Shea v. Iron Workers District Council of New England Pension Fund et al
Filing
57
Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER granting in part and denying in part 42 MOTION for Summary Judgment filed by Thomas M. Shea, and denying 45 MOTION for Summary Judgment filed by Iron Workers District Council of New England Annuity Fund, Iron Workers District Council of New England Pension Fund, Trustees of the Iron Workers District Council of New England Pension Fund, Trustees of the Iron Workers District Council of New England Annuity Fund.(Lima, Christine)
United States District Court
District of Massachusetts
)
)
)
Plaintiff,
)
)
v.
)
)
IRON WORKERS DISTRICT COUNCIL OF )
NEW ENGLAND PENSION FUND,
)
TRUSTEES OF THE IRON WORKERS
)
DISTRICT COUNCIL OF NEW ENGLAND )
PENSION FUND, IRON WORKERS
)
DISTRICT COUNSEL OF NEW ENGLAND )
ANNUITY FUND and TRUSTEES OF THE )
IRON WORKERS DISTRICT COUNCIL OF )
NEW ENGLAND ANNUITY FUND,
)
)
Defendants.
)
)
THOMAS M. SHEA,
Civil Action No.
13-12725-NMG
MEMORANDUM & ORDER
GORTON, J.
This case involves allegations that two employers
unlawfully refused to award pension credits and annuity
contributions to an employee for his periods of military
service, all in violation of the Uniformed Services Employment
and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C.
§§ 4301, et seq..
Pending before the Court are plaintiff’s and defendants’
cross-motions for summary judgment.
For the reasons that
follow, plaintiff’s motion will be allowed, in part, and denied,
in part, and defendants’ motion will be denied.
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I.
Background and procedural history
A.
The parties
Plaintiff Thomas M. Shea (“Shea” or “plaintiff”) is an
ironworker and union member who has participated in defendants’
pension and annuity fund programs since 1982.
Plaintiff
enlisted in the United States Navy Reserve in 1999 and now
serves as a Senior Chief Petty Officer.
He resides in
Massachusetts.
Defendant Iron Workers District Council of New England
Pension Fund (“the Pension Fund”) is managed in accordance with
a multi-employer, defined-benefit pension plan known as “the
Pension Plan.”
The Pension Plan is an employee pension benefit
plan within the meaning of the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C. § 1002(2)(A).
The
Pension Fund is an employer within the meaning of § 4303(4)(c)
of USERRA, with respect to its obligation to provide benefits to
eligible employees pursuant to § 4318.
Defendant Trustees of the Iron Workers District Council of
New England Pension Fund (“the Pension Fund Trustees”)
administers the Pension Fund and is the “plan sponsor” under
ERISA, 29 U.S.C. § 1002(16)(B).
Defendant Iron Workers District Council of New England
Annuity Fund (“the Annuity Fund”) is managed in accordance with
a multi-employer, defined-contribution pension plan known as
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“the Annuity Plan.”
The Annuity Plan is an employee pension
plan within the meaning of § 1002(2)(A) of ERISA and is an
employer within the meaning of § 4303(4)(c) of USERRA, with
respect to its obligation to provide benefits to eligible
employees pursuant to § 4318.
Defendant Trustees of the Iron Workers District Council of
New England Annuity Fund (“the Annuity Fund Trustees”)
administers the Annuity Fund and is the plan sponsor under
§ 1002(16)(B) of ERISA.
B.
The Pension Plan
The Pension Plan provides monthly benefits to retired
employees who have accumulated a total of 30 pension credits and
at least 15 pension credits as of December 31, 2006.
Employees
receive 1) one full pension credit if they work at least 1,200
hours in a calendar year, 2) a fraction of a pension credit if
they work between 300 and 1,200 hours in a calendar year and
3) no pension credit if they work fewer than 300 hours in a
calendar year.
Employees who work more than 1,200 hours in a
calendar year can “bank” the extra hours and apply them to
another calendar year.
