Anthony ROGERS; et al., Plaintiffs, Anthony Rogers; Richard Morales; Ventura Calderon, Jr.; Andrew L. Almazan; Robert J. De Leon; Rolando Cesar Garza; Robert A. Gearhart; Isidro Medina, Jr.; Timothy L. Menchaca; Emilio M. Montes; Bruce R. Moore; Nathaniel Oakman; Antonio Rivas; Jeffery J. Zavala; and George W. Randall, Plaintiffs-Appellees, v. CITY OF SAN ANTONIO, Defendant-Appellant.
No. 03-50588.
United States Court of Appeals, Fifth Circuit.
Dec. 2, 2004.
392 F.3d 758
Martha Powell Owen (argued), Wiseman, Durst, Tuddenham & Owen, Austin, TX, for Plaintiffs-Appellees.
W. Wendell Hall, Rosemarie Kanusky (argued), Cyndi Michelle Benedict, Ful-
Edward Himmelfarb, Michael Jay Singer, U.S. Dept. of Justice, Civ. Div.-App. Staff, Washington, DC, for U.S., Amicus Curiae.
Appeal from the United States District Court for the Western District of Texas.
Before JONES, DENNIS and PICKERING, Circuit Judges.
DENNIS, Circuit Judge:
Plaintiffs, fifteen employees of the San Antonio fire department, who are members of either the United States military reserves or the National Guard (“Uniformed Services“), brought this civil action under the Uniform Services Employment and Reemployment Rights Aсt of 1994 (“USERRA“)1 against the City of San Antonio, Texas for declaratory, injunctive, and equitable relief; compensation for lost wages and benefits; and additional liquidated damages. The plaintiffs contend that the City violated USERRA by denying them employment benefits because of their absences from work while performing their military duties in the Uniformed Services. More specifically, the employees assert that the City‘s Collective Bargaining Agreement (“CBA“) and policies regarding military leave of absence deprive them of straight and overtime pay, opportunities to earn extra vacation leave and vacation scheduling flexibility, and opportunities to secure unscheduled overtime work and job upgrades. Plaintiffs assert that under USERRA
Facts
Plaintiffs are employed by the City fire department in its Fire Suppression division and Emergency Medical Services division (“Firefighters“). The CBA between the City and the employees’ Union governs
The parties agreed to bifurcate the liability and damages issues and filed cross-motions for partial summary judgment on the question of whether the City violated USERRA and is therefore liable to the plaintiffs. They also filed cross-motions on whether the plaintiffs’ claims were barred or curtailed by a statute of limitations, laches or estoppel. The record consists principally of a joint stipulation of facts, the CBA, and a number of depositions.
The district court granted the employees’ motion as to liability on substantially all claims and denied the City‘s cross-motion. The district court then referred the cross-motions regarding the statute of limitations, laches and estoppel to a magistrate judge. The magistrate judge granted plaintiffs’ motion on these issues, holding that the emplоyees were entitled to recover retrospective damages for the four-year period preceding the filing of their complaint. The district court determined that the summary judgments on the issues of liability and limitations on retrospective recovery “involve a controlling question of law to which there is a substantial ground for difference of opinion,” and certified the judgments for interlocutory appeal under
Standards of Review
The threshold question of law is one of statutory construction, viz., namely which provision of USERRA,
Once we have interpreted the statute and decided upon its proper application, we address the parties’ cross-motions de novo, applying the same standards prescribed for use by the district court. See Walker v. Thompson, 214 F.3d 615, 624 (5th Cir.2000).
Analysis
1.
In order to decide how USERRA should be interpreted and applied in this case we will set forth an overview of the statute to give perspective to our reading of its parts. Because the statute is subject to different interpretations we will examine its legislative history, predecessor statutes, pertinent court decisions, and post-enactment administrative interpretations.
The purposes of USERRA, enacted in 1994, are: (1) “to encourage noncareer service in the uniformed services6 by eliminating or minimizing the disadvantagеs to civilian employment which can result from such service“; (2) to provide for “the prompt reemployment” of persons returning to civilian jobs from military service and to “minimize the disruption [of their] lives ... as well as [to those of] their employers, fellow employees and communities“; and (3) “to prohibit discrimination against persons because of their service in the uniformed services.”
