Dorris v. TXD Services LP

Filing 36

ORDER granting 14 deft's Motion for Summary Judgment and dismissing plaintiff's claims with prejudice. Signed by Judge Kristine G. Baker on 8/1/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION

JONATHAN DORRIS
v.

PLAINTIFF
Case No. 1:10-cv-93-KGB

TXD SERVICES, LP

DEFENDANT
OPINION AND ORDER

Plaintiff Jonathan Dorris brings this action pursuant to the Uniformed Services
Employment and Reemployment Rights Act (“USERRA”) against his former employer TXD
Services, LP (“TXD”). Dorris alleges that TXD discriminated against him in violation of 38
U.S.C. § 4311. TXD has moved for summary judgment (Dkt. No. 14), Mr. Dorris has responded
(Dkt. No. 23), and TXD has replied (Dkt. No. 28). For the reasons discussed below, TXD’s
motion is granted.
I.

Factual Background

Mr. Dorris began working for TXD on February 7, 2007. On April 10, 2007, Mr. Dorris
received a Warning Order, which informed him that, as a member of the Arkansas Army
National Guard, he would be activated in connection with Operation Iraqi Freedom. Mr. Dorris
contends that he told his supervisor and an owner of TXD, Joe Poe, that he was being activated
when he received notice and then again when he received a date certain for deployment. Mr.
Dorris recalls specifically telling Mr. Poe because, in that same conversation, Mr. Dorris asked if
TXD would make up the difference in his salary while he was on active duty. TXD declined to
do so. Mr. Dorris also contends that he told several other TXD officials about his upcoming
activation, including Billy King, James Kendrick, and drilling superintendent Greg Pierce, Sr.

Mr. Dorris’s last day of work at TXD was September 11, 2007. Mr. Dorris was on active
duty from October 1, 2007, until February 2009. While he was at training in October 2007, Mr.
Dorris’s wife notified him that he had received in the mail a “Notice of Your Continuation
Coverage,” which was intended to inform him of his rights under the Consolidated Omnibus
Budget Reconciliation Act (“COBRA”). That notice, dated October 19, 2007, indicated that the
event that triggered COBRA rights was “Termination of Employment.”

TXD’s internal

documentation regarding the end of Mr. Dorris’s employment indicates that the “reason for
termination” was that Mr. Dorris “quit” (Dkt. No. 14-4, at 1).
Upon learning of the COBRA letter, Mr. Dorris claims he made two phone calls. He first
called TXD’s Morrilton, Arkansas, office and asked why he “had received a letter from COBRA
saying [he] was terminated” (Dkt. No. 26-1, at 9). Mr. Dorris alleges that he spoke with a TXD
employee named “Amy” who told him that “we were told you were let go because you weren’t
showing up to work” (Dkt. No. 26-1, at 9-10). According to Mr. Dorris, after explaining that he
had not quit but instead had been activated into uniformed service, “Amy” referred Mr. Dorris to
the Dallas-Fort Worth office of TXD. Mr. Dorris called the Dallas-Fort Worth office the next
day and spoke with Nydia Holowinski. Ms. Holowinski pulled Mr. Dorris’s file and, according
to Mr. Dorris, told him that “it says that you’ve been terminated for not showing up to work”
(Dkt. No. 26-1, at 10). Mr. Dorris “explained to her that [he] had turned in orders . . . .” (Dkt.
No. 26-1, at 10). Ms. Holowinski then told Mr. Dorris that she would have Mr. Poe call him
back. The record is not clear whether Mr. Poe ever called Mr. Dorris back; Mr. Dorris contends
he did not.
It is undisputed that while Mr. Dorris was on active duty, TXD sold substantially all of its
assets to Foxxe Energy Holdings, LLC (“Foxxe”), and that, by February 1, 2008, TXD was no

