Brian Petty v. Metropolitan Government of Na

Filing

OPINION and JUDGMENT filed: The district court's rulings are AFFIRMED. Decision for publication pursuant to local rule 206. Danny J. Boggs, Richard F. Suhrheinrich, and Deborah L. Cook (AUTHORING), Circuit Judges. [10-6013, 10-6105]

Case: 10-6013

Document: 006111378343

Filed: 07/24/2012

Page: 1

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0226p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
BRIAN PETTY,
Plaintiff-Appellee/Cross-Appellant, Nos. 10-6013/6105
v.
>
,
METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON COUNTY,
Defendant-Appellant/Cross-Appellee. N
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:05-cv-680—Todd J. Campbell, Chief District Judge.

Argued: April 19, 2012
Decided and Filed: July 24, 2012
Before: BOGGS, SUHRHEINRICH, and COOK, Circuit Judges.
_________________
COUNSEL
ARGUED: Kevin C. Klein, METROPOLITAN DEPARTMENT OF LAW, Nashville,
Tennessee, for Appellant/Cross-Appellee. Michael J. Wall, BRANSTETTER,
STRANCH & JENNINGS, PLLC, Nashville, Tennessee, for Appellee/Cross-Appellant.
ON BRIEF: Kevin C. Klein, METROPOLITAN DEPARTMENT OF LAW, Nashville,
Tennessee, for Appellant/Cross-Appellee. Michael J. Wall, James G. Stranch III,
BRANSTETTER, STRANCH & JENNINGS, PLLC, Nashville, Tennessee, for
Appellee/Cross-Appellant.
_________________
OPINION
_________________
COOK, Circuit Judge.

This Uniformed Services Employment and

Reemployment Rights Act (“USERRA”) case returns to the Sixth Circuit after remand
to the district court. Petty v. Metro. Gov’t of Nashville-Davidson Cnty. (Petty I),
538 F.3d 431 (6th Cir. 2008). USERRA guarantees returning veterans reemployment
1

Case: 10-6013

Nos. 10-6013/6105

Document: 006111378343

Filed: 07/24/2012

Petty v. Metro. Gov’t of Nashville

Page: 2

Page 2

with their former employers and prohibits employers from discriminating against
veterans based on their military service. 38 U.S.C. §§ 4301–4335. Appellee/CrossAppellant Brian Petty claims that Appellant/Cross-Appellee Metropolitan Government
of Nashville-Davidson County (“Metro”) violated USERRA in its treatment of him after
he returned to Metro’s police department from active duty in the United States Army.
First, Petty argues that Metro failed to restore him to his former position of patrol
sergeant in violation of §§ 4312 and 4313, USERRA’s “reemployment provisions.”
Second, Petty argues that Metro discriminated against him on the basis of his military
service in violation of § 4311, USERRA’s “discrimination provision.”
On remand, the district court granted summary judgment in favor of Petty on his
reemployment claims and ordered Metro to reinstate him to his former position as a
patrol sergeant. After a bench trial, the district court awarded Petty back pay and partial
liquidated damages on his reemployment claims and ruled in his favor on his
discrimination claim. Metro appeals, and Petty cross-appeals. We AFFIRM the district
court’s rulings.
I.
Petty I, which remanded this matter to the district court for further proceedings,
recounts the factual background of this case in detail. 538 F.3d at 434-38. Assuming
familiarity with Petty I, we offer an abbreviated factual background and then review the
proceedings on remand that led to this appeal.
A. The Factual Background
Metro hired Petty as a police officer in 1991. By 2002, Petty achieved the rank
of patrol sergeant and supervised other officers within the police department. To
supplement his income as a police officer, Petty also moonlighted as a security guard at
two local restaurants.
In addition to these two positions, Petty served as a member of the Army
National Guard. He joined in 1986 and opted into the Army reserve in 1989. In 2003,
the Army deployed Petty for service in Operation Iraqi Freedom. Petty’s military

