DAVID C. NORTON, District Judge.
This matter is before the court on defendant's motion for summary judgment. For the reasons set forth below, the court grants the motion as to plaintiff's discrimination claim under 38 U.S.C. § 4311(a) but denies the motion as to plaintiff's unlawful discharge claim under 38 U.S.C. § 4316(c).
Plaintiff Timothy M. Reed filed this action in federal court on March 2, 2011 under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. § 4301 et seq. Reed alleges that defendant City of Charleston (City) discriminated against him upon his return from uniformed service and also constructively discharged him in violation of USERRA. Compl. ¶¶ 8-10. On March 5, 2012, City filed a motion for summary judgment.
Reed was hired as a City police officer in the Spring of 2000, at which time he was also a member of the United States Navy Reserve.
Reed received another order for deployment on December 31, 2008. Compl. ¶ 3. He submitted a leave request to City and anticipated that he would be deployed for one year. Def.'s Mot. Summ. J. Ex. E. In January 2009, Reed was sent to Fort Lewis Army Base in Washington State for training. Pl.'s Resp. 2-3. While in Washington, Reed was alleged to have committed misconduct.
During late January and early February 2009, City received notice from Reed and the Navy that Reed was the subject of an investigation. Reed contacted his Commanding Officer, Lt. Kevin Boyd, to discuss the rumors of a Navy investigation. Pl.'s Resp. 3-4. Lt. Boyd informed Reed that the Navy had already contacted City and informed it of the accusations against Reed.
The Captain's Mast was held in March 2009.
Def.'s Mot. Summ. J. Ex. H.
The parties agree that Reed was reemployed by City. Reed alleges that despite his reemployment, he was never returned to his previous duties as a police officer in his patrol division, Team 1, and that his service weapon, SLED card, City badge, and ID card were not returned to him. Compl. ¶ 5; Pl.'s Resp. 5. As directed, upon his return Reed reported to Cpt. Whitaker regarding the internal investigation. Reed was then interviewed by Lt. Anita Craven of Internal Affairs for the first of two transcribed interviews. Pl.'s Resp. 5. Reed signed a Garrity warning, which informed Reed of the allegations against him and the consequences of failing to provide truthful answers.
Lt. Craven asked Reed about the allegations that he had yelled at and pointed a firearm at service members, and threatened a service member with a knife. Reed responded that these allegations were "unsubstantiated" and "dismissed" by the Navy. Def.'s Mot. Summ. J. Ex. J. at 1:18-2:5 (stating that the first alleged incident of pointing a rifle at service members and yelling at them "never occurred");
Lt. Craven interviewed Reed for the second time on May 1, 2009. Reed again admitted to his guilty finding for the derogatory comment about a female service member and boots violation but denied being found guilty of charges involving the firearm and knife. Pl.'s Resp. 5; Def.'s Mem. Supp. 15. Near the end of the interview, Lt. Craven informed Reed that City had procured his NJP file, which reflected that Reed was also found guilty of the assault charges for pointing a rifle and pointing a knife. Def.'s Mot. Summ. J. Ex. M at 26:22. Reed stated "I don't know" when asked why the NJP records reflected that he was found guilty of these charges.
During the interviews, Reed provided Lt. Craven with documentation regarding the Navy investigation and charges. Pl.'s Resp. 5. Reed asserts that he provided Lt. Craven with all of the documents he was given by the Navy and that none of these documents denote a guilty finding for pointing a firearm or knife at service members. Pl.'s Resp. 6; Reed Dep. 3:8-11.
After the second interview, Reed claims that Lt. Craven stopped the recording and told him, "[I]t doesn't look good for you, Timmy, it doesn't look good," and, "I would hate to be out of work in a bad economy." Compl. ¶ 6; Reed Dep. 214:10-23. Reed also alleges that at a prior meeting, he asked Lt. Craven what was going to happen to his job, to which Lt. Craven responded, "[I]t doesn't look good to me, it doesn't look good." Reed Dep. 201:11-15.