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longer a going concern. Mr. Dorris learned of this in August 2008 when he was home on leave.
The parties do not dispute that, as a part of the asset sale, TXD provided Foxxe with a list of
TXD’s current employees. Foxxe was to use reasonable efforts to offer employment to them and
did in fact interview the employees on the list. There were no unemployment claims made
against TXD after the asset sale. (Dkt. No. 26-1, at 7-10).
It is also undisputed that Mr. Dorris was not mentioned on that list. Mr. Dorris claims
“he was entitled to be on that roll of employees so that when he returned, he would immediately
receive reasonable consideration from Foxxe as a potential employee” (Dkt. No. 26, at 7), but
TXD asserts that it “did not consider individuals who were absent from employment due to longterm military commitment to be active or current employees” (Dkt. No. 28-2, at 1). TXD further
asserts that “[i]n communications with third parties, TXD Services, LP would not include
individuals serving long-term military commitments in any roster of current employees” (Dkt.
No. 28-2, at 1).
Mr. Dorris returned from active duty in or around December 2008, having served
approximately 15 months. Mr. Dorris contends he was ready to return to civilian work in
December 2008 (Dkt. No. 23, at 1), although it is undisputed that he was on active duty until
February 2009 (Dkt. No. 24, at 1-2). When he returned, Mr. Dorris discussed the possibility of
obtaining employment with Rodney Silva of TXD Trucking, LP, which is a separate entity from
TXD. Mr. Dorris also pursued employment with Foxxe upon his return. Mr. Dorris “spoke with
Ed Clark about reemployment” (Dkt. No. 14-5, at 5). Mr. Clark told Mr. Dorris to apply. In
April 2009, approximately two months after the end of his tour of duty, Mr. Dorris began to
work for Foxxe at the site where he had previously been employed with TXD.

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On November 15, 2010, Mr. Dorris filed his complaint, alleging that TXD had willfully
violated the USERRA (Dkt. No. 1). Mr. Dorris did not indicate the specific provisions of the
USERRA that TXD allegedly violated. TXD’s summary judgment motion perceived this case
largely as a failure-to-reinstate claim under 38 U.S.C. § 4312, but in his response, Mr. Dorris
asserts this is a discrimination claim under 38 U.S.C. § 4311.
II.

Summary Judgment Standard

Summary judgment is appropriate if the evidence, when viewed in the light most
favorable to the nonmoving party, shows that there is no genuine issue of material fact and that
the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The initial burden is on the moving party to demonstrate the absence of a
genuine issue of material fact. Id. at 323. The burden then shifts to the non-moving party to
establish by “specific facts” that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). “The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). “A dispute is genuine if the evidence is such that it could cause a
reasonable jury to return a verdict for either party.” Miner v. Local 373, 513 F.3d 854, 860 (8th
Cir. 2008). An issue of fact is material only if it could affect the outcome of the case under
governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
III.

Analysis

The purposes of the USERRA are:
(1) to encourage noncareer service in the uniformed services by
eliminating or minimizing the disadvantages to civilian careers and
employment which can result from such service; (2) to minimize
the disruption to the lives of persons performing service in the
uniformed services as well as to their employers, their fellow
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employees, and their communities, by providing for the prompt
reemployment of such persons upon their completion of such
service; and (3) to prohibit discrimination against persons because
of their service in the uniformed services.
38 U.S.C § 4301.
The USERRA is intended “to protect veterans’ employment and re-employment rights.”
Vander Wal v. Sykes Enters., 377 F. Supp. 2d 738, 745 (D.N.D. 2005). “Because USERRA was
enacted to protect the rights of service members, it is construed broadly and ‘in favor of its
military beneficiaries.’” Lisdahl v. Mayo Found., 633 F.3d 712, 717 (8th Cir. 2011) (quoting
Clegg v. Ark. Dep’t of Corrections, 496 F.3d 922, 930-31 (8th Cir. 2007)). The “essentially
equitable” remedies available under the USERRA are: “reinstatement, any loss of wages or
benefits, and if the employer’s actions were willful, the court may require the employer to
compensate the employee in an amount equal to the amount of lost wages or benefits as
liquidated damages.” Vander Wal, 377 F. Supp. 2d at 746 (citing 38 U.S.C. § 4323(d)). The
USERRA “does not allow for the recovery of damages for mental anguish, pain or suffering, nor
does USERRA allow for the recovery of punitive damages.” Id.
A.

