Rogers v. City of San Antonio , 392 F.3d 758 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
Revised December 20, 2004
December 2, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
______________________
No. 03-50588
______________________
ANTHONY ROGERS; RICHARD MORALES; VENTURA CALDERON, JR.; ANDREW L.
ALMAZAN; ROBERT J. DELEON; 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,
versus
CITY OF SAN ANTONIO, TEXAS,
Defendant-Appellant.
____________________________________________________
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
1
Rights Act 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 § 4311(a)2
“the City, in implementing these employment practices, unlawfully
discriminate[s] against them by deeming them ‘absent’ from work
whenever they are on leave fulfilling their military reserve duties,
as opposed to viewing them as ‘constructively present at work.’”3
1
38 U.S.C. § 4301 et seq.
2
Section 4311(a) of USERRA provides that:
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.
3
Rogers v. City of San Antonio, Texas, 211 F. Supp. 2d 829,
831 (W.D. Texas 2002).
2
The City contends that, because § 4316(b)(1)4 provides that persons
absent from civilian employment by reason of military service are
entitled only to such non-seniority rights and benefits as the
employer provides to employees when they are on non-military leaves
of absence, plaintiffs cannot recover since they were treated
equally as to such rights with all employees absent on non-military
leave.
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 working conditions of all City firefighters.
Plaintiffs, as members of the Uniformed Services(“reservists”),
typically must take leave of absence for military training a minimum
of one weekend per month and one annual two week session.
Reservists may volunteer or be ordered to take military leave to
perform extra duties. In order to be promoted, reservists must meet
4
Section 4316(b)(1) of USERRA provides that:
[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 senority 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.
3
the same educational requirements as a full-time active member of
the Uniformed Services, such as officer training courses.
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 employees 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
4
certified the judgments for interlocutory appeal under 28 U.S.C. §
1292(b).5 The City appealed.
Standards of Review
The threshold question of law is one of statutory construction,
viz., namely which provision of USERRA, § 4311(a) or § 4316(b)(1),
governs the adjudication of the employees’ claims. The employees
contend that the district court correctly applied only § 4311(a),
which prohibits private employers from denying employment benefits
to employees on the basis or their membership, service or
obligations related to the United States military forces. The City
contends that the district court erred in basing its decision on §
4311(a) because this case is appropriately governed only by §
4316(b)(1), which regulates the civilian employment non-seniority
rights of persons who are required to be absent from jobs for
service in the military forces. We review the decision of the
district court on this issue of law de novo. See Casas v. American
Airlines, Inc., 304 F.3d 517, 520 (5th Cir. 2002).
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).
5
Rogers v. City of San Antonio, Texas, 2003 WL 1571550
(W.D. Tex. March 24, 2003).
5
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.
A. USERRA Overview
The purposes of USERRA, enacted in 1994, are: (1) “to encourage
noncareer service in the uniformed services[6] by eliminating or
minimizing the disadvantages 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.” 38 U.S.C. § 4301.
6
“The term ‘uniformed services’ means the Armed Forces, the
Army National Guard and the Air National Guard when engaged in
active duty for training, inactive duty training, or full-time
National Guard duty, the commissioned corps of the Public Health
Service, and any other category of persons designated by the
President in time of war or national emergency.” 38 U.S.C. §
4303(16).
6
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. 38
U.S.C. § 4311(a). Also, an employer must not retaliate against a
person by taking adverse employment action against that person
7
See Proposed Regulation, Department of Labor, Veterans’
Employment and Training Service, § 1002.2, 20 CFR Part 1002,
Federal Register, Vol. 69, No. 181 p. 56286 (2004)(“Proposed
Regulation”). USERRA authorizes the Secretary of Labor to issue
regulations implementing the Act with respect to States, local
governments, and private employers. Id. at § 1002.4(b) at 56286.
We cite these non-binding Proposed Regulations for their
persuasive authority only.
8
Id.
9
Id.
7
because he or she has taken an action to enforce a protection
afforded under USERRA. Id. at § 4311(b).
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. Id. at
§ 4312(a). The returning uniform services member (“reservist”)
seeking reemployment must make a timely return to or application for
reinstatement in the reservist’s employment position. Id. at §
4312(a)(3). The employee reporting back to the employer following
a period of less than 31 days must report not later than the
beginning of the first full shift on the first full day following
the completion of service. Id. at § 4312(e)(1)(A)(i).10 If the
service period is between 31 and 180 days, the individual must
report within 14 days of completion of service. Id. at § 4312(c).