Case: 10-6013

Nos. 10-6013/6105

Document: 006111378343

Filed: 07/24/2012

Petty v. Metro. Gov’t of Nashville

Page: 3

Page 3

commitments forced him to stop working at Metro in November 2003, and the Army
transferred Petty and his unit to Kuwait around February 2004.
After he arrived in Kuwait, Petty’s commanding officer caught him brewing
homemade wine and sharing it with another soldier in violation of military rules. Petty
offered an innocent explanation for the wine, but ultimately resigned his commission to
avoid facing court-martial proceedings. In January 2005, following Petty’s resignation,
the Army dismissed its charges against him and relieved him of his command. The
Army issued Petty a DD-214, a document issued to soldiers upon discharge, indicating
that his separation from the military was under honorable conditions. A separate box on
the form, however, described Petty’s reason for separation as “in lieu of trial by court
martial.”
In February 2005, Petty requested reinstatement as a police officer with Metro.
As it did all police officers returning from an extended leave of absence, Metro subjected
Petty to its return-to-work process. This includes, among other things, a drug screening,
a personal-history-update questionnaire, and a meeting with a Police Department
psychologist. Metro relies on this process to test returning officers’ continuing fitness
to serve in its police department.
This dispute stems from Petty’s answer to the following question on his personalhistory-update questionnaire: “During your absence were you arrested, charged,
detained, or a suspect in any criminal action or military disciplinary action for any
reason or do you have any action pending? If yes, explain in detail (use back if
necessary).” Petty answered “yes” and attached a narrative explaining that he faced
military charges in Kuwait. He did not, however, reveal the details of his abrupt exit
from the military—namely, that he was accused of manufacturing alcohol and providing
it to an enlisted soldier.
Apparently unsatisfied that Petty’s response “explain[ed] in detail” his charges,
the Metropolitan Police Department’s Office of Professional Accountability (“OPA”)
launched an investigation into the veracity with which Petty completed his return-towork paperwork. Metro has a “zero tolerance” policy for dishonesty, and it formally

Case: 10-6013

Nos. 10-6013/6105

Document: 006111378343

Petty v. Metro. Gov’t of Nashville

Filed: 07/24/2012

Page: 4

Page 4

issued a complaint charging Petty with dishonesty during the return-to-work process in
April 2005. After investigating the charges against Petty, Lieutenant Gordon Howey
prepared a report finding that the allegations against Petty lacked foundation. The Chief
of Police, Ronal Serpas, and the Director of the OPA, Kennetha Sawyers, accepted
Howey’s conclusions. In July 2005, Sawyers sent Petty a letter informing him of the
dismissal of the charges against him.
But Petty’s case continued to trouble Sawyers. Wanting to learn more about the
circumstances surrounding Petty’s discharge from the Army, Sawyers contacted an
Army representative for information. Through her investigation, Sawyers learned that
Petty had submitted an incomplete DD-214 to Metro. Petty had enlarged the form that
he provided to Metro on a copy machine, cutting off several boxes—including one
describing his discharge from the military as “in lieu of trial by court martial.” Sawyer’s
discovery sparked a second investigation into Petty’s truthfulness, this one focusing on
whether Petty intentionally altered his DD-214.
Metro never returned Petty to his pre-deployment position of patrol sergeant.
Beginning in October 2005, Metro assigned Petty to the “bubble,” where it primarily
tasked him with answering telephone calls from the public. In December 2005, Metro
denied Petty’s request to resume moonlighting as a security guard. See Petty I, 538 F.3d
at 434-38 (citing Petty v. Metro. Gov’t of Nashville-Davidson, No. 3:05-0680, 2006 WL
3333509, at *1-5 (M.D. Tenn. Nov. 16, 2006)).
B. Petty I
Petty sued, alleging violations of the reemployment and antidiscrimination
provisions of USERRA. He alleged that Metro violated his USERRA rights by
(1) delaying his rehire for the purpose of subjecting him to Metro’s return-to-work
process; (2) failing to reinstate him to his previously held position; and (3) denying him
permission to engage in extra-duty employment as a security guard. Both parties moved
for summary judgment, and the district court granted Metro’s motion on all claims
except those arising from the denial of Petty’s request for off-duty work. The off-duty-

