Seiler v. Hollida Ysburg America Legion Ambulance Serv. Inc., CIVIL ACTION NO. 3:10-41

• Decision Date: 08 September 2011
• Docket Number: CIVIL ACTION NO. 3:10-41
• Parties: BRIAN SEILER, Plaintiff, v. HOLLIDA YSBURG AMERICAN LEGION AMBULANCE SERVICE, INC., Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

BRIAN SEILER, Plaintiff, v. HOLLIDA YSBURG AMERICAN LEGION AMBULANCE SERVICE, INC., Defendant.

CIVIL ACTION NO. 3:10-41

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Dated: September 8, 2011

JUDGE KIM R. GIBSON

MEMORANDUM OPINION AND ORDER OF COURT

I. SYNOPSIS

This matter is before the Court on Plaintiff's three motions for partial summary judgment (docket nos. 19, 41, & 72) Defendant's motion for summary judgment (docket no. 70), and Defendant's motion to compel and motion for sanctions (docket no. 30). This Memorandum Opinion and Order GRANTS the motion to compel and DENIES the remaining motions for reasons set forth herein.

II. JURISDICTION AND VENUE

On February 5, 2010, Plaintiff, Brian Seiler, filed a Complaint alleging that Defendant, Hollidaysburg American Legion Ambulance Service, Inc. (hereinafter "HALAS") violated the Consolidated Omnibus Budget Reconciliation Act (hereinafter "COBRA), the Uniformed Services Employment and Reemployment Rights Act (hereinafter "USERRA"), the Family Medical Leave Act (hereinafter "FMLA"), and the Pennsylvania Wage Payment and Collection Law (hereinafter "PWPCL") during the course of Plaintiff s employ with Defendant.

Jurisdiction is proper pursuant to 38 U.S.C. § 4323(b) (USERRA claims), 28 U.S.C. § 1367(supplemental jurisdiction covering state law claim), 29 U.S.C. § 2617 (FMLA claim), and 28 U.S.C. § 1331 (general federal question jurisdiction). Venue is proper pursuant to 28 U.S.C. § 1391(b).

III. PROCEDURAL AND FACTUAL BACKGROUND

On September 14, 2010, Plaintiff filed his first motion for partial summary judgment, arguing for judgment in his favor on counts two, five, and six. Count two alleges that Defendant violated the USERA by failing to make 403(b) retirement account contributions while Plaintiff was deployed to Iraq and Afghanistan. Count five alleges that Defendant violated the COBRA by offering Plaintiff the opportunity to continue his insurance effective September 20, 2009, not Plaintiff's termination date of July 8, 2009, causing Plaintiff to incur medical expenses resulting from his wife's August 2009 surgery. Count six alleges a violation of the FMLA, averring that Defendant failed to offer Plaintiff the opportunity to utilize medical leave, as Plaintiff was physically incapable of performing the duties of an emergency medical technician, the position Defendant had offered Plaintiff as a demotion. Pursuant to FED. R. CIV.P. 68, Plaintiff filed Defendant's offer to accept judgment on counts two and five on December 6, 2010; thus, rendering Plaintiffs motion on these counts moot. On January 8, 2011, Plaintiff filed a second motion for partial summary judgment, seeking judgment on count three, an alleged violation of the USERRA based upon lost vacation pay, and count four, an alleged violation of the PWPCA based upon vacation pay not received at the time of termination. On March 19, 2011, Plaintiff filed his third and final motion for partial summary judgment, seeking judgment on count one, an alleged violation of the USERRA resulting from Defendant's termination of Plaintiffs employment.

On March 22, 2011, Defendant reciprocated with a summary judgment motion, contending that Plaintiff is unable to obtain relief under the USERRA because he left his position voluntarily,Defendant's personnel actions were not motivated by Plaintiffs military service, and because Defendant had cause for removing Plaintiff from a management position due to poor job performance. Defendant further contends that Plaintiff cannot recover under the USERRA for un-awarded vacation time since Plaintiff was not treated differently than non-deployed employees on leave. Defendant also asserts a laches defense to the USERRA claims. Defendant argues that Plaintiff cannot recover under the PWPCL, as he had no legal right to the vacation time he claims, and he cannot recover under the FMLA because he voluntarily left his employment.

In the interest of simplicity, this Court will address the parties' arguments statute-by-statute, starting with the USERRA claims.

IV. STANDARD OF REVIEW

A. SUMMARY JUDGMENT

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall be entered if the pleadings, depositions, affidavits, answers to interrogatories, and admissions on file show that there is no genuine dispute regarding the material facts of the case and the moving party is entitled to a judgment as a matter of law. See FED. R. CIV.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The Court must evaluate a party's motion for summary judgment construing the alleged facts with all reasonable inferences favoring the nonmoving party. See Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1117 (9th Cir. 2001).

The party seeking summary judgment bears the initial burden of informing the Court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Where the moving party has met its initial burdenwith a properly supported motion, the party opposing the motion "may not rest upon the mere allegations or denials of his pleading, but , . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248. Summary judgment is appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. See also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). Although the initial burden is on the movant to show the absence of a genuine issue of material fact, this burden may be discharged by indicating to the Court that there is an absence of evidence to support the nonmoving party's claims. See Sineletary v. Pennsylvania Dep't of Corr., 266 F.3d 186, 193 n.2 (3d Cir. 2001).

V. DISCUSSION/ARGUMENTS

A. USERRA Claims

The Uniformed Services and Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301, et seq., prohibits "discrimination against persons because of their service in the uniformed services." 38 U.S.C. § 4301(a)(3). In particular, the act provides:

(a) A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.

(b) An employer may not discriminate in employment against or take any adverse employment action against any person because such person (1) has taken an action to enforce a protection afforded any person under this chapter, (2) has testified or otherwise made a statement in or in connection with any proceeding under this chapter, (3) has assisted or otherwise participated in an investigation under this chapter, or (4) has exercised a right provided for in this chapter. The prohibition in this subsection shall apply with respect to a person regardless of whether that person has performed service in the uniformed services.

(c) An employer shall be considered to have engaged in actions prohibited-(1) under subsection (a), if the person's membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service; or

(2) under subsection (b), if the person's (A) action to enforce a protection afforded any person under this chapter, (B) testimony or making of a statement in or in connection with any proceeding under this chapter, (C) assistance or other participation in an investigation under this chapter, or (D) exercise of a right provided for in this chapter, is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such person's enforcement action, testimony, statement, assistance, participation, or exercise of a right.

(d) The prohibitions in subsections (a) and (b) shall apply to any position of employment, including a position that is described in section 4312(d)(1)(C) of this title.

Section 4312 provides in pertinent part:

(a) Subject to subsections (b), (c), and (d) and to section 4304, any person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this chapter if-

(1) the person (or an appropriate officer of the uniformed service in which such service is performed) has given advance written or verbal notice of such service to such person's employer;

(2) the cumulative length of the absence and of all previous absences from a position of employment with that employer by reason of service in the uniformed services does not exceed five years; and

(3) except as provided in subsection (f), the person reports to, or submits an application for reemployment to, such employer in accordance with the provisions of subsection (e).

(e)(1) Subject to paragraph (2), a person referred to in subsection (a) shall, upon the completion of a period of service in the uniformed services, notify the employer referred to in such subsection of the person's intent to return to a position of employment with such employer as follows:

(D) In the case of a person whose period of

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