Case Information
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ROSENN, Circuit Judge. WAWA dba This appeal presents questions of WAWA first impression concerning the scope of rights under the Uniformed Services ____________ Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301–4333 Appeal from the United States District (“USERRA”), of persons in noncareer
Court military service. The case is of particular For the District of New Jersey interest at this time because of the large
D.C. No.: 02-cv-04498 number of reservists called up for military District Judge: Honorable Robert B. duty as a result of the conflicts in Iraq and
Kugler Afghanistan. The alleged events ____________ underlying this action are tragic. Willie Gordon, an active member of the United Argued: September 21, 2004 States Army Reserve, also worked for the
defendant, Wawa, Inc., in Vineland, New Before: MCKEE, ROSENN, and WEIS, Jersey. On Sunday, September 17, 2000,
Circuit Judges. on his way home from weekend Reserve *3 duties in Virginia, Gordon stopped by the Federal Rules of Civil Procedure. Plaintiff Vineland store to pick up his paycheck and timely appealed from the District Court’s to obtain his work schedule for the order. We affirm.
upcoming week. At that time, Gordon’s I. shift manager allegedly ordered him to work that night’s late shift, and threatened Ac c ep ti ng the c omp laint’ s to fire him if he refused. Willie Gordon allegations as true, the District Court held complied with the order, and on his drive that USERRA provides no cause of action home from work, lost consciousness at the here. [2] Specifically, the District Court held wheel of his car. His car crashed, and he that 38 U.S.C. § 4312(e) “merely requires died as a result of his injuries. an employee returning from uniformed adverse employment action under period between returning home from that defendant deprived the decedent of his complaint pursuant to Rule 12(b)(6) of the military exercises and returning to work. benefits, attorney fees, and costs. See 38 District of New Jersey, alleging, inter alia, [1] in the United States District Court for the The complaint further alleges that Wawa’s U.S.C. § 4323(d), (h). The District Court estate of her son, plaintiff filed a complaint USERRA. The complaint seeks, inter alia, administratrix ad prosequendum for the granted Wawa’s motion to dismiss the and the administratrix of his estate. As the threat to fire Gordon constituted an right under USERRA to an eight-hour rest statutory remedies of lost wages and Plaintiff is Willie Gordon’s mother members, and were thus inapplicable in employment discrimination based on this case. Id. at 9. Accordingly, the military status of noncareer service District Court granted Wawa’s Rule 12(b)(6) motion to dismiss, and pursuant duty to notify his or her employer of an June 17, 2003) (emphasis in original). the remedies available under USERRA Further, the District Court concluded that Inc., No. 02-4498, slip op. at 7 (D.N.J. uniformed services.” Gordon v. Wawa, following the employee’s return from the expiration of an eight-hour period employee from reporting to work prior to duty on an employer to prevent an time period,” and “imposes no affirmative intent to return to work within a specified reflect a congressional purpose to prevent to 28 U.S.C. § 1367(c)(3), declined to [1] Plaintiff, individually and as the exercise supplemental jurisdiction over plaintiff’s state law claims. administratrix for the estate of Willie
Gordon, also asserts various tort claims
II. returns home from military exercises and when the employee must report to the Our review of the District Court’s employer. As with all questions of dismissal of plaintiff’s USERRA claims is statutory interpretation, we first turn to the plenary. Oshiver v. Levin, Fishbein, statutory language “to determine whether Sedran & Berman, 38 F.3d 1380, 1384 (3d the language at issue has a plain and Cir. 1994). Dismissal under Rule 12(b)(6) unambiguous meaning with regard to the is inappropriate “unless it appears beyond particular dispute in the case.” Marshak v. doubt that the plaintiff can prove no set of Treadwell, 240 F.3d 184, 192 (3d Cir. facts in support of his claim which would 2001) (citations and internal quotation entitle him to relief.” Conley v. Gibson, marks omitted). We discern “[t]he 355 U.S. 41, 45-46 (1957). In making this plainness or ambiguity of statutory decision, “the court must consider only language . . . by reference to the language those facts alleged in the complaint and itself, the specific context in which that accept all of the allegations as true.” language is used, and the broader context ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, of the statute as a whole.” Id. (citations 859 (3d Cir. 1994). All inferences are and internal quotation marks omitted). drawn in favor of the plaintiff. Oshiver, Where “the statutory meaning is clear, our 38 F.3d at 1384. inquiry is at an end.” Ki Se Lee v. Further, we construe USERRA’s Ashcroft, 368 F.3d 218, 222 (3d Cir. provisions