On or about May 4, 2009, Reed was advised by City of a change in his administrative leave status from paid to unpaid leave. Compl. ¶ 5; Pl.'s Resp. 7. On May 5, 2009, Lt. Craven completed a report that summarized her interviews of Reed and the information he gave that was inconsistent with the formal NJP records. Def.'s Mot. Summ. J. Ex. N.
Reed alleges that around this time he began to fear that if he were terminated, he would lose his police officer certification and be unable to find another job in law enforcement. Pl.'s Resp. 7. On Friday, May 8, 2009, Reed met with Lt. Boyd and submitted a letter of resignation. Reed Dep. 222:4-17. Reed claims that Lt. Boyd offered to "hold this in my safe until Monday morning, if you call me before 9:00 a.m., I will take it and shred it, this is something between you and I, I won't disclose the information to anybody else."
Reed's termination became effective on May 11, 2009. At this time, City's internal investigation was not yet completed. City's Disposition Form dated May 21, 2009 lists the following complaints against Reed by the Office of Professional Standards: "It is alleged that PO Reed was not truthful in answering specific questions relating to the NJP and that he hindered the investigation by refusing to sign a waiver which would have expedited the release of military documents relating to the NJP." Def.'s Mot. Summ. J. Ex. Q at 2. The "Disposition" section was marked "Sustained — Sufficient evidence to prove the allegation," but the "Action Taken" space was left blank but for a notation by Chief Mullen that "Employee resigned during investigation."
Summary judgment shall be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."
USERRA prohibits discrimination against persons based on of their service in the uniformed services. It was enacted to protect the rights of veterans and members of the military services and must be broadly construed in their favor.
Here, Reed makes two claims under USERRA: (1) that City discriminated against him in violation of 38 U.S.C. § 4311(a); and (2) that he was unlawfully discharged in violation of 38 U.S.C. § 4316(c).
Reed first alleges that City unlawfully discriminated against him in violation of § 4311(a) by treating him differently upon reemployment. Before analyzing this claim, a summary of the applicable legal framework is warranted.
First, § 4312 governs employees' right to reemployment upon return from service. Under § 4312(a), "any person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits [of USERRA]." This section "`places service people and employers on notice that, upon returning from service, veterans are entitled to their previous positions of employment.'"
The "apparent harshness" that an employee's protection under § 4312 culminates upon the instant of reemployment is allayed by the fact that the employee's protections under § 4311 commence at that time.
Reed concedes that he was reemployed with City. Pl.'s Resp. 10 n.4. He agrees with City that his claim relating to differential treatment after he was rehired "is properly analyzed under § 4311(a)" rather than under § 4312.
Reed first argues that he was not returned to his former job upon reemployment, thus he was deprived of a benefit of employment. He specifically alleges that he was "never returned to his position with Team 1, patrol division, the position in which he would have remained but for his military leave," but was instead told to report to Internal Affairs, never reissued his service weapon or badge, and had his identification cards confiscated. Pl.'s Resp. 10-11.
These allegations are sufficient to create a genuine issue of material fact as to whether Reed was deprived of a "benefit of employment."
Section 4311(c)(1) additionally requires Reed to show that his membership in the Navy Reserve was a "motivating factor" in the post-reemployment actions taken by City.
Even if the court looked past Reed's testimony, his arguments regarding unlawful motive are without merit. First, Reed attempts to demonstrate unlawful motive based on the temporal proximity between his return from active duty and his placement on administrative leave by City. Reed alleges that despite being notified of the allegations of misconduct in February 2009, City "did not choose to place Plaintiff on administrative leave . . . until immediately after his return from deployment." Pl.'s Resp. 11. "Such evidence," Reed argues, "can inferentially show that it was actually Plaintiff's military leave which was a motivating factor in the Defendant not placing him back into his former position."
Although courts have considered proximity in time between the employee's service activity and the adverse employment action as one piece of circumstantial evidence in favor of a finding of unlawful motive,
Second, Reed relies on a Sixth Circuit decision,
In conclusion, Reed has not raised a genuine issue of material fact from which this court could infer that City's post-reemployment actions were motivated by Reed's active duty service in the Navy. To the contrary, Reed testified that he believed City's actions were motivated by the Navy's allegations of misconduct. In addition, Reed's arguments based on temporal proximity and the
Next, Reed alleges that he was improperly discharged in violation of § 4316 of USERRA. Section 4316(c) states, "A person who is reemployed by an employer under [USERRA] shall not be discharged from such employment, except for cause." This section "temporarily changes the at-will employment status of returning veterans."