USERRA is the most recent in a series of laws protecting veterans’ employment and reemployment rights dating from the Selective Training and Service Act of 1940.7 USERRA‘s immediate precursor, the Veterans’ Reemployment Rights Act (VRRA), was enacted as § 404 of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974.8 “Congress emphasized [1] USERRA‘s continuity with the VRRA and its intention to clarify and strengthen that law. [2] Federal laws protecting veterans’ employment and reemployment rights for the past fifty years had been successful.” [3] “[T]he large body of case law that had developed under those statutes remained in full force and effect, to the extent it is consistent with USERRA.”9
USERRA‘s anti-discrimination provision prohibits an employer from denying initial employment, reemployment, retention in employment, promotion, or any benefit of employment to a person on the basis of membership, application for membership, performance of service, application for service, or obligation of service.
Any person whose absence from a position of employment is necessitated by reason of service in the uniformed services is entitled to the reemployment rights and benefits of USERRA.
An employer must promptly reemploy a person returning from a period of service if the person meets the Act‘s eligibility criteria.
In construing a precursor to USERRA, the Supreme Court in Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946), invented the “escalator” principle in stating that a returning service member “does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war.” Id. at 284-285, 66 S.Ct. 1105. Although Fishgold was mainly a seniority case, the escalator principle applies to the employment position, and rate of pay, as well as the seniority rights to which the returning service member is entitled.13
Thus, USERRA requires that the service member be reemployed in the escalator job position comparable to the position he would have held had he remained continuously in his civilian employment.
A person who is reemployed under USERRA is entitled to the seniority and other rights and benefits determined by seniority that the person had on the date of the beginning of service plus the additional seniority and rights and benefits that he or she would have attained if the person had remained continuously employed.16
B. Legislative History and Jurisprudence
The nation‘s first peacetime draft law, the Selective Training and Service Act of 1940 was designed to provide reemployment for veterans returning to civilian life in positions of “like seniority, status, and pay.” Pub.L. No. 54-783, § 8, 54 Stat. 885, 890 (1940). In 1951, Congress extended reemployment rights to reservists who had been called up from civilian jobs for active or training duty. Pub.L. No. 51, Ch. 144, § 1(s), 1951, 65 Stat. 75, 86-87. The Armed Forces Reserve Act of 1952 extended reemployment rights to National Guardsmen. Pub.L. No. 476, 66 Stat. 481. The Reserve Forces Act of 1955, Pub.L. 305, Ch. 665, § 262(f), 69 Stat. 598, 602, “provided that employees returning from active duty for more than three months in the Ready Reserve were entitled to the same employment rights as inductees, with limited exceptions.” Monroe v. Standard Oil Co., 452 U.S. 549, 555, 101 S.Ct. 2510, 69 L.Ed.2d 226 (1981).
In 1960, these reemployment rights and benefits were extended to National Guardsmen. Pub.L. 86-632, 74 Stat. 467. See VRRA § 2024(c), Monroe, 452 U.S. at 549. A new section, VRRA § 2024(d), was also enacted in 1960 to protect employees who had military training obligations lasting less than three months. “This section provide[d] that employees must be granted a leave of absence for training and, upon their return, be restored to their positions ‘with such seniority, status, pay, and vacation’ as they would have had if they had not been absent for training.” Monroe, 452 U.S. 549.
VRRA § 2024(d) did not, however, protect reservists from discrimination by their employers in the form of discharges, demotions, or other adverse conduct between leaves of absence for training. In the years following its enactment discriminatory employment practices intensified. Congress responded with legislation codified as VRRA § 2021(b)(3) which, in pertinent part, provided that “[a]ny person who [is employed by a private employer] shall not
Senate Report No. 1477 explained the purpose of § 2021(b)(3) as follows:
Employment practices that discriminate against employees with reserve obligations have become an increasing problem in recent years. Some of these employees have been denied promotions because they must attend weekly drills or summer training and others have been discharged because of these obligations ... The bill is intended to protect members of the Reserve components of the Armed Forces from such practices.... [Under it] reservists will be entitled to the same treatment afforded their coworkers not having such military obligations.... S.Rep. No. 1477, 90th Cong., 2d Sess., Reprinted in (1968) U.S.Code Cong. & Admin. News, pp. 3421, 3421.
The House Report similarly indicated that these were the purposes and effects of the legislation. H.R.Rep. No. 1303, 90th Cong.2d Sess., 3 (1968). See Monroe, 452 U.S. at 557.
As the Sixth Circuit noticed in Monroe v. Standard Oil Co., 613 F.2d 641, 646 (6th Cir.1980), however, VRRA § 2021(b)(3) was subject to two different interpretations:
First, it can be read to mean that any time an employee‘s forced absence for reserve duty requires him to forgo a benefit that would have accrued to him only if he had been present for work, he has been “denied” an incident or advantage of employment “because of” his military obligation.
