Jerome Oswald v. BAE Industries, Inc. , 483 F. App'x 30 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0508n.06
No. 11-1119
FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT May 16, 2012
LEONARD GREEN, Clerk
JEROME R. OSWALD,
Plaintiff-Appellant,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
BAE INDUSTRIES, INC., EASTERN DISTRICT OF MICHIGAN
Defendant-Appellee.
/
BEFORE: NORRIS, CLAY, and GRIFFIN, Circuit Judges.
CLAY, Circuit Judge. Plaintiff Jerome R. Oswald appeals an order of the district court
granting summary judgment to Defendant BAE Industries, Inc. on Plaintiff’s claim that Defendant
violated the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. §§
4301–4333. Plaintiff also appeals the district court’s order denying his motion for reconsideration.
For the reasons that follow, we AFFIRM both orders.
BACKGROUND
Plaintiff was a member of the United States Marine Corps Reserves. He began working for
Defendant on August 22, 2005 as a manufacturing engineer. On July 10, 2006, Plaintiff was
deployed to serve in the Marine Corps in Iraq. According to Plaintiff, “[u]pon receiving information
regarding the Plaintiff’s military service commitments, [Plaintiff’s manager Mark Gleason] would
No. 11-1119
put his head down in disgust[] and indicate his disapproval by his demeanor and non verbal
conduct.” Defendant had been aware of Plaintiff’s military status when it hired Plaintiff.
One year later, on July 10, 2007, Plaintiff returned from Iraq and resumed his employment
with Defendant. Plaintiff alleges that immediately upon his return, Defendant drastically limited his
employment duties and responsibilities compared to his pre-deployment work. For example,
Plaintiff alleges that he was no longer given specific area/production line responsibility, he did not
have budget responsibilities, he was not given “train-up” time, his work was not reviewed, and he
was not given a raise (even though other employees were given one). Furthermore, Plaintiff was not
given any tasks with deadlines or completion dates—indicative that Defendant did not plan to retain
Plaintiff for long.
One month after returning to work, Plaintiff was transferred to the BAE Warren Plant and
demoted from manufacturing engineer to maintenance. His work in maintenance was allegedly far
below his wage scale, significantly unlike the engineering duties he had been hired to perform, and
beneath his training, education, skills, and experience. Plaintiff notes that this type of transfer and
demotion was “commonly regarded among BAE management employees as the last step before
being terminated.”
Shortly after his transfer, on September 14, 2007, Plaintiff’s employment was terminated.
Defendant alleges that Plaintiff’s termination was due to a reduction in employees, which it deemed
necessary under current economic conditions. It contends that the termination was wholly unrelated
to Plaintiff’s military status and states that it was “highly supportive” of Plaintiff’s military service,
demonstrated by its hosting of a deployment send-off party, collecting money to help Plaintiff’s
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family during his absence, and sending care packages to Plaintiff’s military unit. Allegedly, Mr.
Gleason also fixed a septic tank at Plaintiff’s house during his absence.
In February 2008, Plaintiff filed a request with the United States Department of Labor,
Veteran’s Employment and Training Service to investigate Plaintiff’s termination. Shortly
thereafter, the Department of Labor gave notice that it declined to proceed with an investigation.
On July 5, 2010, Plaintiff filed a complaint against Defendant, alleging that Defendant
violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA),
38 U.S.C. § 4301, which provides a cause of action for members of the military who have been
discriminated against by their non-military employers on the basis of their military service, and the
Michigan Military Act, Mich. Comp. Law §§ 32.271, 32.273, which provides similar protections.
In lieu of filing an answer, Defendant filed a motion for summary judgment, asserting that Plaintiff’s
complaint was time-barred by a provision in Plaintiff’s employment contract requiring actions
against the employer to be brought within 180 days. Plaintiff had filed his complaint approximately
two years and ten months after his termination. Plaintiff filed a response to the motion, and
Defendant filed a reply. Shortly thereafter, Plaintiff filed a supplemental brief, purportedly under
Federal Rule of Civil Procedure 12(d), raising new arguments related to the summary judgment
motion. The district court granted summary judgment to Defendant on Plaintiff’s federal and state
law claims. In granting summary judgment, the district court did not mention Plaintiff’s
supplemental brief nor address the arguments raised therein.
