Joel BRADBERRY, Plaintiff-Appellant v. JEFFERSON COUNTY, TEXAS, Defendant-Appellee.
No. 12-41040.
United States Court of Appeals, Fifth Circuit.
Oct. 17, 2013.
732 F.3d 540
Jessica Lyn Hallmark, Dunham Hallmark, P.L.L.C., Beaumont, TX, for Defendant-Appellee.
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
Judge HAYNES concurs in the judgment only.
LESLIE H. SOUTHWICK, Circuit Judge:
Joel Bradberry brought suit against his former employer, the Jefferson County Sheriff‘s Department. He alleged that after fulfilling his two-week training obligation with the United States Army Reserve, he was terminated in violation of the Uniformed Services Employment and Reemployment Rights Act (“USERRA“),
Bradberry was employed by Jefferson County as a corrections officer from February 2007 to December 2008. During that time, he also was a member of the United States Army Reserve. Bradberry was ordered to report for his annual Reserve training from September 1 through September 12, 2008, and was scheduled to return to civilian work on September 13. He provided a copy of his orders to Jefferson County prior to reporting for military duty. Bradberry did not report back to work until the evening of September 16, missing scheduled work shifts on September 13 and 14.
According to Bradberry, as a result of Hurricane Ike‘s imminent landfall on September 13, Army Captain Dwayne Rose orally extended his orders and required him to go to Abilene, Texas, and remain there until released. Bradberry contacted Jefferson County on September 12 to report that he would not be at work the next day because of his new military orders. Bradberry was released from duty at 7:00 a.m. on September 15, and he reported to work the next day. He was scheduled for a midnight shift on September 17.
Jefferson County ordered Bradberry to provide documentation about the extension of his military duty to include September 13-16, the dates not covered by his original orders. Although Bradberry provided memoranda from his commanding officers, he did not provide the type of documentation the County requested. The County initiated an internal investigation into Bradberry‘s conduct, then terminated him in December 2008.
The County‘s explanation of the basis for Bradberry‘s termination was in an F-5 Report of Separation of Licensee. A Texas law enforcement agency is required to file an F-5 Report on all officers when they leave employment with the agency. The report is filed with the Texas Commission on Law Enforcement Officers Standards and Education (“TCLEOSE“). The F-5 Report describes the circumstances under which an officer left the agency, and whether he was honorably discharged, generally discharged, or dishonorably discharged.
Bradberry‘s F-5 Report categorized his discharge as “dishonorable,” saying he was “terminated for an administrative violation(s) of truthfulness or insubordination.” An explanation of separation attached to the report stated that Bradberry was insubordinate, absent without leave, and failed to answer questions truthfully or provide documentation and relevant statements to the Sheriff or any supervisor in the departmental investigation when ordered.
An officer who receives an F-5 Report “may contest information contained in the report” by filing a petition with the TCLEOSE, which then refers the matter to the State Office of Administrative Hearings.
Bradberry had also filed a complaint with the United States Department of Labor. See
In May 2011, Bradberry filed suit in federal court, claiming the County violated USERRA and
DISCUSSION
I. USERRA
The parties on appeal have argued issues that arise under a provision of USERRA that bars employment discrimination on the basis of military service.
We step back briefly from the issues of this case to get some perspective on the congressional enactment. USERRA was adopted in 1994 as the first significant modification in protection of veterans’ employment rights in 50 years. “Veterans’ Law Note,”
Congress enacted USERRA for three stated purposes: “(1) to encourage noncareer service in the uniformed services” by reducing employment disadvantages; “(2) to minimize the disruption to the lives of persons performing” military service, their employers and others “by providing for the prompt reemployment of such persons upon their completion of such service; and (3) to prohibit discrimination against persons because of their service in the uni-
Two separate sections of USERRA apply to this case. One concerns discrimination against those in the military when making employment decisions.
By referring to a “motivating factor,” the statute does not textually suggest that military service be the sole factor. A Department of Labor regulation states that a plaintiff “has the burden of proving that a status or activity protected by USERRA was one of the reasons” for the employer‘s decision.
The second section of USERRA relevant for this case provides Reservists the right to reemployment when their “absence from a position of employment is necessitated by reason of service in the uniformed services.”
