Francis v. Booz, Allen & Hamilton, Inc.

• Citation: 452 F.3d 299
• Decision Date: 22 June 2006
• Docket Number: No. 05-1523.,05-1523.
• Parties: Cheryl P. FRANCIS, Plaintiff-Appellant, v. BOOZ, ALLEN & HAMILTON, INCORPORATED, Defendant-Appellee. Reserve Officers Association, Amicus Supporting Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

452 F.3d 299

Cheryl P. FRANCIS, Plaintiff-Appellant, v. BOOZ, ALLEN & HAMILTON, INCORPORATED, Defendant-Appellee.

Reserve Officers Association, Amicus Supporting Appellant.

No. 05-1523.

United States Court of Appeals, Fourth Circuit.

Argued March 16, 2006.

Decided June 22, 2006.

ARGUED: Adam Augustine Carter, Noto & Oswald, P.C., Washington, D.C., for Appellant. Stephen William Robinson, McGuirewoods, L.L.P., McLean, Virginia, for Appellee. ON BRIEF: R. Scott Oswald, The Employment Law Group, P.L.L.C., Washington, D.C., for Appellant. David L. Greenspan, McGuirewoods, L.L.P., McLean, Virginia, for Appellee. Samuel F. Wright, Reserve Officers Association, Washington, D.C., for Amicus Supporting Appellant.

Before WILKINS, Chief Judge, and NIEMEYER and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Chief Judge WILKINS and Judge NIEMEYER joined.

DUNCAN, Circuit Judge.

This appeal requires us to consider the parameters of the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C.A. §§ 4301-4333 (West 2002 & Supp.2005) ("USERRA"), enacted by Congress to protect the employment and reemployment rights of veterans. Cheryl Francis brought suit against her former employer, Booz, Allen & Hamilton, Inc. ("BAH"), alleging discrimination, wrongful termination, and retaliation in violation of USERRA. The parties filed cross-motions for summary judgment. On April 22, 2005, the district court granted summary judgment to BAH on all counts, denying Francis' motion and dismissing her complaint with prejudice. Francis timely appeals. For the reasons that follow, we affirm.

I.

Given the procedural posture of this case, we summarize the facts in the light most favorable to Francis. Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir.1996). Francis began working for BAH in Crystal City, Virginia in 1996 and was promoted to a position as a Level II Senior Consultant in 2000. Until March 2003, Francis worked as a computer technician pursuant to a contract with one of BAH's clients, the Office of Solid Waste and Emergency Response ("OSWER") of the Environmental Protection Agency ("EPA"). Francis performed a variety of functions as required by OSWER, categorized by BAH as Tier I (low-level call center work), Tier II (face-to-face work and higher-level problem solving), or Tier III (networking assistance). Because of the nature of the work, Francis performed most Tier I tasks at her desk and most Tier II and III assignments elsewhere. Her usual workday was from 8:00 A.M. until 4:30 P.M., though she would, depending on OSWER's needs, sometimes work the late shift from 10:00 A.M. to 6:30 P.M. During the performance of these duties, Francis engaged in some conduct that BAH found unprofessional and for which Francis was formally reprimanded several times in 2002.

During the time of her employment with BAH, Francis was also a petty officer in the United States Naval Reserves. As part of her military obligation, she was deployed on full-time active duty beginning March 16, 2003. Following her discharge from active duty, Francis resumed her duties at BAH on August 11, 2003. It is undisputed that Francis retained the same title, salary, consulting engagement, and work location upon her return.

There were, however, certain changes in Francis' responsibilities and work schedule following her return from deployment. First, although Francis continued to perform a mix of Tier I and Tier II work, she performed almost no Tier III work. This change resulted from EPA's decision to consolidate its network operations and transfer the maintenance and administration of OSWER's network to another vendor. By the time Francis returned from deployment, this consolidation was nearly complete, and no one at BAH performed substantial Tier III work on the OSWER contract.

A second change related to Francis' work schedule. On August 28, BAH informed her that she would be permanently assigned to the late shift.¹ Unbeknownst to BAH, this revision created a conflict with evening undergraduate classes in which Francis had enrolled on August 26, 2003. Francis, however, arranged for various supervisors and co-workers to replace her when her work schedule conflicted with her classes. Francis did not miss any classes as a result of her new schedule. She did, however, inform BAH on August 29 that she believed that her USERRA rights were being violated.

