Robinson v. Morris Moore Chevrolet-Buick, Inc., 1:96-CV-424.

• Citation: 974 F.Supp. 571
• Decision Date: 22 May 1997
• Docket Number: No. 1:96-CV-424.,1:96-CV-424.
• Parties: Clinton ROBINSON v. MORRIS MOORE CHEVROLET-BUICK, INC.
• Court: United States District Courts. 5th Circuit. United States District Court of Eastern District Texas

974 F.Supp. 571

Clinton ROBINSON v. MORRIS MOORE CHEVROLET-BUICK, INC.

No. 1:96-CV-424.

United States District Court, E.D. Texas, Beaumont Division.

May 22, 1997.

Daniel Packard, Packard & Packard, Beaumont, TX, for Plaintiff.

Clint Lewis, Lewis & Associates, Beaumont, TX, for defendant.

MEMORANDUM RE: DEFENDANT'S MARCH 7, 1997 MOTION FOR SUMMARY JUDGMENT

HINES, United States Magistrate Judge.

Plaintiff Clinton Robinson, a former employee of defendant Morris Moore Chevrolet-Buick, Inc. brings this action under the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301-4333, ("USERRA"), claiming he was improperly fired in retaliation for his absence from work due to obligations arising from his membership in the United States Army Reserves.

Morris Moore Chevrolet-Buick, Inc. ("Morris Moore") moves for summary judgment arguing that plaintiff claims under USERRA are wholly without merit, or alternatively, that it had other ample grounds for which to discharge Robinson and is thus has an affirmative defense under the Act. It asserts that there are no genuine issues as to any material fact and that it is entitled to summary judgment as a matter of law.

I. BACKGROUND

Clinton Robinson was employed as a used car salesman at defendant Morris Moore a short period of time beginning in December 1995 and ending on February 29, 1996. During this period, Robinson also served as a reservist in the United States Army and worked part-time as a volunteer with the Vidor Police Department in Vidor, Texas.

In February 1996, Robinson notified his supervisor, Mike Croker, that he had to attend a mandatory physical examination for the reserves on February 23, 1996, and would therefore miss work at the Morris Moore dealership. An important sales event had been scheduled by Morris Moore for that same day. Croker asked Robinson whether attendance on that specific day was mandatory, to which Robinson replied he was unsure. Thereafter, Croker contacted Army Sergeant Angelina Craigan to determine whether Robinson's attendance was mandatory. She informed him that the physical was mandatory, and that Robinson had no discretion to choose a different time. Thereafter, Robinson was given permission by his supervisor at Morris Moore to miss work in order to attend the mandatory physical.

Less than one week after his February 23, 1996 military-related absence, Robinson was fired from his position with Morris Moore. Robinson claims that his firing was related to that absence. Morris Moore denies that claim, and asserts that Robinson's employment was terminated because of numerous absences from work, failure to meet company sales goals, frequent violations of employee rules, and overall deficient performance as an employee.

II. MOTION FOR SUMMARY JUDGMENT

A. Defendant's Evidence and Argument

Morris Moore provides direct and indirect evidence in an effort to show that it was justified in terminating Robinson's employment for cause. First, it argues that it had a "legally sufficient reason" or legitimate, nondiscriminatory reason for discharging Robinson. As direct evidence that the decision to fire Robinson was not motivated by his military service, Morris Moore includes a sworn affidavit of one of its supervisors, Mark Cricchio. Cricchio states that Robinson was advised several times of alleged violations of company policy with regard to attendance, arrival at work, amount of time permitted for lunch and over-all demeanor and attitude. Morris Moore also asserts Robinson allowed his work with the Vidor Police Department to interfere with his duties as its employee. For example, he would sit in his office and listen to a police scanner. Cricchio avers that he "had instructed that Mr. Robinson's employment be terminated on at least two prior occasions for his failure to adhere to company policy." Def.'s Mot. for Summ. J. Cricchio Aff. at 1. Further, it notes that on the day it fired Robinson, he arrived at work fifteen minutes late and was then granted permission, upon request, to leave for an hour to file a police report; however, Robinson did not return to work until nearly four hours after he left. Def.'s Br. in Supp. of Mot. for Summ. J. at 7.