The Pension Plan allows servicemembers returning from a
period of military service to accrue retroactively pension
credits for that period as long as they 1) are not dishonorably
discharged, 2) return to employment with a covered employer
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within 90 days of completing the period of service, 3) work at
least 300 hours for a covered employer within one year from the
date of discharge and 4) accrue 2.5 pension credits within five
years after the date of discharge.
The Pension Plan also incorporates the five-year limit set
forth in USERRA which provides servicemembers with reemployment
rights and benefits so long as, inter alia,
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 . . . .
§ 4312(a)(2).
The five-year limit does not apply to periods of
military service during which the servicemember was ordered to
or retained on active duty 1) in accordance with 10 U.S.C.
§ 12302 which pertains to servicemembers in “Ready Reserve”, see
§ 4312(c)(4)(A), or 2) under any provision of law due to a war
or national emergency declared by the President or Congress, as
determined by the appropriate Secretary, unless the active duty
consists of training, see § 4312(c)(4)(B).
C.
The Annuity Plan
The Annuity Plan requires the Annuity Fund Trustees to
“establish individual Employee Accounts to track each Annuity
Plan member’s interest in the Annuity Fund.”
A servicemember
who is timely reemployed after a period of military service is
entitled to an annuity contribution from the employer to his or
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her individual employee account for that period of military
service.
The Annuity Plan places the responsibility for making
those contributions on the last employer for whom the
servicemember worked before entering military service.
The Annuity Plan also incorporates the five-year limit on
cumulative military service set forth in § 4312(a)(2) and the
active duty exemptions set forth in § 4312(c)(4)(A) and (B).
D.
Plaintiff’s military and employment history
Over the course of his employment from 1982 to 2007,
plaintiff participated in the Pension and Annuity Funds, earned
22 pension credits and banked 6.13 supplementary credits.
His
last employer prior to his first military deployment in 2007 was
Capco Steel Corporation (“Capco Steel”), a company which “has
since gone out of business.”
1.
First deployment
Plaintiff’s first deployment, to Iraq, began on June 4,
2007 and ended ten and a half months later on April 18, 2008.
His order of deployment expressly stated:
The member is ordered to active duty . . . in support of
the national emergency declared under Presidential
Proclamation 7463 of 14 SEP 01. Under the provisions of
[38 U.S.C. § 4312(c)(4)(A) and (B)], this period of
active duty is exempt from the 5-year cumulative service
limitation on reemployment rights under [USERRA].
On March 11, 2002, the Secretary of the Navy issued a memorandum
to the Chief of Naval Operations declaring that:
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In accordance with 38 U.S.C. 4312(c)(4)(b) . . ., I have
determined that Navy and Marine Corps Reserve personnel
voluntarily ordered to or retained [on] active duty
(other than for training) in support of the national
emergency declared under Presidential Proclamation 7463
of [14] September 2001, will have those periods of
service exempted [f]rom the five-year limitation for
reemployment rights under [USERRA].
After his honorable discharge from deployment, plaintiff
attended military training for 58 days between mid-April, 2008
and late August, 2008.
He subsequently worked 112 hours for
Capco Steel between August 25, 2008 and September 14, 2008.
2.
Second deployment
Shea’s second deployment, to Afghanistan, began on January
1, 2009 and ended one year later on January 6, 2010.
His order
of deployment contained the same declaration of exemptions under
§ 4312(c)(4)(A) and (B) as the first order of deployment,
excerpted above.
To prepare for the deployment, he commenced his
time on military duty a few months in advance so that he could
attend Construction Inspector School from October 15, 2008 to
December 17, 2008.
Plaintiff asserts that he did not apply for reemployment
when he returned from his second deployment because 1) his third
deployment began within 90 days of his date of honorable
discharge and 2) the Pension Plan purportedly treats “any nonwork periods less than 90 days apart” as one continuous period.
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3.
Third deployment
Shea’s next deployment, to Bahrain, began on April 1, 2010
and was completed six months later on September 30, 2010.