Reed argues that he was forced to resign by City, which in effect resulted in a constructive discharge that was not "for cause."
First, Reed alleges that he was forced to resign such that he was constructively discharged. Compl. ¶ 9. "Depending on the circumstances, even resignation from a reemployment position can be a discharge within the scope of § 4316(c)." USERRA Manual § 6:6. In the Fourth Circuit, "an employee is constructively discharged `if an employer deliberately makes the working conditions of the employee intolerable in an effort to induce the employee to quit.'"
To prove deliberateness, Reed must show that "the actions complained of were intended by the employer as an effort to force the employee to quit."
Reed alleges that City did not restore him to his former job position but instead made him report to internal affairs, which caused concern that he would be terminated, lose his law enforcement certification, and not be able to find another job. City responds that these complaints are insufficient to render Reed's situation "intolerable" because police officers are routinely required to undergo investigations. Viewing the evidence in the light most favorable to Reed, the court finds that Reed has established a genuine issue of material fact on this issue of constructive discharge. Between April 24, 2009, Reed's date of reemployment, and May 11, 2009, the date his resignation became effective, Reed was never returned to his ordinary work duties; instead, he was under investigation the entire time. While the motivation behind this investigation was lawful, during this time Reed's employment status was allegedly changed from administrative leave with pay to administrative leave without pay, which Reed claims caused fear that termination was inevitable. According to Reed, he was discouraged from visiting the premises of the Charleston Police Department and City asked him to meet at a shopping mall rather than the station to deliver letters regarding his administrative leave status. Compl. ¶ 5. While on leave, Reed was prohibited from operating a City of Charleston vehicle, conducting any law enforcement activities, and working any off-duty assignments related to law enforcement. Def.'s Mot. Summ. J. Ex. O.
Reed further alleges that Lt. Craven remarked on two occasions regarding his prospects of future employment that, "It doesn't look good for you, it doesn't look good." He also alleges that he asked Mr. Bourdon what was going to happen to his job, and Mr. Bourdon said something similar to, "[I]t just depends on what the Navy does, however, the Chief [doesn't] want you being vindictive toward any military people." Reed Dep. 130:16-24. According to Reed, both Cpt. Whitaker and Lt. Craven testified that if they had to make a recommendation, they would have recommended Reed's termination. In fact, although the Administrative Action Form was not completed by Chief Mullen, the Disposition box was marked "Sustained — Sufficient evidence to prove the allegation." Def.'s Mot. Summ. J. Ex. Q.
Based on this evidence, Reed has generated genuine issues of material fact as to whether City's actions were intended as an effort to force him to quit, and whether the employment environment was intolerable as determined from the objective of a reasonable person.
City responds that even if Reed was constructively discharged, the discharge was "for cause." In an improper discharge action, the "employer bears the burden of proving that it is reasonable to discharge the employee for the conduct in question, and that he or she had notice, which was express or can be fairly implied, that the conduct would constitute cause for discharge." 20 C.F.R. § 1002.248(a). "Cause in the USERRA context refers to any reason for discharge that is not arbitrary or made in order to avoid the statute's requirement that military service members not be discharged because of their protected military service."
City argues that, if it did discharge Reed, the discharge was "for cause" because Reed gave untruthful information to City during his internal investigation. Reed disputes this assertion, asserting that he did not provide false information, but instead provided the complete information that was given to him by the Navy—that he was only found guilty of a boots violation and for making a disparaging remark about a female service member. Viewing the evidence in the light most favorable to Reed, there is a genuine issue of material fact as to whether Reed was discharged "for cause," if a jury were to find that he was constructively discharged.
For these reasons, the court denies summary judgment on Reed's improper discharge claim under § 4316(c).
Based on the foregoing, the court
Def.'s Mot. Summ. J. Ex. I.
Reed Dep. 294:16-296:18.
70 F.R. 75246-01, at *75271.
