Moore v. United Air Lines, Inc.

Filing 30

ORDER on Motion to Dismiss. Ordered that Defendant's Motion to Dismiss 11 is Granted and this case is dismissed with prejudice by Chief Judge Wiley Y. Daniel on 05/31/11.(jjh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 10-cv-02100-WYD-CBS
BRENT E. MOORE,
Plaintiff,
v.
UNITED AIR LINES, INC.,
Defendant.

ORDER ON MOTION TO DISMISS

I.

INTRODUCTION
THIS MATTER is before the Court on Defendant’s Rule 12(b)(6) Motion to

Dismiss filed November 11, 2010. The motion argues that the claims in the Complaint
asserted under the Uniformed Services Employment and Reemployment Rights Act
[“USERRA”], 38 U.S.C. §§ 4301, et seq., are time-barred under the applicable four-year
statute of limitations set forth in 28 U.S.C. § 1658(a). A response was filed on
December 2, 2010, and a reply was filed on December 16, 2010. For the reasons
stated below, Defendant’s motion is granted and this case is dismissed.
II.

FACTUAL BACKGROUND
This is an action for damages and injunctive relief due to alleged violations of

USERRA. (Compl., ¶ 1.) The Complaint alleges that all relevant times, Plaintiff was a
uniformed service member and a commissioned officer in the United States Air Force or

