Hill v. Michelin N. AM.

• Decision Date: 01 March 2001
• Docket Number: No. 00-2202,00-2202
• Citation: 252 F.3d 307
• Parties: (4th Cir. 2001) CHARLEY D. HILL, Plaintiff-Appellant, v. MICHELIN NORTH AMERICA, INCORPORATED, Defendant-Appellee. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 307

252 F.3d 307 (4th Cir. 2001)

CHARLEY D. HILL, Plaintiff-Appellant, v. MICHELIN NORTH AMERICA, INCORPORATED, Defendant-Appellee.

No. 00-2202

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: March 1, 2001

Decided: May 30, 2001

Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry M. Herlong Jr., District Judge. (CA-99-4166-6-20) [Copyrighted Material Omitted] COUNSEL ARGUED: Mary Christine McCormac, Clemson, South Carolina, for Appellant. Fred W. Suggs, Jr., OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Greenville, South Carolina, for Appel- lee. ON BRIEF: Steven M. Krause, LAW OFFICES OF STEVEN M. KRAUSE, Anderson, South Carolina, for Appellant. M. Lavan Green, Jr., OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Greenville, South Carolina, for Appellee.

Before WILKINS, MOTZ, and TRAXLER, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge Traxler wrote the opinion, in which Judge Wilkins and Judge Motz joined.

OPINION

TRAXLER, Circuit Judge:

Charley D. Hill appeals from the district court's grant of summary judgment in favor of Michelin North America, Incorporated, on Hill's claims under the Uniformed Services Employment and Reemploy- ment Rights Act of 1994 ("USERRA"), 38 U.S.C.A. SS 4301-4333 (West Supp. 2000). We affirm in part, reverse in part, and remand for further proceedings.

I.

Hill began working for Michelin in the early 1980s, and he became a member of the United States Naval Reserves in 1995. In 1997 Hill took medical leave for a back injury. He returned to work in February 1998 with light duty restrictions and in April 1998 was placed in a position in the "Q-Laboratory" section of"Service R."

Hill contends that he reported to the Q-Laboratory and that his new supervisor looked "distraught" when Hill informed him about Hill's Reserve obligations, including the need to take approximately two weeks off in July. J.A. 35. According to Hill, the supervisor called him at home and expressed concern about whether the Q-Laboratory, which only had around fourteen employees, could accommodate Hill's Reserve schedule. Hill's supervisor talked to employees in Michelin's personnel department to see if Hill could be moved to a position in another area that could more easily accommodate his Reserve schedule. Shortly after his transfer to the Q-Laboratory, Hill was transferred to a production position in "Service Z." Although Hill selected the Service Z position from a list of available positions,¹ Hill claims that he liked his position in the Q-Laboratory and that he did not want to be transferred.

Michelin, however, contends that as soon as Hill was transferred to the Q-Laboratory, Hill expressed concern about the effect his Reserve schedule would have on the other employees in the area, believing that they would resent having to work overtime to cover for him. Michelin says that it assured Hill that the Q-Laboratory could accommodate his Reserve obligations, but that Hill still wanted to be transferred to another department. Lisa Snead, a Michelin area per- sonnel manager, then showed Hill a list of available positions, and Hill elected to transfer to Service Z.

In any event, Hill was to work in the Q-Laboratory for the first part of the week beginning Monday, April 27, and then move to Service Z. With the approval of his Q-Laboratory supervisor, however, Hill took a vacation day on Tuesday, April 28.

Hill returned to work in the Q-Laboratory on Wednesday, April 29. That day, he met with Snead, who had reviewed Hill's personnel file in connection with the transfer and noticed that Hill had used more than fourteen vacation days since he returned to work in February. Snead suggested that Hill should slow down the rate at which he was using his vacation days, and she reminded him to save some vacation days for upcoming plant closures.²

Hill reported for work in Service Z on Thursday, April 30, and Tim Putnam, Hill's Service Z supervisor, asked Hill"whether [he] would have 40 hours that week," J.A. 106. Hill responded that he would. Putnam asked Hill to fill out a time card and Putnam found the com- pleted card on his desk when he arrived at work the next Monday. The time card showed that Hill had worked forty hours for the week of April 27 through May 1, including eight hours on Tuesday, April 28. The time card did not show that Hill had used vacation time on Tuesday.

