Wriggelsworth v. Brumbaugh

• Decision Date: 01 February 2001
• Docket Number: No. 5:00-CV-15.,5:00-CV-15.
• Citation: 129 F.Supp.2d 1106
• Parties: Gene WRIGGELSWORTH, in his capacity as Ingham County Sheriff, and Ingham County, Plaintiffs/Counter-Defendants v. Ellis BRUMBAUGH, Defendant/Cross and Counter-Plaintiff and Capitol City Lodge No. 141 of the Fraternal Order of Police, a labor association, Defendant/Cross-Defendant.
• Court: U.S. District Court — Western District of Michigan

129 F.Supp.2d 1106

Gene WRIGGELSWORTH, in his capacity as Ingham County Sheriff, and Ingham County, Plaintiffs/Counter-Defendants v. Ellis BRUMBAUGH, Defendant/Cross and Counter-Plaintiff and Capitol City Lodge No. 141 of the Fraternal Order of Police, a labor association, Defendant/Cross-Defendant.

No. 5:00-CV-15.

United States District Court, W.D. Michigan, Southern Division.

February 1, 2001.

John R. McGlinchey, Cohl, Stoker & Toskey, PC, Richard D. McNulty, Cohl, Stoker & Toskey, PC, Lansing, MI, for Gene Wriggelsworth, in his capacity as Ingham County Sheriff, Ingham, County of, a municipal corporation, plaintiffs.

Thomas A. Baird, White, Przybylowicz, Schneider & Baird, PC, Okemos, MI, R. David Wilson, Wilson, Lawler & Lett, Lansing, MI, for Ellis Brumbaugh, an individual, Capitol City Capitol City Lodge No. 141 of the Fraternal Order of Police, a labor association, defendants.

OPINION

ENSLEN, Chief Judge.

This matter is before the Court in light of its Opinion and Partial Judgment of November 30, 2000. Said Opinion and Partial Judgment granted summary judgment in favor of Defendant/Counter-Plaintiff Ellis Brumbaugh and determined that issues of damages would be determined after receipt of briefing from interested parties. The Court has now received the scheduled briefing on the issue of damages and determines that summary judgment may be granted on the various issues of damages because there are no genuine issues of material fact respecting damages.

Factual Background

Upon review of the briefing, it is apparent that there is essential agreement as to the facts of this matter. The pertinent facts respecting damages are as follows: Ellis Brumbaugh made application for reemployment under the Uniformed Services Employment and Re-employment Rights Act of 1994 (hereafter "USERRA"), codified at 38 U.S.C. §§ 4301-33, for his former employment as a police detective to begin on October 1, 1999. At the time of his initial application for re-employment, Sheriff Gene Wriggelsworth was of the belief that Brumbaugh was entitled to reemployment under USERRA. However, after discussions with the affected labor union (Capital City Lodge No. 141 of the Fraternal Order of Police) (hereafter "the Union"), Wriggelsworth learned that the Union opposed the re-hiring and would file a grievance as to the re-hiring because of its effects on other Union members. As illustrated in the previous briefing, the Union's legal position was supported by some case law and policy arguments. Faced with this situation, the Sheriff and the County chose to resolve the dispute by filing the instant declaratory action in January 2000 and by hiring Brumbaugh as an entry-level officer, beginning on February 24, 2000, pending resolution of the declaratory action.

Detective pay, at Brumbaugh's seniority, for the year 1999 totals $44,639. For the period of October 1, 1999 to December 31, 1999, the pay totals $11,159.75.

Detective pay, at Brumbaugh's seniority, for the year 2000 totals $45,978.00. During this year, Brumbaugh earned $23,416.00 at his entry-level deputy position. Given these figures, his net loss for the year 2000 equals $22,562.00.

Detective pay, at Brumbaugh's seniority, for the year 2001 equals $47,357.00. Entry-level deputy pay for 2001 equals $28,037. This amounts to a difference of $19,320 per year or $1,610 per month.

Given Brumbaugh's long service, he would also be entitled to longevity bonuses as to his detective position in December 1999 and December 2000 under the applicable Collective Bargaining Agreements. (See Brumbaugh's Memorandum of Law, Attachments 1 and 2.) The December 1999 bonus is computed as follows: $18,000 (base salary figure for those making more than $18,000 per annum), multiplied by 9 percent (the applicable seniority rate) and then divided by four (to reflect a proration for only having worked one-quarter of the year). This results in a 1999 longevity bonus of $405. The 2000 bonus, computed in the same way but without the proration, is $1,620. The total bonuses equal $2,025. A longevity bonus for the year 2001 is not due until December 2001.

Given the above figures, Ellis Brumbaugh's net loss in salary and bonuses (less wages earned) for the period of October 1, 1999 until January 31, 2001 amounts to $37,356.75.

