United States v. Nevada

• Decision Date: 26 September 2011
• Docket Number: No. 3:09–CV–00314–LRH–RAM.,3:09–CV–00314–LRH–RAM.
• Citation: 191 L.R.R.M. (BNA) 2947,817 F.Supp.2d 1230
• Parties: UNITED STATES of America, Plaintiff, v. The State of NEVADA, and The Office of the State Controller, Defendants.
• Court: U.S. District Court — District of Nevada

191 L.R.R.M. (BNA) 2947

817 F.Supp.2d 1230

UNITED STATES of America, Plaintiff,

v.The State of NEVADA, and The Office of the State Controller, Defendants.

No. 3:09–CV–00314–LRH–RAM.

United States District Court, D. Nevada.

Sept. 26, 2011.

Holly A. Vance, U.S. Attorney's Office, Reno, NV, John P. Buchko, Jeffrey G. Morrison, Toni Michelle Jackson, U.S. Department of Justice, Washington, DC, for Plaintiff.

Jeffrey Paul Hoppe, Reno, NV, Stephen D. Quinn, Office Of The Attorney General, Jeffrey D. Menicucci, Nevada Attorney General, William J. Geddes, State Of Nevada Office of The Attorney General, Carson City, NV, for Defendants.

ORDER

LARRY R. HICKS, District Judge.

Before the court are three cross-motions for full or partial summary judgment: first, the State of Nevada's (“the State”) Motion for Summary Judgment (# 78), along with the United States' opposition (# 92) and the State's reply (# 97); second, the Office of the State Controller's (“the Controller”) Motion for Summary Judgment (# 82), along with the United States' opposition (# 91) and the Controller's reply (# 96); and third, the United States' Motion for Partial Summary Judgment (# 83), along with oppositions by the State (# 90) and the Controller (# 93) and the United States' replies (# 95 and # 94).

I. Facts and Procedural History

This is a reemployment liability and retaliation action filed by the United States on behalf of Arthur Ingram (“Ingram”). The United States alleges that the State and the Controller willfully violated the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) by failing to promptly and properly reemploy Ingram as Chief Deputy Controller when he returned from military service, and by retaliating against Ingram for pursuing a complaint with the Department of Labor (“DOL”) when they withdrew an offer to reemploy Ingram as Chief Accountant and terminated his employment.

On February 17, 2003, Ingram began working as the Chief Deputy for then-Controller Kathy Augustine (“Augustine”). Shortly thereafter, the Department of the Army ordered Ingram to report for active duty on March 23, 2003. Ingram promptly informed Augustine that he had been ordered to active duty. The Army later amended Ingram's orders to permit him to report for active duty on June 1, 2003, which he did.

When Ingram left for active duty, Augustine selected then-Chief Accountant Kimberly Huys (“Huys”) as “Acting Chief Deputy.” When Huys later left the Office of the Controller, Augustine selected Carl W. Reinhard, Jr. (“Reinhard”) as Acting Chief Deputy. Augustine hired Mark Taylor (“Taylor”) as Assistant Controller in September 2005. Following Augustine's death in July 2006, Steve Martin (“Martin”) was appointed to complete Augustine's term as Controller. Martin retained Reinhard as Acting Chief Deputy and Taylor as Assistant Controller.

Kim Wallin (“Wallin”) was elected Controller in November 2006 and took office on January 1, 2007. Wallin retained three unclassified employees—Acting Chief Deputy Reinhard, Assistant Controller Taylor, and Executive Assistant Michelle Ene (“Ene”). When Reinhard voluntarily left in April 2007, Wallin promoted then-Chief Accountant Karen Hoppe (“Hoppe”) to the Acting Chief Deputy position “due to Chief Deputy Controller on military leave.”

Augustine approved paying Ingram for 15 days of military leave annually in 2004, 2005, and 2006. Wallin also approved paying Ingram for 15 days of military leave annually in 2007 and 2008. Throughout his military deployment, Ingram submitted leave and earnings statements to Defendants. Around April 2007, Ingram telephoned Wallin to tell her that he would be on active duty until 2008. Wallin gave no indication that Ingram would not be reemployed when he returned.

