Scudder v. Dolgencorp LLC
ORDER denying Mr. Scudder's 21 motion for summary judgment; granting Dolgencorp LLC's 25 motion for summary judgment; and dismissing, with prejudice, Mr. Scudder's claims against Defendant Dolgencorp LLC. Signed by Magistrate Judge Beth Deere on 8/18/2017. (ljb)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CASE NO. 4:16-CV-00297-BD
Plaintiff Samuel Scudder filed this complaint claiming Defendant Dolgencorp
LLC d/b/a/Dollar General Stores (“Dollar General”) violated the reemployment and antidiscrimination provisions of the Uniformed Services Employment and Reemployment
Rights Act (“USERRA”).1 (Docket entry #1) Mr. Scudder filed a motion for partial
summary judgment on the issue of liability. (#21) Dollar General filed a cross-motion for
summary judgment on both of Mr. Scudder’s USERRA claims. (#25) The parties have
responded to each other’s motions and have provided affidavits, exhibits, and deposition
Samuel Scudder was a sergeant in the Arkansas National Guard when he applied
and was hired to work at Dollar General in June of 2013. In September of 2013, while
Mr. Scudder was still active in the National Guard, Dollar General promoted him to store
The parties have consented, in writing, to the jurisdiction of the United States
Magistrate Judge. (#7)
manager at its Benton Parkway store in Benton, Arkansas. In April of 2014, Mr. Scudder
provided Dollar General with his military orders indicating that he was being deployed to
active duty. He knew that Matrix Absence Management (“Matrix”), a third-party vendor,
acted as Dollar General’s leave coordinator, and he coordinated with Matrix to arrange
for his military leave.
While on leave, Mr. Scudder sustained injuries during military action. He
remained deployed with his unit through December of 2014. At that time, his
commanders assigned him to a unit for medical transition out of the military. He
remained in that status at Fort Leonard Wood, Missouri from December, 2014 through
February, 2016. While at Fort Leonard Wood, Mr. Scudder sent his orders to Matrix, thus
providing notice for continuing military leave to Dollar General. He sought and was
approved for leave through April 1, 2016. Mr. Scudder dealt with Matrix almost
exclusively regarding his military leave.
Matrix Integrated Claims Examiner, Jessica Morentin, contemporaneously
documented her March 31, 2016 phone conversation with Mr. Scudder, including her
understanding that Mr. Scudder intended to resign from Dollar General. Based on Ms.
Morentin’s belief that Mr. Scudder told her on their March 31 phone call that he did not
intend to return to work at Dollar General and wanted to resign, Ms. Morentin emailed
Dollar General’s Leave Administration Department notice on April 4, 2016, that Matrix
had closed Mr. Scudder’s leave because “Employee advised that he does not plan to
return to work on 04/02/16.”
Stacy Garrison, an HR Shared Services Support Specialist for Dollar General,
responded to Ms. Morentin asking, “Can you clarify – did Samuel indicate he resigned?”
Ms. Morentin responded to Ms. Garrison on April 5, 2016, that “Samuel advised that he
had been attempting to contact someone at Dollar General to resign. Samuel advised that
he would not be going back to Dollar General.”
In reliance on Matrix’s report of Mr. Scudder’s resignation notification indicating
that he “would not be going back to Dollar General,” Dollar General’s HR Shared
Services Department processed the separation of Mr. Scudder’s employment, effective
April 5, 2016. On April 11, 2016, Wesley Ramey, a Field HR Coordinator for Dollar
General, sent Mr. Scudder an exit survey via email. Mr. Scudder replied to Mr. Ramey’s
email as follows:
I’m emailing you to see if maybe you car[e] B[e]c[cause] apparently the
rest of the company does not. I’m a store manager for you in region 59 well
I guess getting this I use to be. I was called to active duty in support of
operation enduring freedom in Afghanistan. I was injured while overseas
and have only been able to get ahold of one person the whole time. That
would be Darren Lomas[.] I’ve tried calling hr [sic] directly and I left a
voicemail. I’ve also called the current dm [sic] and had a store manager
email him on my behalf. I really enjoyed working for dollar general and
would’ve loved to continue to work for dollar general.
(#21-3 at 4)
Mr. Scudder never demanded reemployment to his Store Manager position at
Benton Parkway. He applied for a Store Manager position in Bryant, Arkansas, Id. at 610, but was not hired for the job. He was told that, by the time he applied, Dollar General
had already made a conditional offer of employment to another person.
