Slusher v. Shelbyville Hosp. Corp.
| Decision Date | 26 October 2015 |
| Docket Number | No. 15–5256.,15–5256. |
| Citation | 805 F.3d 211 |
| Parties | Richard SLUSHER, D.O., Plaintiff–Appellant, v. SHELBYVILLE HOSPITAL CORP., d/b/a Heritage Medical Center; Dan Buckner, individually, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ON BRIEF:Shari R. Rhode, Rhode & Jackson, P.C., Carbondale, Illinois, for Appellant. Matthew C. Lonergan, John P. Rodgers, Bradley Arant Boult Cummings LLP, Nashville, Tennessee, for Appellees.
Before: MERRITT, McKEAGUE, and WHITE, Circuit Judges.
MERRITT, J., delivered the opinion of the court in which McKEAGUE, J., joined, and WHITE, J., joined in part. WHITE, J. (pp. 221–28), delivered a separate opinion concurring in part and dissenting in part.
In this employment case, plaintiff-appellant Richard Slusher, D.O., claims that his employer breached his contract and discriminated against him and denied him reemployment in violation of the Uniformed Services Employment and Reemployment Rights Act. The district court granted summary judgment to the defendants-appellees on all three claims, finding that: Slusher's contract was not breached, he was not the victim of discrimination, and he did not enjoy statutory entitlement to reemployment.
Reviewing the district court de novo, we reach the same conclusions and affirm the judgment of the district court.
Plaintiff-appellant Richard Slusher is an orthopedic surgeon and military reservist. Defendant-appellee Shelbyville Hospital Corporation, d/b/a Heritage Medical Center (“Heritage”), is a hospital in Shelbyville, Tennessee. Defendant-appellee Dan Buckner was the chief executive officer of Heritage from 2008 to 2013.
Heritage is a small hospital with staffing need for only one permanent orthopedic surgeon.1 In 2010, Heritage began looking for a new full-time orthopedic surgeon; while looking, it relied on temporary and fill-in service from local orthopedic surgeons and orthopedic surgeons supplied by the service Weatherby Locums, Inc. During this time, Heritage relied on many orthopedic surgeons working from a week to a month at a time. Richard Slusher began a thirty-day assignment at Heritage on July 20, 2010, and his assignment was renewed multiple times through October 2010. At the time, Slusher and his family resided in Southern Pines, North Carolina.
While Heritage was searching for a permanent orthopedic surgeon, Buckner offered the position to Slusher. Slusher did not accept the permanent position because he “wanted to keep [his] options open,” but eventually agreed to serve as Heritage's orthopedic surgeon in a short-term capacity, and in January 2011 signed a one-year contract beginning on February 28, 2011. The contract could be terminated by either party for any reason so long as 90 days' notice was provided. Moreover, Heritage could terminate the agreement at any time effective immediately by providing Slusher 90 days' pay instead of notice. The contract did not provide for renewal or extension. At the time the contract was signed, Heritage was aware of Slusher's military status and knew that he could be called up for deployment at any time.
Meanwhile, Heritage remained interested in finding a permanent orthopedic surgeon. On April 7, 2011, Emmett Mosley, M.D., contacted Buckner to discuss becoming the hospital's permanent orthopedic surgeon.2
On May 4, 2011, Slusher received military orders that he was being deployed. The following day, he notified Heritage of his impending deployment. Sometime prior to Slusher's deployment, Heritage informed him that it had interviewed another physician for the orthopedic surgeon position.
