Paxton v. City Of Montebello

• Decision Date: 18 March 2010
• Docket Number: Case No. CV 09-3691-RC.
• Citation: 712 F.Supp.2d 1007
• Court: U.S. District Court — Central District of California
• Parties: Johnnie PAXTON, et al.v.CITY OF MONTEBELLO.

712 F.Supp.2d 1007

Johnnie PAXTON, et al.v.CITY OF MONTEBELLO.

Case No. CV 09-3691-RC.

United States District Court,

C.D. California.

March 18, 2010.

Carolina Veronica Diaz, for Plaintiff.

Kevin R. Dale, for Defendant.

PROCEEDINGS: (1) ORDER GRANTING, IN PART, AND DENYING, IN PART, PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; AND (2) ORDER GRANTING, IN PART, AND DENYING, IN PART, DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

ROSALYN M. CHAPMAN, United States Magistrate Judge.

On February 17, 2010, plaintiffs filed a notice of motion and motion for summary judgment or, in the alternative, partial summary judgment, a supporting memorandum of points and authorities, a separate statement of uncontroverted facts, and several supporting declarations, and defendant City of Montebello (“City”) filed a notice of motion and motion for summary judgment or, in the alternative, partial summary judgment, a supporting memorandum of points and authorities, a separate statement of uncontroverted facts, and supporting declarations. On February 24, 2010, defendant City filed an opposition to plaintiffs' summary judgment motion and evidentiary objections to the declarations of plaintiffs and their counsel, and plaintiffs filed an opposition to defendant City's summary judgment motion and opposing declarations. On March 3, 2010, the parties filed their replies, both sides filed supplemental declarations, and defendant City filed additional evidentiary objections to plaintiffs' declarations.¹ Oral argument was held on March 17, 2010.

BACKGROUND

I

On May 28, 2009, plaintiffs Johnnie Paxton and Brandon Contreras filed a complaint against defendant City claiming violations of the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301 et seq., and seeking damages, interest, penalties, attorney's fees, costs, and other relief. On July 8, 2009, City answered the complaint and raised seven affirmative defenses.

II

The parties' declarations establish the following uncontroverted facts: Plaintiffs Johnnie Paxton and Brandon Contreras are members of the California Army National Guard who enlisted in 1999 and are subject to being activated for military service. Declaration of Johnnie Paxton (“Paxton Decl.”) ¶¶ 1-2; Declaration of Brandon Contreras (“Contreras Decl.”) ¶¶ 1-2. On July 20, 2006, City hired plaintiffs as police trainees, and on August 25, 2006, plaintiffs became probationary police officers.² Paxton Decl. ¶¶ 3-4; Contreras Decl. ¶¶ 3-4; Mooshagian Decl. ¶¶ 3-4, Exhs. A-B; Declaration of Elizabeth Ortega (“Ortega Decl.”) ¶ 4. On February 25, 2007, six months after being hired as probationary police officers, plaintiffs advanced to Step Two.³ Paxton Decl. ¶ 5; Contreras Decl. ¶ 5; Mooshagian Decl. ¶ 8, Exh. E; Ortega Decl. ¶ 6.

On or about February 2007, plaintiffs learned they were being activated for military service, and they gave notice to City of their activation. Paxton Decl. ¶ 6; Contreras Decl. ¶ 6. On or about May 13, 2007, plaintiffs were deployed to Iraq for about one year, or until May 10, 2008. Paxton Decl. ¶ 12; Contreras Decl. ¶ 11. City awarded plaintiffs: paid military leave from May 13 to June 12, 2007, and from July 1 to July 30, 2007; ⁴ military leave without pay from June 13 to June 30, 2007, and from August 1, 2007, to January 23, 2008; and differential pay with military leave from January 23 to May 10, 2008.⁵ Mooshagian Decl. ¶¶ 11-12, Exhs. G-H; Ortega Decl. ¶¶ 7, 9, 10-12, 16-20. City also awarded plaintiffs annual leave for their two months of paid military leave, but not for the remaining ten months of military leave. Ortega Decl. ¶¶ 7, 9, 12-13, 21.

When plaintiffs returned from military leave on May 11, 2008, City reinstated them to their probationary status and credited them with having completed eight months of probation, pursuant to Rule IX, Section 194, of City's civil service rules and regulations.⁶ Mooshagian Decl. ¶¶ 5, 13, Exh. C. On January 25, 2009, plaintiff Paxton successfully completed probation and was awarded Step Three pay, and on February 25, 2009, plaintiff Contreras successfully completed probation and was awarded Step Three pay. Mooshagian Decl. ¶ 15, Exhs. J; Ortega Decl. ¶¶ 23-24.