Failure to Reinstate: 38 U.S.C § 4312

“USERRA protects returning veterans and other uniformed service members when
transitioning to civilian life, requiring reemployment in either the same positions ‘or a position of
like seniority, status and pay, the duties of which the person is qualified to perform.’” Lisdahl,
633 F.3d at 717. The USERRA provides that “any person whose absence from a position of
employment is necessitated by reason of service in the uniformed services shall be entitled to the
reemployment rights and benefits” of the USERRA if certain conditions are met. 38 U.S.C. §
4312(a). To qualify, the employee must: (1) give advance notice of such service; (2) not have a
cumulative length of absence and of all previous absences exceeding five years; and (3) report to
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submit an application for reemployment within 90 days after the completion of uniformed
service. 38 U.S.C. 4312(a). 38 U.S.C. § 4313 provides that a person eligible for reemploymet
under the USERRA “shall be promptly reemployed . . . 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, the duties of which the person is qualified to
perform . . . .”
However, “[a]n employer is not required to reemploy a person . . . if . . . the employer’s
circumstances have so changed as to make such reemployment impossible or unreasonable.” 38
U.S.C. 4312(d)(1)(A). The federal regulations interpreting the USERRA, which are promulgated
by the Department of Labor, state:
Even if the employee is otherwise eligible for reemployment
benefits, the employer is not required to reemploy him or her if the
employer establishes that its circumstances have so changed as to
make reemployment impossible or unreasonable. For example, an
employer may be excused from reemploying the employee where
there has been an intervening reduction in force that would have
included that employee.
20 C.F.R. 1002.139(a) (2012).
In his response to TXD’s summary judgment motion, Mr. Dorris appears to abandon any
claim under 38 U.S.C. § 4312 (Dkt. No 23, at 1, ¶ 3). Even considering this claim on the merits,
however, it fails as a matter of law. As the parties both acknowledge, as of February 1, 2008,
TXD was no longer a going concern.

It no longer had employees, was not hiring new

employees, and was not operating as a business. TXD maintains this was essentially a complete
reduction in force that triggered the changed-circumstances defense. By the time Mr. Dorris
returned from active duty in February 2009, TXD’s circumstances had changed such that TXD’s
reemploying Mr. Dorris would have been impossible. In his response, Mr. Dorris does not argue

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to the contrary. On these facts, Mr. Dorris cannot prevail on a claim under 38 U.S.C. § 4312
against TXD.
The Court notes the possibility of successor liability because the USERRA definition of
“employer” includes, under certain circumstances, a successor in interest.

“In general, an

employer is a successor in interest where there is a substantial continuity in operations, facilities,
and workforce from the former employer.”

20 C.F.R. § 1002.35.

See also Reynolds v.

RehabCare Group E., Inc., 590 F. Supp. 2d 1107, 1114 (S.D. Iowa 2008). In determining
whether an employer is a successor in interest, courts consider certain factors and make a caseby-case determination.

See Leib v. Georgia-Pacific Corp., 925 F. 2d 240 (8th Cir. 1991)

(explaining and applying the factors). The Court has not examined the factors to make a caseby-case determination here because successor liability cannot lie in this case; Mr. Dorris did not
sue Foxxe, which succeeded TXD. Moreover, Foxxe hired Mr. Dorris after he returned from
active duty and applied for a position with Foxxe.
B.

Discrimination: 38 U.S.C. § 4311 1

The USERRA provides, in pertinent part:
(a) A person who is a member of, . . . performs, . . . 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, . . . performance of
service, . . . or obligation.
....

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The Court concludes that the statutory changed-circumstances defense to
reemployment set out in 38 U.S.C. § 4312 does not apply to discrimination claims under 38
U.S.C. § 4311. Although the Court is unaware of any controlling law on the issue, the Court is
persuaded by the statutory construction of USERRA and the rationale applied by other courts
that have examined this issue. See McLain v. City of Somerville, 424 F. Supp. 2d 329, 336 (D.
Mass. 2006) (analyzing this issue).
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(c) An employer shall be considered to have engaged in actions
prohibited—
(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 . . . .
38 U.S.C. § 4311.
By the plain language of 38 U.S.C. § 4311(c)(1), to trigger liability, a plaintiff must show
that the his military status was a “motivating factor” in his employer’s adverse employment
action. The USERRA prohibits “discriminatory actions where the employee’s military status is a
‘motivating factor’ in the decision, even if the employee’s military status is not the sole factor in
the decision.” Hill v. Michelin v. N. Am., Inc., 252 F.3d 307, 312 (4th Cir. 2001) (citing 38
U.S.C § 4311(c)(1)). Under the USERRA, military status is a motivating factor if the defendant
relied on, took into account, considered, or conditioned its decision on that consideration. 38
U.S.C. §4311.
“If an employee establishes that his military status was a motivating favor in the
employer’s decision, USERRA then shifts the burden of proof to the employer, allowing the
employer to avoid liability only if ‘the employer can prove that the action would have been taken
in the absence of’ the employee’s military status.” Hill, 252 F.3d at 312 (citing 38 U.S.C §
4311(c)(1)); see also Moore v. Epperson Underwriting Co., 2007 U.S. Dist. LEXIS 59796, at
*19 (D. Minn. Aug. 15, 2007) (“Unlike the McDonnell Douglas framework . . . the procedural
framework and evidentiary burdens set out in section 4311 shift the burden of persuasion, as well
as production, to the employer.”). The burden of proof is a preponderance of the evidence.

