Weaver v. Madison City Board of Education et al
MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 12/13/16. (MRR, )
2016 Dec-13 AM 10:51
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MICHAEL E. WEAVER,
MADISON CITY BOARD OF
EDUCATION and DR. DEE FOWLER, )
in his official capacity as
Superintendent of the Madison City
Board of Education,
Case No. 5:11-cv-03558-TMP
This cause came before the court for a non-jury bench trial on the plaintiff’s
claims alleging violation of his rights under the Uniform Services Employment and
Re-Employment Rights Act, 38 U.S.C. § 4301 et seq. (“USERRA”). In particular,
the plaintiff, Michael Weaver, asserts that the defendants failed to re-employ him
in the position to which he was entitled upon his return from military service, in
violation of 38 U.S.C. § 4313, and actively discriminated against him due to his
military service, in violation of 38 U.S.C. § 4311. Having heard the testimony and
evidence proffered by the parties, and having received the briefs submitted by
counsel, the court 1 now enters its findings of fact and conclusions of law.
To begin, the parties agree that certain facts are not in dispute. Weaver was
hired as the Executive Director of Finance and Business for the Madison City
Board of Education (‘the Board”) in April 1998 and has been an employee
continuously since that time. During the majority of his employment with the
Board, Weaver was a member of the United States Army Reserve, in connection
with which he was called to active duty several times. Weaver’s first deployment
was in 2005-07.
He gave advance notice to the superintendent and other
appropriate officials each time he was activated for military service, and he timely
requested return to active employment with the Board after completion of each
such service. The combined length of Weaver’s periods of federal military service
during his employment relationship with the Defendants (minus periods exempted
by 38 U.S.C. § 4312(c)) did not exceed five years. Each time Weaver was released
from active duty, his service was characterized as “honorable.”
The parties consented to the magistrate judge‘s dispositive jurisdiction pursuant to 28 U.S.C.
§ 636(c). See Doc. 114.
Findings of Fact
1. The Madison City Board of Education (“the Board”) was created in the
spring of 1998, but did not fully separate from the Madison County Board of
Education system until July 1, 1998. The first superintendent hired by the Board
was Dr. Henry J. Clark, III. When the new system became operational on July 1,
1998, it had approximately 4,800 students.
2. In February 1998, Weaver interviewed with Dr. Clark in connection to a
posted job vacancy for a “Business and Financial Manager.” (Plaintiff’s Ex. 32).
On February 9, 1998, Weaver wrote a letter to Dr. Clark as a follow-up to his
interview. (Plaintiff’s Ex. 30). As a result of the interview, Dr. Clark hired
Weaver as the second employee (after Dr. Clark) of the new school system.
3. Weaver and Dr. Clark negotiated a contract for Weaver’s employment.
(Plaintiff’s Ex. 33). The contract provided Weaver with the title of Executive
Director of Finance and Business.
It set an initial annual salary, payable in
monthly installments, but provided no express mechanism for raises or salary
adjustments. The contract also provided additional compensation benefits, such as
a life insurance policy, a monthly automobile allowance, payment of moving
expenses, and payment of dues and expenses for Weaver to attend “professional
The contract provides no term or end date, nor does it set any
provisions or options for renewal of the contract.
4. For the first few months of the new school system, Weaver was tasked by
Dr. Clark with a multitude of jobs, from financial matters to setting up a student
transportation system to examining the need for buildings. As more staff was
hired, however, many of these tasks were transferred to others. For example, Dr.
Dee Fowler was hired and took the title Director of Administration and Operations
before July 1, 1998.
He took over transportation, facility construction and
maintenance, and personnel matters.
For construction projects, Dr. Fowler
oversaw the construction planning and activities, while plaintiff Weaver
determined the budget for the project and paid the bills.
5. Weaver’s principal responsibilities involved preparation of the school
system’s annual budget and long-range planning. Long-range planning involved
updating annually the school system’s five-year plan anticipating growth and the
needs of the system five years into the future. Weaver also supervised the business
staff, who were responsible for receiving and documenting revenue, paying bills,
and supervising the bidding of contracts and purchases.
In those early years, Dr. Clark’s management style was to meet
individually with his senior managers, including Weaver, Fowler, and others,
rather than hold staff meetings. Although an organizational chart for that time
showed Weaver reporting to the Assistant Superintendent, there was no Assistant
Superintendent, and both Weaver and Fowler reported directly to Superintendent
7. From his hiring in 1998 to at least 2005, Weaver was responsible for
researching and making pay-raise recommendations to Dr. Clark. There was no
standard scale or step system by which employees’ compensation was increased
over time. Rather, Weaver would research the Consumer Price Index, the rate of
inflation, and other factors before making recommendations to Dr. Clark for pay
increases for himself and other employees of the system. Dr. Clark then presented
the recommendations to the Board for approval.
From 1998 to 2006, Weaver’s salary increased from approximately
$80,000 to over $124,500.
Plaintiff has remained the second highest paid
employee in the Madison City system, behind only the superintendent.
Fowler’s initial contract set his base pay in 2007 as $137,500 per year. (Plaintiff’s
9. In 2003, Dr. Fowler became the Assistant Superintendent of the school
system. In this position, he became Weaver’s supervisor in that all of the directors
in the system then reported to the Assistant Superintendent, who in turn reported to
Superintendent Clark. Nonetheless, Dr. Clark continued to meet one-on-one with
10. On May 8, 2003, the Alabama State Board of Education mandated by
regulation that each school district have a Chief School Financial Officer. In a
memorandum dated June 19, 2003, the State School Board announced the
Alabama school boards are required to have a chief school finance
officer who meets the qualifications and certification requirements
established by the State Department of Education (SDE). The chief
school finance officer does not have to be the custodian of school
funds, chief accountant, finance director, or head bookkeeper. The
school board can name any qualified employee or officer of the school
system (except the superintendent) as the chief school finance officer,
if the individual is responsible for the financial management system of
the board. The duties and responsibilities of a chief school finance
officer are contained in Rule 290-2-5-.02 of the Rules of the State
Board of Education. [Italics in original].
Rule 290-2-5-.02 of the Rules of the State Board of Education defined the duties
and responsibilities of the Chief School Finance Officer as follows:
290-2-5-.02 Duties and Responsibilities of Chief School Finance
Officers. The chief school finance officer is responsible for a
financial management system that ensures the proper accountability
for funds administered by a local board of education and its schools.
The financial management system shall reflect the financial condition
of the local board of education on a timely and accurate basis. The
local board of education shall provide the resources necessary for the
chief school finance officer to operate an effective financial
An effective financial management system will require
the chief school finance officer and other personnel to:
Maintain an accounting system in accordance with
generally accepted accounting principles and governmental
2. Maintain a school payroll accounting system in accordance
with applicable laws and regulations.
Prepare financial reports annually and at other times as
requested by the local school superintendent, the local board of
education, and other agencies.
4. Prepare reports as required by other agencies.
5. Maintain an adequate system of internal controls including
property and inventory accounting.
6. Maintain a sound system of cash management.
7. Maintain a sound accounting system in the individual local
Maintain a system of contracting and purchasing
Coordinate the preparation of the annual budget and any
amendments as appropriate.
Maintain the financial operations of the child nutrition
program and other special programs in accordance state and federal
Carry out assigned responsibilities in accordance with
federal, state, and local laws and with applicable rules and regulations.
Perform other duties as may be assigned to the position
by law, by the local school superintendent and local board of
education, and by rules and regulations of the State Board of
Education and the local government.
Plaintiff Weaver was certified by Superintendent Clark as the Chief School
Finance Officer for Madison City Schools on July 28, 2003. (Plaintiff’s Ex. 41).
11. Before 2006, there also was a position known as the Custodian of
School Funds, who was a subordinate of and supervised by Weaver as the
Executive Director of Finance and Business. The Custodian of School Funds was
principally responsible for processing payment of school payrolls upon
certification by the superintendent.
