Filed: Oct. 28, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 10-28-2004 Gordon v. Wawa Inc Precedential or Non-Precedential: Precedential Docket No. 03-3089 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Gordon v. Wawa Inc" (2004). 2004 Decisions. Paper 160. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/160 This decision is brought to you for free and open access by the Opinions of the United
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 10-28-2004 Gordon v. Wawa Inc Precedential or Non-Precedential: Precedential Docket No. 03-3089 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Gordon v. Wawa Inc" (2004). 2004 Decisions. Paper 160. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/160 This decision is brought to you for free and open access by the Opinions of the United ..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
10-28-2004
Gordon v. Wawa Inc
Precedential or Non-Precedential: Precedential
Docket No. 03-3089
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Gordon v. Wawa Inc" (2004). 2004 Decisions. Paper 160.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/160
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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IN THE UNITED STATES COURT OF (Filed October 28, 2004)
APPEALS
FOR THE THIRD CIRCUIT Philip L. Faccenda, Esq. (Argued)
____________ 176 Route 70, Suite 10
Medford, New Jersey 08055
No. 03-3089
____________ Counsel for Appellant
WANDA GORDON, individually and as Edward T. Ellis, Esq. (Argued)
Administratrix ad Prosequendum for the Janice G. Dubler, Esq.
Estate 457 Haddonfield Road Liberty View, 6th
of Willie James Gordon, Jr., Deceased, Floor, Suite 600
Appellant Montgomery, McCracken, Walker &
Rhoads, LLP
v. Cherry Hill, New Jersey 08022
WAWA, INC., aka WAWA FOOD Counsel for Appellee
MARKETS;
JOHN DOES I and X; ____________
JOHN DOE CORPORATIONS, I TO X,
individually OPINION OF THE COURT
jointly, severally, and/or in the ____________
alternative.
aka
ROSENN, Circuit Judge.
WAWA
dba This appeal presents questions of
WAWA first impression concerning the scope of
rights under the Uniformed Services
____________ Employment and Reemployment Rights
Act of 1994, 38 U.S.C. §§ 4301–4333
Appeal from the United States District (“USERRA”), of persons in noncareer
Court military service. The case is of particular
For the District of New Jersey interest at this time because of the large
D.C. No.: 02-cv-04498 number of reservists called up for military
District Judge: Honorable Robert B. duty as a result of the conflicts in Iraq and
Kugler Afghanistan. The alleged events
____________ underlying this action are tragic. Willie
Gordon, an active member of the United
Argued: September 21, 2004 States Army Reserve, also worked for the
defendant, Wawa, Inc., in Vineland, New
Before: MCKEE, ROSENN, and WEIS, Jersey. On Sunday, September 17, 2000,
Circuit Judges. on his way home from weekend Reserve
duties in Virginia, Gordon stopped by the Federal Rules of Civil Procedure. Plaintiff
Vineland store to pick up his paycheck and timely appealed from the District Court’s
to obtain his work schedule for the order. We affirm.
upcoming week. At that time, Gordon’s
I.
shift manager allegedly ordered him to
work that night’s late shift, and threatened Ac c e pting the c omp laint’ s
to fire him if he refused. Willie Gordon allegations as true, the District Court held
complied with the order, and on his drive that USERRA provides no cause of action
home from work, lost consciousness at the here.2 Specifically, the District Court held
wheel of his car. His car crashed, and he that 38 U.S.C. § 4312(e) “merely requires
died as a result of his injuries. an employee returning from uniformed
duty to notify his or her employer of an
Plaintiff is Willie Gordon’s mother
intent to return to work within a specified
and the administratrix of his estate. As the
time period,” and “imposes no affirmative
administratrix ad prosequendum for the
duty on an employer to prevent an
estate of her son, plaintiff filed a complaint
employee from reporting to work prior to
in the United States District Court for the
the expiration of an eight-hour period
District of New Jersey, alleging, inter alia,
following the employee’s return from
that defendant deprived the decedent of his
uniformed services.” Gordon v. Wawa,
right under USERRA to an eight-hour rest
Inc., No. 02-4498, slip op. at 7 (D.N.J.