While he was still on leave, Mr. Scudder had applied for Social Security Disability
Insurance (“SSDI”) benefits with the Social Security Administration (“SSA”). On
December 6, 2016, a social security administrative law judge (“ALJ”) approved his
application for benefits, finding that he had become totally disabled on December 10,
2014. Mr. Scudder was awarded SSDI benefits, which he continues to receive.
Summary Judgment Standard
A moving party is entitled to summary judgment only if the evidence, viewed in
the light most favorable to the non-moving party, shows that there is no genuine dispute
about any fact that is important to the outcome of the case. Fed.R.Civ.P. 56; Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 246, 106 S.Ct. 2505 (1986).
Here, Mr. Scudder and Dolgencorp have both moved for summary judgment. A
party moving for summary judgment, must come forward with evidence showing that
there is no real dispute about any fact that would make a difference in how the case is
decided. If the moving party meets this burden, the opposing party is obligated to
produce evidence that contradicts the moving party’s evidence. Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the opposing party fails to
meet evidence with contradictory evidence that shows a real dispute, the Court must grant
summary judgment in the moving party’s favor; and there will be no trial. Celotex Corp.,
447 U.S. at 322–23, 106 S.Ct. at 2552.
USERRA’s reemployment provision provides:
(a) Subject to subsections (b), (c), and (d) and to section 4304, 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 and other employment benefits of this chapter if—
(1) the person (or an appropriate officer of the uniformed service in which
such service is performed) has given advance written or verbal notice of such
service to such person's employer;
(2) the cumulative length of the absence and of all previous absences from a
position of employment with that employer by reason of service in the
uniformed services does not exceed five years; and
(3) except as provided in subsection (f), the person reports to, or submits an
application for reemployment to, such employer in accordance with the
provisions of subsection (e).
38 U.S.C.A. § 4312. The parties do not dispute that Mr. Scudder gave Dollar General
advanced notice of his deployment or that the length of his absence did not exceed five
years. The parties do dispute, however, whether Mr. Scudder submitted an application for
reemployment as required by 38 U.S.C. § 4312(a)(3).
The statute does not define what it means to submit an application for
reemployment, but courts have adopted a case-by-case determination that focuses on the
intent and reasonable expectations of both the former employee and the employer in light
of all of the circumstances. Shadle v. Superwood Corp., 858 F.2d 437, 439 (8th Cir.
1988); McGuire v. United Parcel Service, 152 F.3d 673, 676-77 (7th Cir. 1998)
(returning service member’s inquiry with his supervisor, who communicated that he
needed to talk to the human resources department about the process for re-employment,
did not constitute reasonable notice to a large corporation that he wanted his job back).
Dollar General needed to receive notice from Mr. Scudder that he was a returning
serviceman, previously employed, and was seeking reemployment. McGuire, 152 F.3d at
677. A request for reemployment under USERRA must be made to an agent or
representative of the employer who has apparent responsibility for receiving employment
applications. 20 C.F.R. § 1002.119. Accordingly, notice to one person may or may not be
enough to constitute an application for reemployment under the statute. McGuire, 152
F.3d at 677. Furthermore, reasonable notice to a large corporation is different from
reasonable notice to a small employer. Id. (quoting Shadle, 858 F.2d at 439-440) Large
employers cannot be expected to train all of their supervisors in the intricacies of
employment law, but they can train supervisors to refer personnel matters to those trained
to handle them properly. Id. at 677.
Mr. Scudder claims that his email to Wesley Ramey in response to the exit survey
and his application for the Bryant store position were sufficient applications for
reemployment to meet the requirements under the statute. Mr. Scudder’s claim ignores
important undisputed facts.
First, Mr. Scudder’s argument overlooks the fact that he told Matrix Integrated
Claims Examiner Jessica Morentin that he, “needed to find out if I need to put in my two
weeks because I can’t return to work.” (#32-1 at 14) Mr. Scudder had communicated with
Matrix many times throughout his deployment and understood Matrix to be Dollar
General’s third-party administrator for his USERRA leave, but he never asked a Matrix
representative for reemployment. Instead, Mr. Scudder communicated to Ms. Morentin
that he would not be able to restart his employment with Dollar General. (#21-3 at 2)
Second, neither his email to Mr. Ramey nor his application for the Bryant store
position clearly requested reemployment to his Benton Parkway management job. In his
email to Mr. Ramey, Mr. Scudder stated that he really “enjoyed” working for Dollar
General and “would’ve loved to continue to work for Dollar General.” Both statements
speak of his past employment, reinforcing Dollar General’s contention that he had
Moreover, in the email Mr. Scudder never asked Mr. Ramey for reemployment in
his Benton Parkway management position. See Shadle, 858 F.2d at 440 (asking for an
application from guard at shack is not sufficient notice to the employer). While Mr.
Scudder’s application for a management position in the Bryant store showed an interest
in a new position with Dollar General, it was not a demand to Dollar General for
reemployment in his prior position.
