September 17, 1970, and December 3, 4, and 7, 1970, Hanna absented himself from work in order to undergo a mandatory military service preinduction physical examination. On all four of these days work was available for Hanna at the AMC plant in Kenosha. On December 18, 1970, AMC reduced its labor force and "laid off" Hanna, who up until that date had worked fifty-six days. Pursuant to the collective bargaining agreement between AMC and the United Auto Workers Union ("UAW"), of which Hanna was a member, if Hanna had worked sixty days, he would have completed his probationary period and would have been awarded seniority from September 14, 1970, the date of his original hiring. In addition, if Hanna had attained seniority status on or before December 18, 1970, he would not have been "laid off" until February 28, 1971.
On March 10, 1971, Hanna was inducted into the Armed Forces and while in military service he received a letter from AMC stating that because he had failed to complete his sixty-day probationary period within one year, as provided for in the UAW-AMC collective bargaining agreement, his employment at AMC had been terminated. Following almost two years of military service, including a nine-month stay in Vietnam, Hanna received an honorable discharge from the Armed Forces on February 22, 1973.
Upon returning to Kenosha, Wisconsin, Hanna contacted AMC about being reinstated to his previous job but was told by company officials that he had no reemployment rights. On March 22, 1973, AMC agreed to employ Hanna as a "new hire" performing "similar work" on the assembly line. On April 23, 1973, Hanna complained to AMC officials that they were violating his veteran's reemployment rights by refusing to accord him seniority from the date of his original hiring on September 14, 1970. Due to AMC's refusal to grant seniority, Hanna left AMC the following day and was terminated by the company.
Hanna sought the assistance of his union, contacting UAW board members in an attempt to obtain reinstatement with seniority at AMC, but his efforts "didn't develop into anything."*fn2 Hanna next contacted the Department of Labor who, in turn, transferred the matter to the Department of Justice, who filed suit, on behalf of Hanna, against AMC claiming that the company had violated Hanna's rights under the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (prior to 1982 amendment), 38 U.S.C. § 2021 et seq. (1976) ("Vietnam Veterans' Readjustment Act"). The district court granted AMC's motion for summary judgment and dismissed the case. The Government appealed and this court ruled that:
"But for the pre-induction physicals, plaintiff would have collected his salary until February 28, 1971, and would have been reinstated upon return from active duty with a September 14, 1970, date with all attendant rights under the collective bargaining agreement. Thus under the Act plaintiff is entitled to reinstatement with a September 14, 1970, seniority date and to collect lost wages from December 18, 1970, until at least February 28, 1971, his proper lay off date.*fn2 38 U.S.C. § 2022; United States ex rel. Adams v. General Motors Corp., [525 F.2d 161 (6th Cir. 1975)]. Plaintiff did not waive his rights under the Act by his April 24, 1973, refusal to continue in the inferior status accorded him by the defendant. O'Mara v. Petersen Sand & Gravel Co., 498 F.2d 896 (7th Cir. 1974).
Accordingly the district court's judgment is reversed and remanded for further proceedings consistent herewith.
2. He will also be entitled to recover lost wages from April 24, 1973, when he left defendant's employ, to date unless on remand defendant can show that plaintiff abandoned his willingness to continue in its employ under the conditions mandated by the Act when he enrolled in the University of Wisconsin-Parkside in September, 1973 as a student seeking a degree. See Taylor v. Safeway Stores, Inc., 524 F.2d 263, 267-268 (10th Cir. 1975)."
Hanna I, 557 F.2d at 122.
At the subsequent trial for damages, which is the subject of this appeal, the evidence revealed that following his termination date of April 24, 1973, Hanna visited the Kenosha Job Service office four times a month between June and September of 1973. A Job Service representative gave Hanna "five to ten" referrals which "didn't pan out to anything." On September 4, 1973, Hanna enrolled as a full-time, day student at the University of Wisconsin-Parkside ("UW-Parkside") in Kenosha, Wisconsin and thus began receiving veterans benefits under the "G.I. bill." UW-Parkside is "mainly a commuter school," that is attended in significant part (31%) by students over thirty years of age, "a number of" whom are employed full time. During the fall semester of 1973, Hanna filed "five to ten" applications with various employers and continued to visit the Kenosha Job Service office.
Between January 1974 and the "summer" of 1974, Hanna did not attend school but continued to follow up on referrals from the Kenosha Job Service office, though "nothing panned out." In the "summer" of 1974, through a friend's suggestion, Hanna landed a seasonal job as a general laborer, cutting grass and painting fences, for the Wisconsin Natural Gas Company in Racine, Wisconsin. Hanna continued at this job for "about a month," earning $598.00, and then quit because he "felt that as a Vietnam veteran [he] should be doing something more. . . ." Hanna testified that in September of 1974, he returned to UW-Parkside as a full-time day student because he "didn't have a job . . . and it was a means of getting some money and income and plus learning something." Between September 1974 and June 1975, Hanna filed applications at two factories in Waukegan, Illinois and one in Kenosha, Wisconsin. During this period Hanna also continued to visit the Kenosha Job Service office, and remained "ready, willing, and available to work at American Motors Corporation," or at any factory with comparable employment opportunities.*fn3 Even though Hanna did not file any application with "private employment services" during this period, he did continue to read the want-ads of the Kenosha News and drive his automobile to various factories in order to personally file job applications.