[A]ny person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this chapter if—
(1) the person (or an appropriate officer of the uniformed service in which such service is performed) has given advance written or [oral] notice of such service to such person‘s employer;
(2) [the cumulative length of absences is not more than five years]; and
(3) except as provided in subsection (f), the person reports to, or submits an application for reemployment to, such employer in accordance with the provisions of subsection (e).
A Reservist who meets the criteria for reemployment under
Obviously, then, a
The Department of Labor summarized five general requirements for a servicemember to be eligible for reemployment:
- That the service member be absent from a position of civilian employment by reason of service in the uniformed services;
- That the service member‘s employer be given advance notice of the service;
- That the service member have five years or less of cumulative service in the uniformed services with respect to a position of employment with a particular employer;
- That the service member return to work or apply for reemployment in a timely manner after conclusion of service; and
- That the service member not have been separated from service with a disqualifying discharge or under other than honorable conditions.
USERRA, 70 Fed. Reg. at 75251; see also
The regulations, on both discrimination and on reemployment rights, make a reasonable interpretation of the evidentiary burdens of those claims and their respective defenses. We apply them to the present dispute.
Having identified differences between the anti-discrimination and the reemployment rights sections, we briefly address some similarities. A USERRA treatise has usefully drawn from the statutory language and caselaw how an employer‘s actions involving an employee returning from military service can occasionally implicate both parts of the Act:
Section 4311‘s protection against discrimination and retaliation should not be confused with the right to reemployment under § 4312 of USERRA. It is possible that denying reemployment to a returning servicemember could, depending on the facts, give rise to claims under both § 4311 and § 4312. Nonetheless, the two sections are separate and distinct. Section 4312 entitles a returning servicemember to reemployment rights and benefits provided by USERRA if the person meets reemployment-eligibility criteria enumerated in § 4312. No showing of discriminatory or retaliatory intent is necessary to establish a violation of § 4312. By contrast, § 4311 does not provide for entitlement to USERRA‘s reemployment rights and benefits but, rather, protects against denial of reemployment for a discriminatory or retaliatory reason. Thus, a discriminatory or retaliatory motive must be shown to establish a violation of § 4311.
KATHRYN PISCITELLI AND EDWARD STILL, US-ERRA MANUAL § 7:5 (West 2012) (footnotes omitted).
In its order denying partial summary judgment, the district court stated it was unclear which provision of USERRA Bradberry was using. None of the parties presented arguments explicitly stating that
The arguments of the parties and the district court‘s order primarily address
II. Collateral Estoppel
We have just discussed the burdens of proof in the claim that confronts us. Bradberry argues that he has already met his burden of proving discrimination due to prior administrative proceedings concerning his discharge. He relies on the doctrine of collateral estoppel, which prevents the same parties or their privies from relitigating issues that were litigated and decided in a prior action.6 Bradberry urges the court to treat the ALJ‘s findings regarding his termination as final in this litigation, thus precluding Jefferson County from relitigating the circumstances surrounding his separation from the Sheriff‘s Department.
Collateral estoppel prevents litigation of an issue when: “(1) the identical issue was previously adjudicated; (2) the issue was actually litigated; and (3) the previous determination was necessary to the decision.” Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 290 (5th Cir. 2005). As the district court stated, some of our decisions recognize a fourth factor, namely, whether there are any special circumstances that make it unfair to apply the doctrine. These equitable considerations apply only to “offensive collateral estoppel.” See Swate v. Hartwell (In re Swate), 99 F.3d 1282, 1290 (5th Cir. 1996) (noting that some of our decisions improperly suggest the equitable factor applies to all collateral estoppel situations). The Supreme Court has defined the term as follows:
[O]ffensive use of collateral estoppel occurs when the plaintiff seeks to foreclose the defendant from litigating an issue
the defendant has previously litigated unsuccessfully in an action with another party. Defensive use occurs when a defendant seeks to prevent a plaintiff from asserting a claim the plaintiff has previously litigated and lost against another defendant.
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 4, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979).