Plaintiff avers that he was “[o]rdered to active duty for special
work under the authority of title 10 USC section 12301(d)” and
that the Secretary of the Navy had previously issued a
memorandum, dated March 1, 2007, providing that
[t]he secretaries of the Military Departments have each
determined the period of service under 10 U.S.C.
12301(d) as exempt from the five year limit as provided
in 38 U.S.C. 4312(c)(4)(B).
After he was honorably discharged from deployment,
plaintiff left immediately for his next deployment.
The parties
agree that his third and fourth deployments occurred during one
continuous period.
4.
Fourth deployment and applications for benefits
Plaintiff was sent to Kuwait for his fourth deployment
beginning on October 1, 2010.
His military documentation
indicates that the deployment was completed 11 months later, on
September 3, 2011.
The order for his fourth deployment
contained the same declaration of exemptions under
§ 4312(c)(4)(A) and (B) as the first order of deployment.
Plaintiff first applied for service pension benefits in
February, 2011 and again in August, 2011.
The Pension Fund
Trustees denied the applications based upon his purported
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failure to satisfy the reemployment requirements in the Pension
Plan that he 1) timely return to covered employment, 2) work at
least 300 hours within one year of his date of discharge and
3) earn 2.5 pension credits within five years of the date of his
discharge.
Prior to his official release from deployment, plaintiff
purportedly worked eight hours for Francis Harvey & Sons on
August 26, 2011.
He also sent a letter, dated August 26, 2011,
to a Michael J. Durant at “Ironworkers Local Union 7” stating:
Please accept this letter as formal notice that I have
returned to work on 26AUG2011. Pursuant to [§§ 43014335 of USERRA], I am entitled to be reinstated as soon
as possible in my former position and am entitled to
receive benefits accrued during my absence.
Plaintiff was honorably discharged from the Navy.
Within 90
days, he went to his local union hall at least nine times and
signed his name on the out-of-work list, talked to other
union members about prospective jobs, and notified the
business agent that he was returning from active duty
and seeking to be reemployed.
He subsequently worked 24 hours for Shiloh Steel Erectors
(“Shiloh Steel”) from December 5, 2011 through December 7, 2011.
5.
Fifth deployment
Plaintiff claims that he returned to military service on
December 7, 2011 in anticipation of his fifth deployment, to
Afghanistan, which began on January 20, 2012 and was completed
about 18 months later on July 9, 2013.
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His order of deployment
contained the same declaration of exemptions under
§ 4312(c)(4)(A) and (B) as the first order of deployment.
Within 90 days of his return from Afghanistan, he worked
eight hours for Magnificent Concrete (“Magnificent Concrete”)
and 56 hours for Structures Derek International (“Structures
Derek”) between August and October, 2013.
He subsequently
worked 133 hours for Southern Folger Detention Equipment Company
(“Southern Folger”) in December, 2013 and January, 2014.
6.
Later deployments
Plaintiff asserts that his sixth deployment sent him back
to Afghanistan, beginning in late January, 2014 and ending one
year later.
He submits that, although he cannot locate his
order of deployment, the period of service “almost certainly
falls under § 4312(c)(4)(A) & (B) and would therefore be exempt”
from the five-year limit on cumulative military service.
He
does not contend that he applied for reemployment or worked for
a covered employer within 90 days of his return from his sixth
deployment.
Shea finally declares that his seventh deployment sent him
to Africa, beginning in May, 2015, and continuing through at
least November, 2015, and thus lasted for at least six months.
The order of deployment contained the same declaration of
exemptions under § 4312(c)(4)(A) and (B) as the first order of
deployment.
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Defendants dispute that characterization of the facts and
proclaim that his sixth deployment began in September, 2013, and
continued until at least April, 2015, more than 18 months later.
E.