Except for one week in April 2006, Ingram served continuously on active duty from June 1, 2003 until April 25, 2008, when he was honorably discharged from the Army. On May 12, 2008, Ingram contacted Wallin's Executive Assistant to set up a meeting with Wallin to discuss reemployment. On June 4, 2008, Ingram met with Wallin, Taylor, and Deputy Attorney General Doug Walther (“Walther”) to discuss Ingram's reemployment. Wallin did not reemploy Ingram at the June 4, 2008 meeting, indicating that she needed to research her rights under USERRA.

Also during the June 4, 2008 meeting, Ingram asked Walther if the State of Nevada had a position for him. Walther informed Ingram that he was there as legal representation for the Controller and that the State Personnel Department had a website that Ingram could use to see if there were other vacant positions for him within the State. It is undisputed that Ingram never contacted the State Personnel Department to apply for reemployment.

On June 17, 2008, Ingram sent Wallin a letter expressing his desire to return to work as Chief Deputy and his intent to start on July 24, 2008. That same day, Wallin also sent Ingram a letter offering him the position of Chief Accountant in the Office of the Controller. The offer was subject to the conditions that Ingram submit documentation proving his entitlement to reemployment under USERRA and demonstrate that he meets the minimum qualifications for the position, including passing a required examination. Taylor was asked to prepare office space for Ingram in case he accepted the position. On June 25, 2008, Ingram filed a complaint under USERRA with the Department of Labor's Veterans' Employment Training Service (“VETS”). Having received Ingram's letter and assuming their letters of June 17 had crossed in the mail, on June 26, 2008, Wallin sent Ingram a second letter reiterating the offer of the Chief Accountant position and explaining her decision not to reemploy him as the Chief Deputy. On July 1, 2008, VETS informed Wallin of Ingram's USERRA complaint. On July 8, 2008, Wallin sent VETS a letter disputing Ingram's right to reemployment as Chief Deputy but indicating her willingness to employ him as Chief Accountant according to the terms of her offer letter.

On July 24, 2008, Ingram reported for work at the Office of the Controller. In a meeting with Wallin, Taylor, and Walther, Ingram indicated that he “would accept any position that [they] were willing to give [him], but [he] was going to pursue [his] rights under USERRA” because he believed that he was entitled to the Chief Deputy position. Wallin believed that Ingram “was not going to be satisfied in the Chief Accountant position and, because of his complaint that he filed, that it was a no-win situation.” Nevada officials did not reemploy Ingram in any position. The same day, Walther sent a letter to VETS explaining that they “informed [Ingram] that since he had filed a complaint with [VETS] that was still under investigation, and that questions regarding [USERRA's] applicability to his situation were unresolved, the Controller was not prepared to have him start work.” Walther further recounted that “Mr. Ingram clarified that he was reporting to work for whatever position the Controller was offering him,” and “[t]he Controller clarified to Mr. Ingram that her offer for the Chief Accountant position was based on the assumption that [USERRA] applied and that if it was determined that the Act did not apply, or the Controller decided to exercise her rights for further review of that issue, the offer would be withdrawn.” On December 15, 2008, Wallin sent a letter to Ingram indicating that his employment was terminated effective January 1, 2007, as his “position terminated when Kathy Augustine's term ended.”

II. Summary Judgment Standard

Summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, affidavits or declarations, stipulations, admissions, answers to interrogatories, and other materials in the record show that “there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In assessing a motion for summary judgment, the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir.2001).

The moving party bears the initial burden of informing the court of the basis for its motion, along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On those issues for which it bears the burden of proof, the moving party must make a showing that is “sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir.1986); see also Idema v. Dreamworks, Inc., 162 F.Supp.2d 1129, 1141 (C.D.Cal.2001).

To successfully rebut a motion for summary judgment, the non-moving party must point to facts supported by the record which demonstrate a genuine issue of material fact. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir.2000). A “material fact” is a fact “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir.1983). A dispute regarding a material fact is considered genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. The mere existence of a scintilla of evidence in support of the party's position is insufficient to establish a genuine dispute; there must be evidence on which a jury could reasonably find for the party. Id. at 252, 106 S.Ct. 2505.

III. Discussion

Cong...