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Kirkendall v. Dep’t of Army, 479 F.3d 830, 867 (Fed. Cir. 2007). “In determining whether
veteran status motivates the employer’s conduct, all record evidence may be considered,
including any explanation for the action taken.” Lisdahl, 633 F.3d at 718. If an employer
performs an act motivated by anti-military animus that is intended to cause an adverse
employment action, and if that act is a proximate cause of the ultimate employment action, then
the employer is liable under the USERRA. 38 U.S.C. § 4311(a).
Federal regulations support this analytical framework. The Department of Labor has
interpreted the USERRA’s discrimination provisions to require the individual to show that the
employer’s action was motivated by, e.g., “[m]embership or application for membership in a
uniformed service” or “[p]erformance of service, application for service, or obligation for service
in uniformed service.” 20 C.F.R. § 1002.23(a). The regulations also provide that, “[i]f the
individual proves that the employer’s action was based on one of the prohibited motives listed in
paragraph (a) of this section, the employer has the burden to prove the affirmative defense that
the action would have been taken anyway absent the USERRA-protected status or activity.” 20
C.F.R. § 1002.23(b).
In this case, Mr. Dorris claims TXD discriminated against him in violation of the
USERRA by firing him and therefore not including his name on a list of employees that was a
part of the asset sale between TXD and Foxxe. Mr. Dorris alleges that TXD was motivated by
his military status when it fired him. He bases this on the COBRA letter he received which
stated the event that triggered the COBRA letter was “Termination of Employment.” After
receiving this letter, Mr. Dorris placed two phone calls—one to TXD’s Morrilton, Arkansas,
office and one to the “home office” in Dallas, Texas—to inquire about the wording of the
COBRA letter (Dkt. No. 26, at 7). He alleges that in both phone calls he was told he was

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terminated because he was not showing up for work (Dkt. No. 26-1, at 9-10), although TXD’s
internal documentation of Mr. Dorris’s exit indicates that he “quit” (Dkt. No. 14-4, at 1). Mr.
Dorris then alleges that, because he was fired, he was not on a roll of employees TXD provided
to Foxxe at the time of the asset sale. He claims “he was entitled to be on that roll of employees
so that when he returned, he would immediately receive reasonable consideration from Foxxe as
a potential employee” (Dkt. No. 26, at 7).
For purposes of this analysis, the Court must construe all facts in favor of Mr. Dorris and
his claims. There are disputed issues of fact regarding whether TXD fired Mr. Dorris because of
his military service. Even if the Court concludes that Mr. Dorris was fired by TXD because of
his military service, however, the Court is not persuaded that on these unique facts this alleged
act resulted in an action TXD would not have taken, regardless of Mr. Dorris’s military service,
or proximately caused an adverse employment action.
As to Mr. Dorris’s contention that he was fired by TXD because of his military service,
the Court, believing Mr. Dorris’s evidence and drawing all justifiable inferences in his favor, as
the Court is required to do at the summary judgment stage, concludes Mr. Dorris has
demonstrated there is an issue of fact as to whether TXD fired him for his military service.
Discriminatory motivation under the USERRA may be reasonably inferred from the proximity in
time between military service and an adverse employment action and inconsistencies between
proffered reasons and other actions of the employer. 38 U.S.C.A. § 4311 (c)(1).
The Court clarifies it is not persuaded that the COBRA letter, in itself, constitutes
discrimination under 38 U.S.C. § 4311. Mr. Dorris cannot make out a viable claim that TXD
discriminated against him in violation of the USERRA by pointing to a letter that TXD did not
generate. Although the COBRA letter contains the words “Termination of Employment” under

