Breaker v. Bemidiji State Univ., A18-0899
| Decision Date | 08 April 2019 |
| Docket Number | A18-0899 |
| Parties | Martin T. Breaker, Appellant, v. Bemidiji State University, et al., Respondents. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).
Affirmed
Ramsey County District Court
Gregg M. Corwin, Joshua D. Hegarty, Gregg M. Corwin & Associate Law Office, P.C., St. Louis Park, Minnesota (for appellant)
Keith Ellison, Attorney General, Janine Kimble, Assistant Attorney General, St. Paul, Minnesota (for respondents)
Considered and decided by Rodenberg, Presiding Judge; Reilly, Judge; and Bratvold, Judge.
UNPUBLISHED OPINION
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301-4335 (2012), entitles military service members to reemployment and prohibits employment discrimination. Appellant Martin T. Breaker challenges the judgment dismissing his claims against respondents for USERRA violations. The district court granted summary judgment on Breaker's claim for reemployment for two reasons. First, the district court determined that record evidence established that changed circumstances had eliminated the position that Breaker had held before his military service. Second, the district court determined that respondents offered Breaker a comparable position upon his return from military service. The district court also granted summary judgment on Breaker's claim for discrimination, reasoning that Breaker did not submit evidence that his military status was a substantial or motivating factor in respondents' decision to eliminate the position that Breaker had previously held. Because Breaker failed to raise genuine issues of material fact on either of his two claims, we affirm.
Between 1997 and 2005, Breaker taught as an assistant professor in the business administration department at respondent Bemidji State University (BSU),1 which is part of respondent Minnesota State Colleges and Universities (MnSCU) (collectively, respondents). Breaker entered into a series of fixed-term, nine-month contracts, each of which expressly stated there was "no implication of future employment." Some of the terms of Breaker's employment were covered by a labor contract negotiated between MnSCU and the Inter Faculty Organization (union), which "represents the traditionalteaching faculty at the seven MnSCU state universities." Breaker points out that, regardless of the fixed-term of his teaching contracts, he never reapplied for any subsequent fixed-term position after his first year with BSU.2
Throughout the time that he taught for BSU, Breaker resided in Ely. Breaker taught undergraduate business classes principally via Interactive Television (ITV), which allowed him to teach from Ely. Per the relevant labor contract, teaching ITV courses resulted in a higher level of pay per credit than teaching the equivalent courses in person.
In addition to teaching, Breaker also worked as the coordinator for the off-campus business program, which was offered in conjunction with the Arrowhead University Center (later Consortium) (AUC), a group of community and technical colleges in the Iron Range. As the AUC business program coordinator, Breaker taught and coordinated ITV courses, advised students, and promoted the program. The AUC business program coordinator position increased Breaker's pay from BSU; Breaker was not an AUC employee.
In August 2005, the United States Army called Breaker to active duty in Iraq. At the time, Breaker and BSU anticipated that he would be released from active duty the following year. But Breaker's deployment was extended until 2008. Breaker notified BSU about his changing status and, when Breaker was released from active duty, the parties exchanged a series of written offers.
In July 2008, BSU extended Breaker an offer of reemployment (the first offer) for the 2008-09 academic year. The first offer stated that the AUC business program coordinator position no longer existed and offered him "an on-campus, one-year fixed term assignment as an Associate Professor in Business Administration." Both parties agree that the rank of associate professor "was the correct academic rank to offer" Breaker upon his return. The letter also stated that BSU would let Breaker know "about the salary for the position" and that Breaker would be responsible for teaching four business administration department classes during the fall semester. On July 30, 2008, Breaker rejected BSU's first offer, stating that "there are many issues regarding" his employment.
