Duarte v. Agilent Technologies, Inc.

• Decision Date: 31 March 2005
• Docket Number: No. CIV.A. 04-B-0298.,CIV.A. 04-B-0298.
• Citation: 366 F.Supp.2d 1039
• Parties: Joseph Steve DUARTE, Plaintiff, v. AGILENT TECHNOLOGIES, INC., a New York corporation, Defendant.
• Court: U.S. District Court — District of Colorado

Page 1039

366 F.Supp.2d 1039

Joseph Steve DUARTE, Plaintiff, v. AGILENT TECHNOLOGIES, INC., a New York corporation, Defendant.

No. CIV.A. 04-B-0298.

United States District Court, D. Colorado.

March 31, 2005.

George C. Aucoin, Jr., Atty at Law, New Orleans, LA, for Plaintiff.

Thomas E.J. Hazard, Holland & Hart, LLP, Denver, CO, for Defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

BABCOCK, Chief Judge.

Trial to the Court in this action for relief under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. § 4301, et seq., was held March 7, 2005 through March 9, 2005. Plaintiff Joseph Steve Duarte ("Duarte") claims that Defendant Agilent Technologies, Inc.'s ("Agilent") actions in reinstating his employment following a period of active military deployment and then terminating him from this position approximately four (4) months later constitute violations of Sections 4313(a)(2)(A) and 4316(c)(1) of USERRA.

Section 4313(a)(2)(A) of USERRA provides that a person entitled to reemployment under Section 4312 of USERRA shall be reemployed in the position of employment in which such person would have been employed if the continuous employment of such person had not been interrupted by military service or a position of like seniority, status, and pay, the duties of which the person is qualified to perform. Section 4316(c)(1) of USERRA provides that members of the armed services who are reemployed under Section 4312 of USERRA and who were employed for at least 180 days prior to reemployment cannot be discharged within one year of reemployment "except for cause."

For the following reasons, I find and conclude that Agilent violated Sections 4313(a)(2)(A) and 4316(c)(1) of USERRA in reemploying Duarte and then terminating him approximately four (4) months after he returned from active military duty. I therefore enter judgment in favor of Duarte as set forth below.

I. Findings of Fact

I find the following facts based on a preponderance of the evidence.

Agilent is a technology company that manufactures and sells test and measurement equipment, semiconductors, and life sciences and chemical analysis products to customers worldwide. Originally a wholly-owned subsidiary of Hewlett-Packard Company ("HP"), Agilent was spun off from HP in 1999 and became a fully independent company on June 2, 2000.

From the end of fiscal year 2001 and through the third quarter of fiscal year 2003, Agilent reported net losses in seven consecutive quarters. To restore the company to profitability, Agilent undertook several costcutting initiatives. Among those initiatives was Agilent's Work Force Management Program (the "Program"), which consists of a set of guidelines to be used by Agilent's managers in terminating employees and thereby reducing their workforces.

Employees are to be selected for the Program under two scenarios. First, under the initial selection criterion, all employees involved in projects or other work slated for elimination are automatically designated for participation in the Program and termination. Second, under the secondary selection criteria, employees involved in projects or other work that will be downsized as a result of events such as re-structuring may be designated for participation in the Program and termination. Under this latter scenario, managers are to engage in a process of assessing the skills of their employees and comparing them to those needed by their business group.

Based in part on the use of the Program, Agilent reduced its workforce from 41,000 in fiscal year 2001 to 29,000 at the end of fiscal year 2003. In the fourth quarter of fiscal year 2003, Agilent posted net profits in the amount of $13 million following third quarter losses of $1.5 billion. Agilent also reported net profits for the first three quarters of fiscal year 2004.

Duarte was employed at HP and then Agilent for over 19 years. From Agilent's inception until his termination, Duarte was employed as a design consultant in Agilent's Global Incentive Pay Organization ("GIPO"). GIPO is an infrastructure unit of Agilent responsible for evaluating incentive compensation pay plans used to pay the field sales teams of Agilent's five global business groups: Electronic Products and Solution Group ("EPSG"); Life Sciences and Chemical Analysis Group ("LSCA"); Automated Test Group ("ATG"); Semiconductor Products Group ("SPG"); and Communications Solutions Group ("CSG"). A design consultant from the GIPO unit is assigned to each of Agilent's business groups. This primary design consultant then assists the business group in developing its specific annual pay plans and incentive pay programs. The annual pay plan process typically begins in June and must be completed by the beginning of November.