Or, it can be read to “merely require[] that reservists be treated equally or neutrally with their fellow employees without military obligations[,]” and “[t]o meet this requirement, collective bargaining agreements and employment rules must be facially neutral and must be applied uniformly and equally to all employees.” Id.
The Fifth Circuit and other courts adopted the first interpretation of VRRA § 2021(b)(3) by holding that, if the right in question is granted to all employees but is denied to a reservist solely because of his absence to attend to military obligations, the reservist is denied an “incident or advantage of employment” because of an obligаtion as a member of a reserve component.21
In West v. Safeway Stores, Inc., the Fifth Circuit construed § 2021(b)(3) “to require that employers, in applying collective bargaining agreements, treat reservists as if they were constructively present during their reserve duty in similar contexts.” 609 F.2d at 150. The employee, a meat cutter, had contended that, since the collective bargaining agreement guaranteed a 40 hour work week and because the only reason that he was not receiving a 40 hour work week was due to his National Guard obligations, he was being denied an advantage of employment. The court agreed and held that the employer must provide him with his guaranteed 40 hour work week despite the fact that the collective bargaining agreement specifically provided that an employee‘s absence for weekend
The Sixth Circuit in a virtually identical situаtion, involving a 40 hour work week guarantee, however, disagreed with West, holding that § 2021(b)(3) merely required that reservists be treated no differently than other employees who are absent for non-military reasons. Monroe, 613 F.2d 641. The employee‘s collective bargaining agreement right to work a 40 hour week, as in West, was contingent on the employee being present for work or arranging to switch shifts, as permitted by the agreement. Thus, the court held, because the employee was treated the same as his coworkers regarding absences and exchanging shifts, that right did not vest when the employee failed to do either, and the employer was required to do no more than grant him a leave of absence without pay to comply with his military reserve obligation. Further, the court found “nothing in the legislative history or the statute to support judicial invalidation of nondiscriminatory conditions precedent to employee benefits and adhere[d] to [its] belief that conditional benefits are protected by § 2021(b)(3) only to the extent that the conditions have been actually satisfied.” Id. at 647.
The Supreme Court granted certiorari in Monroe, affirmed the Sixth Circuit‘s decision, and substantially agreed with its reasoning. 452 U.S. 549, 101 S.Ct. 2510, 69 L.Ed.2d 226. The Supreme Court concluded that the “legislative history ... indicates that § 2021(b)(3) was enacted for the significant but limited purpose of protecting the employee-reservist against discrimination like discharge and demotion,” by reason of reserve status. Id. at 559, 101 S.Ct. 2510. Further, the Court found nothing in § 2021(b)(3) or its legislative history to indicate that Congress even considered imposing an obligation on employers to provide a special work-scheduling preference, but rather that the history suggests that Congress did not intend employers to provide special benefits to employee-reservists not generally made available to other employees. Id. at 561, 101 S.Ct. 2510. Because the Supreme Court‘s interpretation of § 2021(b)(3) is contrary to the Fifth Circuit‘s decision in West, and the high court nоted the “apparent intercircuit conflict on this issue” between West and the Sixth Circuit‘s decision,23 we conclude that West‘s “constructive presence” interpretation was disapproved by Monroe.
After the Supreme Court‘s decision in Monroe, the Third Circuit, in Waltermyer v. Aluminum Co. of America, 804 F.2d 821 (3d Cir.1986), addressed whether a National Guardsman was entitled to pay for a holiday that occurred during his leave of absence for a two-week military training period. “The collective bargaining agreement limited eligibility for holiday pay to individuals who worked during that week, but exempted from that requirement persons in a number of categories who were absent for reasons beyond their control.” Id. at 821. The agreement provided that full-time employees would receive pay for designated holidays if, during the payroll week in which the holiday occurs, the employee is at work; on a scheduled vacation;
The Senate report on the bill that became
[A]n individual who serves in the uniformed services will be considered to be on furlough or leave of absence while in the service [and] will be entitled to the same rights and benefits not determined by seniority that are generally provided to the employer‘s other employees with similar seniority, status, and pay who are on furlough or leave of absence[,] under a practice, policy, agreement, or plan in effect at the beginning of the period of uniformed service or which becomes effective during the period of service. Id.