If the service was more than 180 days, the individual must request
reemployment no more than 90 days after completion. Id. at §
4312(e)(1)(D).
An employer must promptly reemploy a person returning from a
period of service if the person meets the Act’s eligibility
criteria. Id. at § 4312(f)(4). “Prompt employment” means as soon
as practicable under the circumstances of the case. For example,
prompt reinstatement after “weekend National Guard duty generally
10
See Proposed Regulation, summary, 69 F.R. No. 181 at
56270.
8
means the next regularly scheduled working day.”11 However, prompt
reinstatement after “several years of active duty may require more
time, because [the] employer may have to reassign or give notice
to another employee who occupied [the] position.”12
In construing a precursor to USERRA, the Supreme Court in
Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275 (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. 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. 38
U.S.C. § 4313. After service of 90 days or less, the person is
entitled to reinstatement in the position of employment in which she
or he would have been but for the interruption of employment by
11
Proposed Regulation § 1002.181.
12
Id.
13
Proposed Regulation, summary 69 F.R. No. 181 at 56274.
9
uniformed service. Id. at § 4313(a)(1)(A).14 If the service period
was longer than 90 days, the service member is entitled to
reemployment in the escalator position, but the employer may also
reinstate the member in any position of like seniority status and
pay for which he is qualified. 38 U.S.C. § 4313(a)(2)(A). If the
service member is unable to qualify for either the escalator
position or a comparable position, despite reasonable employer
efforts, he is entitled to reemployment in a position that is the
nearest approximation to the escalator position. Id. at § 4313
(a)(2)(A), (B).15
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
14
Id.
15
Id.
16
Section 4303(12) of USERRA defines “seniority” as:
longevity in employment together with any benefits of employment
which accrue with, or are determined by, longevity in employment.
The summary for USERRA’s Proposed Regulations explains that:
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 (1980); Alabama Power
10
Id. at § 4316(a). This section states the basic escalator principle
as it applies to seniority and seniority-based rights and
benefits.17 An employer is not required to have a seniority system.
USERRA requires only that employers who do have a senority system
restore the returning service member to the proper place on the
seniority ladder.18 An employee’s rate of pay after an absence from
work due to uniformed service is also determined by application of
the escalator principle.19
USERRA does not grant escalator protection to service members’
non-seniority rights and benefits but provides only that the
employer treat employees absent because of military service equally
with employees having similar seniority, status, and pay who are on
comparable non-military leaves of absence under a contract,
agreement, policy, practice, or plan in effect at anytime during
that uniformed service.20 § 4316(b)(1).
Co. V. Davis, 431 U.S. 581 (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 senority”).
Proposed Regulation, summary 69 F.R. No. 181 at 56276.
17
Id.
18
Id.
19
Id. At 56277.
20
Proposed Regulation, summary 69 F.R. No. 181 at 56272
(interpreting § 4316(b)(1) to mean that “[i]f the employer has
11
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 (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),
more than one kind of non-military leave and varies the level and
type of benefits provided according to the type of leave used,
the comparison should be made with the employer’s most generous
form of comparable leave,” and citing Waltermyer v. Aluminum Co.
of Am., 804 F.2d 821 (3d Cir. 1986); H.R. Rep. No. 103-65, Part I
at 33-34 (1993); Schmauch v. Honda of Am. Manufacturing, Inc.,
295 F. Supp. 2d 823 at 836-39 (S.D. Ohio 2003)).
12
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. at
544.
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 be denied retention in employment or any promotion or
other incident or advantage of employment because of any obligation
as a member of a reserve component of the Armed Forces.”
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
13
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
14
reservist is denied an “incident or advantage of employment” because
of an obligation 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 reserve or National Guard duty was excluded or
negated from the guarantee.22
21
See West v. Safeway Stores, Inc. 609 F.2d 147 (5th Cir.
1980), Kidder v. Eastern Air Lines, Inc., 469 F. Supp. 1060 (S.D.
Fla. 1978), Carlson v. New Hampshire Dep’t of Safety, 609 F.2d
1024 (1st Cir. 1979) cert. denied 446 U.S. 913 (1980), Hawes v.