the United States Air Force Reserve. (Id., ¶7.) Defendant United Air Lines, Inc. [“UAL”]
was purportedly aware of this. (Id., ¶ 8.)
On October 15, 1996, Plaintiff was invited to interview with UAL for a Flight
Officer Induction Program. (Compl., ¶ 9.) Plaintiff contacted UAL’s Flight Officer
Employment Office and informed them that while he would like to interview with UAL for
this Program, he had not yet completed a limited tour of duty with the United States Air
Force. (Id., ¶ 10.) UAL’s Flight Officer Employment Office told Plaintiff that he would
have to let his current application for employment expire and turn down the interview
opportunity because UAL’s policy required applicants to be available for initial training
within six (6) months of application. (Id., ¶ 11.)
Plaintiff then called Roger Vesely [“Vesely”], the manager of UAL’s Flight Officer
Employment. (Compl., ¶ 12.) Rather than decline Plaintiff’s application and return it to
him with an explanation of the UAL policy, Vesely instructed Plaintiff to wait until six
months before his availability date and then call him back to obtain an interview. (Id.)
Plaintiff called back six months later on May 12, 1997, and was invited again to
interview by UAL. (Id., ¶ 13.) UAL scheduled an interview for Plaintiff on July 25, 1997,
and Plaintiff was interviewed on that date. (Id., ¶¶ 14-15.) Plaintiff advised UAL at that
time that his availability for employment was December 1, 1997. (Id., ¶ 15.)
On August 13, 1997, as a result of the favorable interview three weeks earlier,
Plaintiff was extended a conditional offer of employment which was conditioned upon
his successful completion of a medical evaluation and background check. (Compl.,
¶ 16.) By September 4, 1997, Plaintiff had completed the required medical examination
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and passed the background check. (Id., ¶ 17.) On September 26, 1997, Plaintiff was
sent a letter by UAL advising him that he had been accepted into the Flight Officer
Training Program and that he would be offered a place in the next available training
class. (Id., ¶ 18.)
On November 24, 1997, Plaintiff was released from military duty at his Air Force
Unit and was available for hire and training class with UAL on December 1, 1997-- just
as he indicated to UAL during his interview four months earlier. (Compl., ¶ 19.) UAL’s
Flight Officers hired on December 1, 1997 have a seniority number of 5642. (Id., ¶ 20.)
Plaintiff was not hired by UAL on December 1, 1997, nor did he start in the “next
available training class” as UAL’s letter of acceptance stated. (Id., ¶ 21.) Instead,
Plaintiff was not made an offer until June 16, 1998, to start a training class that was to
begin on August 10, 1998 or later. (Id.)
Plaintiff did not actually begin his training with UAL until October 26, 1998, almost
a full year after he first made himself available on December 1, 1997. (Compl., ¶ 22.)
As a direct result, Plaintiff’s seniority number is pegged at 6039—nearly 400 seniority
places behind where he alleges it should have been had he been allowed to interview
after being invited by UAL for such on October 15, 1996 or to start training with the
class that began on December 1, 1997. (Id.) Plaintiff alleges that he was denied initial
employment with UAL in December of 1997 due to his obligation to perform military
service in the United States Air Force and the discriminatory policy of UAL. (Id., ¶ 23.)
This policy had the net effect—if not the stated effect-- of denying applicants with
military service obligations a UAL training start date until months after the applicants’
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military obligations ended--despite the applicants actual availability for training class--all
in violation of USERRA. (Id.)
UAL’s six (6) month availability policy was revised effective January, 2001 to
extend the availability period for applicants from six (6) months to one (1) year.
(Compl., ¶ 25.) UAL revised its policy yet again in 2005 to eliminate any time limits for
an applicant who is on active military duty. (Id., ¶ 26.)
In September 2002, Plaintiff filed a discrimination complaint with UAL and asked
that it be forwarded to the United States Department of Labor [“DOL”]. (Compl., ¶ 27.)
In February 2003, the DOL began contacting UAL on Plaintiff’s behalf in an attempt to
resolve the alleged discriminatory hiring practice issue. (Id., ¶ 28.) On June 19, 2003,
the DOL opened a USERRA Investigation of Plaintiff’s discrimination complaint against
UAL. (Id., ¶ 29.) On January 5, 2005, Plaintiff filed a complaint with the DOL against
the Airline Pilots Association for their refusal to revise his date of seniority established
by UAL by virtue of UAL’s discriminatory hiring practice. (Compl., ¶ 30.) Plaintiff
requested that both investigations be forwarded to the United States Attorney General
for consideration of representation. (Id., ¶ 31.) On September 29, 2005, the United
States Department of Justice declined representation of Mr. Moore’s claims and
apprised him of his right to seek private counsel or to file a lawsuit against his employer
in a court of competent jurisdiction. (Id.)
On October 10, 2008, Congress amended the USERRA. See Pub. L. No. 110389. Title III, § 311(f)(1), Oct. 10, 2008, 122 Stat. 4163 to 64. Section 4327(b) expressly
prohibits application of any time line to USERRA claims.
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In December of 2009, Mr. Moore contacted his current counsel for representation
of his USERRA claim against UAL. (Compl.,¶ 32.) Freedom of Information Act
requests were sent by Plaintiff to the United States Department of Labor and the United
States Department of Justice for his various files. (Id.) This matter was then filed in this
Court on August 30, 2010, almost five years after the DOJ declined to prosecute his
claims and over 12 years after UAL asserts that his claims accrued.
In his Complaint, Plaintiff alleges that (1) UAL’s failure to hire him on December
1, 1997, and start him in a training class on that date was a violation of the antidiscrimination provisions of 38 U.S.C. § 4311 of USERRA, and (2) UAL’s policy of
requiring applicants (including Plaintiff) to be available for training within six months of
their application was prohibited under 28 U.S.C.§ 4302(b) of USERRA. (Compl., ¶¶ 3342.) Plaintiff seeks immediate readjustment of his seniority number to 5642 to reflect
the same seniority number as those employed and initiating Flight Officer Training Class
on December 1, 1997. (Compl., ¶¶ 43, 49.) He also seeks a restoration of all lost
wages, back pay, benefits and allowances from December 1, 1997, until the present
date, additional damages representing the difference in pay between the pay of UAL
First Officer with a seniority number of 5642 and the pay of a UAL First Officer with a
seniority number of 6039 (Plaintiff’s status), until such time as Plaintiff’s seniority
number, pay, benefits and allowances are properly restored to a seniority and status
reflecting a December 1, 1997 date of training commencement, liquidated damages,
and fees and expenses, including attorney fees. (Id., ¶¶ 48-48, 50-53.)