The House Report declared that the bill had the same purpose and effect. The bill was described as providing for “[r]ights, benefits, and obligations of persons absent from employment for service in a uniformed service.” H.R. Rep. 103-65(I) (April 28, 1993). The House Report elaborated:
The Committee intends to affirm the decision in Waltermyer v. Aluminum Co. of America, 804 F.2d 821 (3d Cir.1986) that, to the extent the employer policy or practice varies among various types of non-military leaves of absence, the most favorable treatment accorded any particular leave would also be accorded the military leave, regardless of whether the non-military leave is paid or unpaid. Thus, for example, an employer cannot require servicemembers to reschedule their work week because of a conflict with reserve or National Guard duty, unless all other employees who miss work are required to reschedule their work. Cf. Rumsey v. New York State Dept. of Corr. Services, 124 L.R.R.M. 2914, 1987 WL 11617 (N.D.N.Y.1987).
Although the legislative history of the bill that became
Conversely, USERRA‘s legislative history does not indicate that Congress intended to rely on
Further, the brief legislative history of the bill that became
Current law protects Reserve and National Guard personnel from termination from their civilian employment or other forms of discrimination based on their military obligations. Section 4311(a) would reenact the current prohibition against discrimination which includes discrimination against applicants for employment, (see Beattie v. The Trump Shuttle, Inc., 758 F.Supp. 30 (D.D.C.1991)), current employees who are active or inactive members of Reserve or National Guard units, current employees who seek to join Reserve or National
Guard units (see Boyle v. Burke, 925 F.2d 497 (1st Cir.1991)), or employees who have a military obligation in the future such as a person who enlists in the Delayed Entry Program which does not require leaving the job for several months. See Trulson v. Trane Co., 738 F.2d 770, 775 (7th Cir.1984).
H.R. Rep. 103-65(I) (April 28, 1993). The Senate report likewise does nоt indicate that Congress intended to prohibit such neutral labor contract provisions. The report, in most pertinent part, provides:
New section 4311(a) would specify the relationship to service that would bring individuals within the VRR law and also specifies the actions of employers that would constitute violations of that law. Specifically, as to individuals, the section would provide that individuals who are members of, perform, have performed, apply to perform, or have an obligation to perform service in the uniformed services would be covered by the law. The section would provide that such individuals may not be denied initial employment, reemployment, retention, promotion, or any benefit of employment by an employer on the basis of the relationship to service.
S. Rep. 103-158 (October 18, 1993).
The legislative history of §§ 4311(a) and 4316(b)(1) does not mention West, 609 F.2d 147. On the other hand, that legislative history expresses an intent to codify in
C. Section 4316(b)(1) Governs This Case
Section 4316(b)(1) of USERRA provides that an employee who is absent from employment for military service is deemed to be on leave of absence and “entitled to such other rights and benefits not determined by seniority ... generally provided by the employer to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice or plan....” Reading
For these reasons, we conclude that the district court erred in deciding that
The district court decided that “[s]ection 4316 is inapplicable to this case[, because] it only applies to a person who is reemployed under this chapter or who is absent on furlough or leave of absence.”26 The district court stated that § 4316 “is specifically tailored to apply to a reservist or veteran returning to employment from active duty rather than reservists ... who have been away for relatively short periods [for] drilling and training[.]”27 Furthermore, the court stated, “the anti-discrimination provisions (now § 4311(a-e), formerly, § 2021(b)(3)) were specifically added ‘to protect the rights of reservists which had been found to be inadequately protected’ under the provision cited by the City (§ 4316, formerly VRRA § 2024(d)).”28 Concluding that this case should be analyzed and decided under USERRA‘s
We believe that the district court was mistaken in each of its reasons for deciding that
First,
Second, “reemployment” is not formally defined in § 4303, but §§ 4312-4313, providing for USERRA reemployment rights and positions, plainly apply to “any person whose absence from a position of employment is necessitated by reason of service in the uniformed services.”
Third, the district cоurt mistakenly thought that VRRA § 2024(d) was the precursor of USERRA
Finally, as we have noted, West and its “constructive present” theory of interpretation was disapproved by the Supreme Court in Monroe and legislatively overruled in the codification of Monroe and Waltermyer by USERRA
2.
Applying
We further conclude that the district court‘s summary judgment with respect to: (1) bonus day leave; (2) perfect attendance leave; and (3) the twenty-seven hour cap on lost overtime must be reversed and the case remanded for further proceedings on these claims. There are genuinely disputable issues as to the material facts of whether involuntary non-military leaves, not generally for extended du-
We also conclude that the summary judgment in favor of Anthony Rogers must be reversed because the record does not contain adequate evidence to support the judgment. The City must be granted summary judgment on this claim.
3.