Procedural history
In October, 2013, plaintiff initiated this USERRA action by
filing a complaint alleging that the Pension Fund and Pension
Fund Trustees 1) refused to award him pension credits for his
periods of military service in violation of §§ 4302 and 4318,
2) discriminated against him based upon his status as a
servicemember by requiring him, but not non-servicemembers, to
complete additional years of employment in order to receive
pension benefits in violation of § 4311 and 3) refused to
contribute to his annuity account in violation of § 4318.
Shea
later amended the complaint to name the Annuity Fund and Annuity
Fund Trustees as additional defendants.
The parties filed the pending cross-motions for summary
judgment in October, 2015.
II.
Cross-motions for summary judgment
A.
Legal standard
The role of summary judgment is “to pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d
816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc.,
895 F.2d 46, 50 (1st Cir. 1990)).
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The burden is on the moving
party to show, through the pleadings, discovery and affidavits,
“that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).
A fact is material if it “might affect the outcome of the
suit under the governing law . . . .” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
A genuine issue of material
fact exists where the evidence with respect to the material fact
in dispute “is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
If the moving party satisfies its burden, the burden shifts
to the non-moving party to set forth specific facts showing that
there is a genuine, triable issue. Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986).
The Court must view the entire record in
the light most favorable to the non-moving party and make all
reasonable inferences in that party's favor. O'Connor v.
Steeves, 994 F.2d 905, 907 (1st Cir. 1993).
Summary judgment is
appropriate if, after viewing the record in the non-moving
party's favor, the Court determines that no genuine issue of
material fact exists and that the moving party is entitled to
judgment as a matter of law.
B.
Application
In their cross-motions for summary judgment, the parties
specifically dispute whether plaintiff is entitled to accrue
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pension credits for the 2007-2013 periods of his military
service.
If he is entitled to accrue pension credits for those
periods, he easily satisfied the 30-credit requirement as of
2011, when he applied for pension benefits, and as of 2013, when
he returned from his fifth deployment.
Satisfaction of the 30-
credit requirement would render him eligible to receive pension
benefits in retirement and annuity contributions for his periods
of military service.
Count 1: Failure to award accrued pension credits
Count 1 asserts that defendants violated §§ 4302 and 4318
by imposing reemployment conditions on plaintiff beyond what
USERRA requires and refusing to award plaintiff pension credits
that he accrued during his periods of military service.
USERRA entitles a returning servicemember to reemployment
rights and benefits if 1) he or she notifies the employer of
such military service in advance, 2) the cumulative length of
the impending absence and all previous absences required by
military service does not exceed five years and 3) he or she
notifies the employer of his or her intent to return to
employment within 90 days after completing the period of
military service. §§ 4312(a) and (e).
Section 4318 provides that
[e]ach period served by a person in the uniformed
services shall, upon reemployment under this chapter, be
deemed to constitute service with the employer . . . for
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the purpose of determining the nonforfeitability of the
person’s accrued benefits and for the purpose of
determining the accrual of benefits under the plan.
§ 4318(a)(2)(B).
Section 4302 provides that USERRA
1) supersedes any state law, policy, plan or practice that
reduces, limits, or eliminates in any manner any right
or benefit provided by this chapter, including the
establishment of additional prerequisites to the
exercise of any such right or the receipt of any such
benefit
but 2) does not supersede, nullify or diminish any federal or
state law, policy, plan or practice that establishes a more
beneficial or additional right or benefit. § 4302.
a.
Five-year limit on military service
Defendants first contend that 1) plaintiff’s cumulative
military service exceeds the five-year limit set by USERRA and
incorporated by the Pension Plan, 2) he does not specify in his
memoranda whether or how his periods of military service are
exempt from the five-year limit and thus 3) he is not entitled
to reemployment benefits such as the accrual of pension credits
for his periods of military service.
Plaintiff responds that he has not exceeded five years of
cumulative military service based upon evidence that 1) the
order of deployment for his third deployment, to Bahrain,
implicitly declared that period of military service exempt under
§ 4312(c)(4)(B) and 2) the orders of deployment for his other
deployments expressly declared those periods of service exempt
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under §§ 4312(c)(4)(A) and (B).
Defendants do not dispute those
assertions.
