Davis v. Crothall Servs. Grp., Inc.

• Citation: 961 F.Supp.2d 716
• Decision Date: 06 August 2013
• Docket Number: Civil Action No. 3:09–cv–00312.
• Parties: Terry L. DAVIS, Plaintiff, v. CROTHALL SERVICES GROUP, INC., Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

961 F.Supp.2d 716

Terry L. DAVIS, Plaintiff,

v.CROTHALL SERVICES GROUP, INC., Defendant.

Civil Action No. 3:09–cv–00312.

United States District Court,

W.D. Pennsylvania.

Aug. 6, 2013.

Kathryn Sydny Piscitelli, Orlando, FL, Timothy P. O'Brien, Pittsburgh, PA, for Plaintiff.

Christopher Michalski, Robert W. Cameron, Marcy L. McCullough, Vincent J. Mersich, Littler Mendelson, PC, Pittsburgh, PA, for Defendant.

MEMORANDUM OPINION AND ORDER OF COURT

KIM R. GIBSON, District Judge.

I. SYNOPSIS

This matter comes before the Court on Defendant's “Motion for Summary Judgment, or, in the Alternative, Summary Adjudication.” (Doc. No. 62) and Plaintiff's “Partial Motion for Summary Judgment.” (Doc. No. 66). Each party opposes the other's motion and each motion has been fully briefed. For the reasons that follow, the Court will DENY Defendant's motion and will GRANT in part and DENY in part Plaintiff's motion.

II. JURISDICTION AND VENUE

Jurisdiction is proper in the United States District Court for the Western District of Pennsylvania pursuant to 28 U.S.C. § 1331 and 38 U.S.C. § 4323(b)(3) of the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). Venue is proper under 28 U.S.C. § 1391(b) and 38 U.S.C. § 4323(c)(2).¹

III. BACKGROUND

This case arises out of Defendant's alleged failure to comply with the reemployment provisions of USERRA. (Doc. No. 1 at 1). Plaintiff served a tour of active military duty from early 2006 until June 2007, and alerted his employer, Defendant, of his desire to be reemployed upon his return in April or May of 2007. (Doc. Nos. 64 at 3 ¶ 21, 6 ¶ 45; 70–1 at 10 ¶¶ 57–58). Plaintiff's complaint alleges that Crothall Services Group, Inc. (“Crothall”) did not provide him with appropriate reemployment opportunities, as specified under the statute, and this failure to do so led to the instant litigation. (Doc. No. 1 at 1).

Terry L. Davis (“Davis”) enlisted for active duty with the Army in 1978. (Doc. No. 64 at 2, ¶ 10). Since that time, he has served either on active duty or reserve status. Currently, Davis is enlisted through 2018. (Doc. No. 64 at 10, ¶ 76). In addition to his military service, Davis was employed by Kinetic Biomedical Services (“Kinetic”) since 1988 in various positions. (Doc. Nos. 64 at 2–3, ¶¶ 11–15; 70–1 at 2, ¶¶ 5–6). In 1995, Davis became a Regional Operations Manager (“ROM”) for Kinetic. (Doc. Nos. 64 at 3, ¶ 15; 70–1 at 2, ¶ 6). This position entailed responsibility for the Central Region, which consisted of western Pennsylvania, parts of New York, Ohio, West Virginia, and Kentucky. (Doc. No. 64 at 3, ¶ 16). In 2005, Crothall acquired Kinetic and Davis continued to be employed by Defendant as ROM for the company's Central Region. (Doc. No. 64 at 3, ¶ 17). During his employment with both Kinetic and Crothall, Davis was deployed on three separate occasions, with his total time away from the companies being less than five years. (Doc. No. 64 at 3, ¶ 18–21). It was after his third deployment from January 2006 until June 2007 that led to the present dispute. (Doc. No. 64 at 6–7, ¶¶ 45–49).

Prior to his most recent military leave of absence, the Central Region had been experiencing a downturn in economic activity. ( See Doc. No. 65–1 at ¶ 8). Since 2004, at least five hospital accounts were lost. (Doc. No. 64 at 5, ¶¶ 34–38). By November 2005, the Central Region had the lowest gross profit of all of Crothall's business regions. (Doc. No. 64 at 6, ¶ 40). In January 2006, Davis notified Defendant that he had been called to active duty as a member of the Army Reserves, and would be deploying in February 2006. (Doc. No. 70–1 at 2, ¶¶ 11–12). Crothall granted Davis' request for military leave of absence. (Doc. No. 70–1 at 2, ¶ 12). At some point thereafter, the Crothall corporate offices based in Erie, PA were closed. (Doc. Nos. 65–2 at 20–21; 69–1 at 93–94). The parties dispute, however, the underlying reasons for the closing of these offices, as well as whether or not Davis' ROM position was eliminated. Crothall contends that when the Central Region offices were closed for declining business reasons, this included the formal elimination of Davis' ROM position. (Doc. No. 65–1 at ¶ 8; 65–4 at 6–8). Plaintiff avers, however, that the closing of the offices was a predetermined decision of the corporate acquisition. (Doc. No. 69–1 at 56, 59–60). Additionally, Plaintiff argues that the company officers who were terminated with these offices were not analogous to Davis' ROM position, but that the Central Region continued to operate after the closing of the Erie office. ( Id.). Plaintiff also contends that Ken Schwarz (“Schwarz”) was named acting ROM for the Central Region at this time. (Doc. No. 70–1 at 6, ¶ 31).