12. Beginning in 2004 or 2005, Superintendent Clark became “disengaged”
from active leadership of the Madison City school system. Both the plaintiff and
Dr. Fowler testified to frustrations they experienced because Dr. Clark became less
interested and active in leading the school system. As a result, both Weaver and
Dr. Fowler agreed that several senior management employees, including both of
them, tried to “fill the vacuum” of leadership by taking on new and additional
responsibilities. This caused tension among the senior staff and other employees
as it was not always clear where the lines of authority and responsibility ran. The
school system began to decline.
13. In 2005 several employees filed a number of grievances against plaintiff
In January 2005, Jolie Ferguson filed a grievance describing three
incidents in which she believed Weaver was disrespectful toward her,
“boarder[ing] on hostility” [sic]. (Defendants’ Ex. 8). Beginning in February
2005, Loree Spencer filed a series of grievances alleging sexual harassment and
intimidation by Weaver. (Defendants’ Ex. 9). Also beginning in February 2005,
Martha Tatara filed a series of grievances alleging that Weaver had yelled at her
and humiliated her in a committee meeting and was otherwise verbally harassing
her. (Defendants’ Ex. 10). In July 2005, Teresa Hill filed a grievance alleging that
Weaver was rude, unprofessional, and intimidating toward her, and that his
irregular office hours put pressure on the business staff to complete tasks in a
timely manner. (Defendants’ Ex. 11).
14. On July 22, 2005, Dr. Clark suspended Weaver without pay for seven
days and issued a written reprimand, saying in part that six formal grievances had
been filed against him and that:
Specifically, behaviors that have been described by one or more of the
complaining employees include offensive or inappropriate comments
of a sexual nature, offensive touching of a sexual nature, inappropriate
invasion of the personal space of complainants, conducting a
"threatening method of management," erratic or irrational behavior,
"irrational hostility toward any woman who questions you or your
"orders," unreasonable demands placed on your employees and timecrunches occasioned by your recurring absences during the regular
work day and late night working habits, being "cussed at, yelled at
and verbally humiliated in front of people" and unsubstantiated
accusations of wrongdoing by employees.
As you know, Dr. Fowler and I conducted a verbal counseling session
with you on May 24 in which you were informed that any
inappropriate, abusive or hostile behaviors were to cease immediately.
The complainants who had filed grievances at that time were informed
that any further problems with your behavior should be reported to
Since our meeting in May, two additional formal grievances have
been filed and two of the previous grievances have been appealed to
the Board. Complainants have alleged that your inappropriate
behaviors have not only continued but they also allege that they
believe that you have sought to retaliate against them for bringing
their grievances in the first instance. As you know, retaliation for the
filing of a grievance is a violation of policy GAE.
After review of the grievances submitted to me and discussions with
the various employees who have complained about your behavior I
find that the complaints are credible and relate behavior that is
unacceptable in this or any other work environment. You have been
previously verbally warned about your inappropriate behaviors yet
those behaviors have recurred. This is a very serious matter and it
requires a serious response.
Your behaviors require me to issue this written reprimand which is to
be placed in your personnel file. You are expressly warned that any
and all behaviors in which you may engage that harass, intimidate,
abuse, threaten, demean, humiliate, embarrass, belittle, or degrade any
employee of this system will not be tolerated whatsoever and any
additional reports of such behaviors on your part, if substantiated, will
lead to more severe discipline, to include dismissal from employment.
(Defendant’s Ex. 14). On July 22, 2005, Weaver also signed and entered into a
formal disciplinary agreement in which he agreed to the seven-day suspension
without pay, to apologize to three co-employees, to enroll in an anger management
counseling program, to conform his work hours to regular work hours, to limit his
use of work computers to internet sites related to his work, and to accept a formal
written reprimand. (Defendant’s Ex. 15).
15. On August 8, 2005, plaintiff received notice that he was being called up
for active duty with the Army Reserve, with a reporting date of September 6, 2005.
(Plaintiff’s Ex. 4, Bates No. 703 of 921).
The activation was for 545 days.
Weaver timely notified Dr. Clark of his activation.
During plaintiff’s deployment in 2006, Dr. Clark retired and was
replaced by an interim superintendent, Stephen Nowlin. Dr. Nowlin’s contract was
for the time period from June 2006 through the end of the year, during which the
Board would seek a permanent superintendent.
17. During the plaintiff’s deployment, his duties and responsibilities were
divided among a number of employees, as well as a financial consultant, David
Smith, engaged by the Board.
Teresa Hill became the Interim Chief School
Finance Officer, and the consultant assisted with other financial matters, including
facilities, building projects, and related bond issues.
18. On March 9, 2006, while Weaver was on deployment, the Alabama
Legislature adopted Act No. 2006-196, which, among several things, codified the
position of Chief School Finance Officer. At that time, Teresa Hill was acting as
the Interim Chief School Finance Officer, being advised and assisted by the
consultant, David Smith.
Before Weaver’s deployment, Hill had been an
accounting specialist, working under plaintiff’s supervision.
19. Late in 2006, as Weaver began to approach the end of his deployment,
he notified Dr. Nowlin of his plan to return to his position of Executive Director of
Finance and Business in early 2007.
In November 2006, the Army notified
Weaver that it would extend his deployment. At a lunch in December 2006,
Dr. Nowlin expressed the Board’s concern with the extension of Weaver’s
deployment, and he told Weaver that the school board president, Sue Helms, was
concerned that Alabama law required the Board to continue to pay Weaver the
difference between his school salary and his military pay while he was on
20. During this same time period, Weaver had telephone conversations with
both Helms and the school board attorney, Woody Sanderson, in which both
expressed concerns about the Army’s request that Weaver extend his deployment.
They urged him to seek to rescind an extension of his deployment because he was
needed in his position with the school system and because the pay differential
caused hardships. Weaver successfully persuaded the Army not to extend his
deployment and he was released from active duty February 7, 2007.
21. On January 1, 2007, Dr. Fowler became the Superintendent of the
Madison City schools, succeeding the interim superintendent, Dr. Nowlin.
22. On February 13, 2007, Dr. Fowler announced by email Weaver’s return
to work with the system. His email stated in part:
During the time that Mike [Weaver] was gone the state passed the
School Fiscal Accountability Act. This act established many
procedures and job descriptions, and abolished the position of the
Custodian of the School Funds, providing that every district should
have a Chief School Financial [sic] Officer. The CSFO is responsible
for the following: verifying receipt of funds, verifying payment of
funds, keeping an accurate record of all expenses, and providing
reports and information to the Board. The CSFO reports to the
Superintendent and is a contract employee of the Board. The CSFO is
one of only three positions that the Board actually hires without
recommendation of the superintendent. Teresa Hill is the CSFO of
the district. Mike will continue in his role as Executive Director of
Finance. As you can see some of his former roles have been removed
by law. Yesterday Mike and I sat down and discussed his new job
description. I will give you a few quick items that Mike will be
performing the following functions: verifying reports, assisting in
budgets and planning, supervising the business office (but not the
CSFO), assisting in capital planning, managing insurance and
investment programs, assisting principals in budgeting, maintaining
inventory, and acting as purchasing manager. That is the down and
David Smith will continue to remain as a consultant for several weeks
helping Mike transition to his job. When that time is over he will still
help with projects. The first project is a look at our salary schedule.
Mr. Smith, with help form [sic] the personnel office (Mr. Jones),
should have a new salary schedule recommendation this spring.
I am working on an organizational chart for the Board. When it is
approved and we re-organize I'll get that information to you.
(Plaintiff’s Ex. 45). Dr. Fowler prepared a job description for the position of
“Executive Director of Finance,” referenced in the email (Plaintiff’s Ex. 39), but it
was never presented to or adopted by the Board. He did so because Weaver
became concerned about his duties and responsibilities in the planned
reorganization of the staff.
