Gummo v. Village of Depew, N.Y.
| Decision Date | 19 January 1996 |
| Docket Number | D,No. 578,578 |
| Citation | 75 F.3d 98 |
| Parties | 151 L.R.R.M. (BNA) 2225, 67 Empl. Prac. Dec. P 43,880, 131 Lab.Cas. P 11,477 William M. GUMMO, Plaintiff-Appellant, v. VILLAGE OF DEPEW, NEW YORK, Defendant-Appellee. ocket 95-7551. |
| Court | U.S. Court of Appeals — Second Circuit |
Glenn Edward Murray, Buffalo, New York (Murray & Coleman, Buffalo, New York, on the brief), for plaintiff-appellant.
Paul D. Weiss, Buffalo, New York (Weiss & Stein, Buffalo, New York, on the brief), for defendant-appellee.
Before: KEARSE and WINTER, Circuit Judges, and POLLACK, District Judge. *
Plaintiff William M. Gummo, a member of the United States Air Force Reserves formerly employed by the Police Department of defendant Village of Depew, New York ("Village"), appeals from a judgment of the United States District Court for the Western District of New York, John T. Elfvin, Judge, dismissing his complaint alleging that the Village terminated his employment in violation of the Veterans' Reemployment Rights Act, 38 U.S.C. § 2021 et seq. (1988) () (the "Act" or "VRR Act"). The district court granted the Village's motion for summary judgment on the ground that Gummo could not show that his termination was motivated solely by, or had any causal relationship to, his reserve status. On appeal, Gummo contends principally that summary judgment dismissing his complaint was improper because the district court erred in applying the sole-motivation test and because there were genuine issues to be tried with respect to causation. He also contends that he was entitled to a partial summary judgment in his favor ruling that the Department's policy of refusing to grant military leave without the submission of written official orders violated § 2024(d) of the Act. For the reasons that follow, we agree that the district court erred in granting summary judgment, and we therefore vacate the judgment and remand for further proceedings.
Except to the extent indicated, most of the background events do not appear to be in dispute.
From 1977 until his discharge in January 1990, Gummo was employed as a police officer by the Depew Police Department. In December 1986, he enlisted in the United States Air Force Reserves ("Reserves") and was assigned to military duties at the Air Force base in Niagara Falls, New York, some 30 miles from Depew. Gummo's military obligations required him to participate in training sessions one weekend each month at the Air Force base and to attend a two-week tour of training each year ("annual tour") at a site designated by the Air Force. As a municipal employee, Gummo was entitled under state law to be paid his salary during any less-than-30-day absence for military training. See N.Y.Military Law § 242(5) (McKinney 1990).
The Depew Police Department's policy was to grant requests for paid military leave when reservists presented to the Department their official written orders specifying the dates of their military training. Until October 1988, Gummo complied with that policy. In that month, Gummo submitted a handwritten note indicating his weekend military training dates for November and December 1988. Police Captain James A. Brennan instructed Gummo to submit his official written military orders for all of fiscal 1988-1989.
Gummo promptly complied in part, submitting orders for his weekend tours but not for his annual tour. On December 25, he notified Brennan that his next annual tour was scheduled for June 10-24, 1989, but he did not submit official written military orders at that time
In January 1989, Gummo was instructed to meet with Police Chief John T. Maccarone to discuss Gummo's failure to provide the Department with the official orders for his annual tour. The parties have different views as to what occurred at the meeting. Gummo asserts that Maccarone questioned him about his military leave and that Maccarone cursed at him, called him a liar, a sneak, and a disgrace to the uniform, and twice threatened to "get" him. The Village asserts that at the meeting, Gummo yelled and screamed at Maccarone without restraint and became threatening. In any event, there appears to be no dispute that the meeting was rancorous, that Gummo left the meeting peremptorily without having been dismissed, and that as he was leaving he said, in the presence of other Police Department employees, "Somebody should choke that man." As a result of this incident, Gummo was charged with several counts of misconduct, including conduct unbecoming a police officer, disobedience of an order, and insubordination to a superior officer. He was found guilty on most counts and was suspended for 30 days without pay.
In May 1989, Gummo notified Captain Brennan in writing that the start of his annual tour had been rescheduled from June 10 to June 9. Gummo attached his official written military orders, which authorized him to receive 16 days of leave for military duty (June 9-24), as well as one day of leave for travel to the Air Force base. The orders stated that he was to report at the Air Force base on June 9 at 7:30 a.m.
Gummo was scheduled, however, to work the night shift on June 8, starting at 11:00 p.m. and ending at 7:00 a.m. on June 9 (the "June 8-9 night-shift"), i.e., a shift ending 30 minutes before the start of his annual tour at the Air Force base. On June 7, 1989, he submitted to Captain Brennan a written request for military leave from that shift in order to have time to prepare for and travel to the annual training session. The request was initially denied by Maccarone on the ground Gummo had not submitted military orders with his request.
On June 8, Gummo renewed his request to be relieved of the June 8-9 night-shift assignment; Maccarone advised Gummo that he could either trade shifts with another officer or obtain official written military orders indicating that he should be relieved of his assignment to the June 8-9 night-shift. On the afternoon of June 8, Gummo informed Maccarone that official notice from the Air Force concerning his military leave for that evening would be mailed to the Police Department. The Village states that Gummo said the official "orders" would be sent; Gummo asserts that he said a "letter" would be sent. Based on his June 8 conversation with Gummo, Maccarone instructed Captain Brennan to remove Gummo's name from the June 8 duty roster and informed Gummo that he would be granted the additional day of military leave.
