Miсhael VAHEY, Plaintiff, v. GENERAL MOTORS COMPANY, Defendant.
Civil Action No. 11-661 (JDB)
United States District Court, District of Columbia.
October 23, 2013
53
Trina L. Fairley, Crowell & Moring LLP, Washington, DC, Clay V. Fulghum, Lathrop & Gage LLP, Kansas City, MO, for Defendant.
MEMORANDUM OPINION
JOHN D. BATES, United States District Judge
Plaintiff Michael Vahey, a former employee of General Motors (“GM“) 1 and an honorably discharged veteran, brings this action against defendant GM alleging a violation of his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA“). Specifically, Vahey alleges (1) a failure to properly reemploy him after returning from his military service, (2) unlawful discharge, and (3) discrimination based on his military absence. GM has moved for summary judgment on all three of Vahey‘s claims pursuant to
I. Background
Vahey worked for GM from 1997 to 2005. Deposition of Michael Vahey (“Vahey Dep.“), Ex. A to Def.‘s Mot. for Summ. J. (“MSJ“) [Docket Entry 22-1] at 24, 67; Compl. [Docket Entry 1] ¶¶ 10, 16. He started as a contract employee in 1997 at an assembly plant in Baltimore, Maryland, Vahey Dep. at 24, and was first hired as a salaried employee in March 1998, id. at 26. Vahey earned a series of promotions while he worked at the Baltimore plant. Id. at 28-29; Declaration of Michael J. Vahey (“Vahey Decl.“), Ex. A to Pl.‘s Opp‘n to MSJ [Docket Entry 24-1] ¶ 1; Compl. ¶ 12. He also received expanded job responsibilities. See Vahеy Dep. at 32-34.
Vahey applied for and received a lateral transfer to the position of Resident Quality Launch Engineer in August 2004. Id. at 34; Compl. ¶ 15. As a “Resident” Quality Launch Engineer, Vahey was not assigned to the headcount of any particular GM facility, but instead was a General Motors “North America” employee, meaning he would be temporarily assigned (typically for one or two-year periods) to assist with the launch of new products. See Vahey Decl. ¶¶ 17, 22. In 2004, GM assigned Vahey to assist with the launch of the Pontiac Solstice at the GM assembly plant in Wilmington, Delaware. Vahey Dep. at 35; Vahey Decl. ¶ 17. During his time at GM, Vahey‘s supervisors consistently gave him high performance ratings, at one point rating him a “high potential” employee. Vahey Dep. at 35-40; Vahey Decl. ¶ 16; Compl. ¶ 12.
Vahey had been interested in military service since the terrorist attacks of September 11, 2001, but had been reluctant to enlist due to fears that doing so might negatively impact his civilian career with GM. Vahey Dep. at 65; Vahey Decl. ¶ 18; Compl. ¶ 16. Eventually, Vahey learned about the reemployment protections given to returning servicemembers under USERRA. Vahey Dep. at 59-60; Vahey Decl. ¶ 18; Compl. ¶ 16. Under USERRA, individuals who leave a civilian job to perform five or fewer years of military service generally have the right tо be reemployed by their civilian employer upon honorable discharge from the military, and may not be terminated without cause for up to one year after their return to work. See generally
In early 2005, Vahey approached his supervisors at GM as well as multiple human resources employees to discuss his desire to take a military leave of absence. Vahey Dep. at 54-55; Vahey Decl. ¶ 19; Compl. ¶ 16. The GM employees Vahey spoke with were supportive of his decision and granted Vahey a military leave of absence, with the understanding that he would return to GM in four years. Vahey Dep. at 57-58; Vahey Decl. ¶ 19; Compl. ¶¶ 17-18. After waiting for and receiving formal approval from GM, Vahey enlisted in the United States Army on July 20, 2005. Vahey Dep. at 67-68.
Vahey spent four years on active duty with the Army, including sixteen months deployed overseas. Id. at 80. During those four years he made occasional contact with GM‘s human resources staff to express his desire to return to his job at GM after his military service. See id. at 75-78 (“I‘m still alive and it‘s still my intent to return to my career.“); Vahey Decl. ¶¶ 11-12; Compl. ¶ 21. As his military service came to an end, Vahey applied for reemployment with GM. See Vahey Dep. 86-89; Compl. ¶ 23.