Upon assuming the position of superintendent, Dr. Fowler began
working on a plan to reorganize the school system staff. The purpose of the plan
was to more clearly define the structure and lines of supervision and reporting
within the system staff.
The position of Executive Director of Finance and
Business was replaced with the position of Chief School Finance Officer, who,
although nominally under the Chief Operating Officer, reported directly to the
Superintendent and the Board itself. Other former director-level positions, such as
Director of Instruction, also were replaced or divided into two or more positions.
This reorganized structure was approved and adopted by the Board on July 25,
2007. (Plaintiff’s Exs. 34 and 35).
From February 2007 until the reorganization was adopted in July,
Weaver was the Executive Director of Finance and Business, Teresa Hill was the
interim Chief School Finance Officer, and David Smith was a financial consultant
under contract with the Board, but not a Board employee.
24. On June 22, 2007, Dr. Fowler received eight formal grievances from the
plaintiff, all dated May 11, 2007.
Several of these were related to the staff
structure and proposed re-organization. In one, he alleged that he was being
denied his rights under USERRA, asserting that Helms, Sanderson, and Interim
Superintendent Nowlin had expressed displeasure at his military deployment, and
that he had “not been brought back to the same scope, job description, and/or pay
and benefits as I had prior to my departure for active duty.” In another grievance,
he complained that the organizational structure of the school system “defi[ed] all
management theory” because there were overlapping responsibilities for financial
matters between himself, Teresa Hill, and consultant David Smith that caused
confusion and miscommunication.
In a third, he complained that consultant
“David Smith is working in the capacity of an employee and not a contract
employee as is stated by his title authority and responsibility.”
25. In other grievances, Weaver accused Dr. Fowler of various instances of
wrongdoing, such as giving the appearance of receiving football tickets as a “perk”
from a yearbook salesman, sending pornographic and “racial” emails to the
plaintiff, allowing Bob Jones High School employees to be paid from local school
funds without approval by the Board, and increasing “Ms. Gray[’s]” pay by “one
step on the salary schedule” contrary to the Separation Agreement under which the
Madison City schools separated from the Madison County school system. In
another grievance, he alleged that Dr. Fowler was interfering with and trying to
prohibit plaintiff from doing financial consulting work with other school systems.
26. In another grievance dated June 19, 2007, again received by Dr. Fowler
on June 22, 2007, plaintiff alleged that Dr. Fowler failed to comply with the timely
processing of his earlier grievances as a “tactic to delay, ignore and let the time
pass,” contrary to the Board’s grievance policy.
27. Plaintiff met with Dr. Fowler and Board President Sue Helms in July
2007, prior to the July 25 reorganization of the Central Office staff, to discuss his
grievances against Fowler. Helms told him that nothing would be done in response
to his grievances. Plaintiff replied that he planned to file a USERRA complaint.
Helms responded, “Are you threatening me?,” to which the plaintiff made no
response. There is no indication that the plaintiff filed a USERRA action prior to
the instant action filed on October 4, 2011.
28. As a result of the July 25, 2007, reorganization, Weaver was named the
Chief School Finance Officer and Hill became the Purchasing Agent for the school
system. Hill was not, however, put under plaintiff’s supervision, but reported
directly to Dr. Fowler, at her request.
29. As a result of the reorganization, various directors were physically
relocated to be nearer the staff they supervised. Plaintiff was moved from his
second-floor office to a first-floor office closer to the business staff. The Director
of Transportation was moved to an office in the bus barn, and the Director of
Operations was moved to an office in the central office annex building. The
Coordinator of Technology also was moved to the annex building. Plaintiff’s
office was located directly beneath the superintendent’s office, but it had a less
“panoramic” view, overlooking the loading dock.
30. Dr. Fowler’s management style was different from Dr. Clark. While Dr.
Clark preferred individual meetings with staff members, Dr. Fowler held regular
weekly staff meetings with multiple staff members present. Plaintiff participated
in these staff meetings.
Prior to his deployment in 2005, plaintiff’s position as Executive
Director of Finance and Business made him part of the strategic planning for the
school system, along with the superintendent and other directors. One area of
responsibility was participation on a committee for capital planning.
planning is the process of assessing and planning for building and facility needs
over a long term. Plaintiff was part of a committee performing capital planning,
consisting of him, Dr. Fowler, and the Director of Instruction, Dr. Rizutto.
Plaintiff would make student-growth projections, while Dr. Fowler examined
faculty needs, and Dr. Rizutto considered instructional requirements. Plaintiff had
no special authority, but simply pooled the available information and organized the
meetings of the committee.
32. During plaintiff’s deployment in 2005-2007, David Smith was brought
in as a consultant to assist with planning and building a new elementary school.
He also advised and assisted Teresa Hill in her role as the Interim Chief School
Finance Officer. Also, the school system began a bond refinance in 2006 and
Smith was asked to remain on in 2007 to complete work on the new Mill Creek
Elementary School. Since 2012, Pat Connors took over principal responsibility for
facilities planning when he was hired as the Director of Facilities.
33. Although plaintiff was requested to supply financial data relating to the
bond issue, he was not involved in preparing the prospectus, as that was handled
by the bond underwriter and bond counsel, both before and after his military
deployment. School bonds were issued through the City of Madison to get a better
rate, and this required the use of the City’s bond consultant and underwriter. That
remains true today. Although prior to 2005 plaintiff had traveled to New York
with other school officials for presentations of financial information to bond rating
agencies, consultant David Smith did so in the spring of 2009, rather than plaintiff.
This appears to be during a time when plaintiff was on military leave from
November 2008 to May 2009. (Plaintiff’s Ex. 6, “Mobilization 000023”). Weaver
still is involved in checking the accuracy of financial information used by the bond
underwriter and counsel.
34. Plaintiff remains involved in long-range strategic planning, although
more of that has been taken on by the Board itself. He meets monthly with Board
members as part of the Finance Committee, consisting of himself, Dr. Fowler, and
two Board members. Similarly, David Smith was involved in financial planning
and bond issues in April 2009, June 2009, and August 2009, while plaintiff either
was away on active military duty or had returned only shortly before. The same is
true of a presentation made by Smith to the Board concerning proration in
September 2010—plaintiff was away on active military service.
Although plaintiff had performed salary analyses before his 2005
deployment, when he returned in 2007, David Smith was already performing an
analysis for that year. In early 2008, plaintiff returned to the salary analysis
committee, “but did not lead it.” He also performs staff allocation analyses, but no
longer does student projections.
36. Prior to 2005, as Executive Director of Finance and Business, plaintiff
handled the schools system’s insurance and investment needs. As Chief School
Finance Officer, he continues to handle insurance issues, but has only limited
responsibility for investments. Most investment questions, however, relate to the
school system’s bond debt, which is handled by a bond consultant, Johnny Dill,
and the bond underwriter, Joe Jolly. Aside from providing financial data about the
school system, plaintiff has never been heavily involved in bond issues or refinances. He still supplies financial data as needed by the bond consultant and
37. As was true before 2005, plaintiff remains involved in assisting school
principals prepare their budgets.
Weaver also is involved in assessments of
personnel allocations (where teachers or staff should be hired or transferred), but
he no longer does student projections (estimates about the growth of student
38. From its founding in 1998, the Madison City school system has more
than doubled in size, growing from 4,800 students to over 10,000 today.
39. Both before 2005 and after 2007, as Chief School Finance Officer, the
plaintiff was and is responsible for managing the bidding process and purchases by
the school system. He supervised (and continues to supervise) the business staff of
the school system, which has grown in size as the school system has grown.
Plaintiff supervises more employees today than he did in 2005.
40. Although plaintiff received pay raises recommended by Dr. Clark prior
to 2005, he has not received a discretionary pay raise since 2007, only those
mandated by the State. He remains the second highest paid employee in the
Madison City system, behind only the superintendent. Plaintiff’s Chief School
Finance Officer position is not included on the Madison City school system salary
schedule because his pay is already much higher than comparable directors, and
this pay differential has created a morale issue at times with other employees.