DISCUSSION

III

Federal Rule of Civil Procedure 56(c) provides for the granting of summary judgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). Judgment must be entered “if ... there can be but one reasonable conclusion as to the verdict .... [However, i]f reasonable minds could differ,” judgment should not be entered in favor of the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

The moving party bears the initial burden of identifying the elements of the claim in the pleadings, or other evidence which the moving party “believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); MetroPCS, Inc. v. City & County of San Francisco, 400 F.3d 715, 720 (9th Cir.2005). “Material facts are those which may affect the outcome of the case.” Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.2006); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Scribner v. Worldcom, Inc., 249 F.3d 902, 907 (9th Cir.2001). “A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party.” Long, 442 F.3d at 1185; Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir.2007). The burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553; Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir.2005).

Finally, the parties bear the same substantive burden of proof as would apply at a trial on the merits, including plaintiff's burden to establish any element essential to his case. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. Thus, “[s]ummary judgment for a defendant is appropriate when the plaintiff ‘fails to make a showing sufficient to establish the existence of an element essential to [his] case, and on which [he] will bear the burden of proof at trial.’ ” Cleveland v. Policy Management Sys. Corp., 526 U.S. 795, 805-06, 119 S.Ct. 1597, 1603, 143 L.Ed.2d 966 (1999) (quoting Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552).

IV

Congress enacted the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) in 1994 “to protect the employment and reemployment rights of veterans.” ⁷ Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 300 (4th Cir.2006). More specifically, USERRA prohibits employers from discriminating against individuals based on their membership in the military. 38 U.S.C. § 4311; see also Townsend v. Univ. of Alaska, 543 F.3d 478, 482 (9th Cir.2008) (USERRA “forbids employment discrimination on the basis of membership in the armed forces.”) cert. denied, --- U.S. ----, 129 S.Ct. 1907, 173 L.Ed.2d 1058 (2009); Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir.2002) (same). In certain circumstances, USERRA requires employers to reemploy service members upon their return from duty, 38 U.S.C. § 4312; Wallace v. City of San Diego, 479 F.3d 616, 625 (9th Cir.2007), and after reemployment has occurred, USERRA “ ‘prohibits discrimination with respect to any benefit of employment against persons who serve in the armed services after they return from a deployment and are reemployed.’ ” Clegg v. Ark. Dept. of Corr., 496 F.3d 922, 930 (8th Cir.2007) (citation omitted); Petty v. Metro. Gov't of Nashville-Davidson County, 538 F.3d 431, 440 (6th Cir.2008) cert. denied, --- U.S. ----, 129 S.Ct. 1933, 173 L.Ed.2d 1057 (2009). “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.” Francis, 452 F.3d at 303; Petty, 538 F.3d at 439.

The plaintiffs claim City violated USERRA regarding the terms of their reemployment, i.e., reinstatement, seniority, rate of pay (step) and annual leave, and by retaliating against them for taking military leave.⁸ The plaintiffs are correct, as discussed below.

A. Reinstatement, Seniority and Rate of Pay (Step):

“Any person whose absence from a position of employment is necessitated by reason of service in the uniformed services is entitled to the reemployment rights and benefits of USERRA.” ⁹ Rogers v. City of San Antonio, 392 F.3d 758, 763 (5th Cir.2004) cert. denied, 545 U.S. 1129, 125 S.Ct. 2945, 162 L.Ed.2d 868 (2005); 38 U.S.C. § 4312(a). Here, there is no dispute that plaintiffs are eligible services members within the meaning of USERRA. “ Section 4312 of USERRA provides a right to reemployment for members of the armed services who (1) properly notify their employers of the need for a service-related absence, (2) take cumulative absence of no more than five years and (3) properly report to work or reapply for employment, depending upon the length of the absence.” Wallace, 479 F.3d at 625; see also Clegg, 496 F.3d at 930 (“ Section 4312 protects service members at the instant of seeking reemployment, entitling the service member to reemployment in either the position she would have been in had she not left for military service ‘or a position of like seniority, status and pay, the duties of which the person is qualified to perform.’ ” (citation omitted)); Petty, 538 F.3d at 439-40 (same). More specifically, USERRA requires employers to “promptly reemploy[ ]” eligible service members who...