Case: 10-6013

Nos. 10-6013/6105

Document: 006111378343

Filed: 07/24/2012

Page: 5

Petty v. Metro. Gov’t of Nashville

Page 5

work claim proceeded to a bench trial, after which the district court entered a judgment
on partial findings in favor of Metro. See id. at 438. Petty appealed.
During the pendency of Petty’s appeal, Metro continued its second investigation
into Petty’s suspected dishonesty. This investigation initially focused on Petty’s
submission of an incomplete DD-214, but evolved into an examination of Petty’s
veracity during Metro’s return-to-work process and the OPA’s initial investigation. In
late 2007, Metro held a disciplinary hearing on whether Petty “submitted a materially
false statement,” “withheld information regarding [his] military investigation,” and
“attempt[ed] to conceal the terms of [his] discharge from military duty.” After the
hearing, Metro terminated Petty. Following Petty’s termination, Metro notified the
Peace Officer Standards Training (“POST”) Commission of the circumstances of Petty’s
discharge, causing the Commission to suspend Petty’s certification to work as a police
officer in Tennessee.
Several months after Petty’s termination, we heard oral argument on his appeal.
In Petty I, we held that USERRA’s reemployment provisions barred Metro from
requiring Petty to comply with its return-to-work procedures. See id. at 442. We further
held that Metro’s delay of Petty’s reemployment during its second investigation—which
examined his alleged dishonesty during Metro’s return-to-work process—violated
USERRA’s reemployment provision. See id. at 443-44. Because Petty qualified for
reemployment, we held, USERRA required Metro to fully reemploy Petty, regardless
of any honesty issues arising from Metro’s return-to-work process. Id. at 444.
Accordingly, Petty I (1) reversed the district court’s grant of summary judgment
to Metro on Petty’s reemployment claims; (2) vacated the district court’s grant of
judgment on partial findings to Metro with respect to Petty’s discrimination claim; and
(3) remanded the case to the district court with instructions to enter summary judgment
in favor of Petty on his reemployment claims, to determine the damages, and to conduct
further proceedings with regard to Petty’s discrimination claim. See id. at 447.
The Petty I court first learned of Petty’s termination at oral argument. See id. at
444 n.7. Accordingly, our decision in Petty I noted that Petty’s termination might

Case: 10-6013

Nos. 10-6013/6105

Document: 006111378343

Petty v. Metro. Gov’t of Nashville

Filed: 07/24/2012

Page: 6

Page 6

prevent Metro from placing Petty in his original position as patrol sergeant, but left the
issue for the district court to determine on remand. Id. When the case returned to the
district court, Petty filed a supplemental complaint claiming that Metro’s termination
constituted discrimination and retaliation in violation of USERRA. Both parties
conducted additional discovery and again filed cross-motions for summary judgment.
C. Proceedings on Remand
As directed by Petty I, the district court granted Petty summary judgment on his
reemployment claims. As a remedy for the reemployment violation, the court ordered
that Metro immediately reinstate Petty to his former position as patrol sergeant. In light
of Petty’s reinstatement, the court dismissed his newly asserted retaliation and
discrimination claims as moot.
After ruling on the summary-judgment motions, the court held a bench trial to
resolve three remaining issues: (1) whether Metro discriminated against Petty by
denying his request to engage in extra-duty employment; (2) the appropriate amount of
damages, including back pay; and (3) whether Petty was entitled to liquidated damages.
At the conclusion of this trial, the district court awarded Petty $2,500 in back pay for the
initial three-week delay in reemployment and $172,058.67 in back pay from the time of
his termination until his court-ordered reinstatement. Further, the district court found
that Metro discriminated against Petty by refusing to allow him to engage in extra-duty
employment and awarded him an additional $4,500 in damages. Finally, the district
court granted Petty partial liquidated damages, awarding him $120,116.43. Metro
appeals, and Petty cross-appeals.
II.
On appeal, Metro challenges the district court’s (1) award of reinstatement and
back pay as remedies for Petty’s termination under his reemployment claim; (2) finding
that Metro discriminated against Petty by denying his request to engage in extra-duty
employment; (3) grant of Petty’s motion in limine, which excluded evidence of Petty’s
alleged untruthfulness from trial; and (4) award of liquidated damages. Petty cross-

