Sanderson v. Farmington Hills, City of
Filing
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Memorandum and Order Denying Defendant's 6 Motion for Summary Judgment. Signed by District Judge Avern Cohn. (SCha)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NICOLE SANDERSON,
Plaintiff,
v.
Case No. 13-10094
CITY OF FARMINGTON HILLS,
HON. AVERN COHN
Defendant.
_______________________________________/
MEMORANDUM AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT (Doc. 6)
I. INTRODUCTION
This is an action under the Uniformed Services Employment and Reemployment
Rights Act (USERRA), 38 U.S.C. § 4301, et seq. In January of 2010 Plaintiff Nicole
Sanderson (the “Plaintiff”) was hired by Defendant City of Farmington Hills (the
“Defendant”) as a part-time building custodian at the Costic Center. Plaintiff is a member
of the National Guard; in November of 2010, she deployed to Afghanistan. Upon her return
in December of 2011, Plaintiff claims that Defendant refused to reemploy her in violation
of the USERRA. Now before the Court is Defendant’s motion for summary judgment (Doc.
6). For the reasons that follow, the motion is DENIED.
II. BACKGROUND
The parties have filed a joint statement of material facts. See (Doc. 10). The
following scenario is taken from the statement.
Plaintiff began employment for Defendant as a part-time building custodian at the
Costic Center (the “center”) in January of 2010. Her duties included cleaning the facility.
During the period Plaintiff was employed at the center, she was a member of the
National Guard. On October 11, 2010, Plaintiff submitted to Defendant a leave request
form for military leave beginning October 28, 2010. Her leave request stated that she was
deploying to Afghanistan on November 2, 2010. Plaintiff was scheduled to return to work
on December 1, 2011.
Plaintiff called the center on October 27, 2011, after returning from Afghanistan.
Plaintiff does not know who she talked to. She informed the person she called to let Jeff
Hotchkiss, Plaintiff’s supervisor, know that she had returned from Afghanistan and could
be “put back on the schedule.”
Hotchkiss returned Plaintiff’s phone call on November 9, 2011. He told Plaintiff that
there was a position available for her and to come see him at the end of the month to
discuss her availability, work schedule, and any time-off requests.
Plaintiff says that, on November 23, 2011, she called the center to speak with
Hotchkiss regarding her schedule. Plaintiff says she was directed to leave a message for
Hotchkiss. She left a message stating that she was calling to “figure out about the
schedule.” Plaintiff also contends that she visited the center on multiple occasions
attempting to speak with Hotchkiss. Hotchkiss did not return her phone call or otherwise
get in touch with her. When Plaintiff went to the center to check the December 1, 2011
schedule, she learned that she had not been placed on the schedule.
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Hotchkiss denies that he received any messages from Plaintiff after their November
9 conversation. Because Hotchkiss says he did not hear from Plaintiff, he did not put her
on the December 1, 2011 schedule.
Plaintiff says that she tried to get in touch with Hotchkiss multiple times after leaving
a voice mail message for him on November 23, 2011. She was not able to get in touch
with him. Because Plaintiff was not able to get in touch with Hotchkiss, and because she
was not placed on the December 1, 2011 schedule, she filed for unemployment benefits
on December 8, 2011.
After Defendant learned from the State of Michigan that Plaintiff had filed for
unemployment benefits, Defendant informed the State on December 22, 2011 that it had
work available for Plaintiff. Defendant informed the State that Plaintiff had been placed on
the December, 2011 schedule, but had been asked to be taken off the schedule because
of psychological reasons.
On April 23, 2012, Plaintiff visited the center to have an unemployment form signed.
Plaintiff talked to Dave Boyer (Boyer), Defendant’s Director of Special Services. Boyer
informed Plaintiff that he could not sign the form for her and that she needed to go to the
human resources department. He further informed Plaintiff that the city had part-time work
available.
Hotchkiss says that, prior to April 23, he was unaware that Plaintiff had ever sought
to get in touch with him. On April 23, Boyer told Hotchkiss that Plaintiff visited the center
and sought to have an unemployment form signed.
