Rogers v. City of San Antonio

• Citation: 392 F.3d 758
• Decision Date: 02 December 2004
• Docket Number: No. 03-50588.,03-50588.
• Parties: Anthony ROGERS; et al., Plaintiffs, Anthony Rogers; Richard Morales; Ventura Calderon, Jr.; Andrew L. Almazan; Robert J. De Leon; Rolando Cesar Garza; Robert A. Gearhart; Isidro Medina, Jr.; Timothy L. Menchaca; Emilio M. Montes; Bruce R. Moore; Nathaniel Oakman; Antonio Rivas; Jeffery J. Zavala; and George W. Randall, Plaintiffs-Appellees, v. CITY OF SAN ANTONIO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 758

392 F.3d 758

Anthony ROGERS; et al., Plaintiffs, Anthony Rogers; Richard Morales; Ventura Calderon, Jr.; Andrew L. Almazan; Robert J. De Leon; Rolando Cesar Garza; Robert A. Gearhart; Isidro Medina, Jr.; Timothy L. Menchaca; Emilio M. Montes; Bruce R. Moore; Nathaniel Oakman; Antonio Rivas; Jeffery J. Zavala; and George W. Randall, Plaintiffs-Appellees, v. CITY OF SAN ANTONIO, Defendant-Appellant.

No. 03-50588.

United States Court of Appeals, Fifth Circuit.

December 2, 2004.

Martha Powell Owen (argued), Wiseman, Durst, Tuddenham & Owen, Austin, TX, for Plaintiffs-Appellees.

W. Wendell Hall, Rosemarie Kanusky (argued), Cyndi Michelle Benedict, Fulbright

& Jaworski, San Antonio, TX, for Defendant-Appellant.

Edward Himmelfarb, Michael Jay Singer, U.S. Dept. of Justice, Civ. Div.-App. Staff, Washington, DC, for U.S., Amicus Curiae.

Appeal from the United States District Court for the Western District of Texas.

Before JONES, DENNIS and PICKERING, Circuit Judges.

DENNIS, Circuit Judge:

Plaintiffs, fifteen employees of the San Antonio fire department, who are members of either the United States military reserves or the National Guard ("Uniformed Services"), brought this civil action under the Uniform Services Employment and Reemployment Rights Act of 1994 ("USERRA")¹ against the City of San Antonio, Texas for declaratory, injunctive, and equitable relief; compensation for lost wages and benefits; and additional liquidated damages. The plaintiffs contend that the City violated USERRA by denying them employment benefits because of their absences from work while performing their military duties in the Uniformed Services. More specifically, the employees assert that the City's Collective Bargaining Agreement ("CBA") and policies regarding military leave of absence deprive them of straight and overtime pay, opportunities to earn extra vacation leave and vacation scheduling flexibility, and opportunities to secure unscheduled overtime work and job upgrades. Plaintiffs assert that under USERRA § 4311(a)² "the City, in implementing these employment practices, unlawfully discriminates against them by deeming them `absent' from work whenever they are on leave fulfilling their military reserve duties, as opposed to viewing them as `constructively present at work.'"³ The City contends that, because § 4316(b)(1)⁴ provides that persons absent from civilian employment by reason of military service are entitled only to such non-seniority rights and benefits as the employer provides to employees when they are on non-military leaves of absence, plaintiffs cannot recover since they were treated equally as to such rights with all employees absent on non-military leave.

Facts

Plaintiffs are employed by the City fire department in its Fire Suppression division and Emergency Medical Services division ("Firefighters"). The CBA between the City and the employees' Union governs the working conditions of all City firefighters. Plaintiffs, as members of the Uniformed Services ("reservists"), typically must take leave of absence for military training a minimum of one weekend per month and one annual two week session. Reservists may volunteer or be ordered to take military leave to perform extra duties. In order to be promoted, reservists must meet the same educational requirements as a full-time active member of the Uniformed Services, such as officer training courses.

The parties agreed to bifurcate the liability and damages issues and filed cross-motions for partial summary judgment on the question of whether the City violated USERRA and is therefore liable to the plaintiffs. They also filed cross-motions on whether the plaintiffs' claims were barred or curtailed by a statute of limitations, laches or estoppel. The record consists principally of a joint stipulation of facts, the CBA, and a number of depositions.