Finally, Matrix reported Mr. Scudder’s resignation to Dollar General. When Ms.
Garrison, an HR Shared Services Support Specialist for Dollar General, received Ms.
Morentin’s communication, she requested clarification asking, “Can you clarify – did
Samuel indicate he resigned?” Ms. Morentin responded to Ms. Garrison, that “Samuel
advised that he had been attempting to contact someone at Dollar General to resign.
Samuel advised that he would not be going back to Dollar General.” It was reasonable for
Dollar General to expect that, if Mr. Scudder wanted reemployment with Dollar General,
he would have communicated that to his Matrix representative. The undisputed evidence
is contrary to Mr. Scudder’s claim that he clearly demanded reemployment as required by
The Eighth Circuit has held that resignation waives a service member’s right to
reemployment. See Paisley v. City of Minneapolis, 79 F.3d 722, 724 (“We have held that
reemployment rights under the Act may be waived if the employee does so ‘clearly and
unequivocally.’”) (quoting Smith v. Missouri Pac. Transp. Co., 313 F.2d 676, 680 (8th
Cir. 1963)). It is undisputed that Mr. Scudder told Ms. Morentin that he wanted to speak
with someone at Dollar General to “find out if I need to put in my two weeks,” because
he would not be able to return to work on April 2, 2016. Relying on Mr. Scudder’s
representations, Matrix reported to Dollar General that Mr. Scudder had resigned. Dollar
General was entitled to rely on Matrix’s report.
Mr. Scudder’s actions also indicate a waiver of his right to reemployment. When
he was hired by Dollar General, Mr. Scudder certified that he understood the essential
functions of the job he was taking included “[f]requent walking and standing” and
“[f]requent and proper lifting of up to 40 pounds; occasional lifting of up to 55 pounds.”
In responses to discovery requests, Mr. Scudder admitted that, due to injuries he suffered
on active duty, he would be unable to lift his hands above his head with ease and it would
be painful to do so; he could not stand for significant periods of time; he could not stock
top shelves; and he could not pick up anything heavy. (#25-3 at 4) Additionally, at his
deposition, Mr. Scudder testified to being treated for PTSD and short-term memory loss.
(#32-1 at 16, 18-19) It is reasonable to assume that Mr. Scudder recognized his inability
to perform the essential functions of his prior position with Dollar General and chose to
Mr. Scudder now contends that he might possibly qualify for reemployment with
Dollar General if it provided him accommodations such as assistance with stocking
shelves and allowing him to be seated while he worked for at least half of the day or
more. (#25-3 at 4-5, #32 at 3-4, #36 at 1) Mr. Scudder has not provided any evidence
from a medical source indicating that he could return to work with the suggested
accommodations, and his contention contradicts his application for SSDI benefits, where
he reported that he had been unable to work since December 10, 2014. (#25-2 at 4, 12)
Moreover, setting aside the issue of accommodations for his physical limitations,
there is no way to reconcile his contention that he could be reemployed with the ALJ’s
finding that he could not “sustain concentration, persistence of pace on a routine,
continuous basis to complete the required tasks of a job in an eight-hour workday, 40
hour workweek.” (#25-2 at 23)
The ALJ concluded that Mr. Scudder was unable to work due to his severe
impairments (#25-2 at 21-26), and Mr. Scudder’s application for SSDI benefits and his
statements to the ALJ regarding his inability to work are consistent with his resignation
from Dollar General. See Brown v. Con-way Freight, Inc., 2016 WL 861210, at *6-7
(N.D. Ill 2016)(holding that serviceman was judicially and equitably estopped from
pursuing his claim for reemployment under USERRA, because he could not legally
represent that he was permanently injured and at the same time say his injury was
temporary in order gain another benefit).
Finally, Mr. Scudder claims that Dollar General violated USERRA’s antidiscrimination provision by not rehiring him. See 42 U.S.C. §4311. USERRA’s antidiscrimination provision, however, is not applicable here. “Section 4311 applies after
reemployment has occurred and ‘prohibits discrimination with respect to any benefit of
employment against persons who serve in the armed services after they return from a
deployment and are reemployed.’” Clegg v. Ark. Dep’t of Correction, 496 F.3d 922, 930
(8th Cir. 2007) (citation omitted) (emphasis added). Because Dollar General never
reemployed Mr. Scudder, USERRA’s anti-discrimination provision is not applicable
For these reasons, Mr. Scudder’s motion for summary judgment (#21) is DENIED.
Dolgencorp LLC’s motion for summary judgment (#25) is GRANTED, and Mr.
Scudder’s claims against Defendant Dolgencorp LLC are DISMISSED, with prejudice.
IT IS SO ORDERED this 18th day of August, 2017.
UNITED STATES MAGISTRATE JUDGE
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