As early as April 23, 2009, the GM Human Resources team began discussing Va
Vahey visited the GM plant in Wilmington, Delaware on May 5, 2009, with two months of active duty remaining. Vahey Dep. at 87-88; Vahey Decl. ¶ 13. He met with Paul Dobos, with whom he discussed the impending closure of the GM plant in Wilmington and the significant financial troubles that were then facing GM and the American automotive industry. Vahey Dep. at 87-94; see also First Affidavit of Jeffrey Haladik, Ex. C to MSJ (“First Haladik Aff.“) [Docket Entry 22-3] ¶ 4. Eventually, Dobos “said something about a separation package” and suggested that Vahey “would be getting severed.” Vahey Dep. at 89; see also Vahey Decl. ¶ 13 (“Mr. Dobos stated to me that General Motors’ outlook was not positive and that I would likely be severed.“). Vahey “felt that as a North America employee that the closure of the Wilmington plant should not necessarily affect” him, so he raised the possibility of “other opportunities” at other GM facilities. Vahey Dep. at 89-91. According to Vahey, Dobos said “[s]omething to the effect that that wasn‘t going to hаppen.” Id. at 91.
After Vahey‘s visit to the plant, internal discussions continued regarding Vahey‘s desire to return to work at GM. On June 10, 2009, Paul Dobos emailed Theresa Fellows-Blanchard: “Wilmington will have a small GMSP 8/1/09. Let me know if [Vahey] will be included in that one pending what legal and policy tell you.” Ex. B to Pl.‘s Opp‘n to MSJ at D00309. On June 17, 2009, Dobos confirmed that “Mike [Vahey] will be on Wilmington GMSP list.” Id.
Vahey was honorably discharged from the United States Army on July 20, 2009, and he visited Paul Dobos at the GM Wilmington plant a few days later, on July 23, 2009. Vahey Dep. at 99-101; Vahey Decl. ¶ 15. Dobos explained that Vahey was going to be formally added to the employment rolls for two weeks, retroactive to his final day of military service, July 20, 2009, and then he would be terminated on July 31, 2009. Vahey Dep. at 98; Vahey Decl. ¶ 15. After that, Vahey would receive six months of severance pay (about $39,000), in exchange for signing the “GM Severance Program Release Agreement.” Vahey Dep. 114-16; Vahey Decl. ¶ 15; Compl. ¶ 31. Although Vahey was formally on the GM payroll for two weeks, Vahey Decl. ¶ 19, there is no indication from the record that he actually performed any job-related duties, nor was there any discussion of his employment being extended after July 31, 2009, see id.
The GM Wilmington plant “ceased production operations” on July 28, 2009, leading to the elimination of over 1,000 jobs, First Haladik Aff. ¶ 5, approximatеly 114 of which had belonged to salaried employees like Vahey, see Ex. D to Pl.‘s Opp‘n to MSJ [Docket Entry 24-4].2 Vahey was among the first six salaried employees terminated in connection with the closing of the plant. See Ex. D to Pl.‘s Opp‘n to MSJ at D00399. Most GM Wilmington
Vahey filed this lаwsuit alleging violations of his USERRA rights on April 1, 2011. GM moved to dismiss, relying solely on the release3 that Vahey signed upon receiving his severance package. The Court denied the motion to dismiss,4 and GM moved for summary judgment at the close of discovery.
II. Standard of Review
A. Summary Judgment
Summary judgment is appropriate when the pleadings and the evidence demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
In determining whether there is a genuine dispute of material fact sufficient to preclude summary judgment, the Court must regard the non-movant‘s statements
B. USERRA
Enacted in 1994, “USERRA is the latest in a series of laws protecting veterans’ employment and reemployment rights.”
For servicemembers who spend more than ninety days in the military, Section 4313(a)(2) of USERRA requires reemployment “in the position of employment in which [the servicemember] would have been employed if the continuous employment of such person with the employer had not been interrupted” by military service.
Once properly reemployed, returning servicemembers who spent more than 180 days in the military “shall not be discharged . . . except for cause,” within the
Finally, USERRA contains a “catch-all” discrimination provision, providing that a returning servicemember “shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of” their military service.
III. Analysis
Vahey brings three claims under USERRA. First, he claims that GM failed to properly reemploy him as required by
A. Count 1: Failure to Properly Reemploy — 38 U.S.C. § 4312(a)
Vahey‘s first claim is that GM failed to properly reemploy him as required by
1. In what position was Vahey reemployed?
GM claims that “it reinstated plaintiff to the same position and seniority date he held prior to his leave, and adjusted his pay rate to account for any increases to which he may have been entitled during his leave period.” MSJ at 7; see also Def.‘s Statement of Undisputed Facts (“Def.‘s SOF“) ¶¶ 5-7. Vahey disagrees, claiming that he “was not actually reemployed into any position,” and that he “was simply put back on the rolls for the purpose of being terminated.” Pl.‘s Opp‘n to MSJ at 36. On Vahey‘s view, “[p]lacement into a position without any duties, and with a clear intent simply to terminate the employee is nothing more than a pro forma reinstatement that does not comply with USERRA . . . .” Id.