Parklane did not categorize all collateral estoppel situations but only those in which one of the litigants was not a party to the prior proceeding. The Court was answering “whether a litigant who was not a party to a prior judgment may nevertheless use that judgment ‘offensively’ to prevent a defendant from relitigating issues resolved in the earlier proceeding.” Id. at 326. It recognized that the doctrine of mutuality of parties had traditionally been a bar to the use of collateral estoppel: “Under this mutuality doctrine, neither party could use a prior judgment as an estoppel against the other unless both parties were bound by the judgment.” Id. at 326-27. The Court altered the requirement of mutuality and permitted a plaintiff not involved in the earlier litigation to estop a defendant from relitigating an issue on which it earlier lost if no unfairness resulted. Id. at 331. In the case before us, the collateral estoppel issue arises from previous proceedings in which both parties were involved. Consequently, the Parklane distinction between offensive and defensive estoppel when the prior proceedings did not involve both current parties does not apply.
In Swate, we acknowledged that “some recent decisions list the fairness requirement as a general requirement for the application of issue preclusion.” Swate, 99 F.3d at 1290. We noted, though, that the requirement originated in Parklane. Id. We concluded that if a case involves mutual estoppel, i.e., where both parties were litigants in the prior action, “an inquiry into special circumstances is unnecessary.” Id. Therefore, the district court erred in relying on equitable factors in concluding that collateral estoppel did not apply.
The district court rejected collateral estoppel. Generally, the issue of whether to apply collateral estoppel is a question of law, making our review de novo. United States v. Brackett, 113 F.3d 1396, 1398 (5th Cir. 1997). Our review is for an abuse of discretion, though, when considering a district court‘s evaluation of whether special circumstances exist to justify offensive collateral estoppel. Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 391-92 (5th Cir. 1998). Because offensive collateral estoppel is not involved in this case, our examination of the district court‘s decision is de novo.
The first relevant proceeding was a state administrative hearing. Jefferson County argued in the district court that the ALJ‘s findings are not entitled to preclusive effect. It has narrowed its argument on appeal just to say that these administrative proceedings are not entitled to preclusive effect. Whether state agency decisions are usable in federal court “is determined by the treatment those proceedings would receive in the courts of the state ... in which those prior proceedings were held.” Norris v. Hearst Trust, 500 F.3d 454, 460-61 (5th Cir. 2007); see also
Texas law applies collateral estoppel “to administrative agency orders when the agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate.”
Having determined the ALJ‘s findings can at times be preclusive, we now consider whether collateral estoppel is appropriate here. We are to consider whether: (1) the issue at stake in the USERRA claim is identical to the one involved in the proceeding before the ALJ; (2) the issue was actually litigated before the ALJ; and (3) the ALJ‘s determination was necessary to the decision. See Pace, 403 F.3d at 290. Additionally, “both the facts and the legal standard used to assess them [must be] the same in both proceedings.” Copeland v. Merrill Lynch & Co., 47 F.3d 1415, 1422 (5th Cir. 1995).
Bradberry argues there are four findings by the ALJ that are precluded from relitigation. One is that the County discharged him due to a disagreement about military leave. The other three are that Bradberry was not insubordinate, was not absent without leave, and did not fail to provide adequate documentation regarding the reasons for his absence. The ALJ clearly made fact-findings that rejected the trio of reasons offered by the County for Bradberry‘s termination. Less clear is if the ALJ actually found that Bradberry was discharged due to a “disagreement over military leave,” or simply ordered, after finding that the County had not proved its stated grounds, an essentially meaningless substitute explanation.
In answering this question, we start by repeating that the issue before the ALJ was whether “the alleged misconduct occurred“; when there is insufficient evidence to show the claimed misconduct, the ALJ orders the report to be changed.
The ALJ‘s order summarized the evidence about Bradberry‘s military duty, the extension of the period of leave, and the communications between the County and Bradberry. Immediately following that summary was this statement: “The best explanation on the F-5 form for the circumstances” of the termination includes that it was due to “[d]isagreement over military leave.” We accept that sentence as a fact finding because it resolved a factual issue based on the available evidence.
For collateral estoppel, though, not only must the earlier proceedings have actually adjudicated the specific issue, but that determination must have been necessary to the decision. Pace, 403 F.3d at 290. The parties have not briefed the intricacies of Texas administrative practice to help us understand whether the ALJ‘s finding about the real reason Bradberry was discharged was a necessary finding. We will assume in our analysis that it was.