Case: 10-6013

Nos. 10-6013/6105

Document: 006111378343

Filed: 07/24/2012

Petty v. Metro. Gov’t of Nashville

Page: 7

Page 7

appeals on this last point, arguing that the district court should have awarded him
full—instead of partial—liquidated damages. Because all of these issues concern
USERRA, we begin by describing the statute’s framework and purpose.
A. USERRA
USERRA protects the job security of returning veterans. Petty I, 538 F.3d at
439. Several provisions of USERRA coordinate to provide this security: Sections 4312
and 4313, the “reemployment provisions,” entitle veterans to reemployment after
military service and prescribe the positions to which they are entitled upon returning.
38 U.S.C. §§ 4312, 4313. Section 4311, the “discrimination provision,” prohibits
employers from discriminating against veterans on the basis of their military service.
38 U.S.C. § 4311. Finally, § 4316 guarantees veterans the same benefits they would
have enjoyed absent the interruption in their employment and prevents employers from
terminating without “cause” any returning veteran within one year of his reemployment.
38 U.S.C. § 4316.
The reemployment and discrimination provisions protect different phases of
employment. At the point of rehire, §§ 4312 and 4313 entitle a returning veteran to
reemployment in either the position he would have held absent his departure for military
service “or a position of like seniority, status and pay.” 38 U.S.C. § 4313(a)(2)(A).
After an employer rehires a veteran, § 4311 prohibits the employer from discriminating
against the veteran with respect to “any benefit of employment.” 38 U.S.C. § 4311; see
also Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 304 (4th Cir. 2006).
USERRA’s reemployment and discrimination provisions differ in another relevant way:
a plaintiff seeking relief under the discrimination provision must show that his employer
discriminated against him on account of his military service, but a plaintiff seeking relief
under the reemployment provision does not. Petty I, 538 F.3d at 442. To demonstrate
entitlement to reemployment, veterans need only show that they meet the reemployment
provisions’ four prerequisites: proper notice to his employer in advance of his departure,
a service period of less than five years, a timely request for reemployment accompanied
by proper documentation, and a separation from military service under “honorable

Case: 10-6013

Nos. 10-6013/6105

Document: 006111378343

Filed: 07/24/2012

Petty v. Metro. Gov’t of Nashville

Page: 8

Page 8

conditions.” Id. at 440-43 (citing 38 U.S.C. § 4312). If a veteran satisfies these four
prerequisites, then the reemployment provisions prohibit an employer from limiting or
delaying his reemployment rights in any way. See id. at 442-43 (citing 38 U.S.C.
§§ 4312, 4313).
B.

The District Court’s Award of Reinstatement and Back Pay Under Petty’s
Reemployment Claim
Metro first argues that the district court erred in awarding back pay and

reinstatement as a remedy for Petty’s termination under his reemployment claim.
Because Metro terminated Petty long after reemploying him, Metro argues, the district
court should have analyzed Petty’s claim under USERRA’s discrimination provision,
§ 4311.

Metro argues that Petty cannot show that his termination violated the

discrimination provision, because Metro terminated him for dishonesty during its returnto-work process—not for any reason related to his protected status as a veteran.
(Again, Metro’s second investigation focused on Petty ’s submission of an incomplete
DD-214 and his veracity during the return-to-work process and first investigation.)
From this, Metro concludes that the district court erred in “granting summary judgment
to Petty on his termination claim.”
By wrongly framing the issue, Metro’s argument stumbles from the gate. The
district court did not grant summary judgment to Petty on his “termination claim”; rather,
the district court awarded Petty relief for his termination under his reemployment claim.
Petty initially brought a separate claim alleging discrimination based on his termination,
but the district court dismissed that claim as moot after ordering Metro to reinstate Petty.
With respect to the grant of summary judgment on Petty’s reemployment claim, the
district court followed the instruction of Petty I. 538 F.3d at 448 (“We REMAND this
matter to the district court with instructions to enter summary judgment in favor of Petty
on the reemployment claims and to determine the resultant damages . . . .”). To the
extent that Metro challenges the district court’s decision to grant summary judgment on
Petty’s reemployment claims, Petty I forecloses its argument.

