The opinion of the court was delivered by: CAHN
Plaintiff, Peter J. Troiani, seeks to obtain pension credit for the five and one-half year period from 1941, when he took a leave from the employ of the Bethlehem Steel Corporation, defendant, to serve in the military, to 1946, when he was honorably discharged and made timely application for reemployment. He also seeks to obtain loss of earnings, benefits, and other emoluments resulting from the failure of the defendant to reinstate him in 1946 from that time until the date in 1956 that he secured another position with the defendant corporation. Jurisdiction is based on the provisions of the Vietnam Era Veteran's Readjustment Assistance Act of 1974, 38 U.S.C. § 2021 et seq. (hereinafter referred to as the "Act"), formerly the Military Selective Service Act of 1967, as amended, 50 U.S.C. App. § 459. The action is before me on defendant's motions to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure and, in the alternative, for summary judgment under Rule 56. The facts in this case are essentially undisputed. Where the facts are not completely clear they have been stated in a manner most favorable to the plaintiff.
1. Plaintiff was hired by Bethlehem Steel on September 23, 1939, as a chainman in the Saucon Mills and Yards Department.
2. He was then assigned to Forge Specialty Machining Department on January 15, 1940, which became his unit service date within the Forge Specialty Machining Department under the collective bargaining agreement then in effect at Bethlehem Steel Corporation's Bethlehem plant.
3. Mr. Troiani left the employ of defendant on September 19, 1941, to enter the military. At that time, his position was floorhelper, a represented hourly paid position in the steel plant.
4. Plaintiff served in the United States Army from October 17, 1941, until February 8, 1946, when he was honorably discharged.
5. On May 8, 1946, Mr. Troiani presented himself at the Employment Office and advised that he had been discharged from the military on February 8, 1946, and was seeking reinstatement to his former position in the Bethlehem plant. He advised the Employment Office that he had been disabled as a result of his military service. Company doctors examined him and determined he was not physically capable of performing the job of laborer in the Forge Specialty Machining Shop which was the job that was available to him based on his seniority, including credit for his military service.
6. On April 24, 1947, Mr. Troiani again appeared in person at the Employment Office requesting work. He was advised there was no work available. Plaintiff was not physically able to perform the duties of his previous position either in 1946 or in 1947 when he applied for employment.
7. In 1946 and again in 1947, the plant physician and the plant medical director confirmed the medical restrictions on plaintiff's reemployment.
8. In 1949, Mr. Troiani enrolled in the Bethlehem Business College and completed the course of study there. At that time, he did not advise defendant of his additional education, his graduation or his newly acquired skills. He did not seek reemployment with Bethlehem Steel at that time.
9. On February 1, 1956, Mr. Troiani applied for employment with Bethlehem Steel, advising it at this time of his newly acquired skills. He was rehired on that date as a junior buyer in the Purchasing Department, a non-represented, non-exempt salaried position in the Home Office. He was continuously employed by Bethlehem Steel from that time until his retirement on January 31, 1982.
10. On November 1, 1962, Mr. Troiani signed a company form acknowledging and agreeing that his continuous service for pension and vacation ...