41. Weaver went on military duty again, in “partial mobilization” for 365
days beginning November 26, 2007, stationed at Redstone Arsenal in Huntsville.
He was fully activated to military service again on November 25, 2008, for a
period of 365 days; however, he was released from active service on May 25,
2009, after only 182 days. Accordingly, plaintiff was not available to work at the
Madison City school system from November 2007 to May 2009.
November 2009, plaintiff appears to have been activated for training and
deployment preparation during much of November and December, and then fully
activated for service overseas for 400 days on February 14, 2010. In February of
2011, Weaver was retained in active service in “transition medical retention
processing program for completion of medical case and treatment,” finally being
released from active duty on June 29, 2012. He had an additional short training
assignment from June to September 2012. On each of these occasions, upon being
released from active duty, plaintiff returned to his position as Chief School Finance
Officer with the defendant school board. He continued to be employed in that
position as of the time of the trial.
Conclusions of Law
As mentioned above, the plaintiff asserts two claims under USERRA:
(1) that the defendant failure to return him to his former position or an “escalator”
position after his deployment in 2005-2007, in violation of § 4312, and (2) the
defendant has subjected him to purposeful discrimination due to his military
service, in violation of § 4311. These are based on two “separate and distinct
statutory protections.” Coffman v. Chugach Support Services, Inc., 411 F.3d 1231,
1234 (11th Cir. 2005). While the latter claim requires a showing of an antimilitary service animus as a motivating factor in the employer’s adverse
employment action against the plaintiff, the former does not, simply imposing a
duty, within limitations, of restoring a service member to his or her previous
employment upon return from service. Id. at 1235 (11th Cir. 2005).
Title 38 U.S.C. § 4311, as codified since 1994, states:
(a) 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 service 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.
(b) An employer may not discriminate in employment against or take
any adverse employment action against any person because such
person (1) has taken an action to enforce a protection afforded any
person under this chapter, (2) has testified or otherwise made a
statement in or in connection with any proceeding under this chapter,
(3) has assisted or otherwise participated in an investigation under this
chapter, or (4) has exercised a right provided for in this chapter. The
prohibition in this subsection shall apply with respect to a person
regardless of whether that person has performed service in the
(c) An employer shall be considered to have engaged in actions
(1) under subsection (a), if the person’s membership,
application for membership, service, application for service, or
obligation for service in the uniformed services is a motivating factor
in the employer’s action, unless the employer can prove that the action
would have been taken in the absence of such membership,
application for membership, service, application for service, or
obligation for service; or
(2) under subsection (b), if the person’s (A) action to enforce a
protection afforded any person under this chapter, (B) testimony or
making of a statement in or in connection with any proceeding under
this chapter, (C) assistance or other participation in an investigation
under this chapter, or (D) exercise of a right provided for in this
chapter, is a motivating factor in the employer’s action, unless the
employer can prove that the action would have been taken in the
absence of such person's enforcement action, testimony, statement,
assistance, participation, or exercise of a right.
(d) The prohibitions in subsections (a) and (b) shall apply to any
position of employment, including a position that is described in
section 4312(d)(1)(C) of this title.
Subsection (a) prohibits purposeful employment discrimination “on the basis of
that membership [in the uniformed services], application for membership,
performance of service, application for service, or obligation.” Subsection (b)
prohibits discrimination and retaliation on the basis that a person has invoked,
enforced, testified, or assisted in the enforcement of rights under this provision.
For purposes of the anti-retaliation provisions of subsection (b), it does not matter
whether the employee was a member of the uniformed services; a person who
never was in the uniformed services is protected from retaliation in connection
with testifying for or assisting someone else vindicating his or her rights under
USERRA. In both instances—employment discrimination and retaliation—the
employee must establish as part of his prima facie case that “a motivating factor in
the employer's action” was either the employee’s membership in or service in the
uniformed services, or the employee’s invocation of rights or assistance to
someone else invoking rights under USERRA. A motivating factor need not be the
only factor at play in an employment decision:
A motivating factor does not necessarily have to be the sole cause for
the employer's decision, but is defined as one of the factors that a
truthful employer would list as its reasons for its decision. [Coffman
v. Chugach Support Services, Inc., 411 F.3d 1231, 1238 (11th
Cir.2005)]. A court can infer a discriminatory motivation from a
variety of considerations, such as: (1) the temporal proximity between
the plaintiff's military activity and the adverse employment action; (2)
inconsistencies between the proffered reason for the employer's
decision and other actions of the employer; (3) an employer's
expressed hostility toward members of the protected class combined
with its knowledge of the plaintiff's military activity; and (4) disparate
treatment of similarly situated employees. Id.
Ward v. United Parcel Service, 580 F. App'x 735, 738 (11th Cir. 2014). The
plaintiff bears the initial burden of showing by a preponderance of the evidence
that (1) the defendant has denied him “initial employment, reemployment,
retention in employment, promotion, or any other benefit of employment,” and (2)
plaintiff's military service was “‘a substantial or motivating factor’ in the adverse
employment action.” Sheehan v. Dep't of the Navy, 240 F.3d 1009, 1013 (Fed.Cir.
2001) (cited with approval in Coffman v. Chugach Support Services, Inc., 411 F.3d
1231, 1234 (11th Cir. 2005)). Fannin v. United Space All., L.L.C., 2009 WL
139878, at *4 (M.D. Fla. Jan. 20, 2009), aff'd in part sub nom. Fannin v. United
Space All., LLC, 392 F. App'x 788 (11th Cir. 2010).
“USERRA's right to reemployment encompasses two guarantees that are
embodied in §§ 4312 and 4313. Under § 4312, returning military personnel who
(a) gave advance notice of military leave to their employer; (b) were on a military
leave of less than five years; and (c) submitted a timely request for reemployment
‘shall be entitled’ to reemployment. 38 U.S.C. § 4312. Section 4313 sets forth the
position of employment to which the returning veteran must be rehired and
requires that the veteran be ‘promptly reemployed’ in that position.” Fannin v.
United Space All., L.L.C., 2009 WL 139878, at *4 (M.D. Fla. Jan. 20, 2009), aff'd
in part sub nom. Fannin v. United Space All., LLC, 392 F. App'x 788 (11th Cir.
2010). Section 4313 provides the order of priority of the positions to which a
person entitled to reemployment must be given. As relevant to this case, it states:
(a) Subject to subsection (b) (in the case of any employee) and
sections 4314 and 4315 (in the case of an employee of the Federal
Government), a person entitled to reemployment under section 4312,
upon completion of a period of service in the uniformed services, shall
be promptly reemployed in a position of employment in accordance
with the following order of priority:
(2) Except as provided in paragraphs (3) and (4), in the case of a
person whose period of service in the uniformed services was for
more than 90 days—
(A) in the position of employment in which the person would
have been employed if the continuous employment of such person
with the employer had not been interrupted by such service, or a
position of like seniority, status and pay, the duties of which the
person is qualified to perform; or
(B) in the position of employment in which the person was
employed on the date of the commencement of the service in the
uniformed services, or a position of like seniority, status and pay, the
duties of which the person is qualified to perform, only if the person is
not qualified to perform the duties of a position referred to in
subparagraph (A) after reasonable efforts by the employer to qualify
(4) In the case of a person who (A) is not qualified to be employed in
(i) the position of employment in which the person would have been
employed if the continuous employment of such person with the
employer had not been interrupted by such service, or (ii) in the
position of employment in which such person was employed on the
date of the commencement of the service in the uniformed services for
any reason (other than disability incurred in, or aggravated during,
service in the uniformed services), and (B) cannot become qualified
with reasonable efforts by the employer, in any other position which is
the nearest approximation to a position referred to first in clause (A)(i)
and then in clause (A)(ii) which such person is qualified to perform,
with full seniority.