Case: 10-6013

Nos. 10-6013/6105

Document: 006111378343

Filed: 07/24/2012

Page: 9

Petty v. Metro. Gov’t of Nashville

Page 9

Accordingly, we confine Metro’s arguments on appeal to a challenge of the
district court’s award of back pay and reinstatement, which we review for abuse of
discretion. See Fuhr v. Sch. Dist. of Hazel Park, 364 F.3d 753, 760 (6th Cir. 2004)
(reinstatement); Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666, 678
(6th Cir. 2008) (back pay). We reverse only if we find that the district court committed
“a clear error of judgment, such as applying the incorrect legal standard, misapplying the
correct legal standard, or relying upon clearly erroneous findings of fact.” Jones v. Ill.
Cent. R.R. Co., 617 F.3d 843, 850 (6th Cir. 2010) (quoting In re Ferro Corp. Derivative
Litig., 511 F.3d 611, 623 (6th Cir. 2008)).
Petty I found that Metro’s failure to restore Petty to his previous position pending
the outcome of its second investigation constituted an ongoing violation of USERRA’s
reemployment provisions:
At the point at which Petty was entitled to reemployment under
§§ 4312 and 4313, Metro had no basis on which to question his
qualifications. Petty had satisfied the only prerequisites to § 4313—those
specified in § 4312—and Metro’s attempt to impose additional
prerequisites through its return-to-work process was, as we have already
explained, wholly impermissible. The process, then, including Petty’s
alleged “dishonesty” therein, cannot serve as a basis for delaying or
otherwise limiting Petty’s right to reemployment.
Furthermore, Metro cannot avoid this conclusion by arguing that
its second investigation into Petty’s conduct during the return-to-work
process had not been completed at the time of Petty’s filing of this action,
and Metro therefore had not been able to determine whether Petty was
qualified for reemployment in his original position with the police
department. First, investigations spawned by the improper application to
Petty of the return-to-work process cannot serve to delay Petty’s statutory
right to reemployment if the prerequisites for reemployment have been
met.
Petty I, 538 F.3d at 443-44 (emphasis added) (citation and footnote omitted).
Pointing to another passage in Petty I, Metro argues that the previous panel found
that Metro reemployed Petty long before Metro terminated him. See id. at 445 (“Petty
did not request permission to engage in off-duty work . . . until approximately ten

Case: 10-6013

Nos. 10-6013/6105

Document: 006111378343

Filed: 07/24/2012

Petty v. Metro. Gov’t of Nashville

months after he was reemployed.” (emphasis added)).

Page: 10

Page 10

Because USERRA’s

reemployment provisions do not protect a veteran after his reemployment, Metro
concludes from this passage that the district court should have analyzed Petty’s
termination claim under the discrimination provision. See id. (holding that USERRA’s
reemployment provision “only entitles a service person to immediate reemployment and
does not prevent the employer from terminating him the next day or even later the same
day” (quoting Francis, 452 F.3d at 304)). 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. See 38 U.S.C.
§§ 4311, 4316(c). If Metro truly reemployed Petty, then, USERRA would not prevent
Metro from firing him if it had proper “cause” to do so.
Metro argues that Petty’s dishonesty provided such cause. Metro terminated
Petty at the end of its second investigation, which examined both Petty’s allegedly
untruthful answers to questions about his military discharge and his dishonesty during
Metro’s first investigation into his truthfulness.

Petty’s mendacity during this

investigation—namely, his allegedly false statements during the OPA’s investigation and
during the deposition and trial in this litigation—arguably provides Metro cause to
terminate Petty wholly unrelated to his military service.
But this argument misreads Petty I. Regardless of the court’s later statement
(made while discussing a separate claim) that Metro reemployed Petty, the block-quoted
passage above demonstrates Petty I’s view that (1) Metro never fully reemployed Petty
and that (2) limiting Petty’s reemployment rights based on Metro’s second investigation
of him violated USERRA’s reemployment provision. Further, other passages in Petty
I reject the notion that Petty’s alleged dishonesty during Metro’s return-to-work process
constituted a permissible ground for limiting Petty’s reemployment rights. See, e.g.,
538 F.3d at 441 (“[I]t would be inconsistent with the goals of USERRA to prevent Petty
from exercising his right to reemployment because he failed to provide forthrightly
information that is statutorily unnecessary to his establishing the right in the first
place.”).

Case: 10-6013

Nos. 10-6013/6105

Document: 006111378343

Filed: 07/24/2012

Petty v. Metro. Gov’t of Nashville

Page: 11

Page 11

Based on the above-quoted passage, the district court concluded that Petty I
mandated Petty’s reinstatement to his former position as patrol sergeant. After trial, the
court also awarded Petty back pay from his 2007 termination. In its ruling, the district
court noted that the parties did not dispute that Metro never returned Petty to his former
position. The court further noted that the charges underlying Petty’s termination all
related to his failure to provide answers to questions and documentation relating to his
military service.
We find no fault with the court’s conclusions. USERRA prohibits employers
from placing “additional prerequisites” on returning veterans seeking to exercise their
reemployment rights. See 38 U.S.C. § 4302. Petty I found that rescreening employees
before reemploying them constituted such an “additional prerequisite,” and concluded
that Metro’s additional investigation violated this prohibition. See Petty I, 538 F.3d at
440-41. Though USERRA may permit Metro to terminate Petty for dishonesty after
reemploying him, Metro never restored Petty to his position as patrol sergeant.
Accordingly, we hold that the district court properly exercised its discretion in awarding
Petty back pay and reinstatement under his reemployment claim.
C. Petty’s Extra-Duty Employment Claim
Metro also challenges the district court’s ruling in Petty’s favor on his extra-dutyemployment claim. The district court found that Metro discriminated against Petty by
denying his request to work as a security guard at two Nashville restaurants, ruling that
the denial violated USERRA’s discrimination provision, § 4311. Petty moonlighted at
the restaurant prior to his deployment, but Metro denied Petty’s request to resume work
at the restaurant after his return. Metro refused Petty’s request because Metro had placed
Petty on “administrative assignment” pending the outcome of its investigation into his
alleged dishonesty during Metro’s return-to-work process, and this probationary status
barred Petty from engaging in extra-duty employment.
USERRA’s discrimination provision prohibits an employer from denying
“retention in employment” or any other “benefit of employment” based on a veteran’s
“membership [in uniformed service], application for membership, performance of

