Gordon v. Wawa, Inc.

Decision Date28 October 2004
Docket NumberNo. 03-3089.,03-3089.
PartiesWanda GORDON, individually and as Administratrix ad Prosequendum for the Estate of Willie James Gordon, Jr., Deceased, Appellant v. WAWA, INC., aka Wawa Food Markets; John Does I and X; John Doe Corporations, I to X, individually jointly, severally, and/or in the alternative. aka Wawa dba Wawa.
CourtU.S. Court of Appeals — Third Circuit

Appeal from the United States District Court for the District of New Jersey, Kugler, J Philip L. Faccenda, (Argued), Medford, for Appellant.

Edward T. Ellis, (Argued), Janice G. Dubler, Montgomery, McCracken, Walker & Rhoads, LLP, Cherry Hill, for Appellee.

Before McKEE, ROSENN, and WEIS, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal presents questions of first impression concerning the scope of rights under the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301-4333 ("USERRA"), of persons in noncareer military service. The case is of particular interest at this time because of the large number of reservists called up for military duty as a result of the conflicts in Iraq and Afghanistan. The alleged events underlying this action are tragic. Willie Gordon, an active member of the United States Army Reserve, also worked for the defendant, Wawa, Inc., in Vineland, New Jersey. On Sunday, September 17, 2000, on his way home from weekend Reserve duties in Virginia, Gordon stopped by the Vineland store to pick up his paycheck and to obtain his work schedule for the upcoming week. At that time, Gordon's shift manager allegedly ordered him to work that night's late shift, and threatened to fire him if he refused. Willie Gordon complied with the order, and on his drive home from work, lost consciousness at the wheel of his car. His car crashed, and he died as a result of his injuries.

Plaintiff is Willie Gordon's mother and the administratrix of his estate. As the administratrix ad prosequendum for the estate of her son, plaintiff filed a complaint in the United States District Court for the District of New Jersey, alleging, inter alia, that defendant deprived the decedent of his right under USERRA to an eight-hour rest period between returning home from military exercises and returning to work.1 The complaint further alleges that Wawa's threat to fire Gordon constituted an adverse employment action under USERRA. The complaint seeks, inter alia, statutory remedies of lost wages and benefits, attorney fees, and costs. See 38 U.S.C. § 4323(d), (h). The District Court granted Wawa's motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff timely appealed from the District Court's order. We affirm.

I.

Accepting the complaint's allegations as true, the District Court held that USERRA provides no cause of action here.2 Specifically, the District Court held that 38 U.S.C. § 4312(e) "merely requires an employee returning from uniformed duty to notify his or her employer of an intent to return to work within a specified time period," and "imposes no affirmative duty on an employer to prevent an employee from reporting to work prior to the expiration of an eight-hour period following the employee's return from uniformed services." Gordon v. Wawa, Inc., No. 02-4498, slip op. at 7 (D.N.J. June 17, 2003) (emphasis in original). Further, the District Court concluded that the remedies available under USERRA reflect a congressional purpose to prevent employment discrimination based on military status of noncareer service members, and were thus inapplicable in this case. Id. at 9. Accordingly, the District Court granted Wawa's Rule 12(b)(6) motion to dismiss, and pursuant to 28 U.S.C. § 1367(c)(3), declined to exercise supplemental jurisdiction over plaintiff's state law claims.

II.

Our review of the District Court's dismissal of plaintiff's USERRA claims is plenary. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir.1994). Dismissal under Rule 12(b)(6) is inappropriate "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In making this decision, "the court must consider only those facts alleged in the complaint and accept all of the allegations as true." ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir.1994). All inferences are drawn in favor of the plaintiff. Oshiver, 38 F.3d at 1384.

Further, we construe USERRA's provisions liberally, in favor of the service member. Coffy v. Republic Steel Corp., 447 U.S. 191, 196, 100 S.Ct. 2100, 65 L.Ed.2d 53 (1980) (interpreting USERRA predecessor Vietnam Era Veterans' Readjustment Assistance Act of 1974); Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946) (construing Selective Training and Service Act of 1940); Hill v. Michelin N.A., Inc., 252 F.3d 307, 312-13 (4th Cir. 2001) ("Because 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.").