Following the closing of its Erie office, Crothall listed a vacant ROM position—based out of eastern Pennsylvania—to be filled. Defendant states that Crothall added 11 new accounts to the responsibility of Schwarz, who had been employed as the ROM for the Mid–Atlantic Region. (Doc. No. 65–1 at 3, ¶ 9). Defendant also states that the new position was created to help ease the burden of the additional accounts being added in the region. ( Id.). Davis disputes the assertion that the new ROM position absorbed Schwarz' excess accounts and contends that the allegedly new ROM position took over most of Davis' old accounts. (Doc. No. 69–1 at 75–76). In trying to fill the position, the vacant ROM was listed on Crothall's website for current employees to apply. (Doc. No. 70–1 at 7, ¶ 37). Around June 2006, James Aulisio (“Aulisio”) was promoted to this ROM position. (Doc. No. 64 at 9, ¶ 63). Prior to his hiring as ROM, Aulisio had served as an Account Supervisor, a subordinate position to the ROM position. (Doc. No. 70–1 at 6, ¶ 36).

Crothall insists that Aulisio's ROM position was an entirely new ROM created to ease the burden of Schwarz, and had the Plaintiff not been on military leave of absence, he would have had to undergo the same application process as other employees. (Doc. No. 65–3 at 12). Crothall also states that hiring Plaintiff for this ROM position would have been subject to supervisor discretion, as well as an application and interview process. (Doc. No. 65–5 at 5). Davis asserts that his previous ROM position was never eliminated, and that this new ROM position ultimately occupied by Aulisio was in fact his position. (Doc. No. 69–1 at 65–66). Even if not the same position, Plaintiff avers it is reasonably certain that he would have held this ROM position had he been at Crothall when it was listed. (Doc. Nos. 69–1 at 65–66; 69–2 at 4–6; 69–4 at 28–29). He states that since the regions are similar and there is account overlap from the previous Central Region, Davis would have naturally assumed this position. (Doc. No. 69–1 at 65–66). Davis also states that Defendant had a corporate policy of moving workers to similar positions if the worker's previous job was eliminated. (Doc. Nos. 69–2 at 4–6; 69–4 at 28–29). Crothall, however, maintains that this policy still allowed for discretionary actions by supervisors, and would not be automatic. (Doc. No. 65–6 at 3).

In April or May of 2007, Davis alerted Crothall that he would be returning soon from active duty and could return to work on July 1, 2007. (Doc. Nos. 64 at 6, ¶ 45; 69–3 at 35). Plaintiff's supervisor, William Rothgery (“Rothgery”), informed Plaintiff in May 2007 that the Central Region ROM position was no longer available. (Doc. No. 64 at 7, ¶ 46). Davis informed Rothgery that he would consider accepting a similar ROM position if it required relocation. (Doc. No. 70–1 at 11, ¶ 62). Rothgery offered Plaintiff a technician job (BMET I/II), a position four grades below that of ROM. (Doc. No. 70–1 at 11–12, ¶ 67). Crothall asserts that Davis was additionally offered four other positions at the time, including that of Account Supervisor. (Doc. No. 64 at 7, ¶ 48). Crothall further maintains that any position to which Davis was hired would have provided the same pay and benefits, with increases, along with relocation costs, if needed. (Doc. No. 64 at 7, ¶ 50).

Davis claims that the salary for the BMET I/II position would have been less than his previous ROM salary. (Doc. Nos. 69–2 at 26–28; 69–3 at 26–29, 55). He further states that he was never formally offered any position other than BMET I/II, and that the other jobs were only linked on a vacancy page on Crothall's website. (Doc. No. 79 at 16–17, ¶¶ 47–48). Plaintiff did not accept any of the positions. (Doc. No. 64 at 7, ¶ 49). Davis contends that he did not accept these positions based upon the belief that they were inferior to his prior employment with Crothall. (Doc. No. 64 at 7, ¶ 49). Plaintiff also avers that all positions offered by Crothall were insufficient in regards to Crothall's USERRA obligations. (Doc. Nos. 69–1 at 89; 69–4 at 2–3).

On June 22, 2007, Schwarz resigned his position as ROM. (Doc. No. 64 at 9, ¶ 67). Davis states that Schwarz had given notice to Crothall of his resignation on June 11, 2007. (Doc. No. 70–1 at 11, ¶ 64). Defendant counters, however, that this resignation did not create a vacancy, as there was no plan to fill the position. (Doc. Nos. 65–3 at 16–17, 19–20; 65–4 at 9). Instead, Crothall decided to disperse the remaining accounts under Schwarz' responsibility to other Crothall ROMs, and thus never actually created a vacant position. ( Id.). Plaintiff asserts that even though the vacancy was never filled when Schwarz resigned, there was in fact a vacancy. (Doc. No. 69–1 at 83–84).

On June 20, 2007, Plaintiff was released from active duty. On June 22, Davis' employment with Crothall was terminated because of his “fail[ure] to return from leave of absence.” (Doc. No. 69–1 at 18). In July 2007, Davis lodged a complaint with the Department of Labor VETS division. (Doc. No. 64 at 7, ¶ 53). In August 2007, Davis reenlisted for active duty with the Army for a three year period. (Doc. No. 64 at 10, ¶ 70). In ...