Gummo asserts that sometime after 7:00 p.m. on June 8, he learned that the letter he had expected from the Air Force, authorizing military leave for that night's shift, would not be forthcoming. Gummo therefore reported for work at the Department at 11:00 p.m. on June 8. He worked until 3:00 a.m. on June 9, and was then driven home by the police lieutenant on duty. He went to the Air Force base at Niagara Falls to begin his annual tour of military duty a few hours later.
When Gummo returned to work following the completion of his annual tour, Maccarone summoned him to discuss the Department's nonreceipt of the written authorization Gummo had promised with respect to Gummo's June 8 military leave. When asked about his statement that written "orders" supporting the June 8 military leave had been mailed to the Department, Gummo stated that he had said a "letter" would be sent to the Police Department, having been told by an Air Force base secretary, whom he identified by her first name, that a letter would be sent. Gummo refused to reveal the name of the person who had thereafter informed him that Following that meeting, Gummo was charged with four counts of violating Police Department regulations, and in July 1989 he was suspended from the Department pending the resolution of the disciplinary charges. The Village appointed an impartial hearing officer to conduct an administrative proceeding. After a two-day hearing, the officer dismissed one of the charges, but found Gummo guilty of the other three, to wit, falsely advising the police chief that military orders were in the mail; disobeying a lawful order by refusing to answer questions relating to the events of June 8, 1989; and falsely stating to Maccarone that he had never claimed that military "orders" were being sent to the Department. In light of the finding of guilt and of Gummo's prior disciplinary record, the hearing officer recommended that Gummo be dismissed from the Police Department.
no such letter would be sent on June 8, despite being ordered by Maccarone to do so, insisting that that information was irrelevant. Several times during the meeting, Gummo asked to be allowed to have counsel or a nearby union representative present to assist him before answering further questions, but Maccarone denied his requests. After responding to a series of questions about his eventual decision to report for work on June 8, Gummo declined to make any further statements unless he was permitted to have someone there to assist him
The Village accepted the recommendation and, in January 1990, terminated Gummo's employment with the Department. Gummo initiated a state-court challenge to his discharge but did not perfect that challenge.
Gummo commenced the present suit in March 1993, alleging that his two suspensions and the termination of his employment violated the VRR Act because those actions were motivated by his "status and duty as a member of the armed forces." (Complaint p 23.) He principally sought reinstatement and compensation for lost wages and other lost benefits. After a period of discovery, the Village moved for summary judgment dismissing the complaint. In support of its motion, the Village submitted, inter alia, the affidavit of Maccarone, the depositions of Maccarone and Gummo, and affidavits of three other Depew police...
To continue reading
Request your trial
-
Velasquez v. Frapwell
...problem here. The potential complications of such a problem are illustrated in the majority and dissenting opinions in Gummo v. Village of Depew, 75 F.3d 98 (2d Cir.1996) (applying "motivating factor" test and reversing summary judgment for employer where reasonable jury could find employee......
-
Satterfield v. Borough of Schuylkill Haven
...preponderance of the evidence, that his military status was a motivating factor in the adverse employment action. See Gummo v. Village of Depew, 75 F.3d 98, 106 (2d Cir.), cert. denied, 517 U.S. 1190, 116 S.Ct. 1678, 134 L.Ed.2d 780 (1996). If the Plaintiff satisfies this burden, the Defend......
-
Crocco v. Advance Stores Co. Inc.
...Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir.2004) (quoting Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.1996)). When a motion for summary judgment is supported by sworn affidavits or other documentary evidence permitted by Rule 56, the ......
-
Dickinson v. Merrill Lynch, Pierce, Fenner & Smith
... ... Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir.2004) (quoting Gummo" v. Village of Depot ), 75 F.3d 98, 107 (2(1 Cir.1996)) ... \xC2" ... ...
-
Uniformed services employment and reemployment rights act (USERRA)
...part in the employment decision, even though other nondiscriminatory factors may have played a part. Gummo v. Village of Depew, N.Y., 75 F.3d 98, 105-06 (2d Cir. 1996). If proved, the employee may be awarded economic and noneconomic damages, unless the employer can prove it would have made ......
-
Reemployment rights for the guard and reserve: will civilian employers pay the price for national defense?
...L. No. 93-508, 88 Stat. 1594, 1595 (1974). (58) Monroe v. Standard Oil Company, 452 U.S. 549, 560 (1981). (59) Gummo v. Village of Depew, 75 F.3d 98, 105 (2nd Cir. 1996) (citing Burkart v. Post Browning, Inc., 859 F.2d 1245, 1247 (6th Cir. 1988); Sawyer v. Swill & Co., 836 F.2d 1257, 12......
-
Employers' Obligations Under the Uniformed Services Employment and Reemployment Rights Act
...Management, supra, note 67. See Sheehan, supra, note 69 at 1013; Kelley, supra, note 68 at 54. 71. Gummo v. Village of Depew, N.Y., 75 F.3d 98, 106 (2d 1996), cert. denied, 517 U.S. 1190 (1996). See also Robinson, supra, note 68 at 576 ("[A]n employer cannot meet its burden in such a case b......
-
Protecting America's Reservists: Application of State and Federal Law to Reservists' Claims of Unfair Labor Practices
...that reemployment is a statutory and unqualified right for which there is no necessity of proving intent); Gummo v. Village of Depew, 75 F.3d 98 (2nd Cir. 1996)(in order to prevail USERRA claim, plaintiff must show that military status was a motivating factor); Brandsasse v. City of Suffolk......