The Court agrees with plaintiff and finds that the periods
of his deployments between 2007 and 2013 are exempt from the
five-year limit.
The Court also finds that the remaining
periods of military service, even if they are not exempt from
the limit, amount to only three years of service and thus fall
short of the five-year threshold.
That calculation is based
upon the undisputed facts that Shea 1) completed 58 days of
training during the four or five months after his first
deployment, 2) attended two months of construction training
before he began his second deployment and 3) was deployed a
sixth time in either September, 2013 or January, 2014 and
remains deployed to this day.
The five-year limit on cumulative military service thus
does not preclude plaintiff’s claim for reemployment benefits
such as pension credits for each relevant period of military
service.
Accordingly, defendants’ motion for summary judgment
with respect to that issue will be denied.
b.
Supersession of the Pension Plan by USERRA
Plaintiff seeks to invalidate the reemployment requirements
in the Pension Plan as unlawful on their face.
He argues that
they impose additional prerequisites on pension eligibility
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beyond the requirements of § 4318 and in contravention of
§ 4302.
A servicemember returning from more than 180 days of
military service is entitled to reemployment rights and benefits
under USERRA if he or she 1) notifies the employer of such
military service in advance, 2) has less than five years of
cumulative military service and 3) submits an application of
reemployment to the employer within 90 days of completing the
military service. §§ 4312(a) and (e)(1)(D).
A servicemember who
submits an untimely application for reemployment does not
automatically forfeit his or her reemployment rights and
benefits. § 4312(e)(3).
Under those circumstances, the
servicemember would instead be subject to the rules of conduct,
established policy and general practices of the employer
concerning employee absence from scheduled work. Id.
Here, Shea contends that a servicemember returning from a
period of military service exceeding 180 days need only comply
with the USERRA requirement of timely application for
reemployment to be entitled to his or her accrued pension
credits.
He concludes that the requirements in the Pension Plan
that he must also work 300 hours for a covered employer within
one year and accrue 2.5 pension credits within five years
constitute additional prerequisites that are expressly
prohibited by § 4302.
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The Court agrees with plaintiff.
A plain reading of § 4312
indicates that, after a period of military service exceeding 180
days, a returning servicemember who applies for reemployment
with the employer within 90 days is entitled to accrue pension
credits for that period of service, regardless of whether he or
she later works 300 hours and accrues 2.5 pension credits in the
following months and years.
The reemployment requirements in
USERRA thus preempt the 300-hour and 2.5-credit requirements in
the Pension Plan with respect to servicemembers who return from
military service of longer than 180 days and who timely apply
for reemployment.
The Court notes that defendants do not suggest that the
reemployment of such servicemembers would 1) be impossible or
unreasonable under § 4312(d)(2)(A) due to a change in employer
circumstances or 2) impose an undue hardship under
§ 4312(D)(2)(B) as a result of the servicemember’s disability or
lack of qualification for the position of reemployment.
Although § 4312(d)(2)(C) permits an employer to withhold
reemployment rights or benefits if it can show that the
servicemember’s pre-service employment was for
a brief, nonrecurrent period and there [wa]s no
reasonable expectation that such employment [would]
continue indefinitely or for a significant period[,]
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the bare assertion by defendants that “the nature of employment
in the construction industry . . . [is] often sporadic” does not
satisfy that burden.
The Court further notes that defendants’ argument that the
300-hour and 2.5-credit requirements in the Pension Plan comply
with ERISA is misplaced because 1) those Plan requirements are
more restrictive than, and thus preempted by, the USERRA
requirements concerning a servicemember’s entitlement to
reemployment rights and benefits and 2) USERRA is a federal
statute not preempted by ERISA. See 29 U.S.C. § 1144(d)(“Nothing
in this [ERISA] subchapter [on the Protection of Employee
Benefit Rights] shall be construed to alter, amend, modify,
invalidate, impair, or supersede any law of the United States
(except as provided in sections [addressing federal laws other
than USERRA]) . . . .”).