General Motors Corp. 102 L.L.R.M. (BNA) 3041 (N. D. Ohio 1979),
Lott v Goodyear Aerospace Corp. 395 F. Supp. 866 (N.D. Ohio
1975), Carney v Cummins Engine Co. 602 F.2d 763 (7th Cir. 1979)
cert. denied 444 U.S. 1073.
22
The Court noted that “[i]f employers could by agreement
with unions require that workers be present in order to receive
certain benefits, then reservists could never secure the benefits
or advantages of employment which the Act was designed to
15
The Sixth Circuit in a virtually identical situation, 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
protect.” Id. at 150. In closing, however, the Court
acknowledged that because the employer had conceded that it could
accommodate West’s schedule, it did “not reach the issue of
whether accommodation or the alternative of compensation is
impossible or unduly burdensome.” Id.
16
reasoning. 452 U.S. 549. 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. 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. Because the Supreme Court’s
interpretation of § 2021(b)(3) is contrary to the Fifth Circuit’s
decision in West, and the high court noted the “apparent inter-
circuit 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
23
Id. at 551 n.1.
17
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; on a layoff under specified conditions;
performing jury service; a witness in a court of law; qualified for
bereavement pay; or absent because of personal illness and certain
sick leave conditions apply. Id. at 822. Reading VRRA § 2021(b)(3)
in light of the Supreme Court’s decision in Monroe, the Court of
Appeals concluded that “[t]he thrust of [that provision], according
to the [Supreme] Court, was to prevent discrimination against
reservists but not to grant them preferential treatment.” Id. at
823. The court noted the similarities between the characteristics
of absence from work required by the military obligation at issue
and the absences of the exempted categories, viz., the absences were
not generally of extended duration; and they were for reasons beyond
the control of the absent employee. Id. at 825. Therefore, the
court concluded, “relieving [National Guard members] on military
leave from the work requirement merely establishes equality for
National Guardsmen and reservists, not preferential treatment.” Id.
at 825. Thus, the court concluded, the plaintiff Guardsman had
18
established his right to holiday pay under § 2021(b)(3).
Significantly, however, the court indicated that a scheduled
vacation, which also was exempted from the work requirement, was not
comparable to military leave. The court observed: “We realize a
planned vacation is different from the other exceptions on the list.
Vacation is earned time away from work, and this exception merely
recognizes that an employee should not be prejudiced, in the form
of lost holiday pay, for taking an earned vacation.” Id. at 825
n.3.
The Senate report on the bill that became § 4316(b)(1) stated
that it “would codify court decisions that have interpreted current
law as providing a statutorily-mandated leave of absence for
military service that entitles service members to participate in
benefits that are accorded other employees. See Waltermyer, 804
F.2d 821; Winders v. People Express Airlines, Inc. 595 F. Supp.
1512, 1519 (D.N.J. 1984), affirmed, 770 F.2d 1078 (3d Cir. 1985).”
S. Rep. 103-158 (October 18, 1993). The Report explained that:
[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 force at the beginning of the period of
uniformed service or which becomes effective during the
period of service. Id.
19
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 LRRM 2914
(N.D.N.Y. 1987). However, servicemembers are not
entitled to receive benefits beyond what they would have
received had they remained continuously employed.
Id. See also 139 CONG. REC. S 14865-03m, 1993 WL 444411 (Nov. 2,
1993); A NON-TECHNICAL RESOURCE GUIDE TO THE UNIFORMED SERVICES EMPLOYMENT AND
REEMMPLOYMENT RIGHTS ACT (USERRA), U.S. DEP’T OF LABOR VETERANS EMPLOYMENT AND
TRAINING SERVICE, 9 (March 2003).24
24
That guide provides, in pertinent part, as follows:
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 nonmilitary leaves of absence, whether paid
or unpaid. If there is a variation among different types
of nonmilitary leaves of absence, the service member is
20
Although the legislative history of the bill that became §
4316(b)(1) does not mention Monroe, Congress necessarily intended
for that section to codify Monroe’s interpretation of § 2021(b)(3)
with respect to the effects upon the non-seniority rights of
uniformed service members by their absences from civilian employment
by reason of their military obligations. The reports of both the
Senate and the House expressed an intention to codify Waltermyer in
this respect. See H.R. Rep. 103-65(I) (April 28, 1993), S. Rep.
