BALDWIN v. GREENSBORO, NC, THE CITY OF et al
Filing
62
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 3/1/12, recommending that Defendants' Motion for Summary Judgment (Docket Entry 50 ) be granted; recommending that Plaintiff's Motion to Compel Discovery (Docket Entry 47 ) and Defendants' Motion to Strike(Docket Entry 56 ) be denied as moot. (Law, Trina)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CWO3 OAKLEY DEAN BALDWIN,
USCGR,
Plaintiff,
v.
CITY OF GREENSBORO, a North
Carolina municipality,
MITCHELL JOHNSON, in his
personal capacity, and
JERYL W. COVINGTON, in her
personal capacity,
Defendants.
)
)
)
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1:09CV742
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
matter
comes
before
the
undersigned
United
States
Magistrate Judge for a recommended ruling on (1) Defendants’ Motion
for Summary Judgment (Docket Entry 50); (2) Plaintiff’s Motion to
Compel Discovery (Docket Entry 47); and (3) Defendants’ Motion to
Strike (Docket Entry 56). (See Docket Entries dated Sept. 30, 2009
and Oct. 20, 2011 (assigning case to undersigned Magistrate Judge
and designating case as subject to handling pursuant to this
Court’s Amended Standing Order No. 30).)1
For the reasons that
follow, Defendants’ Motion for Summary Judgment should be granted,
and Plaintiff’s Motion to Compel Discovery and Defendants’ Motion
to Strike should be denied as moot.
Factual Background
Plaintiff commenced the instant action under the Uniformed
Services Employment and Reemployment Rights Act of 1994 (“USERRA”),
Pub. L. No. 103-353, 108 Stat. 3149 (codified as amended at 38
U.S.C. §§ 4301 et seq.) against Defendants the City of Greensboro,
Mitchell Johnson (“Johnson”), and Jeryl W. Covington (“Covington”)
for violations of Sections 4311 and 4312 based on termination of
Plaintiff’s employment motivated in whole or in part by Plaintiff’s
imminent recall to active military service. (See Docket Entry 38.)
Plaintiff’s First Amended Complaint alleges that Plaintiff, a
Reservist with the United States Coast Guard (see id. ¶¶ 8, 10),
took the position of Solid Waste Division Manager with the City of
Greensboro in February 2001 (see id. ¶ 12).
In this position,
Under said Standing Order, “[t]he magistrate judge to whom
the case is assigned will rule or make recommendations upon all
motions, both non-dispositive and dispositive.” M.D.N.C. Amended
Standing Order No. 30, ¶ 2; see also M.D.N.C. L.R. 72.2 (“Duties
and cases may be assigned or referred to a Magistrate Judge . . .
by the clerk in compliance with standing orders . . . .”).)
Because the undersigned views the need for adjudication of
Plaintiff’s Motion to Compel Discovery (Docket Entry 47) and
Defendants’ Motion to Strike (Docket Entry 56) as necessarily
dependent on the Court’s ruling on Defendant’s Motion for Summary
Judgment, the undersigned issues a Recommendation, as opposed to an
Order, with respect to all referred motions.
1
-2-
Plaintiff reported directly to Defendant Covington, Director of
Environmental Services, who reported in turn to Defendant Johnson,
a Greensboro Assistant City Manager.
(See id. ¶ 14.)
According to
the First Amended Complaint, until August 2002, Plaintiff garnered
positive
reviews
regarding
his
performance
(see
id.
¶
15),
including an evaluation from Defendant Covington which noted that
Plaintiff had “exceeded the expectations for a new employee filling
the role of Manager within a traditional operation” (id. ¶ 19; see
also Docket Entry 55-3 at 2).
In August 2002, Plaintiff first received oral notification
from the United States Coast Guard that he would likely be called
to active duty in the immediate future.
(Docket Entry 38, ¶ 17.)
Plaintiff allegedly notified persons both above and below him in
his chain of command, including Defendant Covington, of that fact.
(Id. ¶ 18.)
Plaintiff’s First Amended Complaint also alleges that
this
was
issue
addressed
in
a
meeting
“involving
numerous
Superintendents and Defendant Covington” during the same time
period.
(Id.)
According to Plaintiff’s First Amended Complaint, Plaintiff
then became a target of harassment from his chain of command,
including from Defendants Johnson and Covington.
more
than
one
occasion,
Defendant
Covington
(Id. ¶ 21.)
allegedly
Plaintiff “How long will you be gone on active duty?”