Plaintiff then filed a motion under Eastern District of Michigan Local Rule 7.1(h) requesting
that the district court reconsider its grant of summary judgment. Plaintiff’s motion reasserted the
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arguments that it had made in its supplemental brief at the summary judgment stage. The district
court denied Plaintiff’s motion on the basis that Plaintiff failed to raise a palpable defect in the
original order and should have raised its arguments earlier in its response to the motion for summary
judgment. Plaintiff timely appealed both orders with respect to its USERRA claim only.
DISCUSSION
The thrust of Plaintiff’s substantive argument on appeal is that a provision of USERRA, 38
U.S.C. § 4302(b), prevents the contractual reduction of rights under USERRA. Plaintiff contends
that because his employment contract with Defendant shortens the time period for bringing a
USERRA claim against his employer to 180 days, rather than the otherwise-applicable four years
under 28 U.S.C. § 1658(a), Plaintiff’s employment contract reduces his rights under USERRA and
thus is invalidated by the statute. Defendant counters that Plaintiff did not raise this § 4302(b)
argument at the summary judgment stage, so the argument was not preserved before the district court
and is not preserved for appeal. Defendant also suggests that Plaintiff’s attempt to raise the §
4302(b) argument in his motion for reconsideration does not meet Plaintiff’s burden of showing a
palpable defect in the district court’s order granting summary judgment. Because we believe that
Plaintiff’s § 4302(b) argument fails on the merits regardless of whether it was preserved, we do not
directly address Defendant’s preservation arguments and instead turn to the substantive analysis of
Plaintiff’s claim.1
1
We agree that Plaintiff did not raise the § 4302(b) argument in its response to the motion for
summary judgment, but we believe that it did raise the argument in its supplemental brief at that
stage. However, we cannot discern whether the district court accepted but ignored this filing or
whether it rejected the filing as impermissible.
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We review a motion for summary judgment de novo. Holloway v. Brush, 220 F.3d 767, 772
(6th Cir. 2000) (en banc). Summary judgment is appropriate where “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro.
56(a). We view the facts and reasonable inferences in the light most favorable to the nonmoving
party. Sagan v. United States, 342 F.3d 493, 497 (6th Cir. 2003). We review de novo a motion
under Eastern District of Michigan Local Rule 7.1(h) seeking reconsideration of a grant of summary
judgment. Gage Prods. Co. v. Henkel Corp., 393 F.3d 629, 637 (6th Cir. 2004) (discussing Rule 59
motions); Indah v. U.S. Sec. & Exch. Comm’n, 661 F.3d 914, 924 (6th Cir. 2011) (applying Rule
59 motion standard to motions for reconsideration under Local Rule 7.1); Intercontinental Elecs.,
S.P.A. v. Roosen, 210 F. App’x 491, 494–95 (6th Cir. 2006) (same).
A. Applicable Limitations Periods
1. Statutory Limitations Period
At the time Plaintiff filed his complaint, USERRA did not provide a separate statute of
limitations relevant to Plaintiff’s claim, so claims brought under USERRA were subject to the four-
year general statute of limitations set forth in 28 U.S.C. § 1658(a).2 The parties agree that the four-
year limitations period applies to Plaintiff’s USERRA claim, absent the competing contractual
limitations period.
However, we note that USERRA was amended in 2008 by the Veterans’ Benefits
Improvement Act (VBIA), which provides:
2
Section 1658 provides: “Except as otherwise provided by law, a civil action arising under
an Act of Congress . . . may not be commenced later than 4 years after the cause of action accrues.”
28 U.S.C. § 1658(a).
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Inapplicability of statutes of limitations. If any person seeks to file a complaint or
claim with the Secretary, the Merit Systems Protection Board, or a Federal or State
court under this chapter [38 USCS §§ 4301 et seq.] alleging a violation of this
chapter [38 USCS §§ 4301 et seq.], there shall be no limit on the period for filing the
complaint or claim.
38 U.S.C. § 4327(b). Plaintiff admits that the amendment does not apply retroactively to his claim,3
and nothing in the text of the statute indicates that Congress intended it to apply retroactively. See
Middleton v. City of Chi., 578 F.3d 655, 662–65 (7th Cir. 2009) (declining to retroactively apply the
unlimited filing period in VBIA to a USERRA claim that was untimely under the original § 1658(a)
four-year period). We thus apply the pre-VBIA version of USERRA to Plaintiff’s claim.