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the “Event” category, that alone does not prove that TXD terminated Mr. Dorris in violation of
the USERRA. To the contrary, the “termination of employment” language is derived from the
COBRA statutes, not from TXD or the USERRA. Even if TXD characterized Mr. Dorris as a
“terminated” employee, that also would not be outcome determinative because the Department
of Labor regulations make clear that, even if the employee is characterized as “terminated,” he is
still entitled to non-seniority rights and benefits as if he were simply on furlough or leave of
absence.
Under 29 U.S.C. § 1161, “each qualified beneficiary who would lose coverage under the
plan as a result of a qualifying event is entitled, under the plan, to elect, within the election
period, continuation coverage under the plan.” A qualifying event includes “termination (other
than by reason of such employee’s gross misconduct), or reduction of hours, of the covered
employee’s employment.”

29 U.S.C. § 1163(2).

COBRA does not define termination.

“Because termination is not defined in the statute, the court looks to COBRA’s legislative history
for assistance. The legislative history refers to termination as ‘the separation from service of the
covered employee (whether voluntary or involuntary).’” Sigurdson v. Southmark-Nat’l Heritage,
Inc., 1992 U.S. Dist. LEXIS 17118 (D. Kan. Nov. 3, 1992) (quoting S. Rep. No. 147, 99th
Cong., 2d Sess. 3, reprinted in, 1986 U.S.C.C.A.N. 42, 323). Thus termination of employment
does not necessarily indicate that the employee was fired or otherwise involuntarily dismissed.
See, e.g., Chesnut v. Montgomery, 307 F.3d 698, 700 (8th Cir. 2002) (discussing termination of
employment as a qualifying event when the plaintiff left her job); Carstetter v. Adams Cnty.
Transit Auth., 2008 U.S. Dist. LEXIS 51874, 91 Empl. Prac. Dec. (CCH) P43, 256, at *37 (M.D.
Pa. July 8, 2008) (“Termination of employment, whether voluntary [or] involuntary, is a
qualifying event under COBRA.”).

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The interplay between the USERRA and COBRA is important. The USERRA provides
that “[i]n any case in which a person . . . has coverage under a health plan in connection with the
person’s position of employment . . . and such a person is absent from such position of
employment by reason of service in the uniformed services . . . the plan shall provide that the
person may elect to continue such coverage as provided in this subsection.” 38 U.S.C. § 4317.
A Department of Labor Regulation interpreting the USERRA’s provisions regarding health-plan
coverage provides: “If a health plan coverage for the employee or a dependent was terminated by
reason of service in the uniformed services, that coverage must be reinstated upon
reemployment.” 20 C.F.R. § 1002.1689(a).
Next, Department of Labor regulations directly address labeling an employee performing
uniformed services as “terminated.” Those regulations provide as follows:
During a period of service in the uniformed services, the employee
is deemed to be on furlough or leave of absence from the civilian
employer. In this status, the employee is entitled to the nonseniority rights and benefits generally provided by the employer to
other employees with similar seniority, status, and pay that are on
furlough or leave of absence. Entitlement to these non-seniority
rights and benefits is not dependent on how the employer
characterizes the employee's status during a period of service. For
example, if the employer characterizes the employee as
“terminated” during the period of uniformed service, this
characterization cannot be used to avoid USERRA’s requirement
that the employee be deemed on furlough or leave of absence, and
therefore entitled to the non-seniority rights and benefits generally
provided to employees on furlough or leave of absence.
20 C.F.R. § 1002.149.
Thus an employee who is characterized as terminated is “deemed [to be] on furlough or
leave of absence, and therefore entitled to the non-seniority rights and benefits generally
provided to employees on furlough or leave of absence.” Id.
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Aside from the COBRA letter, there is other evidence in the record that supports Mr.
Dorris’s claim that he was fired by TXD because of his military service. Mr. Dorris contends he
was told twice by TXD personnel he was terminated for failing to report for work. There is
paperwork produced internally by TXD that indicates Mr. Dorris quit his job, without noting that
he left his position to report for active duty. These communications occurred and the documents
were generated in close proximity to Mr. Dorris’s deployment.

Therefore, believing Mr.