liberally, in favor of the service 2004); Marshak, 240 F.3d at 192. member. Coffy v. Republic Steel Corp., Section 4312(e) provides that a 447 U.S. 191, 196 (1980) (interpreting person whose military service caused an USERRA predecessor Vietnam Era absence from work Veterans’ Readjustment Assistance Act of 1974); Fishgold v. Sullivan Drydock & shall, upon completion of a Repair Corp., 328 U.S. 275, 285 (1946) period of service in the (construing Selective Training and Service uniformed services, notify Act of 1940); Hill v. Michelin N.A., Inc., the employer . . . of the 252 F.3d 307, 312-13 (4th Cir. 2001) person’s intent to return to a (“Because USERRA was enacted to position of employment protect the rights of veterans and members with such employer as of the uniformed services, it must be follows: broadly construed in favor of its military (A) In the case of a person beneficiaries.”). whose period of service in
A. the uniformed services was less than 31 days, by Plaintiff contends that 38 U.S.C. § reporting to the employer — 4312(e) confers a “right to eight-hours rest” between the time when the employee (i) not later than the *5 beginning of the first full conferring a substantive right to eight regularly scheduled work hours of rest for the returning employee. period on the first full Reading § 4312(e) in its broader calendar day following the context confirms this view, because the completion of the period of remainder of the section sets forth the service and the expiration other requirements for an employee to of eight hours after a period s e cure U S E R R A ’ s r e e m p l o ym e n t allowing for the safe guarantee, or the exceptions thereto. transportation of the person Section 4312(a) requires the employee to from the place of that give the employer advance notice of leave, service to the person’s requires that the employee’s cumulative residence; or leave be no longer than five years, and (ii) as soon as possible requires the employee to report to the after the expiration of the employer in compliance with § 4312(e). eight-hour period referred Section 4312(b) contains an exception to to in clause (i), if reporting the advan ce notice re quire ment. within the period referred Subsection (c) contains exceptions to the in such clause is five-year absence limit, and subsection (d) impossible or unreasonable sets forth the conditions under which an through no fault of the employer need not re-engage an employee. person. The remaining subsections impose other duties on the employees, and the section 38 U.S.C. § 43 12(e)(1)(A )(i)-(ii) concludes with the guarantee of USERRA (emphasis added). rights to employees who satisfy § 4312’s Unsurprisingly, plaintiff has requirements, including “the notification focused little attention on the statutory requirements established in subsection (e) language. By its plain terms, § 4312(e) . . . .” 38 U.S.C. § 4312(h) (emphasis sets forth the requirements of an employee added).
to notify the employer of the employee’s The limited case law on § 4312 intention to return to work. The eight-hour supports this view. See, e.g., Jordan v. Air period referred to in § 4312(e)(A)(i) marks Prods. & Chems., Inc., 225 F. Supp. 2d the outer limit of the time by which the 1206, 1208 (C.D. Cal. 2002) (Section employee must report to the employer “4312 creates an unqualified right to upon returning home from military service. reemployment to those who satisfy the As the District Court concluded, § 4312(e) service duration and notice requirements. is written entirely in terms of an . . . Section 4312 places service people and employee’s duties, as opposed to an employers on notice that, upon returning employer’s obligations. There is no way from service, veterans are entitled to their to construe this statutory language as previous positions of employment.”) *6 (emphasis added); McGuire v. United rest. However, our reading of the Parcel Service, Inc., No. 97 C 0232, 1997 legislative history does not compel a WL 543059, at *3 (N.D. Ill. Aug. 28, contrary reading of § 4312(e)’s plain 1997) (employee’s eligibility for re- terms. See Malloy v. Eichler, 860 F.2d employment after active duty in U.S. 1179, 1183 (3d Cir. 1988) (“Where the Military Reserve “hinges on” § 4312’s language of the statute is clear, only ‘the “requisites” of, inter alia, providing notice most extraordinary showing of contrary of intent to return to work), aff’d, 152 F.3d intentions’ justify altering the plain 673, 678 (7th Cir. 1998) (employee failed meaning of a statute.”) (quoting Garcia v. to give employer “reasonable notice that United States, 469 U.S. 70, 75 (1984)). he wanted his job back”). The Reports of the Senate and House interpretation of the state law also “creates leave can be required to return to work.” Id. at 1046. In holding that the city’s transportation home plus an eight-hour rest at a minimum, interpretation of the statutory term “day” dictum that 38 U.S.C. § 4312 “guarantees, guarantee), the Boelter court remarked in leave (a benefit that USERRA does not reservists