In other words, the parties agree that Vahey was formally reinstated to the position of Quality Launch Engineer, and that he was officially placed on “paid status” for the two weeks between July 20, 2009 and August 1, 2009. But the parties disagree about what this means. GM considers it a full and proper reemployment; Vahey considers it a “pro forma” fig leaf that masks his true reemployment position: layoff status. Unfortunately, the parties’ briefing focuses little attention on this point, and neither the parties nor the Court have identified any cases analyzing this precise issue. Noting that USERRA “must be broadly construed in favor of its military beneficiaries,” Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 303 (4th Cir. 2006), the Court decides that Vahey has the better оf this argument.
The two-week period between July 20, 2009 and August 1, 2009 that Vahey spent on the GM payroll bears little resemblance to the ordinary understanding of what it means to be “employed.” First, Vahey‘s formal reinstatement was not finalized until July 23, 2009, see Vahey Decl. ¶ 15; the first three days of his so-called “reemployment” were a retroactive fiction. Second, during the two weeks, the record suggests that Vahey was not expected to — nor did he in fact — perform any job-related duties. It appears that the only time Vahey was even on the premises at the GM Wilmington plant during this period of “reemployment” was on July 23, 2009, when he came in to sign his severance paperwork. See id. ¶¶ 15-19. Third, there was never any doubt that on August 1, 2009, Vahey was
The Court need not allow form to prevail over substance. See EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 346 (7th Cir. 1988) (“[C]ourts have invariably gone beyond job descriptions to analyze, often in-depth, actual job duties and job performance.“). This is particularly true in USERRA cases, in which Congress has “аuthorize[d] a district court to use its ‘full equity powers . . . to vindicate fully the rights of veterans.’ ” Serricchio v. Wachovia Secs. LLC, 658 F.3d 169, 174 (2d Cir. 2011) (emphasis omitted) (quoting
To be sure, some courts have noted that Section 4312 requires only initial reemployment of a returning veteran, and that Section 4316 (unlawful discharge) and Section 4311 (discrimination) provide the only protections immediately thereafter. See, e.g., Petty v. Metro. Gov‘t of Nashville & Davidson Cnty., 687 F.3d 710, 718 (6th Cir. 2012) (“Once a veteran is rehired, §§ 4311 and 4316 protect him from discrimination, but allow an employer to terminate a veteran so long as it can show ‘cause’ unrelated to the veteran‘s military service.“); Francis, 452 F.3d at 304 (“[Section] 4312 only entitles a service person to immediate reemployment and does not prevent the employer frоm terminating him the next day or even later the same day. The apparent harshness of this result is addressed by the fact that §§ 4311 and 4316 operate to protect the employee as soon as she is reemployed.“) (internal citation and quotation marks omitted). Those cases, however, anticipate a situation where the veteran was actually reemployed in good faith, with at least the possibility of continued employment of indefinite length — not the pro forma, nominal reinstatement that took place here, in which all parties were aware that Vahey did not even need to show up to work, and that he would surely be officially terminated just two weeks later. See, e.g., Petty, 687 F.3d at 718 (asking whether the defendant “truly reemployed” the plaintiff) (emphasis added). Thus, the Court concludes that for the purposes of USERRA, Vahey was “reemployed” into layoff status — not the Quality Launch Engineer position that appeared on his official paperwork.
2. Is layoff status the “position” Vahey would have occupied but for his military leave?
The Court‘s determination that Vahey was “reemployed” into layoff status does not mean that he prevails on his Section 4312 claim. “USERRA is not a veteran‘s preference statute,” and “it was not intended to give returning servicemembers special benefits not provided to other employees.” Milhauser v. Minco Prods., Inc., 855 F.Supp.2d 885, 899 (D. Minn. 2012). In other words, “the escalator principle could deliver an employee into ‘layoff status’ if the ‘employee‘s seniority or job classification would have resulted in the employee being laid off during the period of service, and the layoff continued after the date of reemployment.’ ” Rivera-Meléndez v. Pfizer Pharms., LLC, 730 F.3d 49, 55 (1st Cir. 2013) (quoting
As an initial matter, GM argues that the inherent discretion in the transfer and termination decisions shields them from liability, because “the escalator principle is only intended to encompass promotions that are ‘automatic’ and ‘based solely on employee seniority.’ ” MSJ at 8 (quoting Rivera-Meléndez v. Pfizer Pharms., Inc., No. 10-1012(MEL), 2011 WL 5025930, at *8 (D.P.R. Oct. 21, 2011); rev‘d 730 F.3d 49 (1st Cir. 2013)). Vahey disagrees, arguing that the escalator principle “protects those changes and benefits which are reasonably certain to accrue,” and that “it is intended to encompass changes such as transfers.” Pl.‘s Opp‘n to MSJ at 34.