In August 2008, BSU extended Breaker another offer (the second offer), which stated that BSU considered Breaker's military leave to be USERRA eligible. The second offer was for a one-year, fixed-term contract as an associate professor at "Step 13." BSU used a step system for calculating salaries; a higher step equated to a higher salary and seniority. The second offer also stated that, because the AUC business program coordinator position no longer existed, BSU could not offer it to Breaker. But the letter described the second offer as the "comparable" position, and stated that Breaker would be eligible for "[o]verload assignments." The second offer also addressed seniority-based benefits and sabbatical eligibility:
As being on USERRA leave, Mr. Breaker will accrue pension/retirement benefits, HRA contributions, sick leave, and any seniority based benefits pursuant to applicable law. Contractual benefits not tied to seniority, such as tuition waiver, will not have accrued while Mr. Breaker was on leave. Similarly, sabbatical leave is not based on seniority but instead on actually [sic] years of service to the University. We areprepared to agree, however, that Mr. Breaker's fixed-term service prior to his military leave will count for purpose[s] of eligibility for a future sabbatical.
Breaker rejected the second offer.
Breaker began attending law school in Grand Forks, North Dakota in August 2008.
In October 2008, BSU extended Breaker another offer of reemployment (the third offer), which repeated many of the terms from the second offer and stated that, for spring 2009, Breaker would be assigned "to teach three Statistics courses and two Economics II (Macro) courses." The third offer included an overload assignment that BSU stated would yield additional income above Breaker's step 13 salary. The third offer also stated that the business administration department "is currently reviewing" its policy of allowing only tenured or tenure-track professors to teach online courses, which excluded Breaker from this type of instruction. Breaker refused the third offer.
In July 2009, BSU extended Breaker an offer of reemployment, this time for the 2009-10 school year (the fourth offer). The fourth offer was for a fixed-term position as an associate professor at "Step 13 ($61,829)" in the business administration department. The offer repeated many of the terms of the second and third offers and added that (1) Breaker would be guaranteed "additional work opportunities" to earn at least $15,000 and (2) BSU would count Breaker's time in active military service toward his eligibility for sabbatical leave. Breaker refused the fourth offer.
Since 2010, Breaker has sued BSU and MnSCU in state and federal court, resulting in two appeals to this court. In Breaker v. Bd. of Trustees, A11-2286, 2012 WL 2874038, at *1-2 (Minn. App. July 16, 2012) (Breaker I), review denied (Minn. Sept. 25, 2012), thiscourt affirmed summary judgment against Breaker on various claims relating to his employment at BSU.
Shortly after that appeal concluded, Breaker filed the complaint underlying this appeal, which stated two USERRA claims, one for failing to reemploy Breaker and a second claim for discrimination based on his military service. The district court initially dismissed Breaker's complaint as barred by res judicata based on Breaker I. Breaker appealed, arguing that, due to an intervening change in the law, BSU was not entitled to immunity from his USERRA claims. This court reversed and remanded, reasoning that "Breaker lacked a full and fair opportunity to litigate his USERRA claims in Breaker I, and the district court erred in dismissing Breaker's USERRA claims on the basis of res judicata." Breaker v. Bemidji State Univ., 899 N.W.2d 515, 525 (Minn. App. 2017) (Breaker II).
Upon remand and after discovery closed, BSU moved for summary judgment. After a hearing, the district court granted summary judgment to both respondents and directed entry of judgment. Breaker appeals.
A district court shall grant a motion for summary judgment when a moving party "shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Minn. R. Civ. P. 56.01.3 "We review the grant of summaryjudgment de novo to determine whether there are genuine issues of material fact and whether the district court erred in its application of the law." Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn. 2017) (quotations omitted). In reviewing a grant of summary judgment, "we view the evidence in the light most favorable to the nonmoving party . . . and resolve all doubts and factual inferences against the moving part[y]." Rochester City Lines, Co. v. City of Rochester, 868 N.W.2d 655, 661 (Minn. 2015).
USERRA was enacted by Congress to: (1) eliminate or minimize disadvantages to a service member's civilian employment, (2) provide for prompt reemployment of service members upon release, and (3) prohibit discrimination against service members resulting from their service. 38 U.S.C. § 4301(a). To give effect to Congress's intent, USERRA should be "liberally construed for the benefit" of service members. Fishgold v. Sullivan Drydock...
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