FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING REMEDY AND DAMAGES AFTER A FINDING OF LIABILITY
I. INTRODUCTION
The plaintiff, Gary W. Lapine (hereinafter “Lapine” or “plaintiff’), brings claims under the Veterans’ Reemployment Rights Act, 38 U.S.C. §§ 4301-4306, (VRRA) against defendant Town of Wellesley (hereinafter, “the Town” or “defendant”). Lapine resigned from the Wellesley Police Department effective May 13, 1990; he reported for active duty in the Army on July 22, 1990. His three-year term ended August 30, 1993. In this action, Lapine seeks reinstatement as a police officer in the Wellesley Police Department, an award of approximately $165,000 for lost pay from the date of his application for reinstatement in 1993 and other damages, including sick pay and vacation pay.
After completion of discovery, each party moved for the entry of judgment as a matter of law. Lapine’s motion for summary judgment was denied during oral arguments; the Town’s motion was denied on July 7, 1997.
Lapine v. Town of Wellesley,
Thereafter, a non-jury trial was held, transcripts were prepared, the parties filed their proposed findings of fact and conclusions of law, and final arguments were *135 heard. On February 22, 2001, I issued Partial Findings of Fact and Conclusions of Law which addressed the issue of liability. In that opinion, I found that the Town was liable under the VRRA, but I did not address the proper remedy and measure of damages to which Plaintiff is entitled. This opinion hereby incorporates the February 22, 2001 opinion in full and further addresses the issue of the proper remedy and the damages to which Plaintiff is entitled.
II. FINDINGS OF FACT 2
1. Lapine was appointed as a full-time police officer in the Town’s Police Department on May 9,1977. (Stip-¶ 5) 3
2. As of April of 1990, Lapine worked the midnight shift and held the rank of patrolman in the Wellesley Police Department, with a pay classification of Patrolman-EMT (P18), at a step 4; he received a weekly base salary of $631.00. (Stip. ¶ 6 and Tr. 90) Lapine also received $35.00 per week for educational incentive pay and $23.00 per week for shift differential pay. 4 (Tr. 90). Had Lapine been employed continuously by the Town in his previous position, he would have earned a weekly salary of $740.69 for 1993, $758.12 for 1994, $775.12 for 1995, $775.12 for 1996 and $775.12 for 1997. (Tr. 94-95)
3. Moreover, Lapine received vacation time and sick leave. (Tr. 91) For the years 1993-Oetober, 1997, Lapine would have been awarded 79 shifts of vacation time: 15 shifts for 1993-94, 20 shifts for 1994-95, 20 shifts for 1995-96, and 4 shifts for 1996-October 1, 1997. (Tr. 99) The Collective Bargaining Agreement awarded annual vacation time of between 5 shifts and 30 shifts, depending on how long an employee had been continuously employed on a full-time basis with the Town. For example, an employee who had been with the Town for 13 years, as Lapine had been as of 1990, would have received between 20 and 25 shifts of vacation time annually. (Exh. 66).
4. On April 30, 1990, Lapine submitted a letter (Exh. 1) to the then Chief of Police, resigning from the Town’s police department, effective May 13, 1990. (Stip^ 8)
5. On April 30, 1990, Lapine completed and submitted an application (Exh. 2) to the Wellesley Retirement Board for withdrawal of his accrued retirement benefits, which amounted to $31,021.79. (Stip^ 8) Both Lapine and the Town had made contributions to Lapine’s pension fund. (Tr. 92)
6. On May 7, 1990, Lapine completed and submitted an Application for Active Guard Reserve Duty (Exh. 3) and an Application for Active Duty for Training for Members of the Army National Guard and U.S. Army Reserve (Exh. 4), and on June 20, *136 1990, Lapine was issued orders (Exh. 6) to report on July 22, 1990 for active duty training at Fort Benjamin Harrison, Indiana, for forty days. (StipJ 13)
7. On July 13, 1990, Lapine was issued orders (Exh. 7) to report for active duty on September 10,1990. (StipJ 14)
8. On September 3, 1990, Lapine executed an Oath of Extension of Enlistment or Reenlistment (Exh. 8) for a three year term expiring on August 30, 1993. (StipJ 15)
9. On June 26, 1992, Lapine sent a letter to Wellesley Chief of Police, Thomas J. O’Loughlin (Exh. 9), “exploring] the opportunity or feasibility of re-employment with the Wellesley Police Department.” (StipJ 16)
10. Police Chief O’Loughlin wrote to La-pine on July 6, 1992 (Exh. 10) that it was unlikely that a position would be available to Lapine and indicated his reluctance to hire police officers through reinstatement. (StipJ 17)