Accordingly, because the 300-hour and 2.5 credit
requirements in the Pension Plan are preempted by USERRA
specifically with respect to returning servicemembers whose
military service exceeds 180 days and who timely apply for
reemployment, plaintiff’s motion for summary judgment will, to
that extent, be allowed and defendants’ motion for summary
judgment will, to that extent, be denied.
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c.
Timely application for reemployment
The parties dispute whether plaintiff timely applied for
reemployment as required by USERRA and the Pension Plan.
As discussed, USERRA provides that a servicemember
returning from a period of military service exceeding 180 days
must submit an application for reemployment with the employer
within 90 days after completing the period of military service.
§ 4312(e)(1)(D).
The regulations that implement USERRA
distinguish between the act of submitting an application for
reemployment and the act of reporting to the site of employment.
20 C.F.R. § 1002.115(c) (2006)(emphasis added)(“Whether the
employee is required to report to work or submit a timely
application for reemployment depends upon the length of service
. . . .”).
The application for reemployment may be written or
verbal. Id.
Although the application for reemployment need not follow a
particular format, it should at least
indicate that the employee is a former employee
returning from service in the uniformed services and
that he or she seeks reemployment with the pre-service
employer.
20 C.F.R. § 1002.118 (2006).
The servicemember must submit the
application to 1) the pre-service employer, 2) the agent or
representative of the pre-service employer with apparent
responsibility for receiving employment applications, or 3) the
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successor-in-interest to the pre-service employer if there has
been a change in ownership. 20 C.F.R. § 1002.119 (2006).
The servicemember may seek or obtain employment with
another employer during the 90-day period without giving up his
or her reemployment rights with the pre-service employer, unless
such alternative employment would constitute cause for the preservice employer to discipline or terminate the servicemember
after reemployment. 20 C.F.R. § 1002.120 (2006).
Plaintiff proclaims that he timely applied for reemployment
after each relevant period of military service.
i.
First deployment
Shea maintains that he complied with the reemployment
requirement after his first deployment because he worked 112
hours for Capco Steel within 90 days after finishing his postdeployment military training.
Defendants respond that the 90-
day period began on the day that he returned from deployment,
not the day that he completed post-deployment training, and that
he is ineligible for reemployment rights and benefits because he
did not apply for reemployment during that 90-day period.
The evidence is insufficient to support a finding as a
matter of law with respect to whether plaintiff properly applied
for reemployment.
The act of reporting to the employment site
is not equivalent to the act of submitting an application for
reemployment. See 20 C.F.R. § 1002.115(c).
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The timeliness of
plaintiff’s act of reporting to Capco Steel for employment does
not adequately address whether he submitted an application for
reemployment with his pre-service employer.
Accordingly, summary judgment is unwarranted with respect
to whether plaintiff timely applied for reemployment after his
first deployment.
ii.
Second deployment
Plaintiff submits that he did not need to comply with the
reemployment requirement after his second deployment, which
ended on January 6, 2010, because that deployment was temporally
continuous with his third deployment, which began fewer than 90
days later on April 1, 2010.
Defendants respond that the
reemployment requirement did apply to him after that second
deployment and that his failure to satisfy that requirement
precludes his claim to accrued pension credits for the period of
his second deployment.
There is a genuine issue of material fact with respect to
whether the third deployment was, in fact, a continuation of the
second deployment under the Pension Plan such that the
reemployment requirement did not apply.
Summary judgment is
unwarranted with respect to whether plaintiff was required to,
or did, comply with the reemployment requirement after the
second deployment.
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iii. Third deployment
Plaintiff avers that the reemployment requirement did not
apply to him after his third deployment because that deployment
is deemed to have been part of his fourth deployment.
Defendants concede that his third and fourth deployments were
“contiguous.”
iv.
