Milhauser v. Minco Prods., Inc.

• Decision Date: 02 March 2012
• Docket Number: Civil No. 09–3379 (JNE/JJG).
• Citation: 855 F.Supp.2d 885
• Parties: Douglas MILHAUSER, Plaintiff v. MINCO PRODUCTS, INC., Defendant.
• Court: U.S. District Court — District of Minnesota

855 F.Supp.2d 885

Douglas MILHAUSER, Plaintiff

v.MINCO PRODUCTS, INC., Defendant.

Civil No. 09–3379 (JNE/JJG).

United States District Court,

D. Minnesota.

March 2, 2012.

J. Poage Anderson, Nicholas G.B. May, Fabian May & Anderson, PLLP, Minneapolis, MN, for Plaintiff.

John E. Murray, Lindner & Marsack, SC, Milwaukee, WI, for Defendant.

ORDER

JOAN N. ERICKSEN, District Judge.

On September 16, 2011, a jury found Defendant Minco Products, Inc. (“Minco”) not liable to Plaintiff Douglas Milhauser on Milhauser's claims under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4312 (2006). Milhauser claimed that Minco violated USERRA by discriminating against him and by failing to properly reemploy him after he returned from military leave. The case is now before the Court on Milhauser's post-trial Motion for Judgment as a Matter of Law (JMOL) or, alternatively, for a New Trial on the claim that Minco failed to reemploy Milhauser in the appropriate position in June 2009.

I. BACKGROUND

Minco manufactures flexible circuits, sensors and heaters for use in the automotive, telecommunications, medical and defense industries. In 2006, Minco hired Milhauser to work as a Maintenance Technician in Minco's Maintenance Department. At the time Minco hired Milhauser, it knew Milhauser was a member of the Naval Reserves. Milhauser then joined the Air Force Reserves. During his employment with Minco, Milhauser took three military leaves. His first leave was for two weeks in March 2007. His second leave began in March 2008 and lasted ten months. Milhauser's third leave began in March 2009, and ended on June 3, 2009. He was terminated immediately upon his return in June 2009.

Milhauser asserted four claims in this case. First, he claimed that Minco discriminated against him after his second military leave in January 2009, when he supposedly returned to a position with lesser job duties and status. Second, he claimed that Minco discriminated against him after his third military leave, when he returned in June 2009 and was terminated.¹ Third, he claimed that Minco failed to reemploy him in the appropriate position after his second military leave. Fourth, he claimed that Minco failed to reemploy him in the appropriate position after his third military leave in June 2009.²

A jury trial began on September 12, 2011. Minco presented evidence that during Milhauser's employment, his supervisors received several complaints about his performance. Some of these complaints related to Milhauser's ability to perform his job; other complaints related to Milhauser's attitude and behavior. Minco also presented evidence that in 2008–2009, it experienced a severe decline in customer orders. This decline led Minco to take several steps to reduce its expenses and maintain its economic viability, including cost-cutting measures, a hiring freeze, a salary freeze, pay cuts, mandatory reduction of hours, and eventually terminations. In March 2009, Minco terminated eighteen employees. In June 2009, Minco terminated an additional thirty-two employees. Milhauser was one of those employees.

John Toohey, Minco's Plant Services Manager, testified that in the spring of 2009, he was told to identify four employees who would be removed from Minco's Maintenance Department as part of the reduction in force. He explained that he selected the four employees based solely on their abilities, skill sets, and versatility. Mr. Toohey testified that he initially believed that he was prohibited from considering Milhauser as a candidate for termination because of Milhauser's military status. However, Human Resources then advised him that Milhauser could be considered for termination just like any other maintenance employee. Mr. Toohey testified that because of Milhauser's limited skills and lack of unique expertise, Milhauser should be one of the four employees removed from the Maintenance Department.