Dorris’s evidence and drawing all justifiable inferences in his favor, as the Court is required to
do at the summary judgment stage, the Court concludes Mr. Dorris has demonstrated there is an
issue of fact as to whether TXD fired him for his military service.
USERRA then shifts the burden of proof to the employer, TXD, allowing TXD to avoid
liability only if it can prove by a preponderance of the evidence that the actions it took would
have been taken in the absence of Mr. Dorris’s military status. Mr. Dorris alleges that, because
he was fired, he was not on a roll of employees TXD provided to Foxxe at the time of the asset
sale. He claims he was entitled to be on that roll of employees so that, when he returned, he
would immediately receive reasonable consideration from Foxxe as a potential employee.
The Court is not persuaded that Mr. Dorris was entitled to be on the list of TXD
employees provided to Foxxe as a part of the asset sale. Mr. Dorris argues that because TXD
considered him a fired employee, as opposed to an employee serving a long-term military
commitment, TXD did not include him on the list of TXD employees provided to Foxxe. No
evidence supports this contention. In fact, the evidence in the record indicates that whether he
was considered a fired employee or an employee serving a long-term military commitment, Mr.
Dorris would not have been included on the list of TXD employees provided to Foxxe.

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The Department of Labor regulations state that during uniformed service, the employee is
“deemed to be on furlough or leave of absence” and is “entitled to the non-seniority rights and
benefits generally provided to employees on furlough or leave.” The undisputed evidence in this
case demonstrates that TXD “did not consider individuals who were absent from employment
due to a long-term military commitment to be current or active employees. In communications
with third parties, TXD Services, LP would not include individuals serving long-term military
commitments in any roster of current employees” (Dkt. No. 28-2, at 1). Thus, while Mr. Dorris
was on active long-term military duty, TXD would not have considered him an active or current
employee. He would not have made the list provided by TXD to Foxxe. That does not violate
USERRA. See 20 C.F.R. § 1002.49.
In response to the evidence presented by TXD on this point, Mr. Dorris has not offered
any evidence to show that TXD treated any similarly situated uniformed service members
differently than he was treated. That is, he has not alleged that there were any similarly situated
TXD employees who were allowed to remain on any list of TXD’s active or current employees.
Mr. Dorris also has not offered any evidence that TXD allowed employees on leave of absence
or furlough to remain on any list of TXD’s active or current employees.
The Court also notes that USERRA requires that the employee “shall, upon completion of
a period of service in the uniformed services, notify the employer . . . of the person’s intent to
return to a position of employment with such employer.” 38 U.S.C. § 4312. “In the case of a
person whose period of service in the uniformed services was for more than 180 days, by
submitting an application for reemployment with the employer not later than 90 days after the
completion of the period of service.” Id. The Court is therefore not persuaded that Mr. Dorris’s

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having “to go through an application process” when he applied to Foxxe creates liability as to
TXD under USERRA.
TXD has demonstrated by a preponderance of the evidence that, whether Mr. Dorris was
fired by TXD because of his military service or not, he would not have been included on the list
of TXD employees provided to Foxxe as a part of the asset sale. Therefore, on these unique
facts, the Court concludes TXD would have taken the same action, regardless of Mr. Dorris’s
military service, and cannot conclude that this alleged act proximately caused an adverse
employment action. Accordingly, the Court finds that Mr. Dorris’s being omitted from the list of
TXD employees provided to Foxxe as a part of the asset sale does not constitute actionable
discrimination in violation of 38 U.S.C § 4311.
In reaching this result, the Court does not discount the frustration, disappointment, and
uncertainty that likely resulted from Mr. Dorris’s not being on that list, but it does not give rise to
liability under the USERRA. The Court notes that the USERRA does not permit a plaintiff to
recover damages for mental anguish or pain and suffering. Vander Wal, 377 F. Supp. 2d at 746.
IV.

Conclusion

TXD has no potential liability under 38 U.S.C. § 4312 for failure to reinstate Mr. Dorris.
TXD also is entitled to judgment as a matter of law on Mr. Dorris’s discrimination claim under
38 U.S.C. § 4311. The Court grants TXD’s motion for summary judgment, and Mr. Dorris’s
claims are dismissed with prejudice.
SO ORDERED this the 1st day of August, 2012.

____________________________________
Kristine G. Baker
United States District Judge
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