period between returning home from
June 17, 2003) (emphasis in original).
military exercises and returning to work.1
Further, the District Court concluded that
The complaint further alleges that Wawa’s
the remedies available under USERRA
threat to fire Gordon constituted an
reflect a congressional purpose to prevent
adverse employment action under
employment discrimination based on
USERRA. The complaint seeks, inter alia,
military status of noncareer service
statutory remedies of lost wages and
members, and were thus inapplicable in
benefits, attorney fees, and costs. See 38
this case. Id. at 9. Accordingly, the
U.S.C. § 4323(d), (h). The District Court
District Court granted Wawa’s Rule
granted Wawa’s motion to dismiss the
12(b)(6) motion to dismiss, and pursuant
complaint pursuant to Rule 12(b)(6) of the
to 28 U.S.C. § 1367(c)(3), declined to
exercise supplemental jurisdiction over
1 plaintiff’s state law claims.
Plaintiff, individually and as the
administratrix for the estate of Willie
Gordon, also asserts various tort claims
2
against Wawa under New Jersey The District Court exercised
statutory and common law. Those jurisdiction over plaintiff’s USERRA
claims, which plaintiff is now pursuing claims under 38 U.S.C. § 4323(b) and 28
in state court, are not relevant to this U.S.C. § 1331. This Court has
appeal. jurisdiction under 28 U.S.C. § 1291.
2
II. returns home from military exercises and
when the employee must report to the
Our review of the District Court’s
employer. As with all questions of
dismissal of plaintiff’s USERRA claims is
statutory interpretation, we first turn to the
plenary. Oshiver v. Levin, Fishbein,
statutory language “to determine whether
Sedran & Berman, 38 F.3d 1380, 1384 (3d
the language at issue has a plain and
Cir. 1994). Dismissal under Rule 12(b)(6)
unambiguous meaning with regard to the
is inappropriate “unless it appears beyond
particular dispute in the case.” Marshak v.
doubt that the plaintiff can prove no set of
Treadwell, 240 F.3d 184, 192 (3d Cir.
facts in support of his claim which would
2001) (citations and internal quotation
entitle him to relief.” Conley v. Gibson,
marks omitted). We discern “[t]he
355 U.S. 41, 45-46 (1957). In making this
plainness or ambiguity of statutory
decision, “the court must consider only
language . . . by reference to the language
those facts alleged in the complaint and
itself, the specific context in which that
accept all of the allegations as true.”
language is used, and the broader context
ALA, Inc. v. CCAIR, Inc., 29 F.3d 855,
of the statute as a whole.” Id. (citations
859 (3d Cir. 1994). All inferences are
and internal quotation marks omitted).
drawn in favor of the plaintiff. Oshiver,
Where “the statutory meaning is clear, our
38 F.3d at 1384.
inquiry is at an end.” Ki Se Lee v.
Further, we construe USERRA’s Ashcroft, 368 F.3d 218, 222 (3d Cir.
provisions liberally, in favor of the service 2004);
Marshak, 240 F.3d at 192.
member. Coffy v. Republic Steel Corp.,
Section 4312(e) provides that a
447 U.S. 191, 196 (1980) (interpreting
person whose military service caused an
USERRA predecessor Vietnam Era
absence from work
Veterans’ Readjustment Assistance Act of
1974); Fishgold v. Sullivan Drydock & shall, upon completion of a
Repair Corp., 328 U.S. 275, 285 (1946) period of service in the
(construing Selective Training and Service uniformed services, notify
Act of 1940); Hill v. Michelin N.A., Inc., the employer . . . of the
252 F.3d 307, 312-13 (4th Cir. 2001) person’s intent to return to a
(“Because USERRA was enacted to position of employment
protect the rights of veterans and members with such employer as
of the uniformed services, it must be follows:
broadly construed in favor of its military
(A) In the case of a person
beneficiaries.”).
whose period of service in
A. the uniformed services was
less than 31 days, by
Plaintiff contends that 38 U.S.C. §
reporting to the employer —
4312(e) confers a “right to eight-hours
rest” between the time when the employee (i) not later than the
3
beginning of the first full conferring a substantive right to eight
regularly scheduled work hours of rest for the returning employee.