11. One year later, on July 6, 1993, La-pine sent another letter to Police Chief O’Loughlin (Exh. 11) requesting reemployment with the Wellesley Police Department under the VRRA, after his current AGR duty term ended on August 30, 1993. (StipJ 18) This was the first time he informed anyone in an official position with the Town of Wellesley that he was seeking reemployment pursuant to the VRRA. (Tr. 126-9)
12. In a letter, dated July 14, 1993 (Exh. 12), Police Chief O’Loughlin, denied La-pine’s request for reemployment under the VRRA. (StipJ 19)
13. On August 31, 1993 Lapine was issued a Certificate of Release of Discharge from Active Duty, DD Form 214 (Exh. 13) and was honorably discharged. (StipJ 20)
14. During his tenure with the Town, La-pine was subject to several disciplinary actions. As a result of these actions, the Town imposed punishments on Lapine. (Tr. 64) Specifically, in 1983, Lapine received a five-day suspension for putting a chemical in the uniform of one Sergeant Chaisson and in September of 1989, La-pine received a letter of reprimand for reporting late to a seminar and for failing to report for a paid detail. (Tr. 64-65,138, 203) Additionally, in 1981, a recommendation was made to the Chief of the department that Lapine undergo stress counseling because he had been exhibiting some irrational behavior. (Tr. 166-67) For example, when on desk duty, Lapine failed to give proper service to several people who called in requesting assistance. (Tr. 167) Additionally, Lapine went into a rage and screamed at several youths who were at the station to bail out a friend who had been arrested. (Tr. 168) On another occasion, Lapine had a physical altercation with another police officer. (Tr. 168).
15. When Lapine left the police department in 1990, he was not subject to any disciplinary punishment or any restricted duty. (Tr. 65) In addition, just prior to the time he left the department in 1990, La-pine underwent a physical examination and was found to be in very good health. (Tr. 88)
16. In 1988, Lapine received an employee evaluation that gave him an overall rating of “definitely above average.” (Tr. 65-66 and Exh. 49) In 1989, Lapine received another employee evaluation that again accorded him an overall rating of “definitely above average.” (Tr. 67 and Exh. 57)
17. During his years with the Town, La-pine received several letters of commendation, two in 1983, one in 1986 and one in 1988. (Tr. 69-70 and Exhs. 27, 42 and 48)
18. If Lapine had been employed with the Town from August, 1993 to October, *137 1997, he would have earned $165,059.28. 5 (Tr. 95-97)
19. From August, 1993 to October, 1997, Lapine earned $64,229.00 in wages from various jobs and received' “close to $10,000” in unemployment. (Tr. 135, 137).
20. Chief O’Loughlin, the Wellesley Chief of Police, hired at least 15 new officers between 1992 and 1997. (Tr. 194-95)
III. CONCLUSIONS OF LAW
A. Is Lapine Entitled to be Reinstated?
I determined previously that La-pine prevailed against the Town in this action. I must now, therefore, decide whether Lapine is entitled to reinstatement, benefits and lost wages. The test for determining whether a veteran is entitled to be reinstated at the job he held before entering the service is straightforward:
Five eligibility criteria must be satisfied before a returning service member will be entitled to reemployment. The basic requirements are that the individual held a nontemporary position, left that position to enter active duty, served on active duty for less than four years, honorably performed military service, and requested reinstatement within ninety days of discharge....
When Johnny (Joanny) Comes Marching Home: Job Security for the Returning Service Member under the Veterans’ Reemployment Rights Act, 132 Mil. L.Rev. 175, 180 (Spring, 1991) (citing 38 U.S.C. § 2021). 6
I find that Lapine has met all five requirements for reinstatement. Obviously, the position he left was not a temporary one. The general test for determining whether a position is considered temporary is whether the employee had a reasonable expectation that employment would be continuous and for an indefinite time.
Moe v. Eastern Air Lines,
Moreover, as set forth in the February 22 opinion, I found that he left his job with the Town to enter active duty. See 2/22/01 Opinion at 22. In addition, Lapine served on active duty for less than four years, from September, 1990 until August, 1993.