(2) Any person entitled to reemployment under section 4312
who is not reemployed in a position of employment by reason of
paragraph (1) shall be entitled to be reemployed as follows:
(A) Except as provided in subparagraph (B), in any other
position of employment referred to in subsection (a)(1) or (a)(2), as
the case may be (in the order of priority set out in the applicable
subsection), that provides a similar status and pay to a position of
employment referred to in paragraph (1) of this subsection, consistent
with the circumstances of such person's case, with full seniority.
39 U.S.C. § 4313. 2
The order of priority reflects the so-called “escalator
Under § 4313(a)(2)(A), this requires, first, that the returning service
member be “reemployed in a position that reflects with reasonable certainty the
pay, benefits, seniority, and other job perquisites, that he or she would have
attained if not for the period of [military] service,” 20 C.F.R. § 1002.191, or “a
position of like seniority, status and pay, the duties of which the person is qualified
to perform.” See Fannin, supra, at *6 (M.D. Fla. Jan. 20, 2009). Second, only if
the returning employee is not qualified to perform the escalator job, he must be
reemployed in the position he held at the time he left for military service under
§ 4313(a)(2)(B). Third, if the returning employee is not qualified to perform either
the escalator position (§ 4313(a)(2)(A)) or the position he held at the time he left
for military service (§ 4313(a)(2)(B)), and he cannot be made qualified for these
positions after “reasonable efforts by the employer,” he must be employed “in any
other position which is the nearest approximation to” the escalator position or his
former position. See 38 U.S.C. § 4313(a)(4). The burden of proving that the
returning employee is not qualified for a position rests on the employer, not the
Omitted are provisions inapplicable to this case, dealing with service members absent from
employment for less than 90 days and service members with a disability, neither of which is
implicated in the facts of this case.
employee. Fannin, at *6; Petty v. Metropolitan Government of Ashville–Davidson
County, 538 F.3d 431, 444 (6th Cir. 2008).
The “escalator” principle is designed to assure service members that their
temporary military service (of less than five years) does not disadvantage them in
the advancement of their civilian careers. Upon returning from military service,
the employee is entitled to be placed in the position he would have attained “with
reasonable certainty” if he remained continuously employed with no interruption
due to military service. Citing Fishgold v. Sullivan Drydock & Repair Corp, 328
U.S. 275, 284-85, 66 Sup. Ct. 1105, 90 L. Ed. 1230 (1946), the Fannin court
USERRA’s regulations explain that this “escalator position” means
that “the employee is entitled to reemployment in the job position that
he or she would have attained with reasonable certainty if not for the
absence due to uniformed service,” i.e., reemploying the
servicemember “in a position that reflects with reasonable certainty
the pay, benefits, seniority, and other job perquisites, that he or she
would have attained if not for the period of service,” 20 C.F.R.
§ 1002.191. The Supreme Court has described the escalator principle
as protecting a servicemember “against receiving a job inferior to that
which he had before entering the armed services,” Fishgold, 328 U.S.
Fannin v. United Space All., L.L.C., 2009 WL 139878, at *8 (M.D. Fla. Jan. 20,
2009), aff'd in part sub nom. Fannin v. United Space All., LLC, 392 F. App'x 788
(11th Cir. 2010).
Nevertheless, USERRA accommodates the fact that workplaces are dynamic
and not static; changes occur over time that impact the positions to which service
members are entitled to reemployment. As the court in Fannin explained:
[A]n employer is permitted to take into consideration changes in the
workplace during an employee’s period of military leave. The
USERRA regulations recognize that an employer’s reemployment
offer may be affected by changes in staffing or work priorities, so
long as the returning employee maintains the seniority and job
classification he would have held if he had been employed during his
period of military service. See 20 C.F.R. § 1002.194 (“The
reemployment position may involve transfer to another shift or
location, more or less strenuous working conditions, or changed
opportunities for advancement, depending upon the application of the
Fannin v. United Space All., L.L.C., 2009 WL 139878, at *6 (M.D. Fla. Jan. 20,
2009), aff'd in part sub nom. Fannin v. United Space All., LLC, 392 F. App'x 788
(11th Cir. 2010).
A. Plaintiff’s Reemployment Claim under §§ 4312 and 4313
Plaintiff’s first claim for relief alleges that, upon his return from military
deployment in February 2007, he was not reemployed to either the “escalator”
position or his former position as Executive Director of Finance and Business.
Because the evidence is clear that he returned to work at the Madison City school
system with the title of Executive Director of Finance and Business and at the
same rate of pay as when he left, his argument centers on the assertion that he was
not returned also to the position of Chief School Finance Officer and that some of
his previous duties and responsibilities as Executive Director of Finance and
Business had been assumed by other employees of the Board.
When plaintiff left to go on active military duty in September 2005, his
official job title was Executive Director of Finance and Business, the same as it
had been since the execution of his employment contract in 1998. In 2003, the
defendant Board certified to the Alabama State Department of Education that
plaintiff also was the Board’s Chief School Finance Officer, pursuant to
regulations enacted by the State Board. There is no indication in the evidence,
however, that the essential nature of the plaintiff’s job duties or responsibilities
changed upon being certified as the Chief School Finance Officer in 2003. There
has been no showing that, upon being so certified, he received new or additional
job responsibilities or an increase in pay attributable to the new designation.3 That
designation was not understood by either the Board or the plaintiff as creating a
new job or job classification at the time it occurred. Rather, it appears that all
parties believed that the designation was subsumed within the plaintiff’s job as the
Executive Director of Finance and Business. By his own testimony, plaintiff
already was charged with overseeing anything to do with the financial and business
While plaintiff received pay increases between the time of the designation in 2003 and his
military leave in 2005, these were discretionary. There is no evidence that any post-2003 pay
increase was due to plaintiff’s designation as the Chief School Finance Officer.
aspects of the school system.
He has presented no evidence that his 2003
designation as the Chief School Finance Officer added any new specific duties that
were identifiably distinct from those associated with the position of Executive
Director of Finance and Business.
When plaintiff returned to work in February 2007, Teresa Hill held the title
of Interim Chief School Finance Officer, while plaintiff retained his previous title
of Executive Director of Finance and Business. Plaintiff retained the same rate of
pay he received when he left for service in 2005; he did not suffer a pay decrease
or loss of benefits.4 Given that plaintiff was the second highest paid employee of
the Madison City schools, behind only the superintendent, there is no “reasonable
certainty” that plaintiff could have or would have attained an even higher escalator
position but for his military service. Except for the superintendent and assistant
superintendent positions, 5 there was no higher position in the school system’s
organization to which he could have “escalated.” Plaintiff already was the chief
Board officer in charge of financial planning, budgets, purchases, insurance, and
There was some scant evidence, though not emphasized by anyone, that for a while after his
return, Dr. Fowler and the Board did not pay for insurance on Weaver’s automobile, as required
in his 1998 employment contract. This appears to have been resolved when the Board agreed to
continue paying the insurance in the spring of 2007. There is no other evidence of lost
Plaintiff has not asserted that he was qualified to be either the superintendent or the assistant
superintendent. In any event, there is no “reasonable certainty” that, but for his military service
from 2005 to 2007, he was have risen to either of these positions.
The essence of the plaintiff’s reemployment claim is that, upon his return, he
was demoted because he was not reemployed as both the Executive Director of
Finance and Business and the Chief School Finance Officer. He contends these
were separate and distinct positions, but the evidence of this is mixed and
complicated. On the one hand, it is true that he held one position and Teresa Hill
held the other, but the split came about because of the enactment of the School
Fiscal Responsibility Act of 2006 (while plaintiff was on leave), which created the
formal position of Chief School Finance Officer as a statutory job classification.