period on the first full
Reading § 4312(e) in its broader
calendar day following the
context confirms this view, because the
completion of the period of
remainder of the section sets forth the
service and the expiration
other requirements for an employee to
of eight hours after a period
s e cure U S E R R A ’ s r e e m p l o ym e n t
allowing for the safe
guarantee, or the exceptions thereto.
transportation of the person
Section 4312(a) requires the employee to
from the place of that
give the employer advance notice of leave,
service to the person’s
requires that the employee’s cumulative
residence; or
leave be no longer than five years, and
(ii) as soon as possible requires the employee to report to the
after the expiration of the employer in compliance with § 4312(e).
eight-hour period referred Section 4312(b) contains an exception to
to in clause (i), if reporting the advan ce notice re quir e m e n t.
within the period referred Subsection (c) contains exceptions to the
to in such clause is five-year absence limit, and subsection (d)
impossible or unreasonable sets forth the conditions under which an
through no fault of the employer need not re-engage an employee.
person. The remaining subsections impose other
duties on the employees, and the section
38 U.S.C. § 43 12(e)(1)(A )(i)-(ii)
concludes with the guarantee of USERRA
(emphasis added).
rights to employees who satisfy § 4312’s
Unsurprisingly, plaintiff has requirements, including “the notification
focused little attention on the statutory requirements established in subsection (e)
language. By its plain terms, § 4312(e) . . . .” 38 U.S.C. § 4312(h) (emphasis
sets forth the requirements of an employee added).
to notify the employer of the employee’s
The limited case law on § 4312
intention to return to work. The eight-hour
supports this view. See, e.g., Jordan v. Air
period referred to in § 4312(e)(A)(i) marks
Prods. & Chems., Inc., 225 F. Supp. 2d
the outer limit of the time by which the
1206, 1208 (C.D. Cal. 2002) (Section
employee must report to the employer
“4312 creates an unqualified right to
upon returning home from military service.
reemployment to those who satisfy the
As the District Court concluded, § 4312(e)
service duration and notice requirements.
is written entirely in terms of an
. . . Section 4312 places service people and
employee’s duties, as opposed to an
employers on notice that, upon returning
employer’s obligations. There is no way
from service, veterans are entitled to their
to construe this statutory language as
previous positions of employment.”)
4
(emphasis added); McGuire v. United rest. However, our reading of the
Parcel Service, Inc., No. 97 C 0232, 1997 legislative history does not compel a
WL 543059, at *3 (N.D. Ill. Aug. 28, contrary reading of § 4312(e)’s plain
1997) (employee’s eligibility for re- terms. See Malloy v. Eichler, 860 F.2d
employment after active duty in U.S. 1179, 1183 (3d Cir. 1988) (“Where the
Military Reserve “hinges on” § 4312’s language of the statute is clear, only ‘the
“requisites” of, inter alia, providing notice most extraordinary showing of contrary
of intent to return to work), aff’d, 152 F.3d intentions’ justify altering the plain
673, 678 (7th Cir. 1998) (employee failed meaning of a statute.”) (quoting Garcia v.
to give employer “reasonable notice that United States, 469 U.S. 70, 75 (1984)).
he wanted his job back”). The Reports of the Senate and House
Committees on V eteran s’ Af fairs
Plaintiff’s reliance on Boelter v.
expressed concern for service members’
City of Coon Rapids, 67 F. Supp. 2d 1040
physical well-being, and conveyed the
(D. Minn. 1999), is futile. In the context
Committees’ intent that service members
of interpreting a state law that grants
“repo rting back to their civilian
reservists the right to take paid military
employment be allowed sufficient time to
leave (a benefit that USERRA does not
return to their residence and be rested
guarantee), the Boelter court remarked in
before they are to perform their work.” S.
dictum that 38 U.S.C. § 4312 “guarantees,
Rep. No. 103-158, at 50 (1993), 1993 WL
at a minimum, time for the safe
432576; see also H.R. Rep. No. 103-65, at
transportation home plus an eight-hour rest
2 9 ( 199 3) , r e p r i n t e d i n , 1 9 94
period before an employee on military
U.S.C.C.A.N. 2449, 2462 (“An employee
leave can be required to return to work.”
