Fryer v. ASAP FIRE & SAFETY CORP., INC.
658 F.3d 85
1st Cir.2011Background
- Fryer, a sprinkler service/sales representative for A.S.A.P., deployed to Iraq in May 2007, with intent to return to work by May 2008.
- USERRA required reinstatement to Fryer’s pre-service position or a position of like seniority, status, and pay upon return from military service.
- Upon Fryer’s return in 2008, A.S.A.P. offered him a sprinkler helper position instead of his pre-service role, despite his expressed desire to return to the prior position.
- Fryer was terminated on October 22, 2008 for alleged absenteeism; he sues under USERRA, Massachusetts anti-discrimination law, and Massachusetts Wage Act.
- Jury awarded back pay under USERRA, front pay, emotional distress under state law, and commissions/overtime under state wage acts; damages were trebled where allowed by statute.
- District court final judgment totaled over $500k in damages plus attorneys’ fees; on appeal, issues include preemption, willfulness, and fee/damage calculations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether USERRA preempts state claims. | Fryer contends USERRA preserves state remedies under § 4302. | A.S.A.P. argues state claims are preempted due to duplicative damages. | Waived/preemption not jurisdictional; no reversal on preemption. |
| What standard governs 'willful' under USERRA § 4323(d)(1)(C) for liquidated damages. | Fryer asserts willfulness includes knowing violations or reckless disregard. | A.S.A.P. disputes the standard as mere knowledge without recklessness. | 'Willful' means knowing violation or reckless disregard of USERRA obligations. |
| Was A.S.A.P.’s conduct in reinstatement willful in refusing pre-service reinstatement. | Evidence shows awareness of obligation and deliberate indifference. | No willfulness if actions were based on permissible business reasons. | Ample evidence supports willfulness for failure to reinstate. |
| Was the termination of Fryer for absenteeism willful. | Discharge linked to protected military status; pretext shown for absenteeism. | Termination for genuine absenteeism, not retaliation for USERRA activities. | Willfulness established; discharge linked to Fryer’s protected status. |
| Are damages and attorney’s fees properly calculated and supported. | Back pay, front pay, and trebled damages appropriately reflect willfulness; fees reasonable. | Challenged calculations and need for remittitur/new trial on damages and fees. | Damages and fees affirmed with discretionary acceptances; some challenges rejected as unmerited. |
Key Cases Cited
- Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (Sup. Ct. 2007) (willful violations require knowledge or reckless disregard)
- Hazen Paper Co. v. Biggins, 507 U.S. 604 (Sup. Ct. 1993) (reckless disregard standard for willfulness)
- McLaughlin v. Richland Shoe Co., 486 U.S. 128 (Sup. Ct. 1988) (willfulness includes recklessness for civil liability)
- Thurston, 469 U.S. 111 (Sup. Ct. 1985) (reckless disregard standard adopted for willful violations)
- Sanchez v. P.R. Oil Co., 37 F.3d 712 (1st Cir. 1994) (willfulness requires reckless disregard of statutory obligations)
- International Longshoremen's Ass'n v. Davis, 476 U.S. 380 (Sup. Ct. 1986) (jurisdictional vs. waivable preemption considerations)
- Sweeney v. Westvaco Co., 926 F.2d 29 (1st Cir. 1991) (LMRA preemption not jurisdictional; choice of law vs. forum)
- Wolf v. Reliance Standard Life Ins. Co., 71 F.3d 444 (1st Cir. 1995) (ERISA preemption waivable; concurrent jurisdiction note)
- Clegg v. Ark. Dep't of Corr., 496 F.3d 922 (8th Cir. 2007) (USERRA willfulness may be shown by knowing or reckless conduct)