2. Contractual Limitations Period
When Plaintiff began his employment with Defendant, he signed an employment contract,
which provided:
I . . . agree that any action, claim or suit against [Defendant] arising out of my
application for employment, employment, or termination including, but not limited
to, claims arising under State or Federal civil rights statutes must be brought within
one hundred and eighty (180) days of the event giving rise to the claim or be forever
barred. I waive any and all limitation periods to the contrary.
Under the plain language of the agreement, the contractual period of limitations is 180 days for any
employment-related claim against Defendant. We have held that “there is nothing inherently
unreasonable about a six-month limitations period contained in an employment agreement,”
Thurman v. DaimlerChrysler, 397 F.3d 352, 357 (6th Cir. 2004) (citing Myers v. W.-S. Life Ins. Co.,
849 F.2d 259, 262 (6th Cir. 1988)), and the parties do not dispute this matter.
3
According to Defendant, although the amendment took effect prior to the filing of Plaintiff’s
complaint, the complaint was already untimely at that point under the applicable 180-day contractual
limitations period. Plaintiff apparently agrees with this point.
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B. Governing Period of Limitations
The action giving rise to Plaintiff’s USERRA claim was his termination on September 14,
2007. Plaintiff filed his complaint on July 5, 2010, approximately two years and ten months after
the action accrued. This two-year, ten-month period is far beyond the 180 day cut-off in the
employment contract clause, but it is within the four-year statute of limitations of § 1658(a). Thus,
if the contractual limitations period applies, Plaintiff’s complaint would be untimely. If the statutory
period applies, Plaintiff’s claim would survive.
“[I]n the absence of a controlling statute to the contrary, a provision in a contract may validly
limit, between the parties, the time for bringing an action on such contract to a period less than that
prescribed in the general statute of limitations, provided that the shorter period itself shall be a
reasonable period.” Order of United Commercial Travelers of Am. v. Wolfe, 331 U.S. 586, 608
(1947); Rice v. Jefferson Pilot Fin. Ins. Co., 578 F.3d 450, 454 (6th Cir. 2009). Thus, the narrow
question before us is whether the pre-VBIA version of USERRA prohibits the contractual shortening
of the statute of limitations.
One provision in USERRA is relevant to this inquiry. Section 4302(b) of the statute
provides:
This chapter [38 USCS §§ 4301 et seq.] supersedes any State law (including any
local law or ordinance), contract, agreement, policy, plan, practice, or other matter
that reduces, limits, or eliminates in any manner any right or benefit provided by this
chapter [38 USCS §§ 4301 et seq.], including the establishment of additional
prerequisites to the exercise of any such right or the receipt of any such benefit.
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38 U.S.C. § 4302(b).4 Section 4302(b) thereby prohibits contractual provisions which limit
USERRA “right[s] or benefit[s]” or contractual provisions that require “additional prerequisites” in
order for a plaintiff to exercise those rights or benefits.
Section 4303 offers a definition of “rights or benefits” under USERRA:
The term “benefit”, “benefit of employment”, or “rights and benefits” means 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 by reason of an employment contract or agreement or an
employer policy, plan, or practice and includes rights and benefits under a pension
plan, a health plan, an employee stock ownership plan, insurance coverage and
awards, bonuses, severance pay, supplemental unemployment benefits, vacations,
and the opportunity to select work hours or location of employment.
38 U.S.C. § 4303(2). Our Circuit has interpreted this definition to mean that USERRA prevents that
limitation of veterans’ substantive rights, but not their procedural rights. See Wysocki v. Int’l Bus.
Mach. Corp., 607 F.3d 1102, 1106–07 (6th Cir. 2010); Landis v. Pinnacle Eye Care, LLC, 537 F.3d
559, 562 (6th Cir. 2008) (citing Garrett v. Circuit City Stores, Inc., 449 F.3d 672, 677–78 (5th Cir.
2006)). “[T]herefore, § 4302(b) does not prevent veterans from waiving their procedural rights . .
. .” Wysocki, 607 F.3d at 1107. However, this Court has also determined that USERRA supercedes
contracts that provide for the wholesale contractual elimination of all procedural rights, because such
a waiver would result in the de facto elimination of the veteran’s substantive rights. Id. (considering
4
Plaintiff also argues that § 4302(a) prevents the contractual shortening of limitations periods.