Vahey is correct. He was entitled to any “reasonably certain” employment benefits that would have accrued during his military absence, including promotions and transfers. The fact that discretion was involved in such decisions — while surely making the fact-finder‘s job more difficult — does not decide the matter in favor of GM. In support of its “discretion” argument, GM relies almost exclusively on one case, Rivera-Meléndez v. Pfizer Pharmaceuticals, Inc., No. 10-1012, 2011 WL 5025930 (D.P.R. Oct. 21, 2011). But that decision was recently reversed in a persuasive opinion by the First Circuit, at the urging of the Department of Labor as amicus curiae. See Rivera-Meléndez, 730 F.3d at 56-57. The First Circuit held that “the appropriate inquiry in determining the proper reemployment position for a returning servicemember is not whether an advancement or promotion was automatic, but rather whether it was reasonably certain that the returning servicemember would have attained the higher position but for his absence due to military service.” Id. In doing so, the First Circuit showed “substantial deference” to the Department of Labor‘s interpretation of its own regulations, according to which “general principles regarding the application of the escalator position . . . require that a service member receive a missed promotion upon reemployment if there is a reasonable certainty that the promotion would have been granted.” Id. (citing Auer v. Robbins, 519 U.S. 452, 461 (1997)); see also
When the Wilmington plant closed, GM terminated most, but not all, of the salaried employees who worked there. See Def.‘s Answer ¶ 32 (“[N]ot all employees who were working at the Wilmington, Delaware plant were terminated.“). Some received transfers to other GM facilities. Others, including Vahey, did not. Unfortunately for GM, based on this lean summary judgment record, it is impossible for the Court to determine whether Vahey would have been laid off had he not taken a four-year military leave of absence. A reasonable jury could come up with more than one explanation for why GM selected Vahey for termination, rather than a transfer.
As an initial matter, the Court notes that the parties spend much of their briefing debating whether other GM employees who were transferred (rather than terminated) are sufficiently comparable to Vahey. See generally MSJ at 12-13; Pl.‘s SOF ¶¶ 59-66; Def.‘s Reply in Supp. of MSJ [Docket Entry 26] at 7-8. The goal of this effort was laudable: if GM treated Vahey differently than his similarly-situated colleagues, this could be circumstantial evidence of a USERRA violation. See, e.g., Tex. Dep‘t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258-59 (1981) (discussing potential probative value in Title VII cases of evidence “that similarly situated employees were not treated equally“). But in this case, the Court cannot conclude (at least on summary judgment) that any of the proposed comparators are similarly-situated to Vahey “in all material respects.” Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012); see also Williams v. Chertoff, 495 F.Supp.2d 17, 33 (D.D.C. 2007) (“In this Circuit, employees are similarly situated if all relevant aspects of their employment situations . . . аre nearly identical.“) (internal quotation marks omitted). The employees in question have widely varying job descriptions and employment histories. See generally Ex. D to Pl.‘s Opp‘n to MSJ. And even if there were one or more similarly-situated comparators, it is not clear how useful such evidence would be to the fact-finder, due to the inherent discretion in GM‘s termination and transfer decisions. As one example of the complexities of such an analysis, a proper comparison of this sort might have to take into account the fact that Vahey‘s supervisors had previously designated him a “high potential” employee, see Vahey Decl. ¶ 6. But the record is silent on whether any of Vahey‘s colleagues had achieved that distinction. Similarly, Vahey‘s status as a “resident” employee — rather than one fixed to the Wilmington headcount — could be a confounding variable. See Ex. B to Pl.‘s Opp‘n to MSJ at D00306.