When Hill's time card was submitted to the personnel department, an employee noticed the discrepancy regarding the vacation day on Tuesday. That employee brought the issue to Snead's attention. Snead asked Putnam to meet with Hill and give him an opportunity to cor- rect the time card. Snead instructed Putnam to ask Hill whether he had taken any vacation that week.

Putnam met with Hill, showed Hill the time card, and asked Hill if it was correct. Hill responded that it was. According to Putnam and others who listened to the conversation, Putnam specifically asked Hill if he had taken any vacation during that week, which Hill denied. Hill, however, contends that Putnam did not specifically ask whether Hill had taken any vacation during the previous week.

Snead then met with Hill to discuss the time card issue. Snead testified that when she told Hill she needed to talk to him about his attendance during the prior week, his immediate response was "I worked all week last week." J.A. 210. Hill insisted that he had worked every day the prior week until Snead asked Hill about Putnam's specific question as to whether Hill had taken vacation. Snead testified that Hill then responded that Putnam "should have asked me if I took vacation on Tuesday." J.A. 211. Because the specific day at issue had not been mentioned before, Snead believed that Hill's sudden recol- lection showed that he knew all along that he had taken a vacation day. Snead asked Hill how he could have forgotten about the vacation day, particularly so soon after their conversation about the rate at which he was using his vacation days. Hill's only explanation was that "his mind got cluttered." J.A. 212. Snead concluded that Hill had intentionally falsified his time card, and she terminated him.

Hill challenged the termination through Michelin's"fair treatment" program and presented his claims to a review board composed of two hourly employees and one salaried employee. During that proceeding, Hill contended that Putnam merely asked him if the time card was correct but did not ask if he had taken any vacation time or specifi- cally question Hill about whether he worked on Tuesday, April 28. Hill claimed that he simply forgot that he had taken a vacation day and that he would have remembered and immediately corrected his time card if Putnam had specifically asked about Tuesday. Hill argued that other Michelin employees who made mistakes on their time cards were not terminated and that Michelin treated him differently because of his Reserve status. The review board ruled in favor of Michelin, concluding that Hill knew about the vacation day when he filled out the time card and that Hill intentionally falsified the time card. The board also concluded that Hill's Reserve status had nothing to do with his dismissal.

Hill then brought this action, contending that Michelin transferred Hill from the Q-Laboratory to Service Z and terminated him because of his Reserve obligations, thus violating USERRA. The district court granted summary judgment to Michelin, concluding that the transfer to Service Z was not actionable under USERRA and that Hill failed to show that his Reserve status was a motivating factor in his dis- charge.

II.

USERRA was enacted, in part, "to prohibit discrimination against persons because of their service in the uniformed services." 38 U.S.C.A. S 4301(a)(3). Accordingly, USERRA provides that "[a] per- son who is a member of . . . or has an obligation to perform service in a uniformed service shall not be denied initial employment, reem- ployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership . . . or obligation." 38 U.S.C.A. S 4311(a). USERRA defines "benefit" or "benefit of employment" as

any advantage, profit, privilege, gain, status, account, or interest (other than wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes . . . the opportunity to select work hours or location of employment.

38 U.S.C.A. S 4303(2).

USERRA's predecessor, the Vietnam Era Veterans Readjustment Assistance Act of 1974, was interpreted by the Supreme Court to prohibit only those acts of discrimination that were motivated solely by an employee's reserve status. See Monroe v. Standard Oil Co., 452 U.S. 549 559, 101 S.Ct. 2510 (1981). USERRA was enacted in 1994 and significantly broadened the protection afforded those in military service by prohibiting discriminatory actions where the employee's military status is a "motivating factor" in the decision, even if the employee's military status is not the sole factor in the decision. See 38 U.S.C.A. S 4311(c)(1); Sheehan v. Department of the Navy, 240 F.3d 1009, 1012-13 (Fed. Cir. 2001). If the employee establishes that his military status was a motivating factor in the employer's decision, USERRA then shifts the burden of proof to the employer, allowing the employer to avoid liability only if "the employer can prove that the action would have been taken in the absence of" the employee's military sta- tus. 38 U.S.C.A. S 4311(c)(1); see Sheehan , 240 F.3d at 1013; Gummo v. Village of Depew, N.Y., 75 F.3d 98, 105-06 (2d Cir. 1996).

A. Transfer

The district court concluded that Hill's "subjective opinion of the status of his job is insufficient to establish a denial of a benefit of employment," and that "an inconvenient work schedule is different from being...