On the same day, April 23, 2012, Plaintiff went to the human resources department
and spoke with Jan Hooyberg (Hooyberg), a senior analyst. According to Plaintiff, because
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she dealt exclusively with Hotchkiss in the past, this was the first time that she was aware
that Defendant had a human resources department, and the first time that she was aware
where the department was located.
During Plaintiff’s visit to the human resources department, Hooyberg initiated a
phone conference with herself, Plaintiff, Hotchkiss, and Ellen Schnackel (Schnakel),
Hotchkiss’s supervisor. Hooyberg asked Hotchkiss and Schnackel whether they had work
available for Plaintiff. They informed Hooyberg that they had part-time custodial work
available for Plaintiff, the same work she performed prior to leaving to Afghanistan.
Hotchkiss and Schnakel say that they told Hooyberg that, if Plaintiff wanted to be added
to the work schedule, she should come to the center that day to discuss her availability and
time-off requests. Plaintiff disagrees. She says that, during the conference call, she
requested to be placed on the May, 2012 work schedule, and that no one mentioned that
she had to first return to the center in person to discuss her work scheduling.
Plaintiff was not placed on the May, 2012 schedule. Because she was not placed
in the monthly schedule, she assumed that she had been terminated and that defendant
did not intend to make any jobs available for her.
The record does not contain any evidence showing that Plaintiff received any formal
paperwork from Defendant offering her a position on her return from Afghanistan or
otherwise informing her that a position was available for her.
III. STANDARD OF REVIEW
The court shall grant summary judgment if the movant shows 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 moving party may meet that burden “by ‘showing’–that is,
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pointing out to the district court–that there is an absence of evidence to support the
nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Revised Rule 56 expressly provides that:
A party asserting that a fact cannot be or is genuinely disputed
must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits, or declarations, stipulations (including those made
for purposes of the motion only), admissions, interrogatory
answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support a fact.
Fed. R. Civ. P. 56(c)(1).
The revised Rule also provides the consequences of failing to properly support or
address a fact:
If a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact as required
by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting
materials–including the facts considered undisputed–show that
the movant is entitled to it; or
(4) issue any other appropriate order.
Fed. R. Civ. P. 56(e). “The court need consider only the cited materials, but it may
consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
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When the moving party has met its burden under Rule 56, “its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Ultimately
a district court must determine whether the record as a whole presents a genuine issue of
material fact, id. at 587, drawing “all justifiable inferences in the light most favorable to the
non-moving party,” Hager v. Pike Cnty. Bd. of Ed., 286 F.3d 366, 370 (6th Cir. 2002).
IV. DISCUSSION
Defendant seeks summary judgment arguing that Plaintiff has not satisfied the
requirements of the USERRA. First, Defendant contends that Plaintiff did not “report to”
Defendant, as defined by the USERRA. Second, Defendant says that Plaintiff did not
submit an application for reemployment to Defendant. Thus, Defendant argues that
Plaintiff’s failure to report to work as requested, or to submit an application for
reemployment, precludes her claim. Finally, Defendant contends that even if it failed to
reemploy Plaintiff, Plaintiff’s claim fails as a matter of law because the USERRA requires
her to show that her military service was a motivating factor in Defendant’s decision not to
reemploy her.
Plaintiff responds1 that she made multiple attempts to report to Defendant for
reemployment. Further, Plaintiff says that the USERRA does not require the submission
of an “application” for reemployment if the employee “reports to” the employer for
reemployment. Finally, Plaintiff disagrees that the USERRA requires proof of discrimination
1
Plaintiff’s response brief does not comply with type size requirements in E.D. Mich. LR
5.1(a)(3). The recent changes to the local rules provide that, “[e]xcept for standard
preprinted forms that are in general use, type size of all text and footnotes must be no
smaller than 10-1/2 characters per inch (non-proportional) or 14 point (proportional).”
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based on military service.
Plaintiff contends that summary judgment is, therefore,
unwarranted.
