Towler v. Electrical Reliability Services, Inc.
Filing
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ORDER denying Defendant Electrical Liability Services, Inc.'s 4 Partial Motion to Dismiss and Defendant's 4 Motion for More Definite Statement is GRANTED in part and DENIED in part. Plaintiff is DIRECTED to amend his Complaint within fifteen (15) days of the entry of this Order, providing a more definite statement as to the start date of his deployment. Signed by Judge Richard W. Story on 2/12/2015. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TRAVIS TOWLER,
Plaintiff,
v.
ELECTRICAL RELIABILITY
SERVICES, INC.,
Defendant.
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CIVIL ACTION NO.
1:14-CV-01940
ORDER
This case comes before the Court on Defendant’s Partial Motion to
Dismiss, or in the Alternative, for More Definite Statement [4]. After reviewing
the record, the Court enters the following Order.
Background1
This case arises out of Plaintiff U.S. Army Sergeant First Class Travis
Towler’s termination by his former employer, Defendant Electrical Reliability
Services, Inc. Plaintiff alleges that Defendant improperly discriminated against
1
As the case is before the Court on a Motion to Dismiss, the Court
accepts as true the facts alleged in the Complaint. Cooper v. Pate, 378 U.S.
546, 546 (1964).
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him based on his military service in violation of 38 U.S.C. § 4311. (Compl.,
Dkt. [1] ¶¶ 26–29.)
Plaintiff has been an active member of the U.S. Army and National
Guard for the past fifteen years. (Id. ¶ 9.) He serves as a medic attached to the
HHC 2-121 IN. (Id.) In February 2008, Plaintiff began working for Defendant
as a Shop Technician.2 (Id. ¶¶ 6, 10.) Plaintiff alleges he was the lowest paid
technician at the Defendant’s Atlanta facility, even though he had more
experience than some of his higher earning co-workers. (Id. ¶ 12.) From 2009
to April 2010, Plaintiff left his position as Shop Technician to serve in
Afghanistan. (Id. ¶ 11.) Upon his return from Afghanistan, Plaintiff was not
granted promotions or pay raises that were granted to similarly situated
employees and that were due to him during his service abroad. (Id.) In a
formal evaluation dated August 2012, Defendant wrote that Plaintiff’s military
service was “holding him back.” (Id. ¶ 12.)
2
The Court notes that the Plaintiff is inconsistent as to the start date of
his employment with the Defendant. (See Compl., Dkt. [1] ¶ 1 (2007); c.f. id. ¶¶
6, 10 (February 2008).) However, the inconsistency is not material to the instant
motion.
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Early in January 2014, Plaintiff notified Ken Evans, Sr. Engineer and his
onsite Atlanta supervisor, that he would take unpaid leave on Thursday, January
9, 2014 and Friday, January 10, 2014 to attend a three day drilling unit training
exercise for the Georgia National Guard. (Id. ¶ 14.) Mr. Evans granted
Plaintiff time off to attend the training. (Id.)
During the first day of training on January 10, 2014, Plaintiff learned that
he would be deployed to a U.S. Army training mission in Guatemala “from
until April 6, 2014.”3 (Id. ¶ 17.) On Sunday, January 12, 2014, Plaintiff
informed his formal supervisor, Gustavo Gonzales, of his upcoming U.S. Army
deployment via email.4 (Id. ¶ 18.)
The next day Defendant terminated Plaintiff’s employment, alleging that
Plaintiff violated company policy by being absent for three or more scheduled
work days without reporting an acceptable explanation for the absence to his or
her supervisor. (Id. ¶ 19.) Defendant considered Thursday, January 9, 2014,
3
The commencement date of Plaintiff’s deployment is left blank in the
Complaint.
4
Although the Complaint alleges that Plaintiff informed his supervisor of his
upcoming deployment, the Complaint fails to allege that Plaintiff informed his
supervisor of the commencement date of his deployment.
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Friday, January 10, 2014, and Monday, January 13, 2014, as unapproved absent
days. (Id. ¶ 20.)
Plaintiff contends that he was illegally terminated because he informed
his supervisors of his leave and because his military absence is protected by
law. (Id. ¶ 19.) Plaintiff further alleges that his termination and Defendant’s
refusal to provide Plaintiff with promotions, raises, and bonuses during the
course of his employment was based upon his absences due to military
deployment all in violation of the Uniformed Services Employment and
Reemployment Rights Act (“USERRA,” 38 U.S.C. §§ 4301 et seq.). (Id. ¶¶
28–29.)
Moreover, Plaintiff asserts that Defendant’s actions are in contradiction
to the Defendant’s Employee Handbook, which requires the company to pay the
difference between the individual’s base pay and military compensation up to
ten working days per year for temporary military leave and a maximum of six
months per year for active duty. (Id. ¶ 23–24.) Plaintiff alleges Defendant
failed to pay Plaintiff the promised difference between his base pay and military
compensation from April 2010 to January 2014. (Id. ¶ 25.)
