Sutton v. City Of Chesapeake

• Decision Date: 17 February 2010
• Docket Number: Civil Action No. 2:09cv240.
• Citation: 713 F.Supp.2d 547
• Parties: Paul F. SUTTON, Plaintiff,v.CITY OF CHESAPEAKE, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

713 F.Supp.2d 547

Paul F. SUTTON, Plaintiff,v.CITY OF CHESAPEAKE, Defendant.

Civil Action No. 2:09cv240.

United States District Court,

E.D. Virginia,

Norfolk Division.

Feb. 17, 2010.

COPYRIGHT MATERIAL OMITTED

Susan Lynn Watt, United States Attorney's Office, Norfolk, VA, Elizabeth Belle Banaszak, Pro Hac, Vice, Eric Kenneth Bachman, Pro Hac, Vice, John M. Gadzichowski, Pro Hac, Vice, Louis Lopez, Pro Hac, Vice, United States Department of Justice, Washington, DC, for Plaintiff.

Thomas Jeffrey Salb, Darlene Paige Bradberry, Gregory Douglas Surber, Breeden Salb Beasley & Duvall, Norfolk, VA, for Defendant.

MEMORANDUM OPINION AND ORDER

RAYMOND A. JACKSON, District Judge.

Before the Court are cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure filed by Paul F. Sutton (“Plaintiff”) and the City of Chesapeake (“Defendant”). The Court held a hearing on this matter on January 21, 2010. On January 27, 2010, the Court denied Plaintiff's Motion and granted Defendant's Motion. This Memorandum Opinion sets forth the reasons for the Court's decision.

I. FACTUAL AND PROCEDURAL HISTORY

On May 22, 2009, Plaintiff filed a Complaint against Defendant, alleging violation of the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301-4335 (“USERRA”). Plaintiff claims that Defendant violated Sections 4312 and 4313 of USERRA by failing to promptly reemploy Plaintiff upon his request for reemployment after serving active military service with the United States Coast Guard (“Coast Guard”) (Compl. ¶ 15.) Plaintiff seeks lost wages and benefits suffered, and reinstatement in a position of like seniority, status and pay to the position that he would have attained had he remained employed with Defendant and had not served in the Coast Guard. (Compl. ¶ 16.)

The Complaint alleges that Plaintiff was employed as a lieutenant by the Chesapeake Police Department (“CPD”) from February 16, 1974 to January 1, 2001. (Compl. ¶ 6.) Plaintiff has also served in the Coast Guard since 1979. (Compl. ¶ 7.) On November 25, 2000, Plaintiff notified his supervisor by letter that he received active duty orders from the Coast Guard. In the same letter, Plaintiff notified his employer of his intention to retire, and then retired from the CPD, effective January 1, 2001. (Compl. ¶ 8.) After serving nearly seven years with the Coast Guard, Plaintiff subsequently sought reemployment with the CPD on November 1, 2007. (Compl. ¶ 9.) However, his request was denied on November 15, 2007 because the CPD found that he was no longer eligible for reinstatement. Plaintiff retired from active duty with the Coast Guard on December 19, 2007 because of the compulsory age requirement. After his request for reinstatement with the CPD was denied, Plaintiff volunteered for the Coast Guard until September 30, 2009. From October 1, 2009, to the present, Plaintiff has been a civilian employee of the Coast Guard. Plaintiff filed a complaint under the USERRA with the Department of Labor regarding his failure to be reemployed. (Compl. ¶ ¶ 12-13.) The Department of Labor conducted an investigation of Plaintiff's Complaint and determined that it had merit. (Compl. ¶ 14.)

On December 14, 2009, Plaintiff filed a Motion for Summary Judgment. Defendant filed a Motion for Partial Summary Judgment on the issue of liability on December 24, 2009, and an Opposition to Plaintiff's Motion for Summary Judgment on December 31, 2009. Plaintiff filed a Rebuttal in Support for its Motion for Summary Judgment, and an Opposition to Defendant's Motion for Partial Summary Judgment on January 7, 2010. Defendant filed a Rebuttal on January 13,2010. The Court held a hearing on this matter on January 21, 2010. On January 27, 2010, the Court denied Plaintiff's Motion and granted Defendant's Motion in an order without explanation of the Court's rationale.