A. The Uniformed Services Employment and Reemployment Rights Act
One key purpose of the USERRA is that “it guarantees returning veterans a right of
reemployment after military service.” Petty v. Metro. Gov’t of Nashville-Davidson Cnty.,
538 F.3d 431, 439 (6th Cir. 2008) (citing 38 U.S.C. § 4312) (Petty I). In addition, the act
“prescribes the position to which such veterans are entitled upon their return.” Id. (citing
38 U.S.C. § 4313). The parties dispute whether Plaintiff has met the requirements for
reemployment under 38 U.S.C. § 4312 of the USERRA.
Quoting Clegg v. Arkansas Department of Correction, 496 F.3d 922, 930 (8th Cir.
2007), the Sixth Circuit explained section 4312 of the USERRA:
Section 4312 protects service members at the instant of
seeking reemployment, entitling the service member to
reemployment in either the position she would have been in
had she not left for military service “or a position of like
seniority, status and pay, the duties of which the person is
qualified to perform.” 38 U.S.C. § 4313(a)(2)(A) (defining rights
set forth in § 4312, which entitles a person to be rehired upon
return from military service).
Id. at 439–40 (quoting Clegg, 496 F.3d at 930).
The statute provides that “any person whose absence from a position of employment
is necessitated by reason of service in the uniformed services shall be entitled to the
remployment rights and benefits and other employment benefits” if “(1) the person . . . has
given advance written or verbal notice of such service to . . . [his or her] employer”; “(2) the
cumulative length of the absence . . . by reason of service in the uniformed services does
not exceed five years”; and “(3) except as provided in subsection (f), the person reports to,
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or submits an application for remployment to, such employer in accordance with the
provisions of subsection (e).” 38 U.S.C. § 4312(a)(1)–(3). Subsection (e) requires “a
person whose period of service in the uniformed services was for more than 180 days,” to
“submit[] an application for reemployment with the employer not later than 90 days after the
completion of the period of service.” 38 U.S.C. § 4312(e)(1)(D).
As the Sixth Circuit has explained, “[b]ecause USERRA was enacted to protect the
rights of veterans and members of the uniformed services, it must be broadly construed in
favor of its military beneficiaries.” Petty I, 538 F.3d at 439 (citation and quotation marks
omitted).
B. This Case
Here, there are material factual disputes rendering summary judgment inappropriate.
1. There are genuine issues of material fact whether Plaintiff “reported
to” the center for reemployment
Particularly, there are material factual issues whether Plaintiff “reported to” the
center for reemployment.
Broadly construing the statute in favor of Plaintiff, see
Wrigglesworth v. Brumbaugh, 121 F. Supp. 2d 1126, 1132 (W.D. Mich. 2000), as the Court
must, there is ample testimony to create a genuine issue of material fact whether Plaintiff
“reported to” the center for reemployment.
Both parties agree that the statute does not define “report to.” However, accepting
Defendant’s definition from the Random House Webster’s College Dictionary 2001 that
“report to” means “to present oneself as ordered” or “to report for duty,” and drawing all
reasonable inferences in favor of Plaintiff, there are material factual issues whether Plaintiff
reported for reemployment.
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Plaintiff testified at her deposition that she called a representative of the Defendant
on October 27, 2011 to let Hotchkiss know that she returned from Aghanistan. On
November 9, 2011, Hotchkiss returned Plaintiff’s phone call. During the phone call,
Hotchkiss welcomed Plaintiff home and made it clear that a position was available for her.
(Doc. 9-2 at 8, Pl’s. Dep.). Plaintiff testified at her deposition that Hotchkiss told her to call
him back two days prior to the December, 2011 schedule being posted so that he could
determine Plaintiff’s availability. (Id.).
Between the November 9 phone call and the posting of the December, 2011
schedule, Plaintiff testified that she tried to call Hotchkiss and went to the center on multiple
occasions. (Id. at 9–12). Plaintiff could not get in touch with Hotchkiss. Plaintiff also
testified that, after discovering that she was not on the December, 2011 schedule, she
again tried to contact Hotchkiss but was unsuccessful. In addition, Plaintiff reported up the
chain of command in April of 2012. She testified that, in a conference call with Hooyberg,
Hotchkiss, and Schnakel, she was told that she would be placed on the May, 2012
schedule. However, just as was the case in December, Plaintiff was not placed on the
schedule.