On
asked
(Id.)
Moreover, Plaintiff’s First Amended Complaint asserts that he
-3-
“fought numerous battles with Defendant Covington, who attempted at
every point to undermine his authority, criticize him in front of
his employees, and demoralize him by her abusive actions.”
¶ 23.)
(Id.
As a result, Plaintiff allegedly sought a meeting with
Defendant Johnson, which eventually occurred on December 20, 2002.
(Id. ¶ 24.)
Despite Plaintiff’s asserted belief that said meeting was
arranged
in
order
to
discuss
Plaintiff’s
complaints
against
Defendant Covington, at that meeting, Defendant Johnson purportedly
informed Plaintiff that the City of Greensboro was undergoing a
reduction in force and Plaintiff’s position was being eliminated.
(Id. ¶ 26.)
Plaintiff’s First Amended Complaint alleges that the
reduction in force was “pretextual” and that Defendants “decided to
terminate [Plaintiff] because of his obligations with the military
and their concerns about replacing him during that interim.”
(Id.
¶ 29.)
In support of this allegation, Plaintiff’s First Amended
Complaint asserts that: the City of Greensboro failed to follow its
internal personnel policy with respect to a reduction in force (id.
¶ 29(G)); there in fact was no reduction in funding (id. ¶ 29(H));
of the 156 employees in Plaintiff’s division, Plaintiff’s position
was the only position terminated (id. ¶ 29(P)); moreover, Plaintiff
was
the
only
reduction
in
force
in
the
entire
Public
Works
Department of over 270 employees (id. ¶ 28(Q)); and Plaintiff was
-4-
the only person in the Public Works Department recalled to active
military duty during the relevant time period (id. ¶ 28(R)).
Plaintiff’s First Amended Complaint further alleges that, at the
time of his termination, the City of Greensboro owed him money,
that, in order to receive said money, Plaintiff was forced to sign
a release (the “Release”), and that the Release specifically noted:
“‘Due to the position of Waste Manager being eliminated and the
subsequent active duty military call-up of Mr. Oakley D. Baldwin
(effective January 25, 2003) during the period of his reduction in
force notification period . . . Mr. Baldwin accepts the above
payment in lieu of continued employment with the City of Greensboro
following his release from active duty military service that begins
effective January 25, 2003.’” (Id., ¶¶ 29(N), (O); see also Docket
Entry 1-4, Ex. C.)
Based on the foregoing, Plaintiff’s First Amended Complaint
contends that Defendants’ actions (1) “violated Section 4311 of
USERRA by failing to retain [Plaintiff] in the employment of the
City of Greensboro in that Defendants’ termination of [Plaintiff]’s
employment was motivated, in whole or in part, by [Plaintiff]’s
membership in the United States Coast Guard Reserve, and his
obligated service on active duty in the United States Coast Guard
Reserve” (Docket Entry 38, ¶ 47) or (2) “[i]n the alternative,
. . . violated Section 4312 of USERRA [sic] failing to reemploy
[Plaintiff] in the employment of the City of Greensboro, motivated,
-5-
in whole or in part, by [Plaintiff]’s membership in the United
States Coast Guard Reserve, and his obligated service on active
duty in the United States Coast Guard Reserve” (id. ¶ 51).
Procedural Background
Plaintiff filed his original Complaint on September 29, 2009.
(See Docket Entry 1.)
Defendants Johnson and Covington thereafter
moved to “dismiss [P]laintiff’s claims against them in their
official and individual capacities with prejudice pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.”
10
at
1.)
United
States
Magistrate
Judge
(Docket Entry
Wallace
W.
Dixon
recommended that the Court dismiss the claims against Defendants
Johnson and Covington in their official capacities as redundant to
Plaintiff’s claims against the City of Greensboro, but otherwise
deny Defendants’ motion.
(See Docket Entry 18 at 13.)
Magistrate
Judge Dixon also noted in a footnote that, although Plaintiff’s
employment ended more than six years before Plaintiff filed the
instant
action,
“Defendants
have
not
raised
limitations bar as an affirmative defense.”
the
statute
(Id. at 2 n.1.)
Moreover, he stated:
In amendments to USERRA in the Veterans’ Benefits
Improvement Act of 2008, Congress included an express
statement that there is no statute of limitations for
filing a USERRA claim. See 38 U.S.C. § 4327(b) (“If any
person seeks to file any complaint or claim . . .
alleging a violation of this chapter, there shall be no
limit on the period for filing the complaint or claim.”).
