VARGAS v. COMPUTER SCIENCES CORPORATION
MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE WENDY BEETLESTONE ON 7/10/17. 7/10/17 ENTERED AND COPIES E-MAILED.(ti, )
--- NOT FOR PUBLICATION --IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Remaining in this employment discrimination case is Plaintiff Sharon Vargas’s claim that
her former employer, Defendant Computer Sciences Corporation (“CSC”), retaliated against her
in violation of the Uniformed Services Employment and Reemployment Rights Act
(“USERRA”).1 28 U.S.C. §§ 4311(b), (c)(2). CSC has filed a motion for summary judgment,
which shall be granted for the reasons outlined herein.
Vargas served in the United States Army on active duty from 1972 to 1991, and on
temporary duty due to a disability from 1991 to 1995, at which time she retired with a rank of
master sergeant. JA 29, 32, 36.
On February 14, 2011, Vargas was hired by the software testing company AppLabs as the
Assistant Vice President of Human Resources based in its Philadelphia office. Joint Appendix
(“JA”) 65-67, 73-78, 80-81, 379. CSC is a software company headquartered in Falls Church,
On September 12, 2016, the parties jointly stipulated to the dismissal of Plaintiff’s claims under the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq., the Americans with Disabilities Act, 42 U.S.C. § 12101
et seq., and her corresponding claims under the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Stat. § 951 et
seq. ECF No. 16. On December 22, 2016, the Court granted Defendants’ motion to dismiss Plaintiff’s Title VII and
PHRA race discrimination claims as time-barred pursuant to 42 U.S.C. § 2000e-5(f)(1) and 43 Pa. Stat. § 959(h).
ECF No. 24. In her response to the instant motion, Plaintiff voluntarily withdrew her USERRA disparate treatment
claim, ECF. No. 38 at 4, and so summary judgment will be entered in Defendant’s favor with respect to the
USERRA claim insofar as it alleges disparate treatment in violation of 28 U.S.C. §§ 4311(a), (c)(1).
Virginia.2 On September 14, 2011, CSC purchased AppLabs. JA 447. For approximately one
year thereafter, AppLabs continued to operate as an independent entity, and Vargas continued in
the same position, overseeing all human resources functions at AppLabs from the Philadelphia
office. JA 68, 70, 103, 104, 438-39, 449. This continued until around January 2013, when CSC
began to integrate AppLabs into its existing corporate structure. JA 119, 449. According to Ira
Katz, a Human Resources Manager, AppLabs was integrated into the Global Business Services
and Regions (“GBS”) division and the Global Applications business unit. JA 449. The
integration process lasted until the end of March 2013. JA 118, 449. During the integration,
Vargas continued to work at CSC until April 12, 2013, when she was terminated. JA 214, 452.
The sole remaining claim in this case turns on the events that preceded her termination,
and specifically, whether Vargas’s termination constituted unlawful retaliation under USERRA.
In support of its motion, CSC relies on affidavits submitted by Katz and two other CSC
employees. The summary judgment record does not include any depositions by Vargas of CSC
employees, nor is there any documentary evidence in the record that pertains to the integration
and reorganization process described by the CSC employees.
According to the CSC employees, the decision to terminate Vargas was the culmination
of a structured reduction in the overall CSC workforce. JA 436-54. Lisa O’Lalde – a CSC
employee since January of 2000, who is currently a Manager in Employment Compliance –
indicates that on August 30, 2012, she learned that CSC had decided to undergo reorganization
as a cost-saving measure, and was assigned to work on the team managing the reorganization.
JA 436. As O’Lalde describes it, the reorganization proceeded according to a plan recommended
by the Boston Consulting Group to “identify inefficiencies in the management structure” by
On April 1, 2017, CSC merged with and into DXC Technology Company, of which it is now a wholly-owned
subsidiary. ECF No. 36, at 1 n.1.
reducing middle management. JA 437. Generally, this “delayering” process required the
company to proceed from the highest levels of management downward. JA 437-38. At each
level, the manager(s) would identify all the employees who reported to them, and then decide
which positions could be eliminated by consolidating two or more existing employees’
responsibilities into a single position. Id. They also recommended which of the employees who
reported directly to them to retain in the consolidated position(s), and which to terminate. JA
438. After these recommendations were reviewed by “CSC leadership and legal,” they were
“finaliz[ed] and implement[ed]” for a given level. Id. The process was then repeated at each
successive level of management. Id. According to Katz, “CSC decided that any employee laid
off in the de-layering [reduction in force] would be ineligible for rehire for a year following
discharge,” and no exceptions were made to this general policy. JA 451. CSC’s rationale for the
no-rehire policy was to prevent its managers from undoing the reorganization by immediately
rehiring laid-off employees. Id.
O’Lalde further explains that the reorganization of Levels 1, 2 and 3 was completed in
September of 2012. JA 439. Layer 1 consisted solely of the Chief Executive Officer. JA 438.
The only Layer 2 employee in the Human Resources Department was the Executive Vice
President of Human Resources, who oversaw eight Layer 3 employees. JA 439. One of these
was Archana Singh, the Vice President of Human Resources for GBS. Id. Vargas was a Layer 4
employee who was mapped to report to Singh following the integration of AppLabs into GBS.