The district court granted the employees' motion as to liability on substantially all claims and denied the City's cross-motion. The district court then referred the cross-motions regarding the statute of limitations, laches and estoppel to a magistrate judge. The magistrate judge granted plaintiffs' motion on these issues, holding that the employees were entitled to recover retrospective damages for the four-year period preceding the filing of their complaint. The district court determined that the summary judgments on the issues of liability and limitations on retrospective recovery "involve a controlling question of law to which there is a substantial ground for difference of opinion," and certified the judgments for interlocutory appeal under 28 U.S.C. § 1292(b).⁵ The City appealed.

Standards of Review

The threshold question of law is one of statutory construction, viz., namely which provision of USERRA, § 4311(a) or § 4316(b)(1), governs the adjudication of the employees' claims. The employees contend that the district court correctly applied only § 4311(a), which prohibits private employers from denying employment benefits to employees on the basis or their membership, service or obligations related to the United States military forces. The City contends that the district court erred in basing its decision on § 4311(a) because this case is appropriately governed only by § 4316(b)(1), which regulates the civilian employment non-seniority rights of persons who are required to be absent from jobs for service in the military forces. We review the decision of the district court on this issue of law de novo. See Casas v. American Airlines, Inc., 304 F.3d 517, 520 (5th Cir.2002).

Once we have interpreted the statute and decided upon its proper application, we address the parties' cross-motions de novo, applying the same standards prescribed for use by the district court. See Walker v. Thompson, 214 F.3d 615, 624 (5th Cir.2000).

Analysis

1.

In order to decide how USERRA should be interpreted and applied in this case we will set forth an overview of the statute to give perspective to our reading of its parts. Because the statute is subject to different interpretations we will examine its legislative history, predecessor statutes, pertinent court decisions, and post-enactment administrative interpretations.

A. USERRA Overview

The purposes of USERRA, enacted in 1994, are: (1) "to encourage noncareer service in the uniformed services[⁶] by eliminating or minimizing the disadvantages to civilian employment which can result from such service"; (2) to provide for "the prompt reemployment" of persons returning to civilian jobs from military service and to "minimize the disruption [of their] lives ... as well as [to those of] their employers, fellow employees and communities"; and (3) "to prohibit discrimination against persons because of their service in the uniformed services." 38 U.S.C. § 4301.

USERRA is the most recent in a series of laws protecting veterans' employment and reemployment rights dating from the Selective Training and Service Act of 1940.⁷ USERRA's immediate precursor, the Veterans' Reemployment Rights Act (VRRA), was enacted as § 404 of the Vietnam Era Veterans' Readjustment Assistance Act of 1974.⁸ "Congress emphasized [1] USERRA's continuity with the VRRA and its intention to clarify and strengthen that law. [2] Federal laws protecting veterans' employment and reemployment rights for the past fifty years had been successful." [3] "[T]he large body of case law that had developed under those statutes remained in full force and effect, to the extent it is consistent with USERRA."⁹

USERRA's anti-discrimination provision prohibits an employer from denying initial employment, reemployment, retention in employment, promotion, or any benefit of employment to a person on the basis of membership, application for membership, performance of service, application for service, or obligation of service. 38 U.S.C. § 4311(a). Also, an employer must not retaliate against a person by taking adverse employment action against that person because he or she has taken an action to enforce a protection afforded under USERRA. Id. at § 4311(b).

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. Id. at § 4312(a). The returning uniform services member ("reservist") seeking reemployment must make a timely return to or application for reinstatement in the reservist's employment position. Id. at § 4312(a)(3). The employee reporting back to the employer following a period of less than 31 days must report not later than the beginning of the first full shift on the first full day following the completion of service. Id. at § 4312(e)(1)(A)(i).¹⁰ If the service period is between 31 and 180 days, the individual must report within 14 days of completion of service. Id. at § 4312(c). If the service was more than 180 days, the individual must request reemployment no more than 90 days after completion. Id. at § 4312(e)(1)(D).

An employer must promptly reemploy a person returning from a period of service if the person meets the Act's eligibility criteria. Id. at § 4312(f)(4). "Prompt employment" means as soon as practicable under the circumstances of the case. For example, prompt reinstatement after "weekend National Guard duty generally means the next regularly scheduled working day."¹¹ However, prompt reinstatement after "several years of active duty may require more time, because [the] employer may have to reassign or give notice to another employee who occupied [the] position."¹²

In construing a precursor to USERRA, the Supreme Court in Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946), invented the "escalator" principle in stating that a returning service member "does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war." Id....