Thus, Plaintiff does not appear to be facing a statute of
limitations bar. But see Middleton v. City of Chicago,
-6-
of
578 F.3d 655, 665 (7th Cir. 2009) (concluding that the
2008 amendments did not retroactively apply to the
plaintiff’s claims, and finding that the claims were
barred under the federal, four-year “catch-all” statute
of limitations, see 28 U.S.C. § 1658).
(Id.)
Defendants Johnson and Covington objected to Magistrate Judge
Dixon’s Recommendation, including specifically to the conclusions
regarding the effect of the statute of limitations on the instant
action (Docket Entry 20 at 1-2), and filed a supporting brief,
addressing, for the first time, the statute of limitations issue at
length (Docket
Entry
21
at
4-7).
Plaintiff
responded,
also
addressing the statute of limitations for the first time and
devoting a substantial portion of his brief to that issue.
Docket Entry
thereafter
25
sought
at
5-19.)
leave
of
Defendants
the
Court
Johnson
to
file
(See
and Covington
a
reply
brief
explaining why the Court should not consider certain documents
Plaintiff
submitted
in
support
of
his
application of the statute of limitations.
contentions
regarding
(See Docket Entry 26.)
The Court, by way of United States District Judge William L.
Osteen, Jr., then issued an Order adopting Magistrate Judge Dixon’s
Recommendation with the exception of its discussion of the statute
of limitations issue.
(See Docket Entry 27 at 7.)
Judge Osteen
noted that the City of Greensboro had not yet had the opportunity
to address the statute of limitations issue, and, furthermore, that
consideration of the statute of limitations issue might require
-7-
conversion of the motion to dismiss into a motion for summary
judgment under Rule 56 of the Federal Rules of Civil Procedure.
(Id. at 4-5.)
Accordingly, Judge Osteen ruled that “it would be
premature to resolve any statute of limitations issue at this
time.”
(Id. at 5.)
Plaintiff thereafter filed his First Amended Complaint (see
Docket Entry 38), to which Defendants filed an Answer (Docket Entry
44) formally asserting the statute of limitations as an affirmative
defense (see id. at 6). Defendants Johnson, Covington and the City
of
Greensboro
Judgment
have
(Docket
now
Entry
filed
50)
Defendants’
in
which
they
Motion
for
reassert
Summary
that
the
applicable statute of limitations bars Plaintiff’s claims (Docket
Entry 51 at 6-10).
Defendants also argue that the Court should
dismiss the instant action because (1) Plaintiff’s claims are
barred by laches (see id. at 10); (2) Plaintiff gave up his claims
by signing the Release (see id. at 11-13); (3) Plaintiff’s military
status
was
not
a
motivating
factor
in
the
elimination
of
Plaintiff’s position (see id. at 13-18); (4) Defendant Covington,
in particular, did not participate in eliminating Plaintiff’s
position (see id. at 18); (5) Plaintiff cannot support a claim
under 38 U.S.C. § 4312 because Plaintiff did not reapply for
employment within 90 days of his return from active duty (see id.
at 18-19); and (6) Plaintiff’s damages are speculative (see id. at
19-20).
-8-
Motion for Summary Judgment
I.
Standard
“The [C]ourt 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.”
P. 56(a).
Fed. R. Civ.
A genuine dispute of material fact exists if the
evidence presented could lead a reasonable fact-finder to return a
verdict in favor of the non-moving party.
Lobby, Inc., 477 U.S. 242, 255 (1986).
Anderson v. Liberty
The Court must view the
evidence and any reasonable inferences therefrom in a light most
favorable to the non-moving party.
Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The moving party may discharge its burden by identifying an
absence of evidence to support the non-moving party’s case.
See
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The non-moving
party must then set forth “specific facts showing that there is a
genuine issue for trial.”
Matsushita Elec. Indus., 475 U.S. at
586-87 (citation omitted) (emphasis in original).
The non-moving
party must convince the Court that evidence exists upon which a
finder of fact could properly return a verdict in favor of the nonmoving party.
Anderson, 477 U.S. at 252 (citation omitted); see
also Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 308
(4th Cir. 2006) (“Mere unsupported speculation is not sufficient to
-9-
defeat
a
summary
judgment
motion
if
the
undisputed
evidence
indicates that the other party should win as a matter of law.”).