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Based on the foregoing allegations, Plaintiff brings claims for violation
of 38 U.S.C. § 4311 and seeks reasonable attorneys’ fees, costs, expert witness
fees, and other litigation expenses pursuant to 38 U.S.C. § 4313(h)(2).
Defendant moves for a Partial Motion to Dismiss, or in the Alternative,
for More Definite Statement. (“Def.’s Mot. to Dismiss”, Dkt. [4].) The Court
first considers Defendant’s Motion to Dismiss, then turns to its alternative
Motion for a More Definite Statement.
Discussion
I.
Motion to Dismiss
A. Legal Standard
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a
“short and plain statement of the claim showing that the pleader is entitled to
relief.” FED. R. CIV. P. 8(a)(2) (emphasis added). While this pleading standard
does not require “detailed factual allegations,” mere labels and conclusions or
“a formulaic recitation of the elements of a cause of action will not do.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
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In order to withstand 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.’” Id. (quoting Twombly, 550 U.S. at 570). A complaint is
plausible on its face when the plaintiff pleads factual content necessary for the
court to draw the reasonable inference that the defendant is liable for the
conduct alleged. Id.
“At the motion to dismiss stage, all well-pleaded facts are accepted as
true, and the reasonable inferences therefrom are construed in the light most
favorable to the plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273
n.1 (11th Cir. 1999). However, the same does not apply to legal conclusions set
forth in the complaint. See Iqbal, 556 U.S. at 678. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. Furthermore, the court does not “accept as true a legal conclusion
couched as a factual allegation.” Twombly, 550 U.S. at 555.
B.
Analysis
1.
Termination in Violation of USERRA
Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant moves
to dismiss Plaintiff’s claim that he was terminated in violation of USERRA, 38
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U.S.C. § 4311. Count One of Plaintiff’s Complaint asserts that Plaintiff’s
protected status was a substantial motivating factor in his termination. (Compl.,
Dkt. [1] ¶ 28.) Defendant moves to dismiss on the basis that Plaintiff fails to
state a claim under USERRA because Plaintiff’s termination took place while
he was on military leave and Plaintiff does not allege that he sought
reemployment with Defendant. (Def.’s Memo., Dkt. [4-1] at 1.)
Defendant’s argument, however, is misplaced. Defendant cites repeatedly
to 38 U.S.C. § 4312, which requires a Plaintiff to seek reemployment with the
Defendant before asserting a claim under USERRA. (Id. at 1, 5-7.) Plaintiff’s
Complaint, however, does not assert a reemployment claim. Instead, his
discharge claim is premised solely upon unlawful discrimination under 38
U.S.C. § 4311(a). (Compl., Dkt. [4-1] ¶ 25-26.) See Dees v. Hyundai Motor
Mfg. Alabama, LLC., 605 F. Supp. 2d 1220 (M.D. Ala. 2010), aff’d 368 F.
App’x 49 (11th Cir. 2010) (a member of the Alabama Army National Guard
brought an action against his employer asserting termination and harassment
under § 4311(a)); c.f. Breletic v. CACI, Inc., 413 F. Supp. 2d 1329 (N.D. Ga.
2006) (plaintiff alleged employer violated § 4312 by refusing reemployment
following his release from active military duty).
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Defendant relies on Dorris v. TXD Services, LP to argue that the Court
should focus on Defendant’s reemployment obligations rather than the
circumstances surrounding Plaintiff’s termination. Dorris v. TXD Services, LP,
2014 WL 747476, at *3 (8th Cir. Feb. 27, 2014) (plaintiff alleging
discriminatory termination in violation of USERRA). Particularly, Defendant
cites to the Dorris court’s assertion that “[A] departing service person is to be
placed on a statutorily-mandated military leave of absence while away from
work. . . . Thus, terminating a departing serviceperson, or forcing him to
resign . . . is of no effect.” Id. (quoting H.R. Rep. 103-65(1) at 33 (1993)).
Relying on this proposition, Defendant states that the Dorris court focused
“appropriately” on the employer’s reemployment compliance responsibilities
and obligations, instead of the Plaintiff’s termination status. (Compl., Dkt. [41] ¶ 8.) Defendant then argues that Plaintiff’s complaint should be dismissed
because he never applied for reemployment.