103-158 (Oct. 18, 1993). Thus, they necessarily indicated an intent
to codify Monroe’s “equal, but not preferential” interpretation of
VRRA § 2021(b)(3) which was adopted and followed by Waltermyer.
Although Waltermyer applied the Monroe interpretation to enforce the
employee’s right to equal treatment, rather than the employer’s
right not to grant preferential treatment, Waltermyer could not be
codified without including the Monroe interpretation that it
adopted.
Conversely, USERRA’s legislative history does not indicate that
Congress intended to rely on § 4311(a)’s general discrimination ban
to assure that reservist-employees on military leave receive
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.
21
benefits equal to those that other employees receive while taking
comparable non-military leave. While new § 4316(b)(1)’s legislative
history clearly reflects the intent to specifically guarantee
reservists equality of on-leave benefits, the history of § 4311(a)
shows an intent to continue and strengthen the anti-discrimination
provision but not the specific goal of guaranteeing parity of
benefits.
Further, the brief legislative history of the bill that became
§ 4311(a) reflects no intention to prohibit neutral labor contracts
from treating employees on military leave equally with those on non-
military leave with respect to the loss of benefits due to absence
from work. The House report, in most relevant part, states that:
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 (December 20, 2004 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 not indicate that Congress intended to prohibit such neutral
22
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 § 4316(b)(1) the Monroe-
Waltermyer line of cases with respect to non-seniority rights and
benefits to which persons absent from civilian employment by reason
of service in the uniformed services are entitled. West is
inconsistent with and was expressly disapproved by Monroe and
Waltermyer.25 Therefore, we must conclude that USERRA’s
codification of Monroe and Waltermyer legislatively overruled West.
25
Monroe, 452 U.S. at 551 n.1 (recognizing that the Sixth
Circuit’s opinion in Monroe conflicted with West and affirming
the Sixth Circuit), Waltermyer, 804 F.2d at 821 (noting that West
was “substantially weakened” by Monroe).
23
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 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 § 4316(b)(1) together with § 4311(a) and other
USSERA provisions, the legislative history, preceding statutes, and
pertinent jurisprudence, we conclude that Congress intended by §
4316(b)(1) to clarify and codify the interpretation of VRRA §
2021(b)(3) by the Supreme Court in Monroe and the Third Circuit in
Waltermyer, requiring employers, with respect to rights and benefits
not determined by seniority, to treat employees taking military
leave, equally, but not preferentially, in relation to peer
employees taking comparable non-military leaves generally provided
under the employer’s contract, policy, practice or plan. Although,
the “equal, but not preferential” requirement arose out of the
Courts’ interpretation of VRRA § 2021(b)(3)’s prohibition against
denial of employment rights because of military obligations, which
has been enhanced and continued by USERRA § 4311(a), Congress
decided to adopt new § 4316(b)(1) to provide more specifically and
affirmatively for the accrual of non-seniority rights and benefits
24
by employees while on military duty, rather than continue to rely
on the general prohibition against service-related denials of
benefits for that purpose. Congress sought by § 4316(b)(1) to
guarantee a measure of equality of treatment with respect to
military and non-military leaves and to strike an appropriate
balance between benefits to employee-service persons and costs to
employers. USERRA does not authorize the courts to add to or
detract from that guarantee or to restrike that balance.
For these reasons, we conclude that the district court erred
in deciding that § 4311(a), rather than § 4316(b)(1), must be
applied in this case. Because the district court gave several
reasons for its interpretation, we will set them forth before
commenting on each.
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
26
211 F. Supp. 2d. at 838 (footnotes and internal quotations
omitted).
25
training[.]”27 Furthermore, the court stated, “the anti-
discrimination provisions (now § 4311(a-c), 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 §
4311(a) anti-discrimination provision, the district court identified
West, 609 F.2d 147, decided under VRRA § 2021(b)(3), as our Circuit
precedent that must be applied in deciding claims under the USERRA
for non-seniority benefits by employees returning from service in
the uniformed services.29 The district court read West to hold that
VRRA § 2021(b)(3) “requires that employers, in applying collective
bargaining agreements which grant a benefit of employment based on
‘presence’ rather than on ‘hours actually worked,’ should treat
reservists as if they were ‘constructively present’ during their
reserve duty.”30
We believe that the district court was mistaken in each of its
reasons for deciding that § 4311(a) must be applied in this case
27
Id.