II.
Discussion
The undersigned first addresses the threshold issue of whether
the applicable statute of limitations, if any, bars Plaintiff’s
claims. Defendants argue that the four-year “catch-all” statute of
limitations contained in 28 U.S.C. § 1658 applies to Plaintiff’s
claims and therefore, because Plaintiff’s position was eliminated
more than six years before Plaintiff filed the instant action, his
claims are time-barred.
(See Docket Entry 51 at 8.)
Plaintiff
presents a number of arguments in response, contending: (1) the
history of USERRA makes it clear that Congress intended that a
claim brought under its provisions be free from any statute of
limitations (see Docket Entry 25 at 5-8); (2) because USERRA amends
an earlier law pre-dating the four-year statute of limitations in
28 U.S.C. § 1658, said statute of limitations does not apply to
USERRA (see id. at 8-13); (3) USERRA falls into the “otherwise
provided by law” exception in 28 U.S.C. § 1658(a) (see id. at 1315); (4) a previous administrative investigation into Plaintiff’s
claims by the Department of Labor (the “DOL”) should toll the
statute of limitations (see id. at 16-19; see also Docket Entry 55
at 13-16); and (5) Plaintiff’s periods of active duty service
should toll the statute of limitations under 50 App. U.S.C. § 525
(see Docket Entry 55 at 13).
The Court should find that the four-10-
year statute of limitations in 28 U.S.C. § 1658 does apply to
Plaintiff’s USERRA claims and that the filing of this action after
the running of that four-year period renders Plaintiff’s claims
time-barred.
A proper analysis of these matters begins with a brief look at
the history of USERRA. Congress enacted USERRA in 1994 to “clarify,
simplify, and, where necessary, strengthen the existing” provisions
of the Veterans’ Rights Reemployment Act of 1974 (the “VRRA”), Pub.
L. No. 93-508, 88 Stat. 1578 (codified at 38 U.S.C. § 2021 et seq.)
(recodified at 38 U.S.C. § 4301 et seq. by the Veterans’ Benefits
Act of 1992, Pub. L. No. 102-568, 106 Stat. 4320), amended by
USERRA, Pub. L. No. 103-353, 108 Stat. 3149 (1994).
Pub. L. No.
103-353, reprinted in 1994 U.S.C.C.A.N. 2449, 2451.
granted certain
workforce
and
rights
barred
to
veterans
employment
reservist’s military service.
upon
their
The VRRA
return
discrimination
to
based
on
the
a
See Middleton v. City of Chicago,
578 F.3d 655, 659 (7th Cir. 2009) (citing Pub. L. No. 93-508, sec.
404,
§
2021(a)(B),
(b)(3),
88
Stat.
1578,
1595-96
(1974)).
However, the VRRA only provided remedies in the form of injunctive
relief and lost wages and benefits.
Id.
Notably, as it relates to the statute of limitations issue,
the
VRRA
contained
a
provision
that
“no
state
statute
of
limitations shall apply to any proceedings under this chapter.”
Pub. L. No. 93-508, sec. 404, § 2022 (emphasis added).
-11-
As no
applicable federal statute of limitations existed at the time, this
provision effectively meant that claims brought under the VRRA
lacked any time bar.
Only on December 1, 1990, did Congress
provide a default federal statute of limitations in 28 U.S.C.
§ 1658, which states as follows:
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 may not be commenced
later than 4 years after the cause of action accrues.
28 U.S.C. § 1658(a).
However, as the VRRA was not “enacted after
the date of the enactment of” Section 1658, claims brought under
its provisions remained free from the application of Section 1658.
The enactment of USERRA on October 13, 1994, changed this
analysis.
Congress enacted USERRA as an amendment to the VRRA,
and, in doing so, expanded a plaintiff’s rights.
“USERRA provided
claimants the opportunity to avail themselves of remedies formerly
withheld under the VRRA, namely, liquidated damages and a jury
trial. . . .
Further, USERRA broadened the basis upon which a
plaintiff . . . might successfully allege discrimination. The VRRA
required [a plaintiff] to allege that discrimination was the sole
factor motivating the adverse employment action, under USERRA a
plaintiff need only show an improper animus was a ‘motivating
factor’ in the employment decision.” Risner v. Haines, No. 1:06 CV
1953,
2009
WL
4280734,
at
*6
(unpublished).
-12-
(N.D.