Prior to 2006, State Board of Education regulations required that someone had to
be certified (that is, specially trained and qualified) to be the Chief School Finance
Officer, but there was no requirement that it be established as a separate and
unique position. Anyone but the superintendent could be designated the Chief
School Finance Officer.6
It was only with the passage of the School Fiscal
Responsibility Act in 2006 did Alabama statutory law require the creation of a
separate post for the Chief School Finance Officer. That same statute vested new
responsibilities in the position, including a direct fiduciary reporting responsibility
to the Board. Plaintiff never held that statutorily-mandated position prior to 2007.
The “Summary--Chief School Finance Officers” attached to the June 2003 memorandum from
Robert Morton at the State Board of Education made clear that, “The chief school finance officer
does not have to be the custodian of school funds, chief accountant, finance director, or head
bookkeeper. The school board can name any qualified employee or officer of the school system
(except the superintendent) as the chief school finance officer, if the individual is responsible for
the financial management system of the board.” See Plaintiff’s Ex. 16. In 2003, that person was
It is simply not true that the Chief School Finance Officer position created by
statute in 2006 was the same as that designation held by plaintiff under State Board
regulations prior to his deployment in 2005. It was markedly different in authority
and responsibility after 2006. It had to be a separate job position, not simply part
of the duties of another position. The statutory Chief School Finance Officer was
hired directly by the school board, without a recommendation from the
superintendent, and it had a fiduciary duty to report directly to the school board.
Because the plaintiff never held this statutory position, he was not automatically
entitled to be reemployed in it.
Even if it can be asserted that the statutory Chief School Finance Officer
position, described by the defendant Board as the preeminent finance and business
job in a school system, was the “escalator” job to which plaintiff was due “prompt”
reemployment in February 2007, he has suffered no injury due to the delay in
naming him to the post. It is true that the plaintiff was not designated to be the
Chief School Finance Officer until July 2007, when Dr. Fowler’s reorganization
plan was adopted by the Board. But Weaver lost no pay or other compensation
due to the delay in making him the Chief School Finance Officer. When he
returned in February 2007, he was being paid much more than Hill was being paid
as the Interim Chief Finance Officer. By the end of July 2007, upon completion of
the reorganization of the Madison City school system, plaintiff became the Chief
School Finance Officer for the system at the same rate of pay and with the same
benefits he was previously receiving. His former position as Executive Director of
Finance and Business was eliminated in the reorganization (as were other former
positions in the system) and he became the Chief School Finance Officer, but it
resulted in no loss or diminution of pay or benefits.
The remedies provided for a violation of USERRA are limited.
Section 4323(d) provides:
(d) Remedies.--(1) In any action under this section, the court may
award relief as follows:
(A) The court may require the employer to comply with the
provisions of this chapter.
(B) The court may require the employer to compensate the
person for any loss of wages or benefits suffered by reason of such
employer's failure to comply with the provisions of this chapter.
(C) The court may require the employer to pay the person an
amount equal to the amount referred to in subparagraph (B) as
liquidated damages, if the court determines that the employer's failure
to comply with the provisions of this chapter was willful.
As the Eleventh Circuit has explained, “USERRA provides that a court may award
three kinds of relief: (1) an injunction requiring an employer to comply with
USERRA's provisions; (2) compensation for lost wages or benefits suffered by
reason of the employer's failure to comply with USERRA, and (3) liquidated
damages in an amount equal to lost wages or benefits if the employer's failure to
comply with USERRA was willful.” Dees v. Hyundai Motor Mfg. Alabama, LLC,
368 F. App'x 49, 52–53 (11th Cir. 2010). At least with respect to the delay from
February to July 2007 before plaintiff was reemployed as the Chief School Finance
Officer, any injunctive relief is moot, as he now holds that position. He suffered
no loss of pay, as he continued to be paid at the same higher rate as before his
deployment than Hill was being paid, and there is no evidentiary basis for finding a
“reasonable certainty” that his pay would increase upon being placed in the new
Chief School Finance Officer position.7 Because he lost no pay due to the delay in
assigning him to that position, he is not entitled to liquidated damages.
To the extent Weaver contends that the elimination of his former position of
Executive Director of Finance and Business amounted to a failure to reemploy him
as required by § 4313,8 nothing in USERRA prevents an organization from
restructuring itself. Congress did not intend USERRA to vest employees with a
lifelong entitlement to a particular employment position, regardless of the growth,
changes, and needs of the employer. When Dr. Fowler assumed the position of
As will be discussed in more detail later in his Memorandum Opinion, it cannot be said that
plaintiff with “reasonable certainty” was entitled to pay increases upon his return to employment.
Prior to 2005, plaintiff was not on any Board salary schedule (one did not exist) and his pay
raises were based on the discretionary recommendations of Dr. Clark. In 2006, at the end of Dr.
Clark’s administration, the Board ceased its practice of discretionary raises, opting to develop a
salary schedule. As a result, there was no expectation with “reasonable certainty” of continuing
to receive the raises like those formerly awarded by Dr. Clark.
Weaver also asserts that this was discriminatory in violation of § 4311. The court will discuss
that potential claim later in this memorandum opinion.
superintendent on January 1, 2007, only a month before the plaintiff’s return to
work, he started the process of overhauling and reorganizing the Madison City
school system. Fowler and Weaver both testified that in the last months of his
administration, Dr. Clark became “disengaged” from leadership of the system,
resulting in tension among the staff and a malaise and decline in the system itself.
To change that direction, Dr. Fowler planned to reorganize the system and give it a
new sense of direction. This came during a time when the school system was
growing rapidly, with a new elementary school being planned. The evidence
reflects that the process of restructuring began almost immediately. Indeed, in the
very email in which Dr. Fowler announced Weaver’s return to work, he mentioned
the ongoing planning for the reorganization and asked for the patience of the staff
until it could be completed. That effort culminated in the Board’s July 25, 2007,
approval of Dr. Fowler’s reorganization plan, under which plaintiff was assigned
the new statutory position of Chief School Finance Officer. Not surprisingly, some
job duties and responsibilities of several senior staff were redirected and
redistributed to new employees as part of the reorganization.
Plaintiff Weaver’s complaint that he no longer performs some of the duties
he performed under Dr. Clark does not mean that his position as Chief School
Finance Officer was not a position of “like seniority, status and pay” to that he
His pay remained unchanged, not reduced.
benefits remained the same. He remained then and today second only to the
superintendent in importance when it comes to financial matters for the system.
He meets monthly with the Finance Committee; he is a participant on the Capital
Planning Committee; and his basic duties with respect to insurance, bond issues,
and budgets remain essentially unchanged. Because of his high position in the
system hierarchy, seniority does not impact his career advancement. 9
complaint that he no longer meets one-to-one with the superintendent reflects
nothing more than the different management style of Dr. Fowler, who holds
regular staff meetings rather than individual meetings with staff.
USERRA’s reemployment right does not entitle the employee to insist on a
particular management style or relationship as indicia of the proper reemployment
position. To the extent there are some duties he no longer performs, it is the
natural result of the growth of the school system from 4,800 students in 1998 to
almost 10,000 in 2016. Such growth requires the system to divide administrative
responsibilities among more employees with greater and greater specialization.
The evidence suggests that Weaver continues to be the lead employee responsible
for financial planning, budgets, and accounting. He certainly is the highest ranking
employee (under the superintendent) for financial matters, with a direct fiduciary
reporting responsibility to the Board independent of the superintendent. Again, the
In any event, no one disputes that he is the most senior employee, in terms of length of service,
in the system today.
USERRA reemployment right does not require that an employee’s job duties and
responsibilities remain unchanged regardless of the needs of the employer or
changes in the workplace. The employee’s right to reemployment is not the right
to insist that his job forever remain the same. The court is unpersuaded that
Weaver’s assignment to the position of Chief School Finance Officer failed to
meet the USERRA requirement that he be reemployed in a position of like pay,
status, and seniority as he could have expected with reasonable certainty to hold.