Because this case cannot be resolved based on an analysis of comparable coworkers — at least, not at the summary judgment stage — the Court must turn to the parties’ competing narrative explanations as to why GM selected Vahey for termination, rather than a transfer. Vahey suggests that GM simply found him to be a more convenient candidate for termination due to his four-year military absence. See Pl.‘s Opp‘n at 23. GM offers an alternative explanation, claiming that “Michael Vahey was not offered a transfer to another facility when the Wilmington plant ceased production operations because there were no available positions based on his job classification, skills, and
As support for its theory, GM repeatedly references the “financial challenges” it was facing in the summer of 2009, including the fact that “[j]ust weeks before plaintiff‘s return, [GM] had filed for Chapter 11 bankruptcy.” MSJ at 1. To be sure, such hardship lends some credence to GM‘s claim that Vahey would have been laid off even if he had never left to serve in the military. See Duarte v. Agilent Techs., Inc., 366 F.Supp.2d 1039, 1047 (D. Colo. 2005) (finding it relevant to plaintiff‘s unlawful termination claim under USERRA that defendant was suffering “serious financial hardship“). But in light of the undisputed fact that some of Vahey‘s former co-workers at the Wilmington plant were not terminated, and instead were transferred to othеr facilities, the repeated references to the financial hardships facing GM simply beg the question: Did GM select Vahey for termination for purely financial reasons? Or did his military absence affect their decision-making?
On this record, a reasonable jury could find Vahey‘s version of events more credible than GM‘s. The only evidence in the summary judgment record that could possibly shine a light on GM‘s internal decision-making process with respect to Vahey suggests there was not much deliberation at all regarding Vahey‘s “job classification, skills, and service date” before GM decided to terminate him. Just twelve days after Vahey confirmed to his superiors at GM that he intended to return to his civilian career, there was already email traffic
In contrast to the minimal evidence in the record that Vahey‘s qualifications and job skills were ever seriously considered by GM‘s human resources staff, internal emails are replete with references to Vahey‘s military leave of absence. This evidence tends to undermine GM‘s narrative, and a reasonable jury might rely on it to conclude that if it were not for his military absence, GM would not have terminated Vahey. The clearest example comes from a May 4, 2009 email from Human Resources Manager Theresa Fellows-Bechard to her colleague Paul Dobos, asking about Vahey‘s return from military leave. She asked: “Do you know the date of Mike Vahay‘s [sic] return from leave? It‘s a critical piece of information as we try to plan for the GMSP.” Ex. B to Pl.‘s Opp‘n to MSJ at D00301. GM never acknowledges the potential significance of this email in its briefing, nor does it answer the question of why the date of Vahey‘s return from his military absence was relevant to their plans to conduct layoffs — let alone why it was a “critical piece of information.” The guiding premise of USERRA is that military service should not disadvantage a returning servicemember in his civilian career. See
There are other examples in the record of GM‘s human resources staff discussing Vahey‘s military service in the context of upcoming layoffs. See, e.g., Ex. B to Pl.‘s Opp‘n to MSJ at D00315 (“He seems to know the federal law well that governs military leaves from a company.“); id. at D00314 (“Mike [Vahey] will probably ask, was his pay adjusted to any scheduled increase from the time he went on military leave to his GMSP.“); id. at D00309 (“It now looks like that Mike will be officially released from active duty July 20, 2009 not the earlier date he thought in June. I am going to fax a copy of his paperwork to you. It looks like Wilmington will have a small GMSP 8/1/09. Let me know if he will be included in that one pending what legal and policy tell you.“); id. at D00306 (“He has been on military leave since 6/15/05. He said he is getting out of the Military this July. He shows in PeopleSoft as being on Military from Department #01141 QM518. He was never on Wilmington headcount.“); id. at D00302 (“Vahey called me today and said he is going to be released from the Army in mid June, earlier than expected. Is the plan the same as below? When I get his exact date I will send it to you. Have not heard if our plan below was given the OK by legal.“); id. (“Yes the plan would be the same. I‘m going to confirm everything (again) with policy and global comp. Let me know when you get the exact date.“); id. at D00300 (“[H]is discharge date is July 20, 2009. . . . I have a son who is a Army Ranger, and a son-in-law in the Marines. Both just got back from Iraq a little while ago which makes Mike‘s situation hit close to home.“). Once again, a reasonable jury might find these to be harmless, well-intentioned references to an unusual circumstance facing the human resources staff. On the other hand, a reasonable jury could also find that GM was unduly focused on Vahey‘s four-year military leave of absence, rather than his actual qualifications for a transfer. In the face of this factual uncertainty, the Court will not grant summary judgment in favor of GM.