Hanna was unable to find employment during the "summer" of 1975, and in September he again enrolled in UW-Parkside as a full-time, day student. The testimony revealed that during the fall semester of 1975, Hanna "continued to seek full-time employment," but was unsuccessful in his efforts. Between February 1976 and January 1977, Hanna, while still attending school, filed additional employment applications at factories located in Waukegan, Illinois, Zion, Illinois, and Kenosha, Wisconsin but was offered no job. Hanna left school after the fall semester of 1976. In June 1977, after having had an application on file with the Kenosha Job Service for over four years, he obtained his first employment through the Job Service office in the "CETA" program, building campsites for the Kenosha City Parks Commission. Hanna worked at this job for "about two months" earning $1,312.00, and terminated his employment when the Government informed him of this court's decision in Hanna I. Following the decision in Hanna I on June 23, 1977, the district court issued two reinstatement orders before AMC complied and reinstated Hanna as an assemblyman, earning $4.25 an hour, on November 14, 1977. Hanna continued at this job for seven months until he was again discharged by AMC.
At the trial for damages, Kenneth Neill, supervisor of the Kenosha Job Service program, testified that his agency "counseled with a number of veterans" between April 24, 1973, and November 14, 1977, because the agency was "mandated by law to serve and provide priority [to] veterans," in order to help them readjust to society and overcome any effects of the then referred to "Vietnam Vet Syndrome." Neill further testified that there were five other "transportation equipment" plants in the area surrounding Kenosha but that AMC generally paid twenty to twenty-five percent more than the other employers. Neill concluded that there was "a high probability that a person [of general factory worker skills] would not be able to find a job comparable," to that of an AMC employee and that the closest comparable employer was the General Motors Corporation, some seventy miles away in Janesville, Wisconsin. In addition, the unemployment rate in Kenosha County ranged from 3.5 percent in 1973 to 8.5 percent in 1977, and the unemployment rate for a minority, such as Hanna, was "usually double" that of nonminorities. On cross-examination Neill initially stated that between April 24, 1973, and November 14, 1977, an individual with skills commensurate with Hanna's "could secure employment . . . within a twenty-seven mile commuting area" of Kenosha. Neill then qualified that statement on redirect examination and admitted that the probability of finding "comparable" employment was "substantially lower" and, in fact, within the same twenty-seven mile radius, there was " no comparable employment to American Motors when all factors [were] concerned [sic]." (emphasis added). Based upon this testimony, the trial judge ruled, in pertinent part:
" I further find that the plaintiff did not abandon his willingness to return to work by becoming a student at UW-Parkside in September of 1973. I believe his decision to return to school can more accurately be characterized as pursuing an alternative that was better than anything else Mr. Hanna had going for him at the moment. Had he been offered a job at AMC with the correct seniority date, I find that he would have either quit school and returned to the job or would have restructured his school courses so that he could return to full time employment while still remaining a student.
I do find, however, that Mr. Hanna's full time schooling interfered with his duty to mitigate his damages. Although he did secure some employment, it was of a seasonal nature, consistent with the kind of job that college students secure while continuing their educations.
Furthermore, I find that work of a somewhat comparable nature to the unskilled labor performed by Mr. Hanna at AMC was available in the Kenosha area in which Mr. Hanna lived during the period in question. Although it might have been difficult to find an unskilled laborer's job that paid as handsomely as did the one at AMC, Mr. Hanna nevertheless should have more diligently pursued work that was available. Thus, I find that to a significant extent, AMC has demonstrated that Mr. Hanna has failed to properly mitigate his damages.
I find no failure of a duty to mitigate between December 18, 1970 and February 28, 1971. Thus, during that period, I find that $1,100.74 is an appropriate amount to be awarded to the plaintiff. As to the remaining claim for $28,905.00, I find that a reduction should be made for failure to mitigate, the most important element of which was the plaintiff's enrollment for almost three years as a full time college student. Although, as I have said, I do not view his act as a waiver of his right to seek reinstatement at AMC, I believe it significantly cooled his ardor for job hunting. I believe a 70% reduction for failure to mitigate on this point is appropriate, and thus I award the plaintiff $8,671.50 for post-April 1973 damages. On the December 18, 1970 to February 28, 1971 award of $1,100.74, I believe a further award of post-judgment interest from June 23, 1977 (the date of the decision in Hanna I) to date is appropriate. Because of the closeness of the liability question and the good faith of AMC in reasonably construing its collective bargaining agreement with the UAW (in other words, I do not in any way view this case as one where AMC blatantly disregarded the rights of a veteran), I will not award interest on the damages found to be due for the period of time that followed April 24, 1973." (emphasis added).
On appeal, Hanna contends that:
A. The district court exceeded the directive of this court in Hanna I.
B. The district court erred in finding that Hanna failed to ...