Ohio
Nov.
24,
2009)
Like its predecessor, USERRA’s only reference to a statute of
limitations was that “[n]o State statute of limitations shall apply
to any proceeding under this chapter.”
§ 4323(c)(6) (emphasis added).
Pub. L. No. 103-353,
Not until Congress enacted an
additional amendment to USERRA in the form of the Veterans’ Benefit
Improvement Act (the “VBIA”), Pub. L. No. 110-389, 122 Stat. 4145
(codified in scattered sections of 38 U.S.C.), on October 10, 2008,
did Congress declare that claims brought under USERRA would lack
any time bar.
Specifically, the VBIA states: “If any person seeks
to file a complaint or claim with the Secretary, the Merit Systems
Protection Board, or a Federal or State court under this chapter
alleging a violation of this chapter, there shall be no limit on
the
period
for
filing
the
complaint
or
claim.”
38
U.S.C.
§ 4327(b).
This VBIA provision did not address the appropriate handling
of
statute
of
limitations
previous version of USERRA.
indication
that
the
VBIA’s
issues
for claims
See id.
declaration
filed
under
the
Given the lack of any
regarding
statutes
of
limitations would apply retroactively, the question arose as to
whether claims brought under the prior version of USERRA that
expired before the enactment of the VBIA in October 2008 remained
subject to the four-year statute of limitations period of 28 U.S.C.
§ 1658.
In this regard, the plain language of the version of
USERRA in effect prior to the VBIA indicated only that no state
-13-
statute of limitations should apply and the plain language of 28
U.S.C. § 1658, which generally governs a civil action arising out
of an Act of Congress “enacted after the date of the enactment” of
Section 1658, provided for a statute of limitations.
Accordingly,
the ultimate question became whether USERRA was “enacted after the
date of the enactment” of Section 1658 even though it amended the
earlier-enacted VRRA.
The Supreme Court provided some guidance for this analysis in
2004 when it issued its opinion in Jones v. R.R. Donnelley & Sons
Co., 541 U.S. 369, 377-380 (2004).
action
‘aris[es]
under
an
Act
Jones held that “a cause of
of
Congress
enacted’
after
December 1, 1990 - and therefore is governed by § 1658’s 4-year
statute of limitations - if the plaintiff’s claim against the
defendant was made possible by a post-1990 enactment.”
(alteration in original).
Id. at 382
Accordingly, the relevant analysis
focuses on “the substantive effect of an enactment - the creation
of new rights of action and corresponding liabilities - not the
format in which it appears in the Code.”
Id. at 381.
Although neither the United States Court of Appeals for the
Fourth Circuit nor any United States District Court within the
Fourth Circuit appear to have addressed this issue, courts that
have analyzed the applicability of 28 U.S.C. § 1658 on USERRA in
light of the Supreme Court’s decision in Jones have held that the
four-year statute of limitations attaches to claims arising prior
-14-
to the VBIA on the grounds that USERRA broadened the rights
available to a plaintiff.
See, e.g., Middleton, 578 F.3d at 660
(“Applying
Court’s
the
Supreme
reasoning
in
Jones,
[the
plaintiff]’s current claim was ‘made possible by’ and ‘necessarily
depend[s]’ on USERRA, meaning it arose under a cause of action
enacted after § 1658.” (citing Jones, 541 U.S. at 382, 384, 124 S.
Ct. 1836)); Tully v. County of Nassau, No. 11-CV-2633(ADS)(ARL),
2012 WL 487007, at *7 (E.D.N.Y. Feb. 14, 2012) (unpublished) (“As
a result, the Court agrees with those courts that have found that
USERRA claims arising before the enactment of the VBIA in October
2008 were subject to the four-year limitations period in section
1658.” (citations omitted)); Moore v. United Air Lines, Inc., Civil
Action No. 10-cv-02100-WYD-CBS, 2011 WL 2144629, at *4 (D. Colo.
May 31, 2011) (unpublished) (“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.”);
Risner, 2009 WL 4280734, at *6 (“Applying Jones in this instance
indicates that [the plaintiff’s] USERRA claims arise under an Act
of Congress governed by § 1658.
