Rademacher v. Hbe Corp..

• Decision Date: 14 July 2011
• Docket Number: No. 10–1816.,10–1816.
• Parties: Bruce N. RADEMACHER, Colonel, Appellant,v.HBE CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

645 F.3d 1005

191 L.R.R.M. (BNA) 2106

94 Empl. Prac. Dec. P 44,227

161 Lab.Cas. P 10,398

Bruce N. RADEMACHER, Colonel, Appellant,

v.HBE CORPORATION, Appellee.

No. 10–1816.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 13, 2011.Filed: July 14, 2011.

Robert Herman, argued, St. Louis, MO, for Appellant.Robert Lance Witcher, argued, St. Louis, MO, for Appellee.Before WOLLMAN, LOKEN, and SMITH, Circuit Judges.WOLLMAN, Circuit Judge.

Bruce N. Rademacher appeals from the district court's ¹ grant of summary judgment in favor of HBE Corporation (HBE) on his claims that HBE committed employment discrimination, in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301, et seq. We affirm.

I.

Frank Kummer, HBE's chief executive officer, hired Rademacher as a pilot for HBE's corporate jet on April 1, 2001. Kummer (himself a veteran of the Korean War) knew and considered favorably that Rademacher had served in the U.S. Air Force and had graduated from the Air Force Academy.

Rademacher signed up for the Air Force Reserve in 2003. Before enlisting, he told HBE's chief pilot, Gary Bain, that he planned to join the reserve. Bain urged Rademacher to discuss his plans with Kummer, but Rademacher declined to notify Kummer because “it's not required by law to tell your employer that you are a reservist or that you're planning on joining.” When Kummer was asked whether he would have objected to Rademacher's enlistment, he responded, “I might have had I known. I might have sat down with Gary and with Bruce and made sure that I understood it better, but that didn't happen because I didn't know about it.” According to Rademacher, in October 2003, after learning he had enlisted, Kummer said to him, “God damn it. I don't like it. Why didn't you talk to me first. This better not inconvenience me.”

From October 2003 to August 2006, Rademacher requested leave for reserve duty approximately once a month. HBE granted the requests and hired contract pilots during his absences. Bain occasionally asked Rademacher to rearrange his reserve schedule—which Rademacher said was “fine, and I didn't mind doing that”—and Bain also could not recall an instance when he had difficulty scheduling a contract pilot to fulfill Rademacher's role as subordinate pilot. Each time Rademacher returned from duty, he was reinstated to his position. In April 2006, HBE granted Rademacher's request for extended leave, from April 14 to June 15, 2006, and reinstated him upon completion of his reserve duty.

Rademacher and Kummer had an ongoing dispute regarding flight safety issues. In September and December 2005, Rademacher claimed visibility was limited for their scheduled nighttime flights and that the jet should not depart from Eagle, Colorado. Whether the limited visibility resulted in unsafe conditions was a matter of disagreement among pilots. In both instances, Kummer told Rademacher something to the effect of, “If you don't want to work for me, you can quit.”

In December 2005, Rademacher began looking for other employment and making plans to “exit [HBE] on [his] own terms.” Rademacher's wife had accepted a job offer that required her to relocate, and in late December 2005 or early January 2006, she and the couple's children moved to Texas. Rademacher put their Missouri home on the market and continued to work at HBE. He also prepared two letters in anticipation of his resignation: one that he intended to send to HBE employees, advising why he no longer wanted to work for the company, and one that he intended to send to the Federal Aviation Administration (FAA), alleging unsafe practices. He kept the letters in his flight bag—along with a digital recorder—intending to present them to Kummer upon his resignation.

In January 2006, Rademacher missed a flight because he had gone to the gym and did not answer his phone when Bain called. Kummer expressed dissatisfaction that Rademacher was unavailable. Rademacher alleges that, at some point, Kummer told him that he had been “hired to be available 24/7; if you are not, you are no good to me.”

Rademacher attempted to conceal his plans to leave HBE. He told Bain that his wife had not accepted the job she had been offered in Texas. Rademacher testified that he did not tell the truth about his plans because “Fred [Kummer] would use that to terminate me.” When asked why he thought that Kummer would use the information to discharge him, Rademacher responded, “That's Fred. That's his personality. There is (sic) too many stories out there of him doing the exact same thing to other people.” In June or July 2006, Bain learned of Rademacher's plans through a mutual acquaintance. Rademacher later told Bain that “the reason why I didn't tell you I was ... moving and the house was on the market because I know if Fred found out back in April, he would have fired me in April probably.”