Fourth deployment
Plaintiff insists that he complied with the reemployment
requirement after his fourth deployment because he 1) worked
eight hours for Francis Harvey & Sons before his release from
the service, 2) went to his local union hall on multiple
occasions during the 90-day period after such release, signed
the out-of-work list, talked to other union members about
employment positions and notified the business agent at the
union hall that he had returned from active duty and was seeking
reemployment and 3) subsequently worked 24 hours for Shiloh
Steel.
The Court notes that plaintiff does not proffer his August
26, 2011 letter to Ironworkers Local Union 7 as evidence of his
compliance with the reemployment requirement, perhaps because he
does not consider Ironworkers Local Union 7 to have been his
pre-service employer.
Defendants respond to plaintiff’s assertions by generally
denying that those actions satisfy the reemployment requirement
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and specifically denying that plaintiff actually performed work
for Francis Harvey & Sons.
They declare that Francis Harvey &
Sons awarded him eight hours of employment benefits merely as a
courtesy.
The Court finds that plaintiff’s employment history with
Francis Harvey & Sons does not properly address whether he
applied for reemployment with his pre-service employer because
1) he did not work for Francis Harvey & Sons within the 90-day
period following his release from the service and 2) the act of
reporting to an employment site is not equivalent to submitting
an application for reemployment.
The fact that he worked for
Shiloh Steel after the 90-day period is also not pertinent to
whether plaintiff timely applied for reemployment.
Based upon the evidence before the Court, it is unable to
determine, as a matter of law, whether plaintiff’s actions at
the local union hall amounted to an indication to his preservice employer that he was a former employee returning from
military service and seeking reemployment.
Summary judgment is
unwarranted with respect to whether plaintiff complied with the
reemployment requirement after his third and fourth deployments.
v.
Fifth deployment
Shea avers that he satisfied the reemployment requirement
after his fifth deployment because he worked 1) 64 hours for
Magnificent Concrete and Structures Derek within 90 days of his
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release from deployment and 2) 133 hours for Southern Folger
after the 90-day period.
The fact that plaintiff reported to those employment sites
and was actually employed by those entities does not properly
address whether he timely submitted an application for
reemployment to his pre-service employer.
Summary judgment with
respect to whether plaintiff timely applied for reemployment
after his fifth deployment is unwarranted.
vi.
Later deployments
The amended complaint does not assert claims to pension
credits purportedly accrued during plaintiff’s sixth and seventh
deployments.
The Court therefore declines to consider the
dispute between the parties concerning those deployments.
Accordingly, the Court will deny both motions for summary
judgment with respect to plaintiff’s claim that he is entitled
to accrue pension credits for the 2007-2013 periods of his
military service.
Count 2: Discrimination against servicemembers
Plaintiff contends in Count 2 that defendants violated
§ 4311 when they discriminated against him, based upon his
military service, by requiring him to perform additional years
of employment before receiving pension benefits to which he is
already entitled under § 4318.
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Section 4311 provides that a person who has performed
military service “shall not be denied . . . any benefit of
employment by an employer” on the basis of his or her
performance of military service. § 4311(a).
To prevail on his claim, plaintiff must make an initial
showing that his military service was a “motivating” or
“substantial” factor for the action taken by the employer.
§ 4311(c)(1); Velazquez-Garcia v. Horizon Lines of P.R., Inc.,
473 F.3d 11, 17 (1st Cir. 2007).
If he is successful, the
burden then shifts to the employer to prove, by a preponderance
of the evidence, that it would have taken the action regardless
of plaintiff’s military service. Velazquez-Garcia, 473 F.3d at
17.
The underlying issue is not whether the employer is
“entitled” to impose heightened requirements on an employee for
a particular reason but whether it would have done so even if
the employee had not served in the military. See id. at 20.
Here, Shea asserts that the Pension Plan discriminatorily
requires him and other returning servicemembers, but not other
returning employees such as disabled employees seeking
reemployment, to complete 300 hours of employment and accrue 2.5
pension credits in order to receive pension credit for military
service.
He proffers evidence that defendants intended those
additional requirements to prevent returning servicemembers from
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“tak[ing] advantage of the pension fund and avoid[ing] service
within the trade by retiring young.”