B. Plaintiff’s Discrimination Claim under § 4311
Plaintiff’s second claim, alleged pursuant to § 4311, is that the Board has
actively discriminated against him due to his military service. He alleges that the
Board demoted him upon his return from active service in 2007 by not recognizing
him as both the Executive Director of Finance and Business and the Chief School
Finance Officer. He alleges that the Board has discriminatorily reduced his status
within the system by removing some of his prior responsibilities, excluding him
from certain activities, and assigning him to an office on the first floor of the
school system’s central office building. And, finally, he alleges that the Board has
discriminatorily denied him pay raises since 2007.
To make out a prima facie case of § 4311 discrimination, the plaintiff must
prove by a preponderance of the evidence that the actions taken by the Board were
the product of purposeful discrimination due to his military service. “Section 4311
clearly mandates proof of discriminatory motive…. The standard of proof is the
so-called ‘but for’ test.” Coffman v. Chugach Support Services, Inc., 411 F.3d
1231, 1238 (11th Cir. 2005), citing Sheehan v. Dep't of the Navy, 240 F.3d 1009,
1013 (Fed. Cir. 2001); Brandsasse v. City of Suffolk, Va., 72 F.Supp.2d 608, 616–
17 (E.D.Va. 1999); see also Landolfi v. City of Melbourne, Fla., 515 F. App'x 832,
834 (11th Cir. 2013) (“Section 4311 requires proof of a discriminatory motive, and
we employ the so called ‘but for’ test.”). The Eleventh Circuit has written:
According to the statutory context above, we have held that the
plaintiff must first establish a prima facie case of discrimination by
showing, by a preponderance of evidence, that his protected status
was a “motivating factor” in the employer's adverse employment
decision. Coffman [v. Chugach Support Services, Inc., 411 F.3d 1231,
1238 (11th Cir.2005)]. “A motivating factor does not mean that it had
to be the sole cause of the employment action,” but it has to be one of
the factors that the employer “relied on, took into account, considered,
or conditioned its decision on that consideration.” Id. (quotation and
citation omitted). After the plaintiff meets the initial burden, the
burden shifts to the employer to prove, by a preponderance of
evidence, the affirmative defense that “legitimate reasons, standing
alone, would have induced the employer to take the same adverse
action.” Id. at 1238-39 (citation omitted).
Gambrill v. Cullman County Bd. of Educ., 395 F. App'x 543, 544 (11th Cir. 2010).
Quoting from the Federal Circuit’s opinion in Sheehan, supra, the Eleventh Circuit
explained in Coffman that the burden-shifting standard of proof applies even in socalled “dual motive” cases. For example:
“When the employee has met this burden, the burden shifts to the
employer to prove the affirmative defense that legitimate reasons,
standing alone, would have induced the employer to take the same
adverse action.” Id. This burden-shifting framework “applies to both
so-called ‘dual motive’ cases and so-called ‘pretext’ cases.” Id.
“Thus in USERRA actions there must be an initial showing by the
employee that military status was at least a motivating or substantial
factor in the agency action, upon which the agency must prove, by a
preponderance of evidence, that the action would have been taken
despite the protected status.”
Coffman v. Chugach Support Services, Inc., 411 F.3d 1231, 1238–39 (11th Cir.
2005), quoting Sheehan v. Dep't of the Navy, 240 F.3d 1009, 1014 (Fed. Cir.
A discriminatory motive may be shown by direct or circumstantial evidence.
Circumstantial evidence may include inferences from the following types of
A court can infer a discriminatory motivation from a variety of
considerations, such as: (1) the temporal proximity between the
plaintiff's military activity and the adverse employment action;
(2) inconsistencies between the proffered reason for the employer's
decision and other actions of the employer; (3) an employer's
expressed hostility towards members of the protected class combined
with its knowledge of the plaintiff's military activity; and (4) disparate
treatment of similarly situated employees.
Landolfi v. City of Melbourne, Fla., 515 F. App'x 832, 834 (11th Cir. 2013), citing
Coffman v. Chugach Support Services, Inc., 411 F.3d 1231, 1238 (11th Cir. 2005).
If plaintiff carries the initial burden of proof, the employer may then attempt to
prove the affirmative defense “that legitimate reasons, standing alone, would have
induced it to take the same adverse action.” Id. at 835.
Applying these standards, the court finds that the plaintiff has not shown by
a preponderance of the evidence that his military service was a motivating factor in
the various employment decisions made by the Board. Although the evidence is
persuasive that, in late 2006, as Weaver prepared to return to work following his
active deployment, Dr. Nowlin, the interim superintendent, Sue Helms, the Board
president, and Woody Sanderson, the Board Attorney, all urged Weaver not to
extend his deployment and told him that the Board was concerned with having to
pay the difference between his Board salary and his military pay, this evidence
ultimately fails to prove that his military service was a motivating factor in any
Board decision related to him. First, this evidence clearly demonstrates that the
Board and school officials wanted the plaintiff to return to work at the Madison
City schools. They urged the plaintiff not to extend his active-duty deployment,
and plaintiff successfully obtained his release from active duty without an
extension. Because Board and school officials got what they wanted, they had no
reason to be hostile to the plaintiff due to his military service. The court does not
believe that Board and school officials would urge plaintiff not to extend his
deployment and to come back to work, only then to hold it against him in a
discriminatory manner when he complied with their wishes. It makes no sense for
them to actively recruit his return to work if they wanted to discriminate against
him for his military service. The fact that they were concerned with having to pay
the difference between his Board pay and his military pay does not mean that they
viewed his military service as a negative factor. Rather, they valued his return to
work and urged him to return as soon as possible, which also resolved their pay
If there was any reason for Dr. Fowler and the Board to harbor a negative
animus against Weaver, it was not due to his military service, but to the grievances
filed against him in 2005 before he left on deployment. Weaver’s own actions had
engendered a significant amount to ill will toward him.
perceived him to have been unfairly favored by Dr. Clark and, perhaps even that
Weaver had manipulated Dr. Clark into giving him significant pay raises before
2005. There was credible testimony that Weaver told Dr. Fowler that the reason he
was not on a salary schedule was that he got better raises based on
recommendations by Dr. Clark. The fact that he was the second highest paid
employee of the Board by a significant margin created morale problems. On top of
that, multiple grievances were filed against Weaver in 2005, alleging sexual
harassment (that resulted in a monetary settlement to the complaining employee),
abusive treatment, and irregular work hours. The Board disciplined him with a
seven-day suspension without pay and a formal written reprimand, all occurring
only weeks before he left in 2005. It was not Weaver’s military service that left a
bad feeling with the Board; it was his misconduct as an employee. If there was
reason to reconfigure Weaver’s job duties or to carefully consider his position in
the reorganization of the school system’s structure, it was these events, not his
Plaintiff argues that when he accepted the Board’s discipline, he was told
that it would be finished when he completed his anger-management counseling in
the fall of 2006. Even so, Board management had to remain alert to personnel
changes needed to reduce tensions caused by Weaver. For example, Teresa Hill,
one of the employees who filed a grievance against the plaintiff in 2005, requested
that she not be required to report to Weaver as her supervisor when he returned in
2007. Tensions continued to simmer notwithstanding the disciplinary agreement,
and management of those tensions required some reassignment of personnel and
Also, plaintiff’s influence over the school system’s affairs waned for the
separate reason that Dr. Clark retired. The testimony is clear that Dr. Clark relied
heavily in the plaintiff to perform many duties not directly related to his position as
Executive Director of Finance and Business.
Student-growth projections, for
example, seem to have only tangential relevance to finance and business matters.
When Dr. Clark became “disengaged” and then retired in 2006, Weaver’s
influence was reduced by the simple fact that a new superintendent would have a
different management style and a different relationship with him. This waning of
his influence and status had little to do with his military service and much more to
do with inevitable changes occurring in the workplace.
Finally, the fact that the Board chose not to put the plaintiff on a salary
schedule was not motivated by Weaver’s military service, but by the fact that he
was already being paid disproportionately higher that other comparable employees
due to the raises he received under Dr. Clark. A morale problem existed among
Board employees because plaintiff was being paid significantly more than
comparable employees at the Director level.