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III.

ANALYSIS
A.

Standard of Review

The Federal Rules of Civil Procedure provide that a defendant may move to
dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). “The court's function on a Rule 12(b)(6) motion is not to weigh
potential evidence that the parties might present at trial, but to assess whether the
plaintiff's complaint alone is legally sufficient to state a claim for which relief may be
granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and
quotation marks omitted). “A court reviewing the sufficiency of a complaint presumes all
of plaintiff's factual allegations are true and construes them in the light most favorable to
the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009). Plausibility, in the context of a
motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. If the
allegations state a plausible claim for relief, such claim survives the motion to dismiss.
Id. at 1950.
B.

Analysis
1.

Whether Plaintiff’s Claims Are Barred by the Statute of Limitations

28 U.S.C. § 1658(a) states, “except as otherwise provided by law, a civil action
arising under an Act of Congress enacted after the date of the enactment of this section
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may not be commenced later than 4 years after the cause of action accrues.” It applies
to causes of action created by Congress after December 1, 1990, the effective date of
the Act. This “catch-all” statute of limitations for federal claims has been held applicable
to USERRA claims accruing after December 1, 1990. See, e.g., Middleton v. City of
Chicago, 578 F.3d 655, 657-62 (7th Cir. 2009); Roark v. Lee Co., No. 3:09-0402, 2009
WL 4041691, at *2 (M.D. Tenn. Nov. 20, 2009); Wagner v. Novartis Pharmaceuticals
Corp., 565 F. Supp. 2d 940, 945 (E.D. Tenn. 2008); O’Neil v. Putnam Retail
Management, LLP, 407 F. Supp. 2d 310, 316 (D. Mass. 2005).
UAL argues that the claims at issue accrued in December 1997 when United (1)
failed to hire him and place him in training and (2) applied its policy of requiring
applicants to be available for training within six months of their application. Since
Plaintiff did not file this lawsuit for more than 12 years later, UAL contends that his
claims should be dismissed as untimely.
Plaintiff argues, on the other hand, that no statute of limitations applies to his
claim. He relies on the fact that on October 10, 2008, Congress enacted the Veterans’
Benefits Improvement Act [“VBIA”], Pub.L. No. 110-389, 122 Stat. 4145, which contains
a provision stating that no limitations period applies to USERRA claims. See Middleton,
578 F.3d at 657 (citing 38 U.S.C. § 4327(b)). Alternatively, Plaintiff argues that his
claims did not accrue until September 2005 when he was advised that the alternative
dispute resolution he sought through the government was denied. Further, he asserts
that four years had not passed when, in October 2008, the USERRA was amended to