A. Discrimination claim
The burden for a plaintiff in a
We therefore hold that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.
Staub v. Proctor Hosp., 131 S.Ct. 1186, 1194, 179 L.Ed.2d 144 (2011) (footnotes omitted). The Court was evaluating a situation in which the supervisor with the animus was not the final decision-maker, thus requiring an analysis of whether the supervisor‘s intent had actually motivated the ultimate employment action. Id. at 1192-93. That analysis is not needed here.
We apply that understanding here to say that if one reason for the employer‘s actions was Bradberry‘s “membership, application for membership, service, application for service, or obligation for service in the uniformed services,” then that reason was a motivating factor.
The evidence so far presented in this case or, based on the ALJ‘s summary, in the administrative action, has never shown an animus by the County towards those in military service. It supports that the County had doubts about the legitimacy of Bradberry‘s extension of military leave. A memorandum was sent by the County to the Department of Labor when Bradberry‘s complaint was being reviewed. The County set out what it had requested from Bradberry and how he had not complied. The memorandum states that other County officers had military obligations, and all other officers had responded acceptably to the periodic request for verification of their service. The Department of Labor found that Bradberry “was not forthcoming or cooperative” with the request for documentation. The ALJ detailed the disagreements the County and Bradberry had about what was available that could prove he had been ordered to extend his military service. There also is evidence to support that the County actually considered Bradberry to be absent without leave and insubordinate.
We apply these findings to the requirements of a
We conclude that a finding that Bradberry was discharged due to a disagree-
B. Violation of Reemployment Rights
The ALJ‘s finding that Bradberry had been discharged due to a disagreement about military leave presents the need to consider
Though we have held that the finding of a disagreement about military leave is not sufficient to prove motivation under
We do not analyze the possible collateral estoppel effects of the ALJ‘s decision on a
C. Affirmative Defenses
We address one final disputed point, namely, the degree to which affirmative defenses are properly in this case. The district court discussed affirmative defenses under USERRA. The defenses create factual issues beyond those presented to the ALJ regarding the F-5 Report. The district court stated that other issues could include whether the military service was a motivating factor and whether he would have been terminated anyway. The district court called Bradberry‘s possibly deficient advance notice an affirmative defense under
Initially, the County raised no affirmative defenses in its answer. A week after Bradberry mentioned their absence in a footnote to his summary judgment brief, the County filed an amended answer. The defenses it raised were these:
Defendant is not liable to Plaintiff because Defendant would have terminated Plaintiff in the absence of Plaintiff‘s military status. Specifically, Defendant would have terminated Plaintiff for his insubordination and failure to truthfully answer questions or provide documentation and relevant statements to the Sheriff or any supervisor in a departmental investigation when so ordered.
Generally, affirmative defenses must be presented in the answer.
The County‘s reply to Bradberry‘s motion raised what it labeled as “defenses” of deficient advance notice, failure to return promptly to civilian work following the completion of Army Reserve duty, and absence of proof that the military had determined there was a military necessity to extending his orders. Those are not affirmative defenses but are parts of Bradberry‘s case. It also argued the
By the time the summary judgment motion was fully briefed, several defenses had been injected into the case. Bradberry had the opportunity to respond and made no objection. The district judge considered the defenses. We conclude that the technical failure to plead all the currently presented defenses does not prevent consideration of them.
III. Preemption
Jefferson County argues that USERRA preempts
IV. Supplemental Jurisdiction
As discussed above,
If a public official fails to comply with a provision of [Chapter 613], a district court in the district in which the individual is a public official may require the public official to comply with the provision on the filing of a motion, petition, or other appropriate pleading by an individual entitled to a benefit under the provision.
The relevant statute says “a [state] district court in the district in which the individual is a public official” is the proper court to hear the claim.
Our question is far simpler: does a statute that identifies which state court is to hear a certain case prevent a federal district court—which of course is not the identified state court—from exercising supplemental jurisdiction over the claim? There is nothing extraordinary about a state statute limiting which court can hear a claim. Whatever
AFFIRMED.