Davis v. Crothall Services Group, Inc.
961 F. Supp. 2d 716
W.D. Pa.2013Background
- Terry L. Davis, a longtime Regional Operations Manager (ROM) for Kinetic/Crothall, was on active military duty Jan 2006–Jun 2007 and notified Crothall he would return July 1, 2007.
- While Davis was deployed Crothall closed its Erie offices, reorganized the Central Region, promoted James Aulisio to a ROM role, and redistributed accounts; Crothall contends Davis’s ROM position was eliminated for business reasons; Davis says it was transferred and occupied by Aulisio/Schwarz.
- Upon Davis’s June 2007 release from service Crothall terminated his employment for failing to return from leave and offered Davis lower-level technician and other positions (disputed as to pay/status); a ROM in Chicago was later offered in Dec 2007 (timeliness and conditions disputed).
- Davis filed suit under USERRA (and the Pennsylvania statute construed with USERRA), alleging failure to reemploy him in his escalator position and seeking damages, including liquidated damages for willfulness.
- Cross-motions for summary judgment: Crothall sought dismissal based on changed-circumstances defense, adequacy of alternative offers, mitigation failure and limits on damages; Davis sought summary judgment on liability and to bar several defenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Davis’s predeployment ROM position was eliminated such that reemployment was impossible/unreasonable (changed-circumstances defense) | Davis: position was not eliminated but restructured; therefore Crothall must have reemployed him in a ROM role | Crothall: economic decline and office closure eliminated the Central Region ROM; changed circumstances excuse reemployment | Genuine dispute of material fact; summary judgment denied to both sides on this issue |
| Whether employer must displace a current employee (Aulisio) who occupies the ROM role Davis would have had | Davis: Aulisio occupied Davis’s escalator position and should have been displaced | Crothall: positions were distinct or eliminated; no obligation to displace other ROMs | Disputed fact about identity/overlap of positions; summary judgment denied |
| Whether Davis failed to mitigate damages by not accepting offered positions or by reenlisting | Davis: offers were inferior/untimely and reenlistment is not withdrawal from workforce (thus mitigates) | Crothall: Davis refused adequate offers and reenlisted, so damages should be limited | Court found reenlistment does not bar damages and barred Crothall from asserting failure-to-mitigate defense; other mitigation issues remain for jury |
| Whether liquidated damages (willfulness) are barred because employer acted in good faith | Davis: facts permit finding of willfulness or reckless disregard | Crothall: good-faith efforts and counsel advice negate willfulness | Factual dispute; summary judgment denied as to liquidated damages issue |
Key Cases Cited
- Cole v. Swint, 961 F.2d 58 (5th Cir. 1992) (hiring a replacement does not by itself defeat USERRA protections)
- Kay v. General Cable Corp., 144 F.2d 653 (3d Cir. 1944) (inconvenience or expense alone does not make reemployment unreasonable)
- Nichols v. Dep’t of Veterans Affairs, 11 F.3d 160 (Fed. Cir. 1993) (employer may not deny reemployment simply because replacement occupies the position)
- Serricchio v. Wachovia Sec., 658 F.3d 169 (2d Cir. 2011) (significant delay in reemployment can constitute USERRA violation and may support willfulness)
- Petty v. Metro. Gov’t of Nashville–Davidson Cnty., 538 F.3d 431 (6th Cir. 2008) (timeliness and correctness of reassignment affect USERRA compliance)