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eliminate any statute of limitations. Thus, Plaintiff asserts it was not possible for four
years to run on his claims, and his right sued upon was not extinguished.
I reject Plaintiff’s arguments, and find that his claims are barred by the four-year
limitations period in 28 U.S.C. § 1658(a) in effect when his claims accrued. As to the
date of accrual of the claims, I believe Plaintiff’s claims accrued in 1997 when UAL
allegedly discriminated against him for the reasons discussed by UAL in its motion and
reply brief. While Plaintiff argues that his claims did not accrue in September 2005 until
his attempts to utilize the administrative process were denied, I do not believe that is
accurate. First, as noted by UAL, 38 U.S.C. § 4323(a) does not speak to when a
USERRA claim accrues. The Tenth Circuit has held that causes of action under federal
civil rights statutes like USERRA accrue when the plaintiff “knew or should have known
of the injury that is the basis for the suit.” Smith v. City of Enid by and Through Enid
City Comm’n, 149 F.3d 1151, 1154 (10th Cir. 1998) (“federal law governs the question
of accrual of federal causes of action, and thus, dictates when the statute of limitations
begins to run . . . .” Certainly, Plaintiff knew or should have known of the injury that is
the basis for the suit by December 1997 when he was not admitted into the training
program offered that month.
Second, 38 U.S.C. §§ 4322 and 4323 of USERRA do not prevent a claimant from
pursing a private cause of action; indeed, even if the claimant uses the administrative
process he may abandon that process and pursue a private cause of action. Thus, a
USERRA claim does not require that the administrative process be utilized or that the
claimant receive a right to sue letter. This is different than, for example, Title VII which
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requires claimants to file a charge with the EEOC, receive a right to sue letter and then
bring suit within 90 days as “prerequisites to a civil suit.” See Croy v. Cobe
Laboratories, 345 F.3d 1199, 1202 (10th Cir. 2003); see also 42 U.S.C. § 2000e5(f)(1).
Thus, in this case Plaintiff had the right to bring a private cause of action under the
USERRA in 1997 subject to the four year statute of limitations. He did not bring such
suit until 2010, well after the four year limitations period had ended.
Plaintiff argues, however, that the statute of limitations should not begin to run
until September 2005, when he received notice that the administrative process
described in 38 U.S.C. §§ 4322 and 4323 had come to an end. He relies on Potts v.
Howard Univ. Hosp., 623 F. Supp. 2d 68, 72-73 (D.D.C. 2009) which, while not directly
addressing the accrual date for a USERRA claim, held on a motion to dismiss that the
four-year statute of limitations in 28 U.S.C. § 1658 had not run because “the latest
possible date the plaintiff’s cause of action could have accrued is April 1, 2005, when
the plaintiff alleges the second D.C. Office of Human Rights investigation concluded and
a right to sue letter was issued.” Id.
I reject Plaintiff’s argument. That is because by the time Plaintiff attempted to
utilize the administrative process set forth in §§ 4322 and 4323, his claims in connection
with a private suit were already extinguished. The alleged discriminatory acts occurred
in 1997, and he did not file a discrimination complaint with UAL asking that it be
forwarded to the U.S. Department of Labor until September 2002, more than four years
thereafter. Thus, even assuming, arguendo, as the Potts court did, that a USERRA
claim does not accrue until the administrative process is over, Plaintiff’s argument is still
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unavailing because the statute of limitations ran with respect to Plaintiff’ claims before
Plaintiff even attempted to use that process. The Supreme Court has made clear that
“extending a statute of limitations after the pre-existing period of limitations had expired
impermissibly revives a moribund cause of action.” Hughes Aircraft Co. v. United
States ex rel. Schumer, 520 U.S. 939, 950 (1997).
2.

Whether the VBIA Applies to and Saves Plaintiff’s Claims

Finally, I reject Plaintiff’s argument that enactment of the VBIA in 2008 providing
that no limitations period applies to USERRA claims somehow stopped the running of
the limitations period in 28 U.S.C. § 1658(a) or that it applies retroactively to his claims.
In that regard, I agree with and adopt the Seventh Circuit’s well-reasoned decision in
Middleton that the VBIA’s enactment in 2008 does not apply retroactively to save a
plaintiff’s claims that accrued before its enactment. Middleton, 578 F.3d at 662-63.
Middleton first noted that “Congress enacted USERRA well after it created the four-year
limitations period in § 1658, and we presume that Congress knew that any new federal
statute would be subject to such a limitation unless it ‘otherwise provided by law.’” Id. at
662. It then stated:
Thus, if Congress wanted a different limitations period to apply to USERRA or note at all- it needed to say so. And this is precisely what Congress did in
2008, when it passed the Veterans' Benefits Improvement Act, bringing us
to our next question-whether the VBIA applied to Middleton's claim.
Id.
Middleton argued, as does Plaintiff, that even if § 1658 may have initially applied
to his USERRA claims, Congress’ enactment of the VBIA saves his lawsuit. Middleton,

