Snyder v. Johnson et al
Filing
27
MEMORANDUM AND ORDER denying 8 Motion to Dismiss. Signed by District Judge Julie A. Robinson on 2/20/2013. (pp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KENNETH SNYDER,
)
)
Plaintiff,
)
)
vs.
)
)
WILLIAM JOHNSON, individually;
)
ERIC CLARK, individually; and
)
UNIFIED GOVERNMENT OF WYANDOTTE )
COUNTY/ KANSAS CITY d/b/a BOARD OF )
PUBLIC UTILITIES,
)
)
Defendants.
)
)
Case No. 12-CV-2723 JAR/DJW
MEMORANDUM AND ORDER
Plaintiff Kenneth Snyder filed this lawsuit against Defendants William Johnson, Eric
Clark, and Unified Government of Wyandotte County/ Kansas City d/b/a Board of Public
Utilities (“BPU”), alleging violations of the Uniform Services Employment and Re-employment
Rights Act (“USERRA”).1 This matter is before the Court on a Motion to Dismiss (Doc. 8), filed
by Defendants Johnson and Clark pursuant to Fed. R. Civ. P. 12(b)(6). Defendants Johnson and
Clark argue that they are not employers as defined by the USERRA and so are not amenable to
suit under that statute. The motion is fully briefed and the Court is prepared to rule. As
described more fully below, the Court denies Defendants’ motion to dismiss.
I.
Legal Standard
To survive a motion to dismiss, a complaint must present factual allegations, assumed to
1
38 U.S.C. §§ 4301–4333.
1
be true, that “raise a right to relief above the speculative level” and contain “enough facts to state
a claim to relief that is plausible on its face.”2 “[T]he complaint must give the court reason to
believe that this plaintiff has a reasonable likelihood of mustering factual support for these
claims.”3 The plausibility standard does not require a showing of probability that a defendant
has acted unlawfully, but requires more than “a sheer possibility.”4 “[M]ere ‘labels and
conclusions,’ and ‘a formulaic recitation of the elements of a cause of action’ will not suffice; a
plaintiff must offer specific factual allegations to support each claim.”5 Finally, the Court must
accept the nonmoving party’s factual allegations as true and may not dismiss on the ground that
it appears unlikely the allegations can be proven.6
The Supreme Court has explained the analysis as a two-step process. For the purposes of
a motion to dismiss, the court “must take all the factual allegations in the complaint as true, [but]
we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’”7 Thus,
the court must first determine if the allegations are factual and entitled to an assumption of truth,
or merely legal conclusions that are not entitled to an assumption of truth.8 Second, the court
must determine whether the factual allegations, when assumed true, “plausibly give rise to an
2
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).
3
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
4
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
5
Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Twombly, 550 U.S.
at 555).
6
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
7
Id.
8
Id. at 679.
2
entitlement to relief.”9 “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”10
II.
Facts
The following facts are alleged in Plaintiff’s Complaint and construed in the light most
favorable to Plaintiff. On September 21, 2009, Plaintiff submitted an employment application to
BPU for a position as a traffic signal technician. In October 2009, Plaintiff received orders from
the United States Air National Guard (“Guard”) for a two month deployment overseas. In
November 2009, Plaintiff was contacted by the BPU human resources department informing
Plaintiff that he was hired. Plaintiff informed Samuel DeLeon, the director of the human
resources department, of his upcoming deployment. DeLeon assured Plaintiff that his new
position was secure and that his deployment would not affect his job status. Upon Plaintiff’s
release from active military duty, Plaintiff reported to work on January 21, 2010.
As a member of the Guard, Plaintiff had a number of continuing responsibilities after his
return, including periodic active deployment and mandatory attendance at training exercises.
Snyder was required to attend three, two-day training exercises in early 2010.11 On April 1,
2010, Defendant Clark became Plaintiff’s new supervisor. He called Plaintiff into a meeting on
April 27. Plaintiff received two performance evaluations at the meeting, one for March and one
for April. Even though Defendant Clark was hired on April 1, Defendant Clark claimed to have
9
Id.
10
Id. at 678.
11
The first training exercise was on February 6–7, 2010. The following exercise was on March 6–7, 2010,
and the final one occurred in early April.
3
performed Plaintiff’s March evaluation and ordered Plaintiff to backdate his own signature to
March 26. Plaintiff was rated as “Unsatisfactory” in the March evaluation and received
improved marks in his April evaluation.
On June 14, 2010, Plaintiff was required to miss two weeks of work because of active
Guard duty. He returned to BPU on June 28 and was fired ten days later, at a meeting with
Defendants Clark and Johnson, and the HR Director. Plaintiff filed a complaint with Veteran’s
Employment and Training Services (“VETS”), and during the VETS investigation BPU
produced an alleged evaluation from June and new reasons for firing Plaintiff.
Plaintiff asserts that his military commitment was a substantial and motivating factor in
Defendants’ decision to fire Plaintiff, that such conduct violates the USERRA, and that he has
suffered loss of employment, lost wages, loss of increased pay, loss of benefits, loss of future
income, loss of or reduction in retirement benefits, and other general damages as a result.
III.
Discussion
Defendants Johnson and Clark focus on a statutory construction question in their motion
to dismiss. Defendants Johnson and Clark are employed by BPU, a political subdivision of the
state, and they maintain that the USERRA does not authorize suits against employees of a state
political subdivision.
