Brown v. State, 12–337.

Citation88 A.3d 402, 2013 VT 112
Case DateDecember 13, 2013
CourtUnited States State Supreme Court of Vermont

88 A.3d 402
2013 VT 112

Daniel BROWN
STATE of Vermont.

No. 12–337.

Supreme Court of Vermont.

Dec. 13, 2013.

[88 A.3d 403]

James G. Levins of Tepper Dardeck Levins & Gatos, LLP, Rutland, for Plaintiff–Appellant.

William H. Sorrell, Attorney General, and Jonathan T. Rose and David R. Groff,

[88 A.3d 404]

Assistant Attorneys General, Montpelier, for Defendant–Appellee.

Present: DOOLEY, SKOGLUND, BURGESS and ROBINSON, JJ., and CARROLL, Supr. J., Specially Assigned.


¶ 1. Plaintiff Daniel Brown appeals from a superior court decision granting summary judgment in favor of the State on plaintiff's claim of employment discrimination in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4311. He contends that summary judgment was improper because genuine material issues of fact remained as to whether his membership in the Vermont National Guard was a motivating factor in the State's decisions not to promote him, and ultimately to terminate him from his position. We affirm.

¶ 2. The facts may be summarized as follows. In December 2008, the Vermont Department of Corrections (DOC) hired plaintiff as a Temporary Corrections Officer (TCO) at Southern State Correctional Facility in Springfield. In early 2009, plaintiff began formal training at the Vermont Corrections Academy in Rutland, completed his training in late February, and thereafter returned to Southern State to continue on-the-job training.

¶ 3. TCOs are at-will, nonunion employees utilized to fill schedule gaps and reduce overtime for regular DOC employees. By statute, TCOs are not entitled to benefits or to work more than 1520 hours per year, 3 V.S.A. § 331, whereas permanent employees are entitled to the benefits and protections due full-time state employees.

¶ 4. Plaintiff received generally positive performance evaluations while at the Academy, although some critical comments also appeared in his evaluations. Trainers at the Academy noted plaintiff's leadership potential, motivation, and willingness to learn. He also received reprimands for unprofessional conduct and being disruptive.

¶ 5. Shortly after plaintiff completed his Academy training, in late February 2009, Southern State supervisors learned that some correctional officers who were members of the Vermont National Guard would be deployed to Afghanistan; they compiled a list of such officers, which included plaintiff. In early March 2009, plaintiff received an email notifying him that he had been selected to be interviewed for three available permanent correctional-officer positions. Plaintiff was one of eight TCOs selected for the interview; two of the other candidates were also National Guard members. All of the candidates submitted a writing sample and resume, and were interviewed. Three panelists—a security and operations supervisor and two shift supervisors—interviewed the eight candidates. The panelists asked all of the candidates the same twelve questions and scored their responses on a scale of 1 (marginal response) to 5 (superior response). At the conclusion of the interview process, they reported their scores to Southern State's superintendent, who made the final hiring decision.

¶ 6. Neither plaintiff nor the other two National Guard members was selected for promotion. The positions went to three other TCOs—K.H., S.D., and C.S.—none of whom was a current member of the military. K.H. had attained the highest score during the interviews, had more than three years of experience as a correctional officer in New Hampshire, and had participated in specialized training from the U.S. Department of Justice on inmate behavioral management and classification systems. S.D. received the second highest interview score, had military experience, and demonstrated experience as a team leader in a

[88 A.3d 405]

previous position. C.S. scored fifth in the interview, had six months more corrections experience than plaintiff, previously worked for a police department, and held two associates degrees in related fields. Plaintiff received the lowest interview score of all eight applicants, had no corrections experience prior to becoming a TCO, and had no higher education in a related field.

¶ 7. Upon learning that he was not selected for the promotion, plaintiff had a conversation with the supervisor for training and recruitment, Kyle Beckwith. When plaintiff inquired about the promotion process Beckwith responded that “they're not going to give me a full-time benefit slot if I'm leaving in eight months.” Later, following an investigation into complaints of employment discrimination, the Southern State superintendent issued a report finding that Beckwith had “overstepped both [his] authority and expertise” in making statements about hiring decisions, that his statements led to “confusing and erroneous information, impressions and implications,” and that “classified hires are based first on competence and expertise.”