However, subsection (a) provides that nothing in USERRA shall limit contractually-obtained rights
that are more beneficial to the plaintiff than those in the statute. 38 U.S.C. § 4302(a). Because
Plaintiff’s situation is the opposite of that conceived in subsection (a), it is subsection (b) and not
(a) that applies.
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a waiver that “purports to preclude [the plaintiff] from advancing a USERRA claim in any forum,
ever”).
This Circuit generally defines a period of limitations as a procedural matter. See, e.g., Cole
v. Mileti, 133 F.3d 433, 437 (6th Cir. 1998) (discussing the issue in the choice of law context);
Phelps v. McClellan, 30 F.3d 658, 661–62 (6th Cir. 1994) (comparing choice of law and Erie
contexts); Allgood v. Elyria United Methodist Home, 904 F.2d 373, 376–77 (6th Cir. 1990) (finding
that a limitations period for the Labor-Management and Relations Act and Labor-Management
Reporting and Disclosure Act is a procedural matter); Ott v. Midland-Ross Corp., 523 F.2d 1367,
1370 (6th Cir. 1975) (finding that a limitations period in the Age in Employment Discrimination Act
is a procedural matter); Mahalsky v. Salem Tool Co., 461 F.2d 581, 586 (6th Cir. 1972); see also Aull
v. McKeon-Grano Assocs., Inc., No. 06-2752, 2007 U.S. Dist. LEXIS 13008, at *18–20 (D.N.J. Feb.
26, 2007) (determining that the pre-VBIA version of USERRA does not prevent a contractual
shortening of the time period for filing a USERRA claim, because a limitations period is a
procedural matter). Furthermore, Plaintiff’s employment contract does not eliminate all procedural
rights in that it only shortens the time frame that Plaintiff can raise a USERRA claim. Because the
contractual period of limitations diminished a right under USERRA that was merely procedural, §
4302(b) does not override the contractual limitations period on that basis.
In addition to overriding contracts that limit “rights or benefits,” USERRA also supercedes
contractual provisions that impose “additional prerequisites to the exercise of any such right or the
receipt of any such benefit.” Although the statute does not define the phrase, our Court has
previously considered what constitutes an “additional prerequisite” under USERRA. See Petty v.
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Metro. Gov’t of Nashville-Davidson Cnty., 538 F.3d 431, 442 (6th Cir. 2008). In Petty, we found
that an employer’s imposition of a return-to-work process, which required its veteran employees to
complete new physical and psychological testing, was an impermissible “additional prerequisite”
under USERRA. Id. We noted that the employer’s “procedures [we]re in addition to the
requirements Congress specified for the exercise of USERRA’s reemployment rights.” Id. We also
noted that the only statutory prerequisites are listed in § 4312 and require 1) advance notification of
military deployment to employer, 2) military service for less than five years, 3) timely request for
re-employment with specified documentation, and 4) separation under honorable conditions. Id. at
440–41. Thus, under Petty, the definition of “additional prerequisite” involves matters including but
not limited to affirmative requirements related to the rehiring process, proof needed to qualify for
a USERRA claim, or imposing procedures that plaintiffs must comply with prior to filing a claim
in court. See Landis, 537 F.3d at 564–65 (Cole, J., concurring) (“By ‘additional prerequisites,’
Congress clearly meant to stop employers from requiring ‘additional resort to mechanisms such as
grievance procedures or arbitration or similar administrative appeals.’” (citing H.R. Rep. No. 103-65,
at 20 (1993))). Consent to a shorter time frame for filing a claim in court does not fall within this
definition.
In sum, § 4302(b) does not operate to forbid the contractual imposition of a diminished time
period for bringing USERRA claims. Because Plaintiff’s complaint was untimely under the 180-day
period in the contract, the district court did not err in granting summary judgment to Defendant and
in denying Plaintiff’s motion for reconsideration. Although we are sympathetic to Plaintiff’s
situation, especially in light of the VBIA amendment that no limitations period whatsoever is to
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apply to USERRA claims, we are bound to apply the pre-VBIA version of USERRA in deciding that
the shortened filing period in Plaintiff’s employment contract was permissible.
CONCLUSION
For the reasons discussed above, we AFFIRM the district court’s order granting summary
judgment to Defendant and AFFIRM the district court’s order denying Plaintiff’s motion for
reconsideration.
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