Minco also presented evidence that it did not choose to offer Milhauser a position in a different department—the Production Department—because of Milhauser's performance and behavior problems. Sherri Himmelgarn, a manager in the Production Department, testified that Milhauser often took too long to complete a task, stating that “[s]omething that should have been done in ten minutes probably took more like an hour to be done.” She stated that Milhauser often spent more time talking than working. She also testified that on several occasions, Milhauser's “repairs” resulted in the equipment becoming completely unusable. Moreover, Ms. Himmelgarn was displeased by Milhauser's apathetic response when confronted with his faulty repairs. She testified that employees in her department started asking engineer techs to work on their equipment just so they could avoid having Milhauser work on it. Her department did not experience similar problems with or complaints regarding the other individuals who were selected for the open positions in the Production Department. At a meeting with the other managers, Ms. Himmelgarn informed them of her issues with Milhauser's performance, told them that she would not trust him with any of her equipment, and that she would not recommend him for a position in the department. Milhauser was subsequently not offered one of the open positions in the Production Department.

At the close of Minco's case, Milhauser moved for JMOL on his claim that Minco failed to reemploy him upon his return from military leave in June 2009, in violation of 38 U.S.C. § 4312.³ The parties had stipulated that Milhauser satisfied the prerequisites for reemployment under § 4312(a). Milhauser contended that he was absolutely entitled to a job upon his return from military leave, regardless of Minco's changed circumstances. He argued that Minco failed to prove its affirmative defense that reemployment was “impossible or unreasonable,” because, according to Milhauser, an employer's economic problems and resulting reductions in force do not make reemployment “impossible or unreasonable” under § 4312(d). Specifically, Milhauser argued that in the absence of a seniority system, an employer cannot, under any circumstances, terminate a returning veteran, even as part of a reduction in force. The Court denied Milhauser's motion and submitted the claim to the jury.

On September 16, 2011, the jury asked the following question regarding Jury Instruction number 8:

Instruction # 8

Can you please clarify USERRA reemployment in the escalator position

This is confusing in that it states 2 completely opposite possibilities—the same position had military leave not been taken or demotion, transfer lay off or termination

Is a layoff a possible reemployment position?

The Court provided the jury with the following response:

The escalator position is the position that the returning person would have been in if they had not taken the leave. Please refer to the explanation of the principle of the escalator position contained in instruction no. 8.

I hope this is helpful to you.

Jury Instruction Number 8 read as follows:

When a member of the uniformed services returns from a service of 90 days or less, USERRA requires that the employer promptly reemploy him in a particular position. There are several possible reemployment positions. It is your responsibility to determine, first, the applicable reemployment position and, second, whether the employer employed the plaintiff in that position.

First, USERRA requires reemployment in the position the employee would, with reasonable certainty, have been in had his employment not been interrupted by the military service. This is called the escalator position. The principle is that the employee should be in the same position he would have been in had he not taken military leave, no better and no worse. Depending on what happened during the employee's absence, the escalator position might be a promotion, demotion, transfer,lay-off, or termination. It is up to you to determine what position Mr. Milhauser would have been in had he not taken military leave. For purposes of determining the escalator position, “reasonable certainty” does not mean absolute certainty, but rather it means a high probability. In addition, Mr. Milhauser must be qualified to perform the duties of this position. Qualified, for these purposes, means able to perform the essential elements or tasks of the position. If he is not qualified, Minco has an obligation to use reasonable efforts to qualify him for the position.

If Mr. Milhauser is not and cannot become qualified for the escalator position after reasonable efforts by Minco, then he is entitled to reemployment in any other position which is the nearest approximation of that position, provided he is qualified to perform the position.

It is Mr. Milhauser's burden to show that Minco failed to reemploy him in the escalator position or in a position which was the nearest approximation of the escalator position.

On September 16, 2011, the jury returned a verdict finding that Milhauser failed to prove by a preponderance of his evidence either of his discrimination claims. The jury also found that Milhauser did not prove by a preponderance of the evidence that Minco failed to reemploy him in the appropriate position as required by USERRA after his returns from leave in both January 2009 and June 2009. Finally, the jury found that Minco failed to prove by a preponderance of the evidence that its circumstances had so changed as to make Milhauser's reemployment impossible or unreasonable. Milhauser's now moves for JMOL, or alternatively, for a new trial, regarding his claim that Minco violated USERRA by failing to reemploy him after he returned in June 2009. Milhauser contends that the jury was improperly instructed on the law. Specifically, Milhauser argues that termination cannot be a legitimate “position of employment” under USERRA and that Jury Instruction No. 8 incorrectly allowed the jury to believe that...