On May 16, 2011, Heritage entered into a “Recruitment Agreement” with Mosley, laying out the terms to be set forth in his contract, including a three-year “Practice Commitment Period,” an 18–month “Cash Collections Guarantee Period” and a “Practice Commencement Date: On before 8/1/11” [sic]. On June 1, 2011, Buckner and Mosley met for dinner to “discuss orthopedic surgery opportunities at [Heritage].” Their conversation touched on Slusher's deployment and Mosley's own military career. In an affidavit, Mosley recounted:
Slusher was granted military leave by Heritage and reported for active duty at Fort Benning, Georgia, on June 10, 2011, and was shortly thereafter deployed, arriving in Kuwait before going to Iraq. While he was in Iraq, Heritage, through employee Tisha Rader, informed Slusher that it was nearing a contract with Mosley, and that Slusher would be given his 90–day termination notice. On July 28, 2011, Slusher was sent a termination agreement to sign, specifying that his employment with Heritage would end on October 26, 2011. Slusher returned a signed agreement, and indicated his intention to return to Heritage when his deployment ended in October and to work until October 26.
Slusher returned to Heritage—where Mosley had begun working—on October 3, 2011, and continued working there until his employment ended on October 26, 2011.
In October 2011, Plaintiff filed a complaint about his termination with the Veterans' Employment and Training Service. After the Department of Labor closed its investigation, Slusher initiated this action. He asserts claims for discrimination under the Uniformed Services Employment and Reemployment Rights Act (“the Act”), 38 U.S.C. §§ 4301 –35, violation of his reemployment rights under the Act, and for breach of contract.3
Both parties moved for summary judgment on all of Slusher's claims, and the district court granted summary judgment to defendants Heritage and Buckner on all claims. Slusher then filed this appeal, arguing that the district court erred in granting summary judgment to the defendants on each claim.
This Court reviews the district court's grant of summary judgment de novo. Miller v. Sanilac Cnty., 606 F.3d 240, 246 (6th Cir.2010). Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id. (citing Fed.R.Civ.P. 56(c) ). We make all reasonable factual inferences in favor of the nonmoving party and uphold a grant of summary judgment only where the record as a whole could not lead a rational trier of fact to find for the non-moving party. Id. at 247.
Slusher first argues that the district court erred in granting summary judgment to the defendants on his claim that his early termination violated his reemployment rights under § 4312.
Under § 4312(a) of the Act “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 the Act, so long as he gave notice to his employer in advance of his deployment, was absent for five years or less, and seeks reemployment. 38 U.S.C. § 4312(a).4 However, there is no statutory right to reemployment if “the employment from which the person leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.” Id. § 4312(d)(1)(C). In such an instance, “the employer shall have the burden of proving ... the brief or nonrecurrent nature of the employment without a reasonable expectation of continuing indefinitely or for a significant period.” Id. § 4312(d)(2).
As far as Slusher, Buckner, and Heritage would have been concerned, the employment from which Slusher left to serve in the uniformed services was for at most a year; the parties were bound by an at-will one-year contract that did not provide for any renewal or extension. Moreover, Heritage and Buckner were actively seeking to hire a permanent orthopedic surgeon at the time Slusher notified his employer of his impending deployment. Slusher was aware that Heritage was interested in finding a permanent orthopedic surgeon because it offered the position to him and he declined it.
That Slusher's contract was for one year and did not provide for renewal or extension plainly means that his employment was for a “nonrecurrent period” and that he could not have had a “reasonable expectation” that his employment would “continue indefinitely.” Thus, whether the § 4312(d)(1)(C) exception applied to Slusher's employment turns on whether it was “brief” and whether Slusher had a “reasonable expectation” that it would continue “for a significant period.”
Slusher cannot be said to have had a reasonable expectation that his employment would continue “for a significant period.” Slusher was aware that Heritage was interested in finding a permanent orthopedic surgeon because it offered the position to him and he declined it, and he would have understood that his at-will contract (including a clause allowing Heritage to terminate the agreement with no notice in exchange for 90 days' pay) allowed Heritage to promptly dismiss him upon finding a permanent replacement. Therefore, the relevant question is not whether the remainder of Slusher's one-year contract was “a significant period,” because in these circumstances Slusher could not have reasonably expected to finish the one-year term. Rather, the relevant question is: How long did Slusher reasonably expect his employment to continue, and was that amount of time a “significant period”? Given Slusher's situation, he could have reasonably expected his employment to continue for significantly...
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