During his employment with Agilent, Duarte, a member of the Marine Corp Reserves, was called up for active duty on two occasions. Duarte's first call-up was from October of 2001 until April of 2002. In April of 2002, Duarte returned to his job as a design consultant with Agilent. Initially upon his return, Henry Grimm was Duarte's manager. Sometime in June or July of 2002, however, Sue Brunker ("Brunker") assumed responsibility as Duarte's manager.

Duarte's second call-up for active duty occurred in November of 2002. At the time of this call-up, Duarte was assigned as the primary design consultant for the EPSG business group. Duarte returned from his second tour of duty in July 2003 and was reinstated to his employment as a design consultant with the GIPO unit. Although Duarte's pay and benefits remained the same, the nature of his responsibilities as a design consultant changed in that he was no longer acting as primary design consultant for EPSG or any of the five business groups served by GIPO. Instead, Duarte was assigned to a special benchmark survey project whereby he was to obtain information regarding how Agilent's competitors were compensating their sales forces and to assist the primary design consultants for the EPSG and LSCA business groups. Duarte was given this modified assignment because the annual pay plan design process for the upcoming year was already underway at the time of his return and it was decided that it would be too disruptive to that process to replace one of the acting primary design consultants with Duarte.

While Duarte was on his second tour of active military duty, Vicki Groninga ("Groninga") replaced Brunker as his manager. Groninga, the overall manager for the entire GIPO unit, had also assumed responsibility as manager for the design consultant team when Brunker, who was dissatisfied in this role, stepped down and was appointed the primary design consultant for the LSCA business group. These changes occurred on July 17, 2003, just days before Duarte returned to employment at Agilent on July 21, 2003.

Both the annual pay plan design process for fiscal year 2004 and Duarte's benchmarking project were scheduled to be completed by November 1, 2003. On Duarte's return, Groninga had planned to restore him to his position as a primary design consultant for one of the business groups. Until then, Groninga anticipated that Duarte would split his time equally between working on the benchmarking project and in assisting the primary design consultants with the annual pay plan design process for the EPSG and LSCA business groups. In actuality, however, Duarte spent 80 — 90% of his time working on the benchmarking project from the time he returned to employment at Agilent in July of 2003 until his termination in November of 2003.

During Duarte's second military leave of absence, Paola Gheis ("Gheis") assumed Duarte's responsibility as the primary design consultant for the EPSG business group. Gheis continued in this position upon Duarte's return. In addition to Brunker and Gheis, the other primary design consultant assignments upon Duarte's return in July 2003 were: Marco Negro ("Negro"), primary design consultant for both the ATG and CSG business groups, and Debye Wolf, primary design consultant for the SPG business group. Groninga was assisting Wolf with her responsibilities based on problems with Wolf's performance in this capacity.

In administering its incentive compensation plans for Agilent's sales force, the GIPO unit was utilizing a variety of systems. In December of 2002, Agilent allocated $4 million of its Human Resources budget to develop a project known as the Sales Incentive Management ("SIM") Project, the objective of which was to replace these different systems with a single system. In order to obtain approval for the SIM Project, Groninga committed to reducing her GIPO operating budget by $700,000 by the end of fiscal year 2004. The SIM Project was ultimately abandoned.

Faced with pressure to reduce costs, Groninga began evaluating the design consultant team. In connection with this evaluation, Groninga contacted the HR managers for each of the five business groups and discussed the skills needed by the primary design consultants and whether they were satisfied with the primary design consultant currently assigned to them. With the exception of Elizabeth Shen, then HR manager for the SPG business unit to which Wolfe was assigned, each of the five business managers expressed satisfaction with their current design consultant assignments.

Groninga also asked each of the five HR managers if they would like to have Duarte assigned as the primary design consultant to their business group. None of the five HR managers was interested in having Duarte assigned as the primary design consultant for their business group for reasons that ranged from concerns with his skills and performance to concerns over consistency in this position for their business unit. Only one of the HR managers consulted by Groninga, however, had worked directly with Duarte as a primary design consultant for one of Agilent's business groups and none of the HR managers had worked with Duarte...