Thus, even though the 1994 passage
of USERRA was an amendment to the VRRA, Courts have unanimously
followed Jones in recognizing that USERRA materially broadened the
rights available to litigants, bringing USERRA within the ambit of
§ 1658’s statute of limitations.”). Given that Plaintiff relies on
the broadened rights provided by USERRA (see Docket Entry 38 at 16-15-
18 (alleging discriminatory acts motivated “in whole or in part” by
military service and requesting trial by jury (emphasis added))),
the
sound
reasoning
of
the
foregoing
decisions
warrants
the
conclusion that § 1658’s four-year limitations period applies in
this case.
A question, however, remains as to whether the four-year
limitations period applicable to Plaintiff’s claims ran in its
entirety before the October 10, 2008 enactment of the VBIA.
federal
law,
possesses
“a
cause
sufficient
of
facts
action
about
accrues
the
harm
when
done
the
to
reasonable inquiry will reveal his cause of action.”
Under
plaintiff
him
that
Battle v.
Seibels Bruce Ins. Co., 288 F.3d 596, 604 (4th Cir. 2002) (citing
United States v. Kubrick, 444 U.S. 111, 122-24 (1979)). Under this
standard, Plaintiff’s claims accrued on January 23, 2003 - the date
on which Plaintiff signed the Release explicitly providing for the
termination of Plaintiff’s employment with the City of Greensboro
and his inability to seek reemployment (see Docket Entry 1-4).
Accordingly, absent any tolling or other exclusion of time,
the four-year limitations period would have passed in January 2007,
before the enactment of the VBIA and before the commencement of
this action on September 29, 2009.
Plaintiff asserts that: (1)
Plaintiff’s periods of active duty service should be excluded from
calculation under the Servicemembers Civil Relief Act, 50 App.
U.S.C. § 525 (see Docket Entry 55 at 13); and (2) the statute of
-16-
limitations
period
should
be
tolled
by
the
investigation
of
Plaintiff’s administrative claim with the DOL (see id.).
Even if the Court accepted Plaintiff’s arguments, the statute
of limitations period for Plaintiff’s claims expired in February
2008 - nearly eight months before the VBIA came into effect.
Plaintiff’s claims accrued on January 23, 2003.
One day passed on
Plaintiff’s claims before he began his first active duty tour on
January 25, 2003 (see Docket Entry 55 at 11).
Plaintiff then
returned from his first active duty tour on June 30, 2003.
id.)
(See
Thereafter, three years and 12 days passed before Plaintiff
filed his administrative claim with the DOL on July 13, 2006 (see
id. at 14), for a total of three years and 13 days.
Defendants
have provided evidence that Plaintiff’s DOL claim was subsequently
closed on March 1, 2007, “due to inactivity” (Docket Entry 51-26 at
2) and was not re-opened until December 3, 2008, and then only to
examine “any USERRA right that matured after [Plaintiff’s] return
from [his] military leave of absence” (Docket Entry 51-27 at 2).
In this interim time period (i.e., between March 1, 2007, and
December 3, 2008), the remaining 352 days available to Plaintiff
under § 1658 passed, resulting in the expiration of the four-year
statute of limitations applicable to his instant claims on or about
February 18, 2008.
Plaintiff contends that the period from March 1, 2007, to
December 3, 2008, during which Plaintiff’s DOL case was closed,
-17-
should not count against the running of the statute of limitations
because “[t]he evidence in this case shows that in large part the
DOL’s investigation was undermined by the City [of Greensboro].”
(Docket Entry 55 at 15.)
Specifically, Plaintiff argues that:
[T]he City [of Greensboro] maintained in their DOL USERRA
response that “[Plaintiff]’s position was eliminated due
to a reduction-in-force in 2002, prior to the City of
Greensboro having any knowledge that [Plaintiff] was
recalled to active duty.” [(Docket Entry 55-19 at 2)]
(emphasis
added).
This
was
a
very
important
misrepresentation in a federal investigation of this
USERRA claim, because if the City [of Greensboro] did not
have any notice of [Plaintiff]’s eminent return to active
duty, [Plaintiff] could not show that the harassment he
received was related to his military status. It is clear
this was not the fact, as Covington acknowledges
receiving verbal notification of recall from [Plaintiff],
but cannot saw [sic] when and where it was received.
[(Docket Entry 55-1 at 7-12, 18.)] . . . Delays caused
by the Defendant in the DOL investigation should not be
allowed to undermine [sic] when “the interests of justice
require vindication of plaintiff’s rights,” and when the
tolling is consistent with clear Congressional intent.
Burnett [v. New York Central R. Co., 380 U.S. 424, 428-29
(1965)] (emphasis added).