In addition, GM‘s conclusory claim thаt “there were no available positions based on [Vahey‘s] job classification, skills, and service date” is difficult to accept at face value, particularly because the decision to terminate him was made no later than June 17, 2009, and possibly as early as May 5, 2009 — which, according to Vahey, was before GM had offered its other salaried employees an opportunity to transfer, before GM would have known the applicant pool for the limited transfer opportunities, and thus, before GM would have known which positions were available.7 A reasonable jury might choose not to credit GM‘s conclusory assertion that no positions were available in light of the timing of Vahey‘s termination.
Even if it were clear that Vahey was going to be terminated, GM faces another problematic fact: Vahey was one of the first employees out the door at the GM Wilmington facility. On August 1, 2009, Vahey was terminated along with five of his co-workers. See Ex. D to Pl.‘s Opp‘n to MSJ at D00399. Thirty-four more employees were terminated on September 1, 2009. Id. at D00400. And the remaining seventy-four salaried employees at the GM Wilmington plant were either terminated or received their transfers on October 1, 2009. Id. at D00401-02. Although the record is not clear on this point, presumably those employees who were terminated in September and October received an additional one or two months’ pay before receiving the same six-month severance package GM provided to Vahey. GM has offered no explanation as to why Vahey was included in the smallest, earliest wave of layoffs: in other words, why he was treated less favorably than over one hundred of his colleagues. To be sure, most of those colleagues would ultimately lose their jobs in the coming months, but an additional one or two months’ salary is undoubtedly a “benefit of employment” protected by USERRA. See
3. Had circumstances changed such that reemployment would have been impossible or unreasonable?
USERRA prоvides an affirmative defense to a reemployment claim if “the employer‘s circumstances have so changed as to make such reemployment impossible or unreasonable.”
At the outset, the Court notes that while GM raised this affirmative defense in its answer, see Def.‘s Answer, Affirmative Defenses ¶ 8, its summary judgment brief includes only a conclusory one-sentence footnote devoted to it, see MSJ at 8 n.7. In light of GM‘s failure to develop the argument, the Court would be justified in refusing to address it. See, e.g., Schneider v. Kissinger, 412 F.3d 190, 200 n. 1 (D.C. Cir. 2005) (“It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel‘s work.“); Hutchins v. District of Columbia, 188 F.3d 531, 539 n. 3 (D.C. Cir. 1999) (en banc) (“We need not consider cursory arguments made only in a footnote.“). However, because an analysis of the “changed circumstances” defense overlaps significantly with GM‘s other, better-developed arguments, the Court will consider the “changed circumstances” defense.
The case law varies with respect to the showing required to carry the employer‘s burden to prove that it would be “impossible or unreasonable” to reemploy a returning veteran. Some courts have asked for a significant showing, requiring “evidence of a fundamеntal underlying shift in the business model and reality of a company‘s enterprise in order to avail itself of this defense.” Davis v. Crothall Servs. Grp., Inc., No. 09-00312, 2013 WL 4417669, at *8 (W.D.Pa. Aug. 6, 2013). Several cases have explicitly held that layoffs and hiring freezes do not suffice. See, e.g., Cooper v. Hungry Buzzard Recovery, LLC, No. C11-0280-JCC, 2011 WL 5299422, at *3 (W.D.Wash. Nov. 4, 2011) (“In general, a decline in workload or business has not been considered sufficient to deny reemployment to returning veterans.“); Dunlap, 2007 WL 855335, at *3 (“[T]he Court holds that, as a matter of law, mere low work load, layoffs, and a hiring freeze do not make reemployment impossible or unreasonable enough to invoke the exemption of
Despite this language suggesting that layoffs are insufficient, Department of Labor regulations explicitly provide that by invoking the “changed circumstances” defense, “an employer may be excused from reemploying the employee where there has been an intervening reduction in force that would have included that employee.”
While the Court notes that Department of Labor regulations appear to require of the defendant a lighter showing than some district court decisions have required, the Court need not resolve this issue here, because at the summary judgment stage, GM cannot meet its burden under either formulation of the standard. Whether the layoffs affecting the GM Wilmington plant “would have included” Vahey is essentially the same inquiry used to determine whether Vahey‘s “escalator position” was layoff status. Under either analysis, the Court is required to imagine a counterfactual scenario in which Vahey did not take military leave, and to determine whether GM would have laid him off anyway. Cf. Milhauser, 855 F.Supp.2d at 903 (noting this redundancy in the statutory scheme, but finding it irrelevant where “the jury understood that at some point in the USERRA analysis it was to consider [the defendant‘s] economic problems and resulting reductions in force“). In light of the same factual disputes discussed above with respect to Vahey‘s escalator position, see supra, Section III.A.2, the Court cannot conclude that a jury would be unreasonable in finding against GM on its “changed circumstances” defense.