28
Id. (quoting Carney, 602 F.2d 763).
29
Id. at 839 n.63, 841 n.82, 842, 844 n.106.
30
Id. at 842.
26
and, consequently, also mistaken in using the West “constructive
presence” theory to decide the firefighters’ claims. We will discus
the erroneous points of the district court’s decision in the order
set forth in its opinion.
First, § 4316(b)(1) is fully applicable to reservists’ short
absences from civilian employment for weekend drills or two-week
annual training. In USERRA, the term “service in the uniformed
services” means “the performance of duty on a voluntary or
involuntary basis in a uniformed service under competent authority.”
38 U.S.C. § 4303(13). It includes “active duty, active duty for
training, initial active duty for training, inactive duty training,
full-time National Guard duty,” medical examinations to determine
fitness for duty, and performance of funeral honors duty. Id. The
term “uniformed services” means “the Armed Forces, the Army National
Guard and the Air National Guard when engaged in active duty for
training, inactive duty training, or full-time National Guard
duty[.]” 38 U.S.C. § 4303(16). Thus, both of these terms apply to
members of the uniformed services who participate in inactive duty
training for weekend drills and two-week annual training.
Consequently, § 4316(b)(1), which applies to “a person who is absent
from a position of employment by reason of service in the uniformed
27
services” is fully applicable to reservists during their weekend and
two-week military duty sessions.31
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.” 38 U.S.C. § 4312. As noted in the previous
paragraph, the terms “service in the uniformed services” and
“uniformed services” apply to “inactive duty training,” which refers
to reservists and their two week and weekend training periods.
Further, USERRA makes specific provisions for the reemployment of
a person whose period of service in the uniformed services was less
than 31 days. 38 U.S.C. § 4312(e)(1)(A); 4313 (a)(1). Thus, a
reservist who returns to his or her job after weekend drill is
“reemployed” just as much as one who is reinstated after a period
of service of two years.32
31
See Gordon v. Wawa Inc., 388 F.3d 78, 81 (3d Cir. 2004)
(construing “service in the uniformed services” as applicable to
a reservist’s “weekend Reserve duties” with respect to his duty
under USERRA § 4312(e) to report to his employer upon completion
of his period of service).
32
See Proposed Regulation, summary, 69 F.R. No. 181 at 56270
(explaining that employees are “reemployed” when they return to
work after a weekend or two years) and 56274 (explaining that
USERRA considers employees to be “reemployed” whether they are
gone for more or less than 31 days).
28
Third, the district court mistakenly thought that VRRA §
2024(d) was the precursor of USERRA §4316(b)(1). However, USERRA
§4316(b)(1) had no true predecessor and deals with a different
subject (non-seniority rights of persons absent for military
service) from VRRA § 2024(d) (reemployment rights). VRAA §
4301(b)(1) was somewhat similar to USERRA § 4316(b)(1) but not a
true precursor. See S. Rep. 103-158 (1993). VRAA § 2021(b)(3) was
added to protect against discrimination (such as punitive
discharges, demotions, et. al.) not protected against by VRAA §
2024(d). See legislative history of USERRA , supra. Thus, VRRA §
2021(b)(3) was not added to cure a deficiency in a prior provision
similar to USERRA § 4316(b)(1).
Finally, as we have noted, West and its “constructively
present” theory of interpretation was disapproved by the Supreme
Court in Monroe and legislatively overruled in the codification
of Monroe and Waltermyer by USERRA § 4316(b)(1).
2.
Applying § 4316(b)(1) to the summary judgment record in this
case, we conclude that the district court’s judgment must be
reversed and summary judgment granted for the City on the following
claims: (1) lost straight-time pay; (2) lost overtime opportunities;
and (3) missed upgrading opportunities. From our review of the
29
record we have determined that there is no type of non-military
leave available to any employee under which an employee can accrue
or receive the foregoing kinds of benefits. Hence, insofar as the
record shows, there is no type of leave under which these benefits
may accrue that is comparable to any military leave.
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
durations, for jury duty, bereavement, and line of duty injury leave
(provided that the employee returns to work in the following shift),
under which employees may accrue or receive bonus day leave and
perfect attendance leave benefits, are comparable to each
plaintiff’s military leaves taken for service in the uniformed
services. For the same reason, there is a disputable issue as to
whether sick leave, under which employees receive the benefit of the
twenty-seven hour cap for the first shift of sick leave they use,
is comparable to military leave. Thus, we reverse and remand on
this claim also.