The Court finds that Plaintiff’s decision not to apply for reemployment
does not warrant dismissal of his complaint. Here, Plaintiff alleges a violation
of 38 U.S.C. § 4311(a), not § 4312. The law in this circuit clearly delineates the
rights and protections afforded under USERRA to members of the uniformed
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services, including reemployment rights and prohibitions from discrimination
by employers. These rights are “separate and distinct” under the Act. Coffman
v. Chugach Support Servs., Inc., 411 F.3d 1231, 1234 (11th Cir. 2005) (citing
Wrigglesworth v. Brumbaugh, 121 F. Supp. 2d 1126, 1134 (W.D. Mich. 2000)
(“Sections 4311 and 4312 of the USERRA provide separate and distinct
statutory protections for service members.”); see also Fannin v. United Space
Alliance, LLC., 2009 WL 139878, at *4 (M.D. Fla. Jan. 20, 2009), aff’d in part,
392 F. App’x 788 (11th Cir. 2010) (distinguishing between USERRA’s
reemployment and discrimination prohibitions by first describing the
reemployment provisions under 38 U.S.C. §§ 4312, 4313, then explaining that
“a different section of USERRA,” 38 U.S.C. § 4311, provides prohibitions
against employer discrimination). Therefore, because Plaintiff’s claims rest on
the discrimination provisions, those claims cannot be dismissed on the basis
that Plaintiff failed to comply with the reemployment provisions. The Court
now turns to Defendant’s arguments addressing discrimination.
B.
Plaintiff’s Protected Status
Next, Defendant asserts that Plaintiff’s claims should be dismissed
because he was not included in the protected class of individuals under
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USERRA, given Plaintiff’s failure to provide proper notice of the first date of
his deployment. (Def.’s Memo., Dkt. [4-1] at 8-9.)
Defendant correctly points out that Plaintiff’s Complaint leaves blank the
start date of his deployment to Guatemala, stating that “[w]hile continuing his
National Guard Drill, SFC Towler learned on Friday, January 10, that he would
be deployed to a U.S. Army training mission in Guatemala from until April 6,
2014.” (Compl, Dkt. [1] ¶ 17.) Plaintiff’s Complaint also fails to allege that
Plaintiff informed his supervisor of the start date of his deployment. As a
result, Defendant contends that Plaintiff has not alleged that as of Monday,
January 13, 2014, he continued to have USERRA protection. (Def.’s Memo.,
Dkt. [4-1] at 8–9.)
But Defendant’s arguments again improperly rest on USERRA’s
reemployment provisions. Defendant claims that USERRA protection is only
triggered when the employee provides the start date of military deployment on
his or her advance written or verbal notice. (Id. at 8-9 (citing Hays, 753 F.
Supp. 2d at 897).) This “advance written or verbal notice,” however, is a
prerequisite for a person claiming reemployment rights under USERRA. See 38
U.S.C. § 4312 (“[A]ny person whose absence from a position of employment is
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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—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.”) (emphasis added); see also Hays, 753
F. Supp. 2d at 896.
Plaintiff did not plead a reemployment claim under USERRA. Instead,
Plaintiff alleges his protected status stems from U.S.C. § 4311(a), which
protects “a person who is a member of . . . [or] has performed . . . service in a
uniformed service” from discrimination. 38 U.S.C. § 4311(a). Under the
statute, “uniformed service” is defined as “the Armed Forces, the Army
National Guard and the Air National Guard when engaged in active duty for
training, inactive duty training, or full-time National Guard Duty.” 38 U.S.C.
§ 4303(16). Plaintiff has alleged that he “performed” service in a uniformed
service in 2001, 2005-2006, and 2009-2010 and was a member of the
uniformed service when he attended the weekend training drill giving rise to his
claim. As a result, notwithstanding Plaintiff’s actual deployment date,
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Plaintiff’s complaint cannot be dismissed on grounds that he is not a member of
the class of individuals protected by USERRA.
USERRA was enacted to “prohibit employment discrimination on the
basis of military service.” Fannin, 2009 WL 139878, at *4 (quoting Coffman v.
Chugach Support Servs., Inc., 411 F.3d 1231, 1234 (11th Cir. 2005)). As a
result, in order “to protect the rights of veterans and members of the uniformed
services, it must be broadly construed in favor of its military beneficiaries.”
Fannin, 2009 WL 139878, at *4 (quoting Hill v. Michelin N. Am., Inc., 252
F.3d 307, 312-13 (4th Cir. 2001)). Because the Court is required to both
broadly construe the statute and favorably construe the facts, dismissal is not
proper. Accordingly, Defendant’s Partial Motion to Dismiss is DENIED.
II.
Defendant’s Motion for a More Definite Statement
A.