A.

Plaintiff contends that 38 U.S.C. § 4312(e) confers a "right to eight-hours rest" between the time when the employee returns home from military exercises and when the employee must report to the employer. As with all questions of statutory interpretation, we first turn to the statutory language "to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case." Marshak v. Treadwell, 240 F.3d 184, 192 (3d Cir. 2001) (citations and internal quotation marks omitted). We discern "[t]he plainness or ambiguity of statutory language ... by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Id. (citations and internal quotation marks omitted). Where "the statutory meaning is clear, our inquiry is at an end." Ki Se Lee v. Ashcroft, 368 F.3d 218, 222 (3d Cir.2004); Marshak, 240 F.3d at 192.

Section 4312(e) provides that a person whose military service caused an absence from work

shall, upon completion of a period of service in the uniformed services, notify the employer ... of the person's intent to return to a position of employment with such employer as follows:

(A) In the case of a person whose period of service in the uniformed services was less than 31 days, by reporting to the employer

(i) not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight hours after a period allowing for the safe transportation of the person from the place of that service to the person's residence; or

(ii) as soon as possible after the expiration of the eight-hour period referred to in clause (i), if reporting within the period referred to in such clause is impossible or unreasonable through no fault of the person.

38 U.S.C. § 4312(e)(1)(A)(i)-(ii) (emphasis added).

Unsurprisingly, plaintiff has focused little attention on the statutory language. By its plain terms, § 4312(e) sets forth the requirements of an employee to notify the employer of the employee's intention to return to work. The eight-hour period referred to in § 4312(e)(1)(A)(i) marks the outer limit of the time by which the employee must report to the employer upon returning home from military service. As the District Court concluded, § 4312(e) is written entirely in terms of an employee's duties, as opposed to an employer's obligations. There is no way to construe this statutory language as conferring a substantive right to eight hours of rest for the returning employee.

Reading § 4312(e) in its broader context confirms this view, because the remainder of the section sets forth the other requirements for an employee to secure USERRA's reemployment guarantee, or the exceptions thereto. Section 4312(a) requires the employee to give the employer advance notice of leave, requires that the employee's cumulative leave be no longer than five years, and requires the employee to report to the employer in compliance with § 4312(e). Section 4312(b) contains an exception to the advance notice requirement. Subsection (c) contains exceptions to the five-year absence limit, and subsection (d) sets forth the conditions under which an employer need not re-engage an employee. The remaining subsections impose other duties on the employees, and the section concludes with the guarantee of USERRA rights to employees who satisfy § 4312's requirements, including "the notification requirements established in subsection (e)...." 38 U.S.C. § 4312(h) (emphasis added).

The limited case law on § 4312 supports this view. See, e.g., Jordan v. Air Prods. & Chems., Inc., 225 F.Supp.2d 1206, 1208 (C.D.Cal.2002) (Section "4312 creates an unqualified right to reemployment to those who satisfy the service duration and notice requirements.... Section 4312 places service people and employers on notice that, upon returning from service, veterans are entitled to their previous positions of employment.") (emphasis added); McGuire v. United Parcel Service, Inc., No. 97 C 0232, 1997 WL 543059, at *3 (N.D.Ill. Aug.28, 1997) (employee's eligibility for reemployment after active duty in U.S. Military Reserve "hinges on" § 4312's "requisites" of, inter alia, providing notice of intent to return to work), aff'd, 152 F.3d 673, 678 (7th Cir.1998) (employee failed to give employer "reasonable notice that he wanted his job back").

Plaintiff's reliance on Boelter v. City of Coon Rapids, 67 F.Supp.2d 1040 (D.Minn. 1999), is futile. In the context of interpreting a state law that grants reservists the right to take paid military leave (a benefit that USERRA does not guarantee), the Boelter court remarked in dictum that 38...

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