the right to take paid military was incorrect under state legal precedents, period before an employee on military City of Coon Rapids, 67 F. Supp. 2d 1040 the of interpreting a state law that grants (D. Minn. 1999), is futile. In the context judge observed Plaintiff’s reliance on Boelter v. time for that the city’s the safe reasonable time to rest, and a reasonable U.S.C.C.A.N. 2449, 2462 (“An employee time arrive back at his or her residence, a [3] . . . must be allowed a reasonable time to employment.”). Committees on V eteran s’ Af fairs expressed concern for service members’ 2 9 Indeed, both the Senate 432576; see also H.R. Rep. No. 103-65, at Rep. No. 103-158, at 50 (1993), 1993 WL before they are to perform their work.” S. return to their residence and be rested employment be allowed sufficient time to physical well-being, and conveyed the Committees’ intent that service members “repo rting back ( 199 3) , travel r e p r i n t e d to to the place of their civilian i n , 1 9 94 an inherent conflict with USERRA,” by
accelerating the time limit established by § 4312(e) for reporting to work. Id. (The judge mistakenly viewed § 4312 in terms [3] At points, the Senate and House Reports discuss § 4312(e)’s requirements in terms of reporting to begin work, as of reporting to work, as opposed to giving opposed to what the statute requires, notice of an intention to return to work.) reporting “the person’s intent to return” However, he did not hold that USERRA to work. 38 U.S.C. § 4312(e)(1). See, confers the right to eight hours of rest. e.g., S. Rep. No. 103-158, at 50 (“Under We acknowledge that some aspects new section 4312(e), the time periods of the legislative history favor plaintiff’s during which an individual must return to position that § 4312(e) provides a right to work or make an application for *7 and House Committees contemplated that require a reservist who returns home from the eight-hour rest period in § 4312(e) weekend duty at 10:00 p.m. to report to would prevent a scenario similar to the one work at 12:30 a.m. that night, even if it is alleged here, where an employer requires the beginning of the next regularly an employee to report to work within a few scheduled working period the next day. hours of returning from military exercises. The Committee believes that an employee See S. Rep. No. 103-158, at 50 (“The must be in a position to arrive at work eight-hour minimum period imposed rested in order to perform safely at between the time of return and the time for work.”).
reporting to work would provide for However, that Congress took into needed rest. An example would be that of account a service member’s need for rest an individual arriving at his or her in shaping the reporting requirements does residence at 11:00 p.m., two hours before not mean that Congress intended to create the next regular work period scheduled to a independent right to rest. On the whole, begin at 1:00 a.m. Under the Committee the thrust of the Senate and House bill, that individual could not be required Reports’ focus on § 4312 is in terms of the to report to work any earlier than 7:00 employees’ reporting requirements, as a.m.”); H.R. Rep. No. 103-65, at 29, opposed to a statement of employees’ reprinted in, 1994 U.S.C.C.A.N. at 2462 rights. For example, both Reports explain (“For example, an employer could not that returning employees would be
guaranteed USERRA rights “if the notice requirement of [4312] (a)(1) is met, the reemployment would be based on the cumulative length of military service length of his or her period of service . . . found in subsection (a)(2) is not exceeded .”) (emphasis added); H.R. Rep. No. 103- and the reporting or ap plicatio n 65, at 29, reprinted in, 1994 requirement of subsection (e) is complied U.S.C.C.A.N. at 2462 (“Under proposed with.” H.R. Rep. No. 103-65, at 24, section 4312(e), the time limits for reprinted in, 1994 U.S.C.C.A.N. at 2457; applying for reemployment would see also S. Rep. No. 103-158, at 46 (“New depend strictly on the length or duration section 4312(a) would generally provide of the military service from which the that an individual who is absent from any serviceperson is being discharged or position of employment for service in the released. . . . With regard to military uniformed services is entitled to service of less than 31 days, reemployment and benefits . . . if the servicemembers would ordinarily be person satisfies the various requirements required to report for work at the set forth in this new section.”). In short, in beginning of the first regularly scheduled § 4312(e) Congress sets forth a returning working period on the next working day employee’s requirement for providing after release from service.”) (emphasis notice of intent to return to work in order added).
to reclaim his or her former job, and that the action would have contains no rights-creating language. been taken in the absence Nothing in the legislative materials clearly of such person’s . . . evinces Congress’s intent that § 4312(e) exercise of a right.