Legal Standard
Pursuant to Federal Rule of Civil Procedure 12(e), “[a] party may move
for a more definite statement of a pleading to which a responsive pleading is
allowed but which is so vague or ambiguous that the party cannot reasonably
prepare a response.” FED. R. CIV. P. 12(e). Pursuant to Rule 8(a), a plaintiff’s
complaint should include “a short and plain statement of the claim showing that
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the pleader is entitled to relief.” Roe v. Aware Woman Ctr. For Choice, Inc.,
253 F.3d 678, 683 (11th Cir. 2001). Additionally, a plaintiff should include a
“brief factual description” of the circumstances that surround the acts upon
which the plaintiff bases a claim for relief. Parker v. Brush Wellman, Inc., 377
F. Supp. 2d 1290, 1294 (N.D. Ga. 2005) (citing Williams v. Lear Operations
Corp., 73 F. Supp. 2d 1377, 1381 (N.D. Ga. 1999)).
B.
Analysis
Due to the imprecise nature of the Plaintiff’s Complaint, Defendant
requests that the Court compel a more definite statement as to (1) the start date
of Plaintiff’s deployment to Guatemala and (2) Plaintiff’s application for
reemployment with Defendant. The Court considers each request in turn.
1.
Start Date of Plaintiff’s Deployment
Plaintiff’s Complaint leaves blank the start date of his deployment to
Guatemala, stating that he would be deployed in Guatemala “from until April 6,
2014.” (Compl., Dkt. [1] ¶ 17.) Beyond this imprecise and incomplete
statement, the Complaint contains no other factual allegations regarding the
start date of Plaintiff’s deployment.
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Count One of the Complaint alleges that Plaintiff’s protected status was a
substantial motivating factor in Defendant’s termination of Plaintiff and refusal
to provide Plaintiff with promotions, raises, and bonuses during the course of
his employment. (Id. at ¶¶ 28-29.) Plaintiff asserts that as a result of
Defendant’s violations, Plaintiff will suffer lost wages and benefits of
employment from April 2010 through the date of trial with prejudgment
interest. (Id. at ¶ 31.)
Plaintiff also cites to Defendant’s Employee Handbook, which requires
the Company to pay the difference between the individual’s base pay and their
military compensation up to ten company working days per year for temporary
military leave and a maximum of six months per year for active duty. (Id. at ¶
23-24.) Accordingly, in order to comprehend the scope of Plaintiff’s
allegations and properly defend against Plaintiff’s claims, Defendant is entitled
to know the precise dates of Plaintiff’s deployment abroad. Without such facts,
Defendant is left without adequate notice of the factual basis underlying the
claims that Defendant must defend against. See Alford v. Cordele Foods, Inc.,
2005 WL 2431903, at *1 (M.D. Ga. Oct. 3, 2005) (holding that when a
Defendant is without fair notice of the legal grounds for a suit there is a “risk of
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unnecessary discovery and future pleadings and a resulting waste of both
litigants’ and the Court’s resources.”).
Furthermore, central to the issue of whether Plaintiff was terminated
based on unlawful discrimination or for another reason is the question of
whether Plaintiff was in fact on military leave during the time of his termination
or simply failed to return to work after a period of military absence. Therefore,
Defendant’s motion for a more definite statement as to the date of Plaintiff’s
deployment is GRANTED.
2.
Date of Plaintiff’s Application for Reemployment with
Defendant
Defendant also requests a more definite statement as to Plaintiff’s
application for reemployment with Defendant. Particularly, Defendant notes
that “there is no allegation that Plaintiff has sought reemployment with
Defendant.” (Def.’s Memo., Dkt. [4-1] at 1.) Defendant’s request, however, is
premised on a reemployment claim under 38 U.S.C. § 4312, a claim that
Plaintiff did not and does not assert in his Complaint.
A more definite statement is appropriate when a pleading “is so vague or
ambiguous that the party cannot reasonably prepare a response.” FED. R. CIV. P.
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12(e). Considering Plaintiff’s Complaint does not assert a reemployment claim
under USERRA, facts surrounding Plaintiff’s application for reemployment or,
in the alternative, failure to apply for reemployment are immaterial. S.C.
Johnson & Son, Inc. V. Para Indus., Inc., 1971 WL 16650, at *1 (N.D. Ga. Aug.
19, 1971) (“As this Court has held, motions for a more definite statement are
not favored, and if it appears that defendants have been sufficiently informed of
the charges against them by the complaint, a motion for more definite statement
will be denied.”) (citing United States v. Georgia Power Co., 301 F. Supp. 538
(N.D. Ga. 1969)). Therefore, Defendant’s motion for a more definite statement
as to the Plaintiff’s application for reemployment is DENIED.
Conclusion
In accordance with the foregoing, the Defendant Electrical Liability
Services, Inc.’s Partial Motion to Dismiss [4] is DENIED and Defendant’s
Motion for More Defendant Statement [4] is GRANTED in part and DENIED
in part. Plaintiff is DIRECTED to amend his Complaint within fifteen (15)
days of the entry of this Order, providing a more definite statement as to the
start date of his deployment.
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SO ORDERED, this 12th day of February, 2015.
________________________________
RICHARD W. STORY
United States District Judge
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