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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 91-4779
Summary Calendar

JAMES B. COLE,
Plaintiff-Appellee,
versus
DR. RICHARD B. SWINT,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Texas

(March 27, 1992)
Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
PER CURIAM:
Dr. Richard B. Swint appeals from the district court's
judgment that he is liable under the Veterans Reemployment Rights
Act, 38 U.S.C. § 2021 et. seq., for his termination of and failure
to rehire James G. Cole. Finding no error, we affirm.
I.
Swint is a dermatologist practicing in Paris, Texas. Since
1973 he has also been a ranch operator. At the time of the events
at issue here, Swint had two full-time ranch employees: Levi Rian

and James Cole. Cole worked as a foreman and lived at the ranch.
He was compensated at a rate of $600 a month plus housing.
Viewed in the light most favorable to the district court's
verdict, the circumstances surrounding Cole's termination were as
follows. In August 1986, Cole enlisted in the Army National Guard.
His initial active duty training was scheduled for October. He
learned, however, around August 6 or 7, that he was required to
drill with his Guard Unit on the following weekend. On Friday,
August 8, Cole asked Swint for Saturday off in order to participate
in the drill. Swint stated that this could create a problem and
terminated Cole's employment as of the end of the workday August 8.
When Cole returned from his drill on Monday, Swint began
negotiating with Cole to resolve the issue of Cole's accrued
surplus hours in light of his termination. Swint proffered a draft
severance agreement which Cole did not sign. Swint denied at trial
that he had terminated Cole on the 8th, but the district court
found this testimony incredible because of a handwritten note by
Swint indicating that Cole was informed of his termination on
August 8.
Because he no longer had a job, Cole moved up the start of his
basic training and successfully completed it. On the advice of the
Department of Labor, Cole sent Swint a letter upon completion of
his training requesting reinstatement. Swint wrote back indicating
that Cole's job had already been filled. Cole remained unemployed
from February 1987 through August 1987.
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II.
The Act provides that an employee shall not be denied
retention in employment or reemployment because of any obligation
as a member of a reserve component of the armed forces. 38 U.S.C.
§ 2021(b)(3). The statute is to be liberally construed for the
benefit of reservists and guardsmen. Coffy v. Republic Steel
Corp., 100 S.Ct. 2100, 2104 (1980). The district court found that
Cole had proven that he was terminated from his employment on
Swint's ranch because of his service in the military reserves. The
court awarded Cole $4800 plus interest and required Swint to pay
costs.
Swint argues first on appeal that the district court clearly
erred in rejecting his assertion that Cole had voluntarily resigned
his position at the ranch. He claims that Cole told him that "he
was joining the Army" and that Swint believed that to mean he had
decided to pursue another career. The district court disbelieved
Swint's testimony about his conversation with Cole concerning his
need to go on a weekend drill. Cole testified that he told Swint
accurately that he had joined the Army National Guard and he needed
Saturday off for his drill. There is nothing in this record to
indicate that the district court clearly erred in concluding that
Swint fired Cole for his absence from work that weekend.
Second, Swint argues that he had no duty to reemploy Cole
because it would be unreasonable and impossible to do so. An
employer may be excused from the duty to rehire where "the
employer's circumstances have so changed as to make it impossible
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or unreasonable" to rehire the reservist. 38 U.S.C.
§ 2021(a)(1)(B). Swint argues that the fact that he had already
hired someone else to take Cole's place living on the ranch was a
change in circumstance exempted under the Act. This argument is
obviously without merit. The purpose of the exemption is to allow
employers who have eliminated a reservist's position or otherwise
drastically changed their business to avoid rehiring someone for a
job that no longer exists. If mere replacement of the employee
would exempt an employer from the Act, its protections would be
meaningless.
Third, Swint argues that the Act does not apply to small or
"casual" employers. The Act does not have a threshold business
size for coverage, unlike many other acts which incorporate such
limiting provisions such as Title VII of the Civil Rights Act of
1964, 42 U.S.C. 2000e. Swint offers no support for this argument
other than those already asserted in his argument about he
impossibility of reemploying Cole. We see no need to imply a
restriction on the Act's coverage based upon business size.
Fourth, Swint argues that the district court clearly erred in
finding that Cole requested a reasonable leave of absence. This
argument is contrary to the weight of the evidence, which
demonstrated that Cole asked Swint if he could have Saturday off
for his drill. Swint also argues that there is a reasonableness
requirement for the time of the requested leave itself. The
Supreme Court has recently rejected the implication of a reasonable
requirement. King v. St. Vincent's Hospital, 112 S.Ct. 570 (1991)
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(overruling Lee v. City of Pensacola, 634 F.2d 886 (5th Cir.
1981)). Accordingly, an argument based upon the reasonableness of
the leave requested must fail.
Finally, Swint argues that Cole held a temporary position and
therefore was not entitled to reemployment rights. This argument
is patently frivolous. Cole had a written employment contract, was
paid a salary per month for full-time employment, and lived on
Swint's ranch. Moreover, as soon as Cole was terminated, Swint
hired a replacement. These facts are flatly inconsistent with
Swint's assertion that this was a temporary and transient need
which was filled with casual employment.
Having found no error in the judgment of the district court,
we affirm.
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