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HILLIARD v. NEW JERSEY ARMY NATL. GUARD

May 12, 1981

Gary HILLIARD, Plaintiff,
v.
NEW JERSEY ARMY NATIONAL GUARD, et al., Defendants



The opinion of the court was delivered by: MEANOR

Plaintiff brings this action pursuant to the Civil Rights Act of 1866, as amended, 42 U.S.C. §§ 1983, 1985; the Veteran's Reemployment Rights Act, 38 U.S.C. § 2021 et seq. (hereinafter "VRRA") and the U.S.Const. amend. XIV, seeking declaratory judgment of his rights thereunder, back pay and vacation pay.

Jurisdiction is predicated upon 28 U.S.C. §§ 1331, 1343(1) and 38 U.S.C. § 2022.

 Defendants now move for summary judgment or, in the alternative, dismissal of this action as to New Jersey Department of Defense's Chief of Staff, Major General Wilfred C. Menard, Jr.; Deputy Chief of Staff, Brigadier General Peter Amodio; Township of Teaneck Police Department; Teaneck Police Department's Chief of Police Joseph Kilmurray; Police Captain Brian Burke; Teaneck Township Manager Werner Schmid; New Jersey Army National Guard and the Township of Teaneck.

 I. FACTUAL BACKGROUND

 Plaintiff was initially employed by the Township of Teaneck as a police officer in February 1974. In 1977, while so employed, plaintiff joined the New Jersey Army National Guard (hereinafter "NJANG"). On numerous occasions, plaintiff requested military leave from the Police Department in order to attend NJANG Officer Candidate School. Plaintiff sought the Township's permission before applying for active duty training because it has been the policy of the NJANG for the last ten years to require a public employee to obtain the consent of his employer before directing the Guard member to active duty, for training or for other purposes, so as to minimize interference with the activities of local government. (NJANG Reg. 351-2)

  The Township regularly refused permission; *fn1" nevertheless, on one occasion NJANG ordered plaintiff to officer candidate school at the completion of which he was commissioned as Second Lieutenant.

 Plaintiff returned to the police force and early in 1979 asked Teaneck for a military leave of absence in order to attend a special training course given at Fort Belvoir, Virginia which would last three and one-half months. The Township denied this request.

 Plaintiff then formed the American Scene Corporation naming himself as the sole incorporator, stockholder and owner. He then reapplied to NJANG for the training course at Fort Belvoir listing the American Scene Corporation as his sole employer. Unaware that plaintiff was still an employee of the Teaneck Police Department, NJANG issued orders to plaintiff on April 4, 1979, directing him to report for full-time training duty at Fort Belvoir, Virginia for the period May 13, 1979 to August 22, 1979 (102 days). Plaintiff sent a copy of his orders to the Police Department which was received on May 10, 1979 and reported for duty at Fort Belvoir on May 13, 1979.

 On May 15, 1979, Joseph Kilmurray, Chief of the Teaneck Police Department, wrote to Major General Wilfred Menard, Jr., Chief of Staff of the New Jersey Department of Defense, to find out why the Police Department was not contacted for permission in accordance with NJANG policy. In response, General Menard stated that plaintiff's orders were issued on the basis of his application in which he did not list the Township of Teaneck as an employer.

 Taking the position that plaintiff was absent without leave from the Police Department, Chief Kilmurray wrote to plaintiff on May 31, 1979 ordering him to return to his job or face dismissal from the police force. Plaintiff was also asked to resign from the Department. Plaintiff responded by letter on June 8, 1979 stating that he intended to return to his position in the police force on August 23, 1979. Plaintiff was then notified by the Teaneck Police that he would be carried on its records as being on leave of absence without pay until he returned to the police force.

 While on Guard duty at Fort Belvoir, plaintiff was recruited to commence active duty with the regular Army in an engineering capacity with the Army Corps of Engineers. Members of the National Guard are required to obtain a conditional release from their state headquarters before they can begin active duty with the regular Army.

 Plaintiff was issued orders on July 12, 1979 ordering him to active duty for two years, less training time served, to commence on September 10, 1979. On August 1, 1979, however, these orders were revoked.

 According to Brigadier General Peter R. Amodio, Deputy Chief of Staff of the New Jersey Department of Defense, who reviewed the entire sequence of events with Major General Menard, it was decided that plaintiff be given the opportunity to correct his employment misrepresentation on his February 1979 application by effectuating a retroactive resignation from the Teaneck Police Department; such resignation to be a precondition to plaintiff's release to the Army Corps of Engineers.

 Plaintiff was thus faced with a career choice. Either he completed his active duty training with NJANG and returned to the Police Department, or he resigned from the Police Department and joined the Army Corps of Engineers. By letter dated August 4, 1979, plaintiff submitted his resignation to Werner Schmid, Teaneck's Township Manager, to be considered retroactively effective from May 13, 1979. *fn2" Two days later, on August 6, 1979, plaintiff submitted a handwritten letter to Mr. Schmid which stated:

 
This is to clarify my resignation dated 4 August 1979. I resign as any patrolman that desires to stop working for Teaneck and start working someplace else. I can not make it any plainer than that. I have already handed in my gun and shields to Lt. Finn.
 
Now would you please accept my resignation and let me go?

 On August 3, 1979, Mr. Schmid accepted plaintiff's resignation, effective May 13, 1979, and on August 17, 1979 plaintiff was issued orders to serve with the Army Corps of Engineers from August 23, 1979 to May 1981. Plaintiff is ...


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