* * *
Having considered the facts in the light most favorable to Vahey, the Court finds that there is a genuine issue of material fact with respect to whether GM violated Vahey‘s rights under USERRA‘s reemployment provision,
B. Count 2: Unlawful Discharge — 38 U.S.C. § 4316(c)
Vahey‘s second claim alleges unlawful discharge. After they are reemployed, returning servicemembers who spent more than 180 days in the military may not be fired “except for cause” within “one year after the date of such reemployment.”
” ‘Cause’ as used in
As an initial matter, GM argues that Vahey has conceded that his termination was “for cause,” because his opposition brief “asserts that GM has the burden of proof to establish cause, but never establishes GM failed to meet any such burden.” Def.‘s Reply in Supp. of MSJ at 2. To be sure, Vahey‘s opposition brief spends far more time discussing his reemployment and discrimination claims, and the one paragraph discussing the “cause” standard focuses on the burden of proof. See Pl.‘s Opp‘n to MSJ at 21. However, the Court does not agree that Vahey has conceded the argument. Perhaps realizing that the “cause” analysis overlaps significantly with other important issues in this case — for example, determination of the proper escalator position, and the validity of GM‘s changed circumstances defense — Vahey may have felt it unnecessary to repeat overlapping arguments in multiple sections of his brief. And it is due to this same substantial overlap that the Court chose to address GM‘s changed circumstances defense, despite it only appearing in one conclusory footnote. See supra, Section III.A.3. While Vahey‘s brief might have been organized differently, the Court will not treat this argument as conceded, because the brief is full of discussion of the facts that are relevant to resolving the issue.
Applying the “cause” standard to Vahey‘s termination by GM, the Court returns to the question why Vahey was terminated (like most of his colleagues), rather than transferred to another GM facility (like some of his colleagues). Was it solely due to a neutral application of nondiscriminatory criteria? Or did Va
C. Count 3: Discrimination on the Basis of Military Service — 38 U.S.C. § 4311(a)
Vahey‘s third and final claim alleges that GM discriminated against him on the basis of his military absence in violation of
While both parties take it for granted that a lost opportunity to apply for a transfer is a “benefit of employment” protected by USERRA, this appears to be a question of first impression. The statute defines “benefit of employment” broadly, to include “the terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account, or interest (including wages or salary for work performed) that accrues,” as well as “the opportunity to select work hours or location of employment.”
The parties offer competing narratives regarding whether and how employees at the GM Wilmington plant were able to apply for transfers to another GM facility as their plant closed down. Vahey explains his version of events as follows:
Unlike the other salaried employees, General Motors never provided me with the opportunity to request or apply for consideration to other positions at GM that I was qualified for and to my knowledge I was never considered for any transfer opportunities. I was told from the beginning, in May, 200[9],9 that I would likely be severed and no other options were ever presented to me.
Vahey Decl. ¶ 21; see also Compl. ¶¶ 33-34. Vahey maintains that while he was never offered an opportunity to apply for a transfer, the other salaried employees at the Wilmington plant did receive such an opportunity. This assertion is corroborated by Jeffrey W. Watt, another former GM employee who worked at the Wilmington plant until August 20, 2009. Watt explains:
In early, June 2009, manager [sic] at the Wilmington plant called me and the other salaried employees into meetings in which we were offered two options, either apply for a transfer or accept separation and severance. During my meeting with a GM manager, Mr. Darren Ford, I was informed that if I elected to apply for consideration for a transfer, I would need to fill out an application for review by HR management. Mr. Ford specifically mentioned that there was an available Quality Engineer position in Lordstown, Ohio.
Watt Decl. ¶¶ 2-3. Watt claims that “all salaried employees” received the same opportunity to apply for a transfer that he did. Id. ¶ 6 (“While I was not present for other meetings between manager and the salaried employees, my understanding based upon conversations with others and my own meeting is that all salaried employees at the Wilmington plant were provided the same options . . . .“).
GM offers a simple defense to this claim. According to GM, both Vahey and Watt are simply mistaken. GM argues: “Mr. Watt‘s ‘understanding’ is incorrect. In fact, salaried employees affected by the closure of the Wilmington plant did not have an ‘opportunity’ to apply for transfers as part of the closure process.” Def.‘s Reply in Supp. of MSJ at 5. As support for its version of events, GM offers the affidavit of Jeffrey Haladik, a human resources employee from GM‘s offices in Warren, Michigan:
Transfer offers to salaried employees affected by the cessation of production operations at the Wilmington plant were made by GM to specific, individual employees based on a combination of factors, including current job classification, skills, and serviсe date. Salaried employees affected by the cessation of production operations at the Wilmington plant did not have an opportunity to apply for transfers as part of the plant closure process.