Defendant contends that Plaintiff did not see Hotchkiss as instructed. Hotchkiss
testified at his deposition that he never heard from Plaintiff regarding her availability, and,
therefore, did not place her on the December or May schedules. However, the parties have
different stories which, at this stage, cannot be resolved on summary judgment.
Determining what occurred requires weighing the credibility of testimony. This is reserved
to the finder of fact.
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Drawing all reasonable inferences in favor of Plaintiff, the testimony supports the
view that she attempted to get in touch with Hotchkiss on multiple occasions by telephone
and in person. She did not attempt to follow up with anyone other than Hotchkiss because
she had only dealt with Hotchkiss her entire time at the center. Moreover, the fact that
Defendant did not put in writing any offer of employment supports Plaintiff’s position.
Not only does Plaintiff’s testimony create a genuine issue of material fact, but
Hotchkiss’s contention that he never heard from Plaintiff is contradicted by Defendant’s
response to the State of Michigan Unemployment Agency regarding Plaintiff’s application
for unemployment benefits. In a letter to the State, Defendant’s Sr. Human Resources
Analyst Mary LaPorte (LaPorte) informed the State as follows:
Ms. Sanderson returned from active military duty approximately
November 1, 2011. She contacted the City to return to her job
and was put on the work schedule for December. Several
days prior to her scheduled return date she contacted her
supervisor stating that she did not feel “mentally capable” to
return to work.
(Doc. 6-7 at 2, Protest Letter). This letter undermines Hotchkiss’s position that he never
placed Plaintiff on the schedule because he did not hear back from her about her
availability.
2. Plaintiff was not required to submit an application for reemployment
Defendant’s argument that Plaintiff was required to submit an application for
reemployment, in addition to “reporting to” the center, is unpersuasive. The statute
explicitly states that a person shall be entitled to reemployment rights and benefits if,
among other things, the person “reports to, or submits an application for reemployment. .
. .” 38 U.S.C. § 4312(a)(3) (emphasis added). The Legislature’s use of the word “or”
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signifies that reemployment rights and benefits can be triggered by one of two ways: (1)
reporting to the employer; or (2) submitting an application for reemployment. Here, Plaintiff
contends that she reported to the center for reemployment. If a jury finds this as true,
Plaintiff was not also required to submit an application for reemployment.
3. Plaintiff is not required to show discrimination based on military
service
Defendant relies on Curby v. Archon, 216 F.3d 549, 557 (6th Cir. 2000) to argue that
Plaintiff has the burden of showing that her military service was a motivating factor in
Defendant’s decision not to reemploy her under section 4311 of the USERRA statute. This
argument and reliance on Curby was foreclosed by the Sixth Circuit in Petty I, supra. In
Petty I, the Sixth Circuit noted the confusion regarding the interplay between sections 4311
and 4312 of the USERRA statute,2 and clarified that “[s]ection 4311 applies after
reemployment has occurred and ‘prohibits discrimination with respect to any benefit of
employment against persons who serve in the armed services after they return from a
deployment and are reemployed.’” Petty I, 538 F.3d at 440 (quoting Clegg, 496 F.3d at
930) (internal citation omitted) (emphasis added). Here, Plaintiff was not reemployed.
Thus, the requirement that a plaintiff show discrimination based on military service under
section 4311, which applies after reemployment, was not triggered.
2
Specifically, the Sixth Circuit noted that Curby reached an opposite conclusion than
Wrigglesworth v. Brumbaugh, 121 F. Supp. 2d 1126, 1133–39 (W.D. Mich. 2000).
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V. CONCLUSION
For the reasons stated above, summary judgment was denied.
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: September 17, 2013
I hereby certify that a copy of the foregoing document was mailed to the attorneys of record
on this date, September 17, 2013, by electronic and/or ordinary mail.
S/Sakne Chami
Case Manager, (313) 234-5160
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