(Id. at 15-16 (bold and underlining in original).)
However, despite Plaintiff’s assertion, the record lacks any
evidence that the referenced letter from the City of Greensboro
“undermined” the DOL’s investigation or even affected the decision
by the DOL to close Plaintiff’s case.
Rather, the notification
sent by the DOL to Plaintiff stated that it closed Plaintiff’s case
“due to inactivity.”
separate
letter
sent
(See Docket Entry 51-26 at 2.)
by
the
DOL
-18-
dated
November
Moreover, a
18,
2008
-
apparently in response to Plaintiff’s request to reopen the portion
of his case dealing with his termination - stated that the DOL was
“unable to reopen [Plaintiff’s] USERRA claim” because Plaintiff had
“signed away [his] rights under USERRA.” (Docket Entry 58-2 at 3.)
Without making any determination as to the correctness of the DOL’s
findings, the undersigned notes that neither basis for closing
Plaintiff’s case rests in any way on the letter sent by the City of
Greensboro of which Plaintiff now complains.
Plaintiff’s contrary
“mere unsupported speculation,” Booz, Allen, 452 F.3d at 308, does
not
suffice
to
overcome
a
motion
for
summary
judgment.
Accordingly, no grounds exist upon which to toll the running of the
statute of limitations between March 1, 2007, and December 3, 2008,
and the Court should find that the four-year statute of limitations
in 28 U.S.C. § 1658 bars Plaintiff’s instant claims.
See Hughes
Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 950
(1997) (“[E]xtending a statute of limitations after the preexisting period of limitations has expired impermissibly revives a
moribund cause of action . . . .” (citation omitted)).2
Plaintiff’s Motion to Compel
Plaintiff has also moved the Court to compel the City of
Greensboro to withdraw its objections to certain discovery requests
and to submit responses to certain of Plaintiff’s interrogatories
In light of this conclusion, the Court need not address
Defendants’ remaining arguments for granting summary judgment.
2
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and requests for production. (See Docket Entry 47 at 2.) Plaintiff
has not contended that he requires such production to adequately
respond to Defendants’ Motion for Summary Judgment (see Docket
Entries 47, 48, 52, 55), and, in fact, it does not appear that the
production of the information requested would in any way affect the
foregoing
reasoning
regarding
the
statute
of
limitations.
Accordingly, Plaintiff’s Motion to Compel Discovery should be
denied as moot.
Defendants’ Motion to Strike
Defendants have filed a motion asking the Court to strike
portions of the Affidavit of Stephen King (Docket Entry 55-20),
which Plaintiff submitted in connection with his Response Brief in
Opposition to Defendants’ Motion for Summary Judgment (Docket Entry
55), on the grounds that Mr. King’s testimony “is not based on
personal knowledge” and “is not properly notarized” (Docket Entry
56
at
1).
Like
Plaintiff’s
Motion
to
Compel
Discovery,
a
determination of Defendants’ Motion to Strike will have no effect
on the conclusion that the statute of limitations bars Plaintiff’s
claims.
Accordingly, said motion should be denied as moot.
Conclusion
Based on a plain reading of the relevant statutory language,
as
well
as
substantial
case
law,
the
four-year
statute
of
limitations provided in 28 U.S.C. § 1658 applies to USERRA claims
that pre-date the VBIA. Even if tolling occurred during the period
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of Plaintiff’s active duty and during the pendency of Plaintiff’s
administrative case with the DOL, four years passed after the
accrual of Plaintiff’s claims and before the enactment of the VBIA
(and the commencement of this action).
Plaintiff’s only argument
for tolling the statute of limitations during the period in which
Plaintiff’s DOL case was closed relies on “[m]ere unsupported
speculation,” Booz, Allen, 452 F.3d at 308, which cannot overcome
the
showing
in
Defendants’
motion
Plaintiff’s claims are time-barred.
for
summary
judgment
that
Given this conclusion, no
reason exists to address Plaintiff’s Motion to Compel Discovery or
Defendants’ Motion to Strike.
IT
IS
THEREFORE
RECOMMENDED
that
Defendants’
Motion
for
Summary Judgment (Docket Entry 50) be granted.
IT IS FURTHER RECOMMENDED that Plaintiff’s Motion to Compel
Discovery (Docket Entry 47) and Defendants’ Motion to Strike
(Docket Entry 56) be denied as moot.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
Date:
March 1, 2012
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