. . . must be allowed a reasonable time to
Id. at 1046. In holding that the city’s
arrive back at his or her residence, a
interpretation of the statutory term “day”
reasonable time to rest, and a reasonable
was incorrect under state legal precedents,
time to travel to the place of
the judge observed that the city’s
employment.”).3 Indeed, both the Senate
interpretation of the state law also “creates
an inherent conflict with USERRA,” by
accelerating the time limit established by §
3
4312(e) for reporting to work. Id. (The At points, the Senate and House
judge mistakenly viewed § 4312 in terms Reports discuss § 4312(e)’s requirements
of reporting to work, as opposed to giving in terms of reporting to begin work, as
notice of an intention to return to work.) opposed to what the statute requires,
However, he did not hold that USERRA reporting “the person’s intent to return”
confers the right to eight hours of rest. to work. 38 U.S.C. § 4312(e)(1). See,
e.g., S. Rep. No. 103-158, at 50 (“Under
We acknowledge that some aspects
new section 4312(e), the time periods
of the legislative history favor plaintiff’s
during which an individual must return to
position that § 4312(e) provides a right to
work or make an application for
5
and House Committees contemplated that require a reservist who returns home from
the eight-hour rest period in § 4312(e) weekend duty at 10:00 p.m. to report to
would prevent a scenario similar to the one work at 12:30 a.m. that night, even if it is
alleged here, where an employer requires the beginning of the next regularly
an employee to report to work within a few scheduled working period the next day.
hours of returning from military exercises. The Committee believes that an employee
See S. Rep. No. 103-158, at 50 (“The must be in a position to arrive at work
eight-hour minimum period imposed rested in order to perform safely at
between the time of return and the time for work.”).
reporting to work would provide for
However, that Congress took into
needed rest. An example would be that of
account a service member’s need for rest
an individual arriving at his or her
in shaping the reporting requirements does
residence at 11:00 p.m., two hours before
not mean that Congress intended to create
the next regular work period scheduled to
a independent right to rest. On the whole,
begin at 1:00 a.m. Under the Committee
the thrust of the Senate and House
bill, that individual could not be required
Reports’ focus on § 4312 is in terms of the
to report to work any earlier than 7:00
employees’ reporting requirements, as
a.m.”); H.R. Rep. No. 103-65, at 29,
opposed to a statement of employees’
reprinted in, 1994 U.S.C.C.A.N. at 2462
rights. For example, both Reports explain
(“For example, an employer could not
that returning employees would be
guaranteed USERRA rights “if the notice
requirement of [4312] (a)(1) is met, the
reemployment would be based on the cumulative length of military service
length of his or her period of service . . . found in subsection (a)(2) is not exceeded
.”) (emphasis added); H.R. Rep. No. 103- and the reporting or ap plicatio n
65, at 29, reprinted in, 1994 requirement of subsection (e) is complied
U.S.C.C.A.N. at 2462 (“Under proposed with.” H.R. Rep. No. 103-65, at 24,
section 4312(e), the time limits for reprinted in, 1994 U.S.C.C.A.N. at 2457;
applying for reemployment would see also S. Rep. No. 103-158, at 46 (“New
depend strictly on the length or duration section 4312(a) would generally provide
of the military service from which the that an individual who is absent from any
serviceperson is being discharged or position of employment for service in the
released. . . . With regard to military uniformed services is entitled to
service of less than 31 days, reemployment and benefits . . . if the
servicemembers would ordinarily be person satisfies the various requirements
required to report for work at the set forth in this new section.”). In short, in
beginning of the first regularly scheduled § 4312(e) Congress sets forth a returning
working period on the next working day employee’s requirement for providing
after release from service.”) (emphasis notice of intent to return to work in order
added).
6
to reclaim his or her former job, and that the action would have
contains no rights-creating language. been taken in the absence
Nothing in the legislative materials clearly of such person’s . . .
evinces Congress’s intent that § 4312(e) exercise of a right.
confer a right to rest.