Defendants respond that plaintiff lacks standing to
challenge the 300-hour and 2.5-credit requirements in the
Pension Plan because 1) his claims to benefits are barred by
USERRA’s five-year limit on cumulative military service and its
requirement of timely application for reemployment and thus
2) the 300-hour and 2.5-credit requirements did not cause him an
injury sufficient to establish standing.
They also deny that
the 300-hour and 2.5-credit requirements discriminate against
servicemembers and emphasize that they are “unique as they
permit up to five (5) years of non-work hours to be converted to
creditable service.”
The issue of standing to assert a discrimination claim
turns on whether plaintiff timely applied for reemployment with
his pre-service employer.
That is because, as discussed above,
1) the five-year limit does not preclude his pension claims and
2) with respect to servicemembers returning from over 180 days
of military service, the 300-hour and 2.5-credit requirements in
the Pension Plan apply only to servicemembers who do not timely
apply for reemployment under USERRA.
If the disputed issue of material fact with respect to
whether plaintiff timely applied for reemployment is ultimately
resolved in his favor, the 300-hour and 2.5-credit requirements
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will not apply to his pension claims and he will not have
standing to raise a discrimination claim under § 4311.
If, however, the issue of timely application for
reemployment is resolved in defendants’ favor, then the 300-hour
and 2.5 credit requirements will apply to the pension claims.
That would furnish plaintiff with 1) a cognizable injury in the
form of a denial of pension credits based upon his alleged
failure to satisfy those additional requirements and thus
2) standing to assert the discrimination claim.
Accordingly,
the Court is unable to determine at this stage of the litigation
that plaintiff lacks standing to litigate his discrimination
claim.
Although defendants apparently concede plaintiff’s
substantiated assertion that his military service was the
motivating factor in their imposition of the 300-hour and 2.5credit requirements on him, the Court declines to opine on the
merits of the discrimination claim until after resolution of the
factual dispute with respect to plaintiff’s timely applications
for reemployment post-military service.
Accordingly, both motions for summary judgment with respect
to the discrimination claim will be denied.
Count 3: Failure to make annuity contributions
According to Count 3, defendants violated § 4318 when they
refused to contribute to plaintiff’s annuity account as required
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by USERRA and the Annuity Plan.
The parties agree that Shea’s
individual annuity account is a pension benefit account subject
to the provisions of § 4318 but dispute his entitlement to
annuity contributions.
Section 4318 provides that an employer that reemploys a
returning servicemember must contribute to his or her pension
benefit account for his or her period of military service in the
same manner and to the same extent that it contributes to the
pension benefit accounts of other employees. § 4318(b)(1).
The
statute allows the employer to allocate the responsibility to
make contributions to “the last employer employing the person
before the period [of military service]” unless that last
employer is no longer functional. Id.
As discussed above, a returning servicemember who seeks
reemployment within the meaning of USERRA must have less than
five years of cumulative military service and must apply for
reemployment with the pre-service employer within 90 days of
completing the period of military service.
Here, there is a
genuine issue of material fact as to whether plaintiff timely
applied for reemployment after each relevant period of military
service.
The resolution of that issue will affect whether Shea
is entitled to reemployment benefits such as annuity
contributions for his periods of military service.
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Accordingly, the Court declines to consider the merits of
the annuity claim until the factual dispute with respect to
plaintiff’s timely application for reemployment is resolved.
Both motions for summary judgment with respect to the annuity
claim will be denied.
ORDER
For the foregoing reasons, plaintiff’s motion for summary
judgment (Docket No. 42) is, with respect to the preemption of
the 300-hour and 2.5-credit requirements in the Pension Plan for
certain servicemembers by USERRA, ALLOWED, but is otherwise
DENIED and defendants’ motion for summary judgment (Docket No.
45) is DENIED.
So ordered.
/s/ Nathaniel M. Gorton______
Nathaniel M. Gorton
United States District Judge
Dated February 1, 2016
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