The court finds that the Board
concluded that plaintiff’s pay was out of line with other employees and should be
capped. Even if Weaver had been placed on the salary schedule, as he now argues,
his pay already exceeded the upper limits of pay for the Director classification,
essentially meaning that he had topped out. This was not motivated by his military
service, but by his disproportionately high pay.
Based on these findings, the court concludes that the plaintiff has not shown
by a preponderance of the evidence that the Board was motivated by his military
service to discriminate against him. But in the alternative, the plaintiff also has
failed to show that he suffered an adverse employment action as a result of the
alleged discrimination based on his military service. To make a prima facie case
under USERRA, the plaintiff must prove that an anti-military animus was a
motivating factor underlying an “adverse employment action” by the employer.
See Gambrill v. Cullman County Bd. of Educ., 395 F. App'x 543, 544 (11th Cir.
2010) (“An employer violates the USERRA if the applicant’s membership in a
uniformed service is a “motivating factor” in the employer’s adverse employment
action….”); Dees v. Hyundai Motor Mfg. Alabama, LLC, 368 F. App'x 49, 51
(11th Cir. 2010) (discussing the “cat’s paw” theory as a method for proving a
discriminatory animus underlying an “adverse employment action”). Supreme
Court and Eleventh Circuit precedent imported into the USERRA context from
other areas of law prohibiting employment discrimination explain that an “adverse
employment action” is one that results in a “serious and material change” in the
employee’s status, such as a loss of employment or pay, or a reassignment to
significantly different job responsibilities.
See Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742, 761–62, 118 S. Ct. 2257, 2268–69, 141 L. Ed. 2d 633
(1998); Crawford v. Carroll, 529 F.3d 961, 970-971 (11th Cir. 2008); Ward v.
United Parcel Service, 987 F. Supp. 2d 1240, 1262 (N.D. Ala. 2013), aff'd, 580 F.
App'x 735 (11th Cir. 2014). In this case, plaintiff suffered no loss of pay, 10 he
Perhaps the strongest argument the plaintiff has for establishing a tangible adverse
employment action is that he has not received a pay raise (except for across-the-board state
mandated raises) since 2007, but plaintiff is not able to show any entitlement to a pay raise.
retained his job, and was not reassigned to significantly different duties. There is
no substantial evidence that the plaintiff suffered an adverse employment action
due to USERRA discrimination. He has continued to retain the same job, the same
pay, and substantially the same duties throughout his employment with the
Alternatively, even if the plaintiff’s military service was a factor considered
by the Board at some point during its decisions related to him (but the court does
not believe it was) and that factor resulted in an “adverse employment action”
against the plaintiff, the Board has carried its burden of showing by a
preponderance of the evidence that it would have made the same decisions
regardless of the plaintiff’s military service.
The evidence shows that, when
Dr. Clark retired in 2006 and Dr. Fowler was selected as the next superintendent,
Dr. Fowler and the Board embarked on a plan to re-energize the school system by
reorganizing it and setting up a standard, predictable, and impartial step-based
salary schedule. The reorganization took into account the newly-created statutory
Neither his individual contract nor the salary schedules put in place awarded him any set or
regular pay raises. All of his raises were discretionary. The Board ended its practice of
awarding discretionary raises in 2006. Because plaintiff’s pay already exceeded the maximum
provided by the salary schedules adopted by the Board, he would not be entitled to raises under
the schedules. He had no reasonable certainty of receiving any pay raises.
The plaintiff’s 2005 suspension and reprimand, while certainly an “adverse employment
action,” was not motivated by an anti-military animus. Plaintiff received the discipline in July
2005, but was not notified of his activation to duty until August 2005. There is no causal link
between the discipline and his military service, and the plaintiff has not attempted to argue one.
position of Chief School Finance Officer, which was viewed by the Board as the
preeminent staff position for business and financial matters. Other duties not
directly related to financial planning, such as facilities planning and construction,
student-growth projections, and technology assessments, were assigned to other
employees or to consultant David Smith on a temporary basis until new positions
on the organizational chart could be filled. This was not based on plaintiff’s
military service, but on the need of the school system to evolve and delegate work
to specialized employees as it grew in size. Unlike the early days of the system in
1998, the Madison City Schools had grown to the point in 2007 that plaintiff
simply could not (and should not) perform all of the responsibilities that Dr. Clark
expected of him originally. Those duties were appropriately distributed among
several other more-specialized employees.
As part of the reorganization, Dr. Fowler wanted to create a rational, stepbased salary schedule that put peer employees on the same levels of pay. Because
plaintiff’s compensation was disproportionately higher than his peer co-workers
and because he was (and is) employed on an individual contract, 12 Weaver’s Chief
School Finance Officer position was not included on the salary schedule. The
It can be argued that the statutorily-mandated Chief School Finance Officer created in 2006 is
a unique employee that does not fit any category on a salary schedule. The CSFO is hired
directly by the Board of Education and has a fiduciary reporting duty that runs directly to the
Board. The CSFO is one of only two employees (the other being the superintendent) who work
Board and Dr. Fowler plainly considered Weaver’s peer employees to be other
“directors” identified on the organizational chart. Despite receiving only statemandated pay raises since 2007, the plaintiff remains the second highest paid
employee of the Board. His pay is higher than a comparable director who has
topped out on the salary schedule.13
The defendant Board has proven by a
preponderance of the evidence that Weaver’s compensation is disproportionately
out of line with peer directors.
The Board has taken steps to reduce the
disproportionality by capping his pay and bringing it closer into line with other
directors. The Board has proven it would have made this decision regardless of the
plaintiff’s military service.
The court finds that the plaintiff has failed to prove either of his claims by a
preponderance of the evidence. Under § 4313, plaintiff has been employed in a
position of comparable status, pay, and seniority to the position he held before his
2005-2007 military leave. There is no higher “escalator” position which he might
For example, Plaintiff’s Exs. 48 and 49 are the Madison City Schools Board of Education
salary schedules for school years 2014-2015 and 2015-2016. Both show the top-end base pay for
a Step 15 director to be $114,810.00, or more than $27,000 per year less than Weaver’s pay of
approximately $141,000.00 per year. Dr. Fowler testified that he believed that high school
principals should be the highest paid employees of the Board, with directors as the next highest
paid classification. Under these salary schedules, a topped-out high school principal with all
incentives would make about $127,000.00 per year, or about $14,000.00 per year less than the
plaintiff’s compensation. Even an assistant superintendent would have to reach Step 8 to equal
the plaintiff’s current pay.
have attained with a reasonable certainty. His position as the Chief School Finance
Officer was comparable to his former position as the Executive Director of Finance
and Business, even if some of his former duties were reassigned to other
employees as part of the Board’s reorganization of the school system staff. The
Chief School Finance Officer, as created by statute in 2006, is the highest school
official charged with financial matters, and Weaver has lost no pay or employment
benefits as a result of his assignment to the position.
He was appropriately
reemployed by the Board upon his return from service in 2007.
Additionally, the plaintiff has failed to prove by a preponderance of the
evidence that the Board subjected him to employment-related discrimination due to
his military service. It seems incongruous to the court that the Board would urge
him to return to work as soon as possible, but then, according to plaintiff’s theory,
embark on a series of discriminatory actions against him due to his military
service. He has remained employed as the Madison City Schools’ Chief School
Finance Officer since July 2007, despite at least two other extended military
deployments. His pay has not been reduced, and any change in his day-to-day job
duties is either de minimis or the result of the natural growth and evolution of the
Plaintiff has not shown that Board decisions made about his
employment involved any anti-military motivating factor or that he suffered a
tangible adverse employment action. Alternatively, the court finds that the Board
has carried its burden of proving that it would have made the same decisions
regardless of the plaintiff’s military service.
The court will enter a separate judgment in favor of the defendant.
DONE this 13th day of December, 2016.
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE
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