Upon her return, Francis engaged in certain behavior which BAH found objectionable. For example, on various occasions, she left work early without authorization. She was also absent from a team conference call. A manager claimed to observe her slamming down the phone after exchanges with customers. Co-workers lodged various complaints with the Department Project Manager regarding Francis' behavioral and attendance issues. BAH believed that Francis' actions violated BAH's "Core Values" — an employee conduct policy that provides the framework of professional behavior for dealing with clients and colleagues at BAH. Consequently, on November 14, 2003, BAH issued Francis a Notice of Probation, which warned Francis that "failure to immediately address these issues would result in termination of . . . employment." J.A. at 276. BAH based this decision on Francis' conduct both pre-deployment and post-deployment. BAH subsequently provided Francis with a plan for improvement wherein Francis was put on notice that unless she displayed "immediate, substantial, and sustained progress . . . termination of employment [would] occur." J.A. at 431.

Less than two weeks after receiving the Notice of Probation, Francis again left the office without authorization in order to attend to a customer at an off-site location. On December 15, 2003, BAH terminated Francis' employment, and this action followed.

II.

A.

We review the district court's grant of summary judgment de novo. Evans, 80 F.3d at 958. We apply the same legal standards as the district court and uphold the summary judgment only if the evidence, viewed in the light most favorable to the non-moving party, entitles the moving party to judgment as a matter of law. Id.

B.

Francis brings three claims under USERRA, which we will examine in turn. She first claims that BAH discriminated against her in violation of both §§ 4311(a) and 4312. Section 4311(a) provides that "[a] person [such as Francis] shall not be denied . . . any benefit of employment by an employer on the basis of [her membership in the armed services]." § 4311(a). 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]." § 4312(a). Francis' discrimination claim alleges that BAH denied her "reemployment rights" in violation of § 4312 and "benefits of employment" in violation of § 4311.

Francis' second claim alleges improper discharge in violation of § 4316(c) of USERRA, which states in relevant part that "[a] person who is reemployed by an employer under [USERRA] shall not be discharged from such employment, except for cause. . . ." § 4316(c).

Finally, Francis' third claim alleges improper retaliation in violation of § 4311(b) of USERRA, which prohibits employers from "tak[ing] any adverse employment action against any person because such person has taken an action to enforce a protection afforded any person under [USERRA],. . . or has exercised a right provided for in [USERRA]." § 4311(b) (internal numeration omitted). Specifically, Francis' third claim alleges that BAH dismissed her in violation of this section because she indicated her desire to exercise her rights under USERRA. For the reasons stated below, we hold that the district court properly granted summary judgment to BAH on all three claims.

C.

1. Claim One — Discrimination

Francis first argues that the district court erred in holding that BAH did not discriminate against her in violation of USERRA with respect to the changes in her work schedule and responsibilities. Although Francis alleges discrimination under both §§ 4311 and 4312, the procedural requirements of the two provisions differ. An employee proceeding under § 4311 has the burden of proving that the employer discriminated against him or her based on a status or activity protected by USERRA. 20 C.F.R. § 1002.22 (2006). Section 4312 imposes no such burden. 20 C.F.R. § 1002.33 (2006). We consider Francis' claims under both provisions.²

We begin by noting that, "[b]ecause USERRA was enacted to protect the rights of veterans and members of the uniformed services, it must be broadly construed in favor of its military beneficiaries." Hill v. Michelin N. Am., Inc., 252 F.3d 307, 312-13 (4th Cir.2001). In addition, while USERRA is a relatively recent statutory scheme, we can and should use relevant pre-USERRA case law as a guide toward understanding USERRA: "[i]n enacting USERRA, Congress . . . emphasized that Federal laws protecting veterans' employment and reemployment rights for the past fifty years had been successful and that the large body of case law that had developed under those statutes remained in full force and effect, to the extent it is consistent with USERRA." 20 C.F.R. § 1002.2 (2006).

"The first step in determining the meaning of a statute is to examine the statute's plain language. In doing so, we look at `the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.'" United States v. Andrews, 441 F.3d 220, 222 (4th Cir.2006)(internal citation omitted) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)). USERRA provides a multi-tiered and "comprehensive remedial scheme to ensure the employment and reemployment rights of those called upon to serve in the armed forces of the United States." Morris-Hayes v. Bd. of Educ., 423 F.3d 153, 160 (2d...