JA 442. The reorganization of Level 4 took place in October of 2012. JA 439. O’Lalde
indicates that on October 19, 2012, she received the Layer 4 staffing file, which included Singh’s
decisions with respect to the employees who were mapped to report to her. JA 442. Vargas was
one of two employees Singh had selected for elimination. JA 442-43. The rationale given was
that following the transition, AppLabs would not need its own Human Resources manager
because those responsibilities would be handled by the business unit into which it was absorbed.
Singh did not, however, select Vargas for immediate termination.3 Id. Instead, Singh
selected Vargas to be placed in a “talent pool.” O’Lalde explains that employees in the talent
pool continued to work in their existing position without being informed of the decision. JA 440.
Managers at successive levels who “identified a position for which they did not have an
appropriate candidate” would then be able to select from individuals in the talent pool. Id.
At the time Vargas was placed in the talent pool on October 19, 2012, CSC intended to
terminate the employment of all individuals in the talent pool if they had not been placed in
another position by the time the delayering process was complete. JA 440. However, that
changed by “mid-November 2012” when CSC decided to terminate, effective December 12,
2012, every employee in the talent pool “who had not already been matched to specific Layer 4
or 5 positions.” JA 441. At the time, 121 people – 118 of whom were Layer 4 employees – were
in the talent pool. JA 441. The rationale given for this decision was motivated in part by CSC’s
conclusion that there were “few to no” remaining positions due to the restructuring process, and
also because CSC was concerned that retaining people from the talent pool would undermine its
objective of cutting costs. Id. Nonetheless, according to Katz, “[m]anagement requested and
received permission to delay Vargas’s discharge date until after the AppLabs transition” to assist
with the integration process. JA 451-52. As a result, Vargas’s “layoff date was extended until
March 30, 2013 and then April 12, 2013.”4 JA 452.
In contrast, the other of Singh’s direct reports that she selected for termination, David Piowowar, was terminated
on or about October 31, 2012. JA 443, 444, 446.
It is neither clear who requested and approved Vargas’s extensions, nor when either extension decision was made.
Vargas testified that she was not formally notified of the decision to terminate her
employment until March 26, 2013, when she received a phone call from Rex Miller, a CSC
Human Resources manager. JA 221. However, that testimony is not inconsistent with the
general description of CSC’s reorganization process outlined above. Moreover, Vargas’s
description of their conversation corroborates CSC’s account, as he informed her that although
he had thought he would be able to keep her on in the Global Mobilization team, she “wasn’t
available to pick up.” JA 328.
Despite the absence of any formal notification of CSC’s decision to terminate her
employment, Vargas had become concerned about her future at CSC, so she began making
inquiries about her future with CSC in late 2012, raising questions through various channels as to
whether her veteran status would factor into restructuring decisions. The first conversation
reflected in the record took place on November 7, 2012, when Vargas “verbally informed
Archana Singh that she was a protected veteran.” JA 539. She raised similar concerns again
some time in December of 2012 – although nothing in the record indicates what was said, or to
whom. JA 291-92. Additionally, in January or February of 2013, Vargas raised her concerns to
Rich Taylor, head of GBS Americas Human Resources. JA 205. Finally, between March 15 and
her last date of employment, she continued to raise concerns with Taylor, Katz, and Stephanie
Weaver, an attorney in CSC’s legal department. JA 203-27.
In several of the communications that took place in March and April of 2013, Vargas
specifically informed several CSC managers she believed she was protected by the Vietnam Era
Veterans Readjustment Assistance Act (“VEVRRA”), 38 U.S.C. § 4211, et seq., and its
implementing regulations, 41 C.F.R. §§ 60-300 and 60-741. Before her termination, Vargas also
raised concerns that her position had been replaced by a non-veteran, and that non-veterans were
being placed in positions that she believed she was qualified for, and should have received
instead. JA 228-33, 410.
“[S]ummary judgment is appropriate where there is ‘no genuine issue as to any material
fact’ and the moving party is ‘entitled to a judgment as a matter of law.’” Alabama v. North
Carolina, 560 U.S. 330, 344 (2010)(quoting Fed. R. Civ. P. 56(c)). “By its very terms, this
standard provides that the mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
“A genuine issue is present when a reasonable trier of fact, viewing all of the record
evidence, could rationally find in favor of the non-moving party in light of his burden of proof.”
Doe v. Abington Friends Sch., 480 F.3d 252 (3d Cir. 2007) (citing Celotex Corp v. Catrett, 477
U.S. 317, 322-26 (1986); Anderson, 477 U.S. at 248-52). Material facts are those which “might
affect the outcome of the suit under the governing substantive law.” Scheidemantle v. Slippery
Rick Univ. State Sys. Of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006). In deciding a motion
for summary judgment, “the reviewing court should view the facts in the light most favorable to
the non-moving party and draw all reasonable inferences in that party’s favor.” Burton v. Teleflex
Inc., 707 F.3d 417, 425 (3d Cir. 2013).
“Congress enacted USERRA in 1994 to, inter alia, ‘encourage noncareer service in the
uniformed services by eliminating or minimizing the disadvantages to civilian careers and