Case: 10-6013

Nos. 10-6013/6105

Document: 006111378343

Filed: 07/24/2012

Petty v. Metro. Gov’t of Nashville

Page: 12

Page 12

service, application for service, or obligation.” 38 U.S.C. § 4311(a). Petty I described
the burden-shifting framework that governs discrimination claims brought under § 4311:
An individual bringing a § 4311 claim has the initial burden of proving
a prima facie case of discrimination by showing, by a preponderance of
the evidence, that his protected status was a substantial or motivating
factor in the adverse employment action(s). The burden then shifts to the
employer to prove the affirmative defense that the employment action(s)
would have been taken in the absence of the employee’s protected status.
Petty I, 538 F.3d at 446. Unlike a claim brought under USERRA’s reemployment
provisions, a claim brought under the discrimination provision requires a showing that
an employer discriminated against a veteran based on a “status or activity protected by
USERRA.” Id. at 442. The operative question, then, is whether Petty’s protected status
served as a “motivating factor” for the denial of his request for off-duty employment.
We first grappled with this question in Petty I. Because Metro’s investigation
of Petty caused Metro to deny his request for extra-duty employment, Petty I considered
Metro’s motivations for launching the investigation. The discussion centered on whether
concerns about Petty’s conduct in service—or merely concerns about his
honesty—spurred Metro to investigate Petty. In vacating the district court’s judgment
on partial findings, we concluded that if concerns about Petty’s conduct in service
motivated Metro’s second investigation, “then it follows that the denial of benefits on
the basis of the investigation’s existence was also motivated, at least in part, by an
improper purpose.” Id. at 447.
The narrow question on remand, then, was whether concerns about Petty’s
military service motivated Metro’s second investigation of Petty. Metro argues that the
district court failed to make a finding that such an “improper purpose” motivated its
investigation, and offers evidence disputing whether Petty’s protected status motivated
its denial of Petty’s request for extra-duty employment. On appeal from a bench trial,
we review the district court’s factual findings for clear error and its conclusions of law
de novo.

Moorer v. Baptist Mem’l Health Care Sys., 398 F.3d 469, 478-79

(6th Cir. 2005); see also Fed. R. Civ. P. 52(a)(6).

Case: 10-6013

Nos. 10-6013/6105

Document: 006111378343

Filed: 07/24/2012

Page: 13

Petty v. Metro. Gov’t of Nashville

Page 13

After trial on remand, the district court found that Metro’s second investigation
“[was] based on the improper failure to reemploy and the investigation of [Petty’s]
military service in violation of USERRA.” The court awarded Petty $4,500 in damages
for his extra-duty-work claim—the amount Petty would have received had Metro
allowed him to continue working at the restaurants. Metro quotes this language and
faults the district court for conflating Petty’s reemployment and discrimination claims.
But the quote’s context reveals that the district court was making a point about the
relationship between the investigation underlying Petty’s reemployment claim and his
discrimination claim. Elsewhere, the district court clearly makes its point regarding the
improper motive behind the second investigation:
I am finding liability on discrimination on the extra-duty work claim.
The reason is that the denial of extra-duty work was based on what has
now been determined to be an improper investigation in violation of
USERRA by investigating Mr. Petty’s military service.
A review of the record leaves us unpersuaded that the district court clearly erred in
making this factual finding. Accordingly, we affirm the district court’s judgment in
favor of Petty on this claim.
D. The Trial Court’s Grant of Petty’s Motion in Limine
Metro next challenges the district court’s grant of Petty’s motion in limine, which
sought to exclude evidence of his alleged untruthfulness from the trial at which the
district court measured the damages on his reemployment claim. Metro intended to offer
this evidence in support of two affirmative defenses, unclean hands and after-acquired
evidence. The court excluded the evidence for two reasons: First, the court noted that
the defendant failed to cite any cases indicating that the unclean-hands or after-acquiredevidence doctrines applied to limit damages resulting from a reemployment claim under
USERRA. Second, the court held that Petty I barred the affirmative defenses.
Metro first challenges this ruling on procedural grounds, faulting the district
court for improperly ruling on its affirmative defenses through a motion in limine. The
court should have required Petty to challenge these defenses through a motion to dismiss