Cricchio avers "[t]he combined effect of Mr. Robinson's multiple unexcused and prolonged absences from work, multiple instances of tardiness, and general failure to adhere to company guidelines with regard to performance at work contributed to the decision to terminate Mr. Robinson." Cricchio Aff. at 1. He concludes that "these incidents were in no way related to Mr. Robinson's participation in the United State[s] Army Reserves." Def.'s Mot. for Summ. J. Cricchio Aff. at 1.

Morris Moore also presents the sworn affidavit of Drew Donalson, President of Donalson Motor Company, Inc., for which Robinson worked from November 1, 1992 until December 17, 1993. Def.'s Mot. for Summ J. Donalson Aff. Donalson states that Robinson quit his position with that company after he failed to report to work two days in a row without an excuse, and had informed his employer that he did not show up because he was not happy selling cars and was quitting to pursue a different career. Id.

Based on these facts, Morris Moore asserts it would have fired Robinson regardless of his status as a reservist. Morris Moore concludes that even if the scheduling conflicts arising as a result of Robinson's military service had some role in his discharge, Robinson was fired because of his unacceptable job performance as determined by the totality of the situation, which included his frequent absences from work, his constant tardiness, and his below average sales. Morris Moore argues summary judgment is therefore proper as a matter of law because the mere existence of "mixed-motive" situations, one permissible and one forbidden reason for discharge, is not sufficient to establish liability under the Act.

B. Plaintiff's Response

Robinson responds that his required absence on February 24, 1996 caused his supervisor, Mike Croker, to become angry, which was the impetus for the termination of Robinson's employment with Morris Moore. Pl.'s Resp. at 2; Pl.'s Resp. Robinson Aff. at 1. In support of this assertion, he presents the sworn affidavit of Sergeant Angelina Craigan, who was on duty at the army reserve unit in Beaumont, Texas when Croker called inquiring as to whether Robinson's physical was mandatory. She avers that when she informed Croker that Robinson was required to attend the physical on February 24, 1996 "Croker became quite upset ... [and] demonstrated obvious hostility toward the idea of Mr. Robinson leaving work to attend the physical." Pl.'s Resp. Craigan Aff.

Robinson avers that he "was selling well, and had never been disciplined or counseled" prior to requesting time off for the mandatory physical. Pl.'s Resp. at 2. He also asserts that Morris Moore's allegation that he missed several hours of work to complete police paperwork the day he was fired is false, and that he listened to the police scanner with his supervisors' permission and this activity did not interfere with his duties. Id. at 3. Further, he argues that although he was occasionally late in the morning and in returning from lunch, no one at Morris Moore complained of this fact and there were other employees who were late more often who were not disciplined. Id Robinson concludes that the criticisms of him by Morris Moore did not begin until after he requested time off for the mandatory physical. Id. at 4.

III. DISCUSSION

A. Summary Judgment Standard

A party is entitled to summary judgment upon a showing that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). All justifiable inferences must be drawn in favor of the non-movant. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-14; Oliver Resources PLC v. International Fin. Corp., 62 F.3d 128, 130 (5th Cir.1995). Although the evidence is considered in the light most favorable to the non-movant, once the moving party meets its initial burden of pointing out the absence of a genuine issue for trial, the burden is on the non-movant to come forward with competent summary judgment evidence establishing the existence of a material factual dispute. McCallum Highlands, Ltd. v. Washington Capital Dus. Inc., 66 F.3d 89, 92 (5th Cir.1995) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc)). Unsupported allegations or affidavit or deposition testimony setting forth ultimate or conclusory facts and conclusions of law are insufficient to defeat a motion for summary judgment. Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir.1995) (citing Anderson, 477 U.S. at 247, 106 S.Ct. at 2509-10); see. e.g., Campbell v. Sonat Offshore Drilling, Inc., 979 F.2d 1115 (5th Cir.1992); Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.1992).

To successfully oppose a motion for summary judgment, the non-movant cannot rest on mere allegations or denials but must set forth specific facts showing that a genuine issue of material fact exists. FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 321-22, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Floors Unlimited, Inc. v. Fieldcrest Cannon, Inc., 55 F.3d 181, 184 (5th Cir.1995). A material fact is any fact "that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Meyers v. M/V Eugenio C, 919 F.2d 1070, 1072 (5th Cir.1990). The Fifth Circuit explains that "a genuine dispute requires more than a showing of some metaphysical doubt — there must be an issue for trial." Meyers, 919 F.2d at 1072 (citing Matsushita Elec. Indus. Co., Ltd. v....