38 U.S.C. § 4311(b), (c)(2).
For the foregoing reasons, plaintiff
Plaintiff has not alleged that Willie
cannot state a cause of action under §
Gordon attempted to exercise a right
4132(e) for Wawa’s alleged failure to
provided by USERRA, as required by §
allow Willie Gordon eight hours of rest
4311(b), because, as we have held above,
between his return home from military
USERRA does not confer a right to rest.
exercises and commencing work.
Moreover, plaintiff has failed to
B.
assert a claim under § 4311(b). The
Plaintiff argues that the Wawa complaint does not allege that Willie
store manager’s alleged threat to fire Gordon indeed attempted to assert any
Willie G ordon was an “adv erse such right. The complaint alleges that
employment action” in violation of Willie Gordon was tired and unrested
USERRA § 4311(b). (Compl. ¶ 13), and that the store manager
ordered him to work within hours of his
Section 4311 provides, in relevant
arriving home (Compl. ¶ 14), but fails to
part:
allege that he made the store manager
(b) An employer may not aware that he had just finished his military
discriminate in employment against or take exercises, that he was tired, and that he
any adverse employment action against desired not to work the night shift.
any person because such person . . . has Plaintiff has alleged these facts for the first
exercised a right provided for in this time on appeal, but in reviewing the
chapter . . . . District Court’s Rule 12(b)(6) dismissal of
her claims, this Court may only look to the
(c) An employer shall be
factual allegations asserted in the
considered to have engaged in actions
complaint. ALA, Inc., 29 F.3d at 859.
prohibited –
Likewise, the complaint fails to
***
allege that the store manager’s alleged
(2) under subsection (b), if threat to terminate Willie Gordon’s
the person’s . . . exercise employment was motivated, in part, by
of a right provided for in Gordon’s attempt to exercise a USERRA
this chapter[] is a right, as required under § 4311(c). See,
motivating factor in the e.g., Gagnon v. Sprint Corp., 284 F.3d
employer’s action, unless 839, 852 (8th Cir. 2002) (Under § 4311,
the employer can prove “an employer violates the act when a
7
person’s membership in the uniformed prevent, and to compensate a service
services is a motivating factor in the member for, employment discrimination
employer’s action. . . .’”) (emphasis in based on military status. See 38 U.S.C. §
original); Leisek v. Brightwood Corp., 278 4323(d)-(e), (h). Plaintiff’s case is not
F.3d 895, 898 (9th Cir. 2002) (same); about employment discrimination or the
Gummo v. Village of Depew, 75 F.3d 98, deprivation of an employment benefit
106 (2d Cir.) (same), cert. denied, 517 based on military status. Accordingly,
U.S. 1190 (1996). USERRA is an inappropriate vehicle for
plaintiff’s tort claims.
For these reasons, plaintiff has
failed to assert the basic factual III.
underpinnings of a § 4311 claim.
In sum, we hold that 38 U.S.C. §
C. 4312(e) does not confer a right to rest, and
thus, that plaintiff has failed to state a
Plaintiff alleges that the acts of a
cause of action under USERRA.
store manager ultimately led to Willie
Essentially, USERRA protects a service
Gordon’s death, by causing him to work
mem ber’s employment rights, and
when he was too tired and causing him to
plaintiff’s allegations do not implicate
drive home exhausted. This complaint
Willie Gordon’s employment rights.
essentially sounds in tort. USERRA,
Accordingly, the order of the District
however, is not designed to protect
Court will be affirmed. Each side to bear
employees from the tortious acts of
its own costs.
employers or to remedy work-related
harms. Rather, its provisions are tailored
to effectuate its underlying purposes of:
(1) encouraging “noncareer service in the
uniformed services by eliminating or
minimizing the disadvantages to civilian
careers and employment which can result
from such service;” (2) minimizing “the
disruption to the lives of persons
performing service in the uniformed
services as well as to their employers” by
providing for the prompt reemployment of
service members upon their completion of
service; and (3) prohibiting discrimination
against them because of their uniformed
services. 38 U.S.C. § 4301(a)(1)-(3). In
line with these purposes, USERRA’s
remedial provisions are designed to
8