We also conclude that the summary judgment in favor of Anthony
Rogers must be reversed because the record does not contain adequate
30
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 pursuant to 28
U.S.C. § 636(c) for that purpose. The parties filed cross-motions
for partial summary judgment. The magistrate judge held that the
four-year statute of limitations in 28 U.S.C. § 1658 applies to
plaintiffs’ causes of action and that plaintiffs’ claims are not
barred by the equitable defenses of laches or estoppel.33 The
district court certified this issue for appeal under 28 U.S.C. §
1292(b), and the City appeals the district court’s holding.
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.”
38 U.S.C. § 4323(I). The City argues that this court should borrow
the two-year statute of limitations contained in the Fair Labor
Standards Act (“FLSA”). 29 U.S.C. § 255(a). However, the City’s
33
172 L.R.R.M. (BNA) 2240, 2003 WL 1566502 (W.D. Tex. March
4, 2003).
31
argument that plaintiffs’ claims are “strongly analogous” to FLSA
claims is without merit. The City cites no case authority under
USERRA or any previous statute governing veterans’ employment and
reemployment rights in which a court borrowed the FLSA statute of
limitations. Furthermore, the purposes of the two acts are not
similar. Congress passed the FLSA, pertaining to minimum wages and
working conditions, for the purpose of improving nationwide labor
conditions,34 and USERRA for the purpose of encouraging military
service by protecting uniformed service members’ rights and
benefits.35 Plaintiffs’ claims involve neither the violation of
FLSA standards nor any similar standard. For these reasons, we
reject the City’s argument that we should borrow the two-year
federal statute of limitations from the FLSA.
Plaintiffs presented arguments in both this court and the
district court that 28 U.S.C. § 1658, the four-year uniform and
general statute of limitations for federal causes of action not
governed by an explicit statute of limitations, should apply.
Alternatively, they now argue for the first time on appeal that no
34
29 U.S.C. § 202.
35
38 U.S.C. § 4301.
32
statute of limitations applies to USERRA claims and that their
claims are not barred by either laches or estoppel.36
Because plaintiffs took the position before the magistrate
judge that the four-year residual statute of limitations of § 1658
applied to their claims, and the court rendered judgment to that
effect, plaintiffs have waived any claim to relief beyond four years
prior to the date on which their complaint was filed.37 Plaintiffs
have thus limited their claim to relief and this court will not
consider their argument that no statute of limitations applies.
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
36
See, however, Proposed Regulations, summary, 69 F.R. No.
181 at 56281 (“The Department [of Labor] has long taken the
position that no Federal statute of limitations applied to
actions under USERRA.”).
37
Vela v. City of Houston, 276 F.3d 659, 678 (5th Cir. 2001)
38
Westchester Media v. PRL USA Holdings, Inc., 214 F.3d
658, 668 (5th Cir. 2000); Miller v. City of Indianapolis, 281
F.3d 648, 654 (7th Cir. 2002) (applying laches to USERRA claims);
Wallace v. Hardee’s of Oxford, Inc., 874 F. Supp. 374, 377 (M.D.
33
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
Ala. 1995) (invoking that same standard in the context of a
USERRA claims).
39
Lauderdale County Sch. Dist. v. Knight, 24 F.3d 671, 691
(5th Cir. 1994).
40
See Wallace, 874 F. Supp. at 377 (employer not unduly
prejudiced by the cost of defending VRRA suit now instead of
earlier and by continuing to conduct its normal business
34
Considering that the plaintiffs 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.
Conclusion
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)
operation); Novak v. Mackintosh, 937 F. Supp. 873, 880 (D.S.D.
1996) (no prejudice in VRRA claim when there was no evidence that
the employer changed its position in any way that would have
occurred if there had not been delay). The City’s allegation
that it will be prejudiced by having to pay additional
compensation to Plaintiffs above the amount bargained for in the
CBA between the parties is similarly not a sufficient allegation
of prejudice, as Plaintiffs’ right to recover in this case is
governed by statute rather than the CBA. Carney, 602 F.2d at
763.
35
perfect attendance leave; and (3) the twenty-seven hour cap on lost
overtime.
36