In addressing a statutory construction question, “we begin with the language employed
by Congress, and we read the words of the statute in their context and with a view to their place
in the overall statutory scheme.”12 “Courts must ‘ordinarily resist reading words or elements into
12
United States v. Sturm, 673 F.3d 1274, 1279 (10th Cir. 2012) (quoting Been v. O.K. Indus., 495 F.3d
1217, 1227 (10th Cir. 2007)) (quotation omitted).
4
a statute that do not appear on its face.’”13 “It is a cardinal principle of statutory construction
that a statute ought, upon the whole, to be so construed that . . . no clause, sentence, or word
shall be superfluous.”14
The USERRA authorizes suits against employers, and an employer subject to suit under
the USERRA is defined as “any person, institution, organization, or other entity that pays salary
or wages for work performed or that has control over employment opportunities, including . . . a
State.”15 The term employer also includes, “a person, institution, organization, or other entity to
whom the employer has delegated the performance for employment-related responsibilities,”16 so
a state employee may also be an employer if the state has delegated the performance of
employment-related responsibilities to the employee. And, as a general matter, a political
subdivision of a state, like BPU, is considered a state.17 This statutory interpretation is
uncomplicated, but a separate section of the USERRA, at 38 U.S.C.A. § 4323, creates some
complications.
Defendants note that in 1998, the United States Court of Appeals for the Seventh Circuit
held that the USERRA was unconstitutional insofar as it permitted an individual to sue a state in
federal court, violating state sovereign immunity.18 In 1998, Congress rectified this problem by
amending the USERRA to permit the Attorney General of the United States to sue a state in
13
Id. at 1279 (quoting Bates v. United States, 522 U.S. 23, 29 (1997)) .
14
TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001).
15
38 U.S.C. § 4303(4).
16
Id. § 4303(4)(A)(i).
17
Id. § 4303(14).
18
Velasquez v. Frapwell, 160 F.3d 389 (7th Cir. 1993).
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federal court, in the name of the United States.19 An individual seeking to bring a USERRA suit
against a state can bring suit in state court, where Eleventh Amendment sovereign immunity
does not bar the suit, but an individual may not do so in federal court.20 Because political
subdivisions do not have Eleventh Amendment immunity,21 Congress did not limit federal
jurisdiction when filing suit against political subdivisions: for purposes of Section 4323,
Congress defined political subdivision as a private employer, not a state,22 and under Section
4323, a suit against a private employer may be brought in federal district court.23 Defendants
now argue that the USERRA does not allow for a suit by an individual against state employees.
They base their argument on a Ninth Circuit case, Townsend v. University of Alaska, which
found that the USERRA “does not create either an expressed or implied cause of action against
individual state supervisors.”24 But Defendants’ argument fails for two reasons.
First, the plain language of the statute does not support the argument. Under 38 U.S.C. §
4303, a political subdivision of the state is a state, a state is an employer, and, if the political
subdivision has delegated employment-related responsibilities to an employee, that employee is
an employer who may be sued under the USERRA. The jurisdictional amendments, 38 U.S.C.A.
§ 4323, allow an individual to file suit against a private employer in federal court, and define
19
38 U.S.C. § 4323(a). An action by the United States against a state in federal court is not barred by the
Eleventh Amendment. See United States v. Mississippi, 380 U.S. 128, 140–41 (1965).
20
38 U.S.C. § 4323(b)(2).
21
Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977).
22
38 U.S.C. § 4323(i).
23
Id. § 4323(b)(3).
24
543 F.3d 478, 485 (9th Cir. 2008).
6
political subdivisions of the state as private employers, for jurisdictional purposes. Reading
these two sections together, the employees of a political subdivision of a state are employers
amenable to suit in federal district court under the USERRA. In spite of Defendants’ claims, the
statutory language contains no suggestion that employees of a political subdivision are not
amenable to a USERRA claim.
Second, Defendants err by trying to apply the Townsend holding to the facts in this case.
As the Townsend holding noted, “[i]t is undisputed that the University is an arm of the State of
Alaska.”25 Because the defendant in that case, the University, was an arm of the state, the
University had sovereign immunity. At first blush, this distinction does not seem significant,
because the Townsend court did not determine that it lacked jurisdiction over a suit against
employees of the state, but rather that the USERRA did not permit suits against state employees.
But nevertheless, the distinction is crucial to the Townsend decision. The Townsend court began
its analysis by noting that the
USERRA expressly creates only two private causes of action: (1) an
action brought by an individual against a State (as an employer),
which as we have noted, may be brought in state court; and (2) an
action brought against a private employer, which may be brought in
both state and federal court.26
The Townsend court then preceded to determine whether the first type of action, an action
against a state as an employer, created a right of action against state employees under the
category of “a State (as an employer).” Reasoning that “[t]he USERRA cause of action,
however, arises against ‘a State (as an employer),’” and that “[i]ndividual supervisors are not
25
Id. at 481.
26
Id. at 486.
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included in the definition of ‘State,’”27 the Court held that the USERRA did not create an express
right of action against individual state supervisors.28 But in this case, the action arises under the
second category of cases, as an action brought against a private employer. And the private
employer category is not limited by as narrow a definition as the “State” category—as discussed,
the employees of a political subdivision may be employers under the USERRA. Because the
Townsend analysis presumes a state defendant, it is inapposite here.
In this case, Plaintiff has alleged that Defendants have been delegated the performance of
employment-related responsibilities by BPU. On these allegations, Defendants are employers
under the USERRA and so are amenable to suit in federal court.
IT IS THEREFORE ORDERED BY THE COURT THAT Defendants’ Motion to
Dismiss (Doc. 8) is denied.
Dated: February 20, 2013
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
27
Id. (citation omitted).
28
Id.
8
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