We must determine the period of time, pre-filing, during which damages accrued so as to be recoverable under USERRA. The district court referred the issues regarding the statute of limitations, laches, and equitable estoppel to a magistrate judge and the parties consented to the magistrate judge‘s jurisdiction pursuаnt to
Section 4323 of USERRA does not provide a time limit for bringing a claim for relief, stating only that “[n]o State statute of limitations shall apply to any proceeding under this chapter.”
Plaintiffs presented arguments in both this court and the district court that
Because plaintiffs took the position before the magistrate judge that the four-year residual statute of limitations of
The City also argues that regardless of the applicable limitations period for plaintiffs’ claims, those claims are barred by the equitable doctrines of laches and estoppel. The district court determined that the plaintiffs’ damages claims are not affected by those equitable affirmative defenses.
In order to invoke the doctrine of laches, the City must show an inexcusable delay in asserting a right and undue prejudice to the City as a result of that delay.38 To invoke the doctrine of equitable estoppel, the City must show that it relied on a representation by plaintiffs, changed its position based on that reliance, and that it was prejudiced because of that change in position.39 Essential to both of those claims is a showing by the City that it was prejudiced by plaintiffs’ failure to bring their claims earlier. Because the district court properly found that the City did not introduce any summary judgment evidence either that any “delay” in plaintiffs asserting their claims was inexcusable or that the City was prejudiced by such delay, plaintiffs’ claims are not barred by the equitable doctrines of laches or estoppel.
The City‘s only allegations of prejudice are that at least one of the named plaintiffs no longer works for the City, that potential witnesses may be retired or unavailable, and that the City had already fulfilled its monetary liability to Plaintiffs by paying them under the CBA. Not only has the City presented no summary judgment evidence of such prejudice, but similar allegations of prejudice have been held to be insufficient in the USERRA framework.40
Considering that the рlaintiffs limited their claims for damages to the four-year period before the filing of their suits in the district court and that the City has not shown that it was prejudiced because of an inexcusable delay on plaintiffs’ part, we affirm the district court‘s ruling that plaintiffs’ claims for damages, if any, were not barred but are limited to recovery of damages commencing on October 4, 1995, four years preceding the filing of their claim.
The district court‘s judgment on the statute of limitations, laches, and equitable estoppel claims is AFFIRMED. Otherwise, the district court‘s judgment is REVERSED. Judgment is rendered for the City dismissing plaintiffs’ claims for (1) lost straight-time pay; (2) lost overtime opportunities; and (3) missed upgrading opportunities. Judgment is also rendered for the City dismissing Anthony Rogers’ individual claim. The case is REMANDED for further proceedings on the plaintiffs’ claims for (1) bonus day leave; (2) perfect attendance leave; and (3) the twenty-seven hour cap on lost overtime.
Shirley McLAURIN, Individually and on Behalf of the Heirs of Milton Stubbs, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 04-60163.
United States Court of Appeals, Fifth Circuit.
Dec. 2, 2004.
Notes
A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform services in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.
[A] person who is absent from a position of employment by reason of service in the uniformed services shall be—
(A) deemed to be on furlough or leave of absence while performing such service; and
(B) entitled to such other rights and benefits not determined by seniority as are generally provided by the employer of the person to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect at the commencement of such service or established while such person performs such service.
This definition imposes two requirements: first, the benefit must be provided as a reward for length of service rather than a form of short-term compensation for services rendered; second, the service member‘s receipt of the benefit, but for his or her absence due to service, must have been reasonably certain. See Coffy v. Republic Steel Corp., 447 U.S. 191, 100 S.Ct. 2100, 65 L.Ed.2d 53 (1980); Alabama Power Co. v. Davis, 431 U.S. 581, 97 S.Ct. 2002, 52 L.Ed.2d 595 (1977); see also S.Rep. No. 103-158, at 57 (1993), citing with approval Goggin v. Lincoln, St. Louis, 702 F.2d 698, 701 (8th Cir.1983) (summarizing Supreme Court formulation of two-part definition of “perquisites of seniority“).
Proposed Regulation, summary 69 F.R. No. 181 at 56276.
Rights not based on seniority Section 4316(b)[:] Departing service members must be treated as if they are on a leave of absence. Consequently, while they are away they must be entitled to participate in any rights and benefits not based on seniority that are available to employees on non-military leaves of absence, whether paid or unpaid. If there is a variation among different types of nonmilitary leaves of absence, the service member is entitled to the most favorable treatment so long as the nonmilitary leave is comparable. For example, a three-day bereavement leave is not comparable to a two-year period of active duty.
Id. Available at: http://www.dol.gov/vets/whatsnew/uguide.pdf.