II. LEGAL STANDARD

Rule 56(c) provides for Summary Judgment if the Court, viewing the record as a whole, determines “that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696, 702 (4th Cir.2001) (citing McKinney v. Bd. of Trustees of Maryland Cmty. Coll., 955 F.2d 924, 928 (4th Cir.1992) (“[S]ummary judgments should be granted in those cases where it is perfectly clear that no issue of fact is involved and inquiry into the facts is not necessary to clarify the application of the law.”)). In deciding a motion for summary judgment, the Court must view the facts, and inferences to be drawn from the facts, in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To defeat summary judgment, the nonmoving party must go beyond the pleadings with affidavits, depositions, interrogatories, or other evidence to show that there is in fact a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment will be granted “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, 106 S.Ct. 2548.

III. DISCUSSION

Both Plaintiff and Defendant move for Summary Judgment on the same underlying issue: whether USERRA's reemployment rights and obligations apply to Plaintiff. Under USERRA, “any person who is absent from a position of employment by reason of service in the uniformed services shall be entitled to reemployment rights” so long as the following conditions are met: (1) the employee gives notice to his employer when leaving; (2) the absence is for less than five years as defined by USERRA; and (3) the employee timely applies for reemployment upon his return. 38 U.S.C. § 4312(a)(1-3). The Plaintiff has the burden of showing that he has satisfied USERRA's statutory requirements and is entitled to receive the benefit of reemployment. See Shadle v. Superwood Corp., 858 F.2d 437, 439 (8th Cir.1988). If an employee meets these requirements, the employer must reemploy the service member in either the position he would have held had he not gone into active military service, or “a position of like seniority, status and pay.” 38 U.S.C. § 4313(a)(2)(A). In his Motion for Summary Judgment, Plaintiff argues that he has met each of these requirements and is therefore entitled to reemployment with the CPD. Defendant argues that because Plaintiff retired from the CPD, he ended his civilian employment career, and Plaintiff then began a career in the military. Alternatively, Defendant argues that Plaintiff accrued more than five years of military service and therefore is not entitled to any reemployment rights under USERRA.

A. Advance Notice of Military Service and Waiver of Reemployment Rights

To be eligible for USERRA reemployment rights, an employee must give “advance written or verbal notice” to his employer pursuant to 38 U.S.C. § 4312(a)(1). Plaintiff contends that he provided both verbal and written advance notice of his military service to Defendant: first by verbally informing CPD personnel of his impending military service in October and November 2000, and second by a letter to Chief of Police Justice dated November 25, 2000. (Pl.'s Mem. in Supp. 7.) Moreover, Plaintiff argues that even if he retired from his civilian job, this retirement does not result in a waiver of his reemployment rights according to established law because a service member cannot prospectively waive his reemployment rights under USERRA after notifying his employer of his military service orders. (Pl.'s Mem. Supp. 14.) Defendant does not dispute that Plaintiff was placed on Military leave from December 1, 2000 until December 31, 2000. However, Defendant argues that this leave ended when Plaintiff retired from the CPD effective January 1, 2001 thereby terminating his civilian employment altogether. Defendant contends that Plaintiff then began a career in the military, as evidenced in part by his lack of continuing notice to the CPD of his military service during his nearly seven year tenure. (Def.'s Mem. in Opp. 13.)

Pursuant to 38 U.S.C. § 4331(a), the Department of Labor has the authority to promulgate regulations concerning USERRA. The most relevant regulation in the instant matter is 20 C.F.R. § 1002.88, which states that “even if an employee tells an employer before entering or completing uniformed service that he does not intend to seek reemployment after completing the uniformed service, the employee does not forfeit the right to reemployment.” Therefore, in his notice of receipt of active military orders, an employee need not affirmatively tell his employer that he intends to return to civilian employment to receive USERRA reemployment rights. If an employee does not intend to return to the employer after military service, the employer must obtain written notice of this intent, and the burden of proof is on the employer to prove that the employee was aware of the specific rights and benefits he was waiving. 38 U.S.C. § 4316(b)(2)(A)(ii).

This Court finds that USERRA's reemployment rights and its supporting regulations do not apply to Plaintiff. As an initial matter, “because USERRA was enacted to protect the rights of veterans and members of the uniformed services, it must be broadly construed in favor of its military beneficiaries.” Hill v. Michelin N. Am., Inc., 252 F.3d 307, 312-13 (4th Cir.2001). For this reason, the Court does not find that Plaintiff was required under USERRA to provide continuing notice of his active military service throughout the time he was away from his civilian employment, as Defendant contends. Therefore, Plaintiff did provide the CPD advance notice of his military service.

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