¶ 8. Although not promoted, plaintiff continued to work at Southern State as a TCO. Over the next few months, however, he was the subject of a number of critical reports and evaluations about his job performance. Complaints were received from inmates about his confrontational manner and profanity. On March 24, 2009, plaintiff's supervisors issued him a written warning for being late on two separate occasions. In this warning, plaintiff's supervisors advised him that tardiness was unacceptable and that “continuing ... failure to meet minimum standards could lead to your termination.” In early April 2009, plaintiff was warned about his failure to file disciplinary reports. As a result of these and other incidents, plaintiff was assigned a field training officer, Travis Rowe, to monitor his performance and provide additional counseling. A few weeks later, Rowe informed supervisor Beckwith that he had observed and spoken with plaintiff about his performance in a number of areas. These included a greater need to be aware of safety issues, to change his “hard and controlling” manner in order to better relate to inmates, to be more cooperative with supervisors, and to show more compassion with inmates.

¶ 9. On May 4, 2009, plaintiff received written notice from a shift supervisor, Michael Arace, about a report that plaintiff had allowed an inmate to leave his cell during a headcount, in violation of Southern State policy and in direct contravention of a specific order by a senior officer. Arace met with plaintiff to discuss the incident and subsequently informed Southern State management about the meeting, explaining that plaintiff “seem[ed] to think that he was not doing anything wrong,” that plaintiff did not understand why he was issued feedback, and that plaintiff believed he was “not having any problems.” Arace noted that, at one point during the meeting, plaintiff went to the door and said “are we done.” The matter was brought to the attention of Southern State's superintendent, who concluded that plaintiff should be discharged. On May 5, 2009, plaintiff received a letter from the superintendent informing him that that he was discharged from employment.

¶ 10. Several months later, plaintiff filed a complaint against the State, alleging that it violated the USERRA by failing to promote him, and by later terminating him, on the basis of his membership in the Vermont National Guard. The State answered and, following discovery, moved for summary judgment. The court held a hearing on the motion in June 2012, and

[88 A.3d 406]

issued a written decision granting the motion in August 2012. This appeal followed.

¶ 11. Plaintiff asserts that summary judgment was improper because genuine issues of material fact exist as to whether his membership in the Vermont National Guard was a motivating factor in the nonpromotion and termination decisions. He also maintains that the State failed to establish that the decisions would have been taken irrespective of plaintiff's military obligations.

¶ 12. We review summary judgment decisions using the same standard as the trial court. Summary judgment orders will be affirmed when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Campbell v. Stafford, 2011 VT 11, ¶ 10, 189 Vt. 567, 15 A.3d 126 (mem.). The moving party bears the burden of establishing the absence of a genuine issue of material fact, satisfied in certain cases by showing the nonexistence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323–25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); V.R.C.P. 56(c)(1)(B). The nonmoving party is afforded the benefit of all reasonable doubts and inferences. Campbell, 2011 VT 11, ¶ 10, 189 Vt. 567, 15 A.3d 126.

¶ 13. The USERRA provides: “A person who is a member of ... or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership ... or obligation.” 38 U.S.C. § 4311(a). Under the statute, “[a]n employer shall be considered to have engaged in actions prohibited ... under subsection (a), if the person's membership ... is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership.” Id. § 4311(c). “USERRA is to be liberally construed in favor of those who served their country.” McGuire v. United Parcel Serv., 152 F.3d 673, 676 (7th Cir.1998).

¶ 14. Under the USERRA, an employee alleging discrimination has “the initial burden of showing by a preponderance of the evidence that the employee's military service was a substantial or motivating factor in the adverse employment action.” Sheehan v. Dep't of Navy, 240 F.3d 1009, 1013 (Fed.Cir.2001) (quotation omitted); see also Rademacher v. HBE Corp., 645 F.3d 1005, 1011 (8th Cir.2011). Military service is a motivating factor in...

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    ...employee failed to raise a fact question as to whether the people selected for promotion were less qualified); Brown v. State, 88 A.3d 402, 406-07 (Vt. 2013) ("To establish a USERRA claim under a failure-to-promote theory, an employee must show that he or she possesses qualifications simila......
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