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578 F.3d at 662. The Seventh Circuit thus was called upon to examine whether the
VBIA’s amendment retroactively applied to Plaintiff’s claims which arose before its
enactment. Middleton stated on that issue, “it is well established that a court should not
apply a newly enacted statutory provision retroactively unless Congress has clearly
mandated such an extension.” Id. (citing Hughes Aircraft Co., 520 U.S. at 946-47 and
other cases). It further found, and I agree, that “[t]he VBIA says nothing about whether
§ 4327(b) applies retroactively.” Id. “In fact, the only hint in the text suggests that it
applies prospectively: ‘If any person seeks to file a complaint or claim ....’” Id. (quotation
omitted) (emphasis added). Thus, the Seventh Circuit found that “Congress was aware
that for § 4327(b) to have retroactive effect, it needed to say so expressly, and the
absence of any such express language in the text indicates that Congress chose not to
do so.” Id. at 663. I agree with this analysis and find that the VBIA’s enactment does
not retroactively apply to revive Plaintiff’s claims.
I also agree with the Middleton court that even if I could interpret § 4327(b) of the
VBIA to apply to some USERRA claims filed before October 10, 2008, this would not
save Plaintiff’s cause of action. Middleton, 578 F.3d at 663. That is because, like the
claim in Middleton, it was already time-barred when § 4327(b) took effect. As noted by
the Seventh Circuit, “[a] plaintiff may overcome the general presumption against
retroactivity, but doing so is ‘especially tough’ when the amended law extends the time
within which a plaintiff must file a lawsuit.” Id. (quotation omitted). In Middleton, while
the plaintiff asked the court “to apply § 4327(b) to revive a time-barred claim, he
presented nothing to overcome the presumption against doing so. Id. The same
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analysis applies here. Middleton concluded:
Congress enacted USERRA nearly four years after enacting § 1658, and it
did not include in USERRA a statute of limitations or a provision that no
limitations period should apply. Accordingly, USERRA is subject to § 1658.
Congress, recognizing that USERRA did not discuss the federal statute of
limitations, passed the VBIA to provide expressly that no statute of limitations
shall apply. The legislature, however, stopped short of bestowing retroactive
effect upon the new law, and we decline to extend it without a clear directive.
Id. at 664.
Other courts outside the Seventh Circuit that have considered the issue have
also agreed with Middleton. See, e.g., Risner v. Haines, No., 2009 WL 4280734, at *5
(N.D. Ohio Nov. 24, 2009); Roark, 2009 WL 4041691, at *5. I agree with and adopt the
holding in these cases and find that the VBIA does not revive Plaintiffs’ claims which are
time-barred.1
III.

CONCLUSION
Based on the foregoing, I agree with UAL that Plaintiff’s claims accrued in 1997

and are barred by the four-year statute of limitations set forth in 28 U.S.C. § 1658(a). I
also find that Plaintiff’s claims are not revived by enactment of the VBIA and its
elimination of a limitations period for USERRA claims. Accordingly, it is
ORDERED that Defendant’s Motion to Dismiss (ECF No. 11) is GRANTED, and
this case is DISMISSED WITH PREJUDICE.

1

The Supreme Court also noted in Hughes Aircraft that “‘[a] law that abolishes an affirmative
defense’ violates the Ex Post Facto clause.” Id., 520 U.S. at 948 (quoting Collins v. Youngblood, 497 U.S.
37, 49 (1990)). The Roark decision found that “[t]he application of Section 4327(b) here would eliminate
the Defendant's affirmative defense based upon § 1658 to Plaintiff's 2003 and 2004 USERRA claims.”
Roark, 2009 WL 4041691, at *5. Thus, it held that “Hughes Aircraft forecloses the application of Section
4327(b)” to Plaintiff's 1997 USERRA claims. Id. The same is true in this case. This provides yet another
basis to reject Plaintiff’s reliance on the VBIA.

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Dated: May 31, 2011
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

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