confer a right to rest. 38 U.S.C. § 4311(b), (c)(2). For the foregoing reasons, plaintiff Plaintiff has not alleged that Willie
cannot state a cause of action under § Gordon attempted to exercise a right 4132(e) for Wawa’s alleged failure to provided by USERRA, as required by § allow Willie Gordon eight hours of rest 4311(b), because, as we have held above, between his return home from military USERRA does not confer a right to rest. exercises and commencing work. Moreover, plaintiff has failed to
B. assert a claim under § 4311(b). The Plaintiff argues that the Wawa complaint does not allege that Willie store manager’s alleged threat to fire Gordon indeed attempted to assert any Willie G ordon was an “adv erse such right. The complaint alleges that employment action” in violation of Willie Gordon was tired and unrested USERRA § 4311(b). (Compl. ¶ 13), and that the store manager ordered him to work within hours of his Section 4311 provides, in relevant arriving home (Compl. ¶ 14), but fails to part: allege that he made the store manager (b) An employer may not aware that he had just finished his military discriminate in employment against or take exercises, that he was tired, and that he any adverse employment action against desired not to work the night shift. any person because such person . . . has Plaintiff has alleged these facts for the first exercised a right provided for in this time on appeal, but in reviewing the chapter . . . . District Court’s Rule 12(b)(6) dismissal of her claims, this Court may only look to the (c) An employer shall be factual allegations asserted in the considered to have engaged in actions complaint. ALA, Inc., 29 F.3d at 859. prohibited – Likewise, the complaint fails to * * * allege that the store manager’s alleged (2) under subsection (b), if threat terminate Willie Gordon’s the person’s . . . exercise employment was motivated, in part, by of a right provided for in Gordon’s attempt to exercise a USERRA t h i s c h a p t e r [ ] i s a right, as required under § 4311(c). See, motivating factor in the e.g., Gagnon v. Sprint Corp., 284 F.3d employer’s action, unless 839, 852 (8th Cir. 2002) (Under § 4311, the employer can prove “an employer violates the act when a *9 person’s membership in the uniformed prevent, and to compensate a service services is a motivating factor in the member for, employment discrimination employer’s action. . . .’”) (emphasis in based on military status. See 38 U.S.C. § original); Leisek v. Brightwood Corp., 278 4323(d)-(e), (h). Plaintiff’s case is not F.3d 895, 898 (9th Cir. 2002) (same); about employment discrimination or the Gummo v. Village of Depew, 75 F.3d 98, deprivation of an employment benefit 106 (2d Cir.) (same), cert. denied, 517 based on military status. Accordingly, U.S. 1190 (1996). USERRA is an inappropriate vehicle for plaintiff’s tort claims. For these reasons, plaintiff has
failed to assert the basic factual III.
underpinnings of a § 4311 claim. In sum, we hold that 38 U.S.C. §
C. 4312(e) does not confer a right to rest, and thus, that plaintiff has failed to state a Plaintiff alleges that the acts of a cause of action under USERRA. store manager ultimately led to Willie Essentially, USERRA protects a service Gordon’s death, by causing him to work mem ber’s employment rights, and when he was too tired and causing him to plaintiff’s allegations do not implicate drive home exhausted. This complaint Willie Gordon’s employment rights. essentially sounds in tort. USERRA, Accordingly, the order of the District however, is not designed to protect Court will be affirmed. Each side to bear employees from the tortious acts of its own costs. employers or to remedy work-related harms. Rather, its provisions are tailored
to effectuate its underlying purposes of:
(1) encouraging “noncareer service in the
uniformed services by eliminating or
minimizing the disadvantages to civilian
careers and employment which can result
from such service;” (2) minimizing “the
disruption the lives of persons
performing service in the uniformed
services as well as to their employers” by
providing for the prompt reemployment of
service members upon their completion of
service; and (3) prohibiting discrimination
against them because of their uniformed
services. 38 U.S.C. § 4301(a)(1)-(3). In
line with these purposes, USERRA’s
remedial provisions are designed to
[2] The District Court exercised against Wawa under New Jersey statutory and common law. Those jurisdiction over plaintiff’s USERRA claims, which plaintiff is now pursuing claims under 38 U.S.C. § 4323(b) and 28 in state court, are not relevant to this U.S.C. § 1331. This Court has appeal. jurisdiction under 28 U.S.C. § 1291.