Second Haladik Aff. ¶ 5. GM also tries to discredit Watt‘s testimony, noting that Vahey‘s “only basis for [his] contention is the affidavit of a single co-worker who claims he has an ‘understanding’ of the experi
Perhaps GM is correct, and Watt‘s “understanding” is inaccurate. But resolving a credibility dispute between competing affiants is not an appropriate task for this Court when deciding a summary judgment motion. A reasonable jury would be entitled to credit Watt‘s testimony, rather than Haladik‘s (the inverse is obviously also true). Watt is a non-party to this proceeding who worked at the Wilmington plant during the relevant events, while Haladik is a current employee of the defendant who works in Michigan. Indeed, there is no indication where, if anywhere, Haladik worked for GM during the closure of the Wilmington plant, or any indication where he got his information — which tracks the language of GM‘s reply brief almost verbatim. Compare Sеcond Haladik Aff. ¶ 5, with Def.‘s Reply in Supp. of MSJ at 5. Under these circumstances, GM‘s frustration that Vahey‘s strongest piece of evidence is “the affidavit of a single co-worker” rings hollow. While a jury could ultimately decide the issue in favor of GM, this Court may not do so at the summary judgment stage. See Arrington v. United States, 473 F.3d 329, 338 (D.C. Cir. 2006).
Concluding that a reasonable jury could find that Vahey was denied the opportunity to apply for a transfer does not end the inquiry. There must still be a genuine issue of material fact with respect to whether his “service in the uniformed services’ was a substantial or motivating factor in the adverse employment action.” Potts v. Howard Univ. Hosp., 843 F.Supp.2d 101, 104 (D.D.C. 2012) (quoting
Assuming that a jury believed Vahey‘s version of events, rather than GM‘s, then of the over one hundred salaried employees at the GM Wilmington plant, Vahey was the only one who was not offered a formal opportunity to apply for a transfer before being terminated. See Vahey Decl. ¶ 20; Watt Decl. ¶¶ 2-6. This is compelling circumstantial evidence that Vahey‘s military absence was a motivating factor in GM‘s denial of an opportunity to apply for a transfer. See Sheehan v. Dep‘t of Navy, 240 F.3d 1009, 1014 (Fed. Cir. 2001) (“Circumstantial evidence will often be a factor in [USERRA] cases, for discrimination is seldom open or notorious.“).
Vahey also points to direct evidence. As discussed at length above, email traffic relating tо Vahey‘s return to GM is full of references to his military absence, including calling his return date a “critical piece of information” in planning for upcoming layoffs. See supra, Section III.A.2. By contrast, there is no discussion of transfer opportunities, an application process (formal or informal), or possible openings that Vahey might be suited for at other GM facilities. Again, a jury could look at this record and reasonably conclude that Vahey‘s military absence was at least partially responsible for any adverse treatment that he suffered. See Erickson v. U.S. Postal Serv., 571 F.3d 1364, 1369 (Fed. Cir. 2009) (under USERRA, “discrimination in employment occurs when a person‘s military service is a motivating factor’ in an adverse employment action, and it is not required that military service be the sole motivating factor“) (emphases added). Thus, Vahey has made out a prima facie case of discrimination.
GM can still “avoid liability by demonstrating that it would have taken the same action anyway for a valid reason, without regard to the employee‘s military
One additional item remains. Although the Court has analyzed Vahey‘s discrimination claim as if he were challenging only GM‘s failure to give him an opportunity to apply for a transfer, at times Vahey appears to make broader claims: that GM‘s failure to properly reemploy him and GM‘s decision to terminate him are independent examples of discrimination in violation of Section 4311. See generally Pl.‘s Opp‘n to MSJ at 21-30. To the extent Vahey advances these arguments, they are duplicative of his reemployment and unlawful discharge claims. If GM did not properly reemploy Vahey, then GM will be liable under USERRA‘s reemployment provision, see
CONCLUSION
The Court finds that, on the record before it, a reasonable jury could resolve each of Vahey‘s three claims in favor of either party. Therefore, the Court will deny GM‘s motion for summary judgment in its entirety. A separate order accompanies this memorandum opinion.
JOHN D. BATES
United States District Judge