Case: 10-6013

Nos. 10-6013/6105

Document: 006111378343

Filed: 07/24/2012

Petty v. Metro. Gov’t of Nashville

Page: 14

Page 14

or motion for summary judgment—so runs Metro’s argument—and, because it failed to
do so, the court improperly granted a motion for summary judgment “masquerading” as
a motion in limine. See, e.g., 75 Am. Jur. 2d Trial § 44 (2009) (“The use of motions in
limine to summarily dismiss a portion of a claim has been condemned, and the trial
courts are cautioned not to allow motions in limine to be used as unwritten and unnoticed
motions for summary judgment or motions to dismiss.”).
We reject this procedural challenge, because Metro fails to demonstrate prejudice
from the purportedly improper ruling. At least one other circuit, in faulting a district
court for making summary-judgment-type rulings on a motion in limine, grounded its
rulings on findings that the nonmovant lacked notice and an adequate opportunity to
marshal evidence. Compare Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069-70
(3d Cir. 1990) (reversing the grant of summary judgment where nonmoving party had
no notice or opportunity to present evidence), with Howard Johnson Int’l v. Cupola
Enters., 117 F. App’x 820, 822-23 (3d Cir. 2004) (distinguishing Bradley and upholding
the grant of summary judgment on a motion in limine where the nonmovant had notice
that the motion was dispositive). Further, a court may grant summary judgment sua
sponte “so long as the losing party was on notice that she had to come forward with all
of her evidence.” Salehpour v. Univ. of Tenn., 159 F.3d 199, 204 (6th Cir. 1998)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986)); see also Fed. R. Civ. P.
56(e), (f). The record suggests that Metro understood that Petty’s motion in limine might
dispose of its affirmative defenses, and Metro fails to argue that it lacked an opportunity
to present evidence in response.
In any event, we find that Metro’s substantive quarrel with the district court’s
ruling fails under either the abuse-of-discretion standard applicable to review of a motion
in limine or under the de novo standard applicable to summary-judgment rulings.
See United States v. Poulsen, 655 F.3d 492, 508 (6th Cir. 2011) (holding that this court
reviews the grant of a motion in limine for abuse of discretion). With its equitable
affirmative defenses, Metro merely recasts an argument that we rejected in Petty I. The
district court held that even if the unclean-hands or after-acquired-evidence doctrines

Case: 10-6013

Document: 006111378343

Nos. 10-6013/6105

Filed: 07/24/2012

Petty v. Metro. Gov’t of Nashville

Page: 15

Page 15

applied to USERRA reemployment claims, they should not apply in this case, given
Petty I’s conclusion that Petty’s alleged dishonesty “cannot serve as a basis for
. . . limiting Petty’s right to reemployment.” Based on this holding, the district court
found the doctrines inapplicable: “Given the court of appeals’ rejection of [Petty]’s
alleged untruthfulness as a bar to his claim for reemployment, this Court is not persuaded
that such conduct should serve as a bar to damages on his claim for reemployment.” We
agree and reject Metro’s challenge to the district court’s grant of Petty’s motion in
limine.
E. Liquidated Damages
Finally, we address both parties’ challenge to the district court’s partial award
of liquidated damages. Metro urges us to find that the district court abused its discretion
by awarding liquidated damages on Petty’s reemployment claim. Petty cross-appeals,
arguing that the district court erred in awarding only partial damages. As with awards
granted under similar statutes, we review the award of liquidated damages for a
USERRA violation for an abuse of discretion. See Thom v. Am. Standard, Inc., 666 F.3d
968, 973 (6th Cir. 2012) (FMLA); Arban v. West Publ’g Corp., 345 F.3d 390, 408
(6th Cir. 2003) (same).
USERRA provides for liquidated damages in an amount equal to lost wages and
benefits “if the court determines that the employer’s failure to comply with the
provisions of this chapter was willful.” 38 U.S.C. § 4323(d)(1)(C). Elsewhere, this
court has held that an employer’s conduct was “willful” when “‘the employer either
knew or showed reckless disregard for the matter of whether its conduct was prohibited’
by the law at issue.”