On September 24, 1999, just prior to the anticipated October 1, 1999 employment, Brumbaugh purchased dress clothing intended for use in the detective job from the Men's Wearhouse costing $1,329.09. (Brumbaugh Response, Exhibits 5 and 6.) This was done in reliance on the Collective Bargaining Agreement clothing reimbursement policy, which at the time allowed detectives reimbursement for business clothing in an amount not to exceed $525 per year. (Brumbaugh Memorandum of Law, Attachment 1 at 44.)

In October 1999, Ingham County's attorney, Richard McNulty, sought an opinion from the Municipal Employees' Retirement System of Michigan regarding the effect of re-employment of Ellis Brumbaugh as to his pension rights as an County employee. The Director responded by giving an opinion that Brumbaugh would not be entitled to pension credit for his military service because, among other reasons, the MERS Plan, Section 9(4), and the pertinent state statutes explicitly provide that members of the military shall not receive credit for periods of military service for which the members are eligible for benefits from another retirement system. (Wriggelsworth Memorandum of Law, Exhibit D.)

Legal Analysis

To enforce the terms of USERRA, Congress has specifically provided the following remedies:

(d) Remedies. — (1) In any action under this section, the court may award relief as follows:

(A) The court may require the employer to comply with the provisions of this chapter.

(B) The court may require the employer to compensate the person for any loss of wages or benefits suffered by reason of such employer's failure to comply with the provisions of this chapter.

(C) The court may require the employer to pay the person an amount equal to the amount referred to in subparagraph (B) as liquidated damages, if the court determines that the employer's failure to comply with the provisions of this chapter was willful.

(2)(A) Any compensation awarded under subparagraph (B) or (C) of paragraph (1) shall be in addition to, and shall not diminish, any of the other rights and benefits provided for under this chapter. (2)(B) ....

(3) A State shall be subject to the same remedies, including prejudgment interest, as may be imposed upon any private employer under this section.

(e) Equity powers. — The court may use its full equity powers, including temporary or permanent injunctions, temporary restraining orders, and contempt orders, to vindicate fully the rights or benefits of persons under this chapter.

38 U.S.C. § 4323(d)-(e). See, e.g., Groom v. Department of Army, 82 M.S.P.R. 221, 224 (M.S.P.B.1999) (holding that USERRA authorized remedies including reinstatement with like status and backpay).

Given the availability of such remedies and the Court's prior ruling concerning summary judgment (Wrigglesworth v. Brumbaugh, 121 F.Supp.2d 1126 (W.D.Mich.2000)), the parties have expressed some agreements and disagreements about the appropriate remedies in this suit.

Reinstatement

Plaintiffs and Defendant agree that reinstatement is an appropriate equitable remedy. Brumbaugh has also requested that incident to reinstatement the employer be made to credit him sick leave time accrued prior to his military service, sick leave and vacation leave that would have accrued since October 1, 1999 had he been properly re-employed, and seniority of approximately 29.5 years. There are no objections to these requests, which are consistent with the statute and case law. Accordingly, Brumbaugh will be immediately reinstated with said rights and benefits of employment.

Backpay

Plaintiffs and Defendant also agree that backpay (lost compensation) is an appropriate remedy, although their computations of backpay differ slightly. The Court's analysis of backpay, taken from the documents filed by the parties, computes lost compensation at $37,356.75. Thus, an award of backpay for lost compensation between October 1, 1999 and January 31, 2001 will be order in that amount.

Costs and Attorney Fees

Brumbaugh has also requested an award of costs and reasonable attorney fees. Title 38 United States Code Section 4323 authorizes a prevailing veteran who has hired private counsel to obtain reasonable attorney fees and litigation expenses. Brumbaugh is also entitled to an award of costs pursuant to 28 U.S.C. § 1920. Brumbaugh claims $1,143.69 in costs and $32,736.50 in attorney fees and has filed documentation supporting these figures. The Plaintiffs have not objected to these figures. Upon review of the matter, the Court determines that the amounts requested are reasonable and that they were actually and necessarily expended in this litigation. Accordingly, the Court will approve an award of costs and attorney fees in favor of Defendant Brumbaugh and against Plaintiffs in the total amount of $33,880.19.¹

Clothing Allowance

Plaintiffs and Defendant Brumbaugh disagree as to his entitlement to a clothing allowance. Plaintiffs' argument is that since Brumbaugh has received deputy uniforms and a cleaning allowance he should not also receive a clothing allowance for detectives (which he did not actually need during that time given his assignment). Plaintiffs' argument frankly ignores the pertinent statutory language. Under USERRA, a returning veteran is entitled to not only pay, seniority and employee benefits, but also all of the "rights and benefits" of the employment. These terms are defined at 38 U.S.C. § 4303(2) as follows:

(2) The term "benefit", "benefit of employment", or "rights and benefits" means any advantage, profit, privilege, gain, status, account, or interest (other than wages or salary for work performed) that accrues by...