In July or August 2006, Kummer and Bain met to discuss plans for the jet's maintenance, which required that the plane be out of service for six to eight weeks, beginning in mid-August. Kummer mentioned during the meeting that he was “entertaining the idea of letting Bruce go.” Bain told Kummer that “the problem will solve itself” and “revealed that Bruce's wife had already left and he had his house on the market.” Kummer later explained that he had realized that Rademacher “was becoming more dissatisfied with his life and work at HBE. Having decided that the situation was not a healthy one for Bruce, myself and others who became involved with our flying operation, I decided we needed to deal with the situation.”

On August 11, 2006, following the final flight before the jet's scheduled maintenance, Kummer discharged Rademacher. Unbeknownst to Kummer, Rademacher recorded the conversation. After confirming that Rademacher's house was on the market and that Rademacher was moving to Texas, Kummer said:

I'm going down for a month and a half or two months, and it seems that we ought to cut this thing off right here, and I've enjoyed flying with you, but I don't think it makes sense for us—I've got to get out and start looking for a pilot that is going to be with us when we get back so that we can do all the—whatever in the world we've got to do to get back into the swing of things. I haven't really gotten into the finalization. I'll get together with [human resources] and work it out on Monday, and we'll—and then we can put together the end of it. And then, like I said, I've enjoyed knowing you. I wish you good luck in Texas. Whereabouts in Texas are you going to live?

Rademacher replied, “Dallas,” and Kummer responded, “I like Dallas. It's a nice city. Okay. Good.” Rademacher then turned off the recorder and handed to Kummer the letter he had written to the FAA.²

Following his discharge, Rademacher called Bain and surreptitiously recorded their conversation. The men rehashed their disagreement about whether Rademacher should have told Kummer that he planned to enlist in the reserves before doing so. In the context of that discussion, Rademacher asked Bain whether Kummer had ever said “anything negative towards my reserve duty.” Bain responded, “Not that I know of, other than the fact that he probably said he didn't like it.” In his deposition, Bain explained that he was referring to the fact that Rademacher had joined the reserves without providing Kummer notice and that he came to that conclusion because “had I been in Fred's position, I wouldn't have liked it and I wouldn't have expected any person in Fred's position to like it.” Rademacher also asked whether Kummer was upset that he had been on military leave for two months, Bain responded,

I was surprised that he wasn't, but I didn't see any of it. In fact, he got another pilot and, you know, I don't think he minded that you were gone at all.... The other [pilot] was a hell of a lot more pleasant. So, no. He didn't mind that you were gone, and he never said anything to me about it at all. Nothing.

Rademacher testified that during the jet's down time, he planned to undergo shoulder surgery, obtain flight recertification, and continue his job search. The surgery would have required Rademacher to refrain from flying for at least thirty days. The five-day flight recertification course was transferable. When asked whether Rademacher “wouldn't have been performing any duties for HBE during that period of time because the plane was down,” Rademacher responded, “Correct.”

Rademacher filed suit in August 2008, alleging that his military service was a motivating factor in HBE's decision to discharge him, in violation of 38 U.S.C. § 4311, and that HBE terminated him without cause, in violation of § 4316(c)(2). During the discovery period, HBE's third-party administrator for unemployment compensation produced its records regarding Rademacher's termination. Those documents showed that on August 15, 2006, the third-party administrator entered a code that indicated Rademacher was terminated for “unsatisfactory work performance” and that on August 23, an HBE employee notified the administrator that the code was wrong and that Rademacher's discharge was involuntary, but that HBE did not contest the unemployment compensation benefits. HBE later filed a motion for summary judgment on both claims, which district court granted.

II.

We review de novo the district court's grant of summary judgment, viewing the evidence in the light most favorable to the nonmoving party. Clegg v. Ark. Dept. of Corr., 496 F.3d 922, 926 (8th Cir.2007). Summary judgment is appropriate if there are no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party; a fact is material if its resolution affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252, 106...