Koehler v. PepsiAmericas, Inc., 268 F. App’x 396, 403

(6th Cir. 2008) (quoting Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 128
(1985)).
The district court granted liquidated damages in part, keying on the date that the
Sixth Circuit decided Petty I. After that date—August 18, 2008—the court held that
Metro “was on notice of the need to fully restore Mr. Petty to his previous position.”
Regardless of Petty I, however, Metro refused to reinstate Petty until the district court

Case: 10-6013

Nos. 10-6013/6105

Document: 006111378343

Filed: 07/24/2012

Petty v. Metro. Gov’t of Nashville

Page: 16

Page 16

ordered reinstatement in its February 2010 order. In ruling on its award of liquidated
damages at the conclusion of the bench trial, the district court noted the clarity of the
court’s decision in Petty I and found that Metro’s failure to reemploy Petty amounted to
a “willful” failure to comply with USERRA.
Metro disputes the clarity of Petty I’s mandate.

When opposing Petty’s

reinstatement after remand following Petty I, Metro claimed that a footnote in Petty I
supported its view that it could terminate Petty before fully reemploying him if it could
show “cause” unrelated to Petty’s military service.1 The court rejected Metro’s
argument, but conceded that the footnote was “not entirely clear.” Metro seizes on this
statement to argue that the district court’s “admission” forecloses a liquidated-damages
award.
Though Metro identifies language in Petty I that arguably questions whether
USERRA required Petty’s reemployment, other passages clearly prohibit Metro from
limiting Petty’s reemployment rights based on its second investigation. See, e.g., Petty
I, 538 F.3d at 433-34 (“The [return-to-work] process, then, including Petty’s alleged
‘dishonesty’ therein, cannot serve as a basis for delaying or otherwise limiting Petty’s
right to reemployment.”). In light of this, we uphold as within the district court’s
discretion its determination that Metro “was on notice of the need to fully restore Mr.
Petty to his previous position” in the wake of Petty I. Accordingly, we reject Metro’s
argument.
We also reject Petty’s claim to additional liquidated damages. Petty argues that
the district court abused its discretion by failing to award liquidated damages for Metro’s
failure to restore Petty prior to the decision in Petty I. In denying liquidated damages
for Metro’s failure to reemploy Petty during this period, the district court found that
(1) “there was a good-faith dispute [regarding] Metro’s obligations under USERRA”;

1

The footnote reads: “At oral argument the parties indicated that Petty is no longer employed at
Metro. This may limit the type of relief available to Petty on remand (e.g., placing Petty in the position
of patrol sergeant may not be possible at this time); however, we leave these issues for the district court
to determine.” Petty I, 538 F.3d at 444 n.7.

Case: 10-6013

Nos. 10-6013/6105

Document: 006111378343

Filed: 07/24/2012

Petty v. Metro. Gov’t of Nashville

Page: 17

Page 17

and (2) reasonable questions existed about “what can be considered about dishonesty and
the risk to the public of an unqualified officer” under USERRA.
We find no error in the district court’s conclusion that a good-faith dispute
regarding the propriety of Metro’s return-to-work process existed before Petty I. Prior
to Petty I, Metro interpreted USERRA’s prohibition on “additional prerequisites” as
meaning “additional to the employer’s existing prerequisites”—an interpretation
plausible enough to convince the district court. See Petty I, 538 F.3d at 442; see also
Petty v. Metro. Gov’t of Nashville-Davidson, No. 3:05-0680, 2006 WL 3333509
(M.D. Tenn. Nov. 16, 2006). The sparse case law interpreting USERRA, combined with
the reasonableness of Metro’s pre-Petty I interpretation of USERRA, both undermine
the conclusion that Metro “showed reckless disregard” toward its obligations under
USERRA.

See, e.g., Lewis v. Rite of Passage, Inc., 217 F. App’x 785, 786

(10th Cir. 2007) (“Precedent interpreting and applying the USERRA is sparse.” (internal
quotation marks and citation omitted)).
III.
Accordingly, we AFFIRM the district court’s grant of summary judgment in
Petty’s favor, as well as its award of back pay and reinstatement; AFFIRM the district
court’s grant of Petty’s motion in limine; AFFIRM the district court’s judgment in
Petty’s favor on his extra-duty-employment claim; and AFFIRM the district court’s
award of partial liquidated damages.