Finally, Lapine was honorably discharged from his duty, receiving a certificate of discharge in August, 1993, and he requested reinstatement with the Town within ninety days of his discharge. Indeed, he requested reinstatement in July, 1993, before he was even discharged. Therefore, I find that Lapine has satisfied all five prongs of the test for reemployment. The analysis does not end here, however, because the Town may have legitimate defenses to reinstating Lapine.
B. Does the Town Have Any Legitimate Defenses?
The VRRA sets forth, in relevant part, that a returning veteran is entitled to be restored to his position or to a position of like seniority, status and pay “if still qualified to perform the duties of such *138 position or able to become requalified with reasonable efforts by the employer ... unless the employer’s circumstances have so changed as to make it impossible or unreasonable.... ” 38 U.S.C. § 4301(a)(B)(ii)(1994). Thus, in order to avoid reinstating Lapine, the Town must have proven either that its circumstances have changed so much that employing La-pine would be impossible or unreasonable or that Lapine is no longer qualified to perform the duties of a police officer. I find that the Town did not establish either of these factors at trial.
It is the Town’s burden to prove that circumstances have made reemploying La-pine unreasonable or impossible.
Watkins Motor Lines, Inc. v. De Galliford,
Similarly, the Town did not establish that Lapine is not qualified to fulfill the duties of being a police officer. It is the Town’s burden to show that Lapine “was not qualified for his former position either at the time he [entered] the service or at the time he sought reemployment.”
Duey v. City of Eufaula, Alabama,
No. 79-149-N,
The Town presented no evidence that Lapine was not qualified for his prior position at the time he sought reinstatement. Moreover, the Town put forth no evidence that Lapine was not physically qualified to fulfill the duties of being a police office at the time he entered the military. To the contrary, when Lapine left his position with the Town in 1990, he was found to be in very good health after undergoing a physical examination.
However, being physically qualified to perform the job is not all that is required. The word qualified as used in the VRRA means more than just physically and mentally able to perform the job a veteran had done before his induction into the service.
Trusteed Funds v. Dacey,
The Town is entitled to (and did) present evidence regarding Lapine’s preservice job performance. “[MJatters affecting a person’s qualifications for the job which occur prior to his application for reemployment can be the basis for finding him not qualified for reemployment.”
Greathouse v. The Babcock and Wilcox Co.,
The two incidences that could conceivably show that Lapine is not qualified to be a police officer are the actions underlying the suspension (i.e., putting the chemical in another’s uniform) and the so-called “irrational actions.” For purposes of determining whether Lapine is “qualified”, I find that all of the other disciplinary actions are irrelevant. That is, I find that the failure to report to a paid detail and the fact that Lapine showed up late to a seminar have no bearing on whether Lapine is qualified under the VRRA.
The cases that have addressed the issue have consistently held that a veteran is unqualified
8
only if he has demonstrated dangerous or extreme behavior. For example, in
Winfree v. Morrison, Inc.,
Although Lapine’s actions do not appear as egregious as those listed above, his physical altercation with another officer, his failure to assist citizens calling the station for help and his assault on the sergeant by putting chemicals in his uniform might each in and of itself be enough to find Lapine unqualified if the instances had happened nearer to the time of his resignation. The problem here is that the irrational actions took place in 1981 and the assault on the sergeant occurred in 1983, both many years before Lapine left his position with the Town. In response to Lapine’s unacceptable behavior, the Town took what it deemed to be the necessary steps to discipline Lapine and to ensure that such behavior did not recur, but the Town did not choose to terminate Lapine. 9 Moreover, much closer to the time of his resignation, Lapine received favorable employee evaluations and a letter of commendation. In 1988 and 1989, Lapine was given overall ratings of “definitely above average” and in 1988, Lapine was given a commendation letter. Finally, when he left the force in 1990, Lapine was not subject to any disciplinary actions. Thus, I find that Lapine’s “bad actions” were too remote in time to make him unqualified to be reinstated as a police officer, and I find therefore that the Town is required under the VRRA to reemploy Lapine. 10
C. To What Position Must Lapine Be Reinstated and To What Beneñts is He Entitled?
Under the VRRA, the Town must reinstate Lapine to his former position or to a position “of like seniority, status and pay.” 38 U.S.C. § 4301(a)(B)(i). The Supreme Court has interpreted this provision to mean that the veteran “does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously....”
Alabama Power Co. v. Davis,
*141
In addition, Lapine is entitled to any promotions that would have occurred automatically but is not entitled to promotions that rely “on the exercise of discretion on the part of’ the Town
Alabama Power,
Under the VRRA, Lapine is also entitled to receive benefits. There are:
two axes of analysis for determining whether a benefit is a right of seniority secured to a veteran.... If the benefit would have accrued, with reasonable certainty, had the veteran been continuously employed by the private employer, and if it is in the nature of a reward for length of service, it is a “perquisite of seniority.” If, on the other hand, the veteran’s right to the benefit at the time he entered the military was subject to a significant contingency, or if the benefit is in the nature of short-term compensation for services rendered, it is not an aspect of seniority....
Alabama Power,
I will address the pension plan issue first since that is the most straightforward. “Virtually every court to consider the issue has concluded that pension and retirement plans are perquisites of seniority. Accordingly, employers must make contributions and grant vesting on the returning employee’s behalf.” 132 Mil. L.Rev. 175, 190. For example, the court in
Alabama Power
held that “pension payments are predominantly rewards for continuous employment with the same employer” and required that the employer pay the veteran employee “the pension to which he would have been entitled by virtue of his lengthy service if he had not” entered the military,
The vacation pay and sick pay issues are somewhat more confusing. In order to determine whether Lapine is entitled to be compensated for his vacation time, I must, under the test set forth in Alabama Power, supra, decide first whether it is reasonably likely that vacation time would have accrued had Lapine not entered the service and second, whether vacation time is in the nature of a reward for length of service or if it is in the nature of short-term compensation for services rendered. I find that it reasonably certain that vacation time (and sick time) would have accrued had Lapine never left his position with the Town. It is clear under the Collective Bargaining Agreement that “annual vacations with pay shall be granted to all employees who complete ... continuous full-time employment during the fiscal year_” Exh. 66 at p. 7. There is nothing to suggest that vacation time does not automatically accrue.
In determining whether vacation pay in this case is a reward for length of service or is short-term compensation, I look to
Foster v. Dravo Corp.,
In Dravo, an employee was required to work at least 25 weeks in a year to receive any vacation time. Once an employee worked 25 weeks, he was then accorded the same amount of vacation time as one who worked a full year. Moreover, additional vacation credit was given to employees who worked substantial overtime.
The case at bar is distinguishable from Dravo because here vacation time appears to accrue automatically as a function of continued association with the Town. It is true that an employee must work for at least six months to receive any vacation time, but once that requirement is met, vacation time accrues automatically as a simple function of how long an employee has been employed by the Town. 14 There is no work performance requirement. Also, no additional vacation time is given for *143 overtime work and laid-off employees are not accorded vacation time on a pro rated basis but are given the full amount of vacation time for that year. See Collective Bargaining Agreement at pp. 5, 8. Even more important here, however, is that the Collective Bargaining Agreement specifically spells out that “[s]ervice in the Armed Forces shall not be considered an interruption of work for the purposes of computing total service credit for vacation purposes.” at p. 9. 15
In short, I find that in the instant case, vacation time is a reward for length of service not short-term compensation for work performed and thus Lapine is entitled to receive pay for the vacation shifts he would have received had he been continuously employed by the Town.
Determining whether Lapine is entitled to back sick pay requires the same analysis as whether Lapine is entitled to back vacation pay-that is, is sick time a reward for length of service or is it in the nature of short-term compensation?
16
The Collective Bargaining Agreement (at p. 10) addresses sick leave and sets out that an employee must be with the Town for at least one month before acquiring any sick leave and that sick pay will be calculated as a percentage of the employee’s weekly salary. Thus, under the factors set out in
Lipani, supra,
D. Is Lapine Entitled to Lost Wages?
In short, Lapine is entitled to receive lost wages. The VERA, sets out, in relevant part, that an employer must compensate the returning veteran “for any loss of wages or benefits suffered by reason of such employer’s unlawful action.” 38 U.S.C. § 4302. Credit must be given for the wages Lapine earned in the years he was not working for the Town, but the Supreme Court has held that courts should not consider unemployment compensation in reducing an award of back pay. That is, the Town must pay Lapine for lost wages and can subtract the amount of wages he actually earned working at other jobs, but the Town may not subtract the approximately $10,000 Lapine received in unemployment payments.
See Boston & M.R.R. v. Bentubo,
Finally, it is within my discretion to award prejudgment interest and I find that Lapine is entitled to such interest on the amount of the back pay award. Awarding him interest on his back pay will properly compensate him and make him whole.
See Hembree v. Georgia Power Co.,
TV. CONCLUSION
I hereby conclude that the Town must reinstate Lapine to his prior position as a patrolman with a pay grade of P-18 and Step 4 and must pay him at the rate that other patrolmen of his pay grade and step are paid. Further, the Town must make payments to its pension plan on Lapine’s behalf in the amount to which Lapine would have been entitled had he begun as a new employee on May 1, 1990 and must make back payments from August, 1993 to the date of reinstatement. Finally, the Town must pay Lapine back vacation pay and lost wages with prejudgment interest.
V. PROCEDURAL ORDER
Judgment shall enter on June 15, 2001 ordering the Town to reinstate Lapine as of June 18, 2001 and awarding Lapine an amount of monetary damages for back pay from August 31, 1993 through June 15, 2001 (less the amounts Lapine has earned from other employment) and vacation pay to June 15, 2001. The judgment shall also order the Town to make payments to the retirement fund from August 31, 1993 to date of judgment and grant Lapine seniority for pension purposes to May 13, 1990.
Counsel are to agree and submit to the Court, on or before the close of business on Monday, May 21, 2001, a form of judgment which includes the precise amount of damages to which Lapine is entitled for back pay (less amounts he has earned from other employment) and vacation pay in accordance with the Court’s findings and conclusions contained herein.
If counsel cannot agree on the form of judgment, they shall file, on or before the close of business on Monday, May 21, 2001, a joint statement setting forth those items as to which agreement has been reached as to the form of judgment and those which are in dispute. As to those in dispute, the joint statement shall set forth the precise positions of the parties as to each disputed item.
. Only those facts that are relevant to the damages issue are included here. In some instances, the facts recounted may be repetitive of those included in the February 22, 2001 opinion but such repetitive facts are included only if they bear on the damages question.
Notes
. A number of findings based on the Stipulation of the parties are adopted as the Court’s findings verbatim, but without quotation marks; others are reworded and/or supplemented.
.The testimony on this point is not clear. Lapine testified that "[t]here was a shift differential pay of between 23 and $25.00 per week” but does not indicate if he was receiving $23.00 or $25.00 per week. The Collective Bargaining Agreement between the Town of Wellesley and the Wellesley Police Association that was in place from July 1, 1993 to June 30, 1996 (Exh. 66)(the "Collective Bargaining Agreement”), however, indicates that employees working the second or third shift "shall be paid a premium of twenty-three ($23) dollars per week for work on such shifts.” at p. 5.
. For purposes of this Opinion, I accept La-pine's mathematical calculations regarding his lost wages as correct. The Town did not present any contradictory evidence on this point.
. Title 38 U.S.C. § 2021 is the predecessor to 38 U.S.C. § 4301. The relevant language is identical.
. In the
Preda
case, the veteran was found unqualified because his resignation letter, "... both in content and tone, precluded harmonious future relations with co-workers and managers at Nissho [the employer].”
. By “unqualified” in this context, I do not mean physically unqualified, as that is not an issue in the case at bar because there was no evidence presented that Lapine is not physically qualified to resume the duties of his former position as patrolman.
. In addition, there was some evidence put forth that the reasons for Lapine’s unacceptable behavior were that he was under stress because he was going through a divorce and that he was dissatisfied with the way the then-police chief was running the force. Neither of these plays a role anymore since Lapine’s stress seemed to dissipate long before he resigned, and there is a different police chief now in charge.
. I note that no evidence has been offered as to any “bad actions” on the part of Lapine after his discharge from the service; all of the evidence referred to conduct occurring before he entered the military. After remand from the Court of Appeals, the District Court in
Dacey v. Trust Funds,
. Lapine is not entitled to be paid for the three years he was in the service because a service man is "not entitled to compensation lost while serving on active duty.” 132 Mil. L.Rev. at 192.
. Even though Lapine withdrew his accumulated pension earnings when he entered the military, he is entitled to the pension payments beginning August 31, 1993. But in computing the payments, he is to be considered a new employee as of May 13, 1990 unless thereafter but before retirement, he "... pay[s] into the annuity savings fund of the Retirement System ... make-up payments in an amount equal to the accumulated de *142 ductions [which he withdrew] ... with regular interest.” See Exh. 2.
. Unless he paid back the amount he had withdrawn with interest. See footnote 12, supra.
. For example, an employee who has been with the Town for ten years receives 25 shifts of vacation time and one who has been there for twenty years receives 26 shifts.
. One of the factors that the court in
Lipani, supra,
. I already held above that sick leave was reasonably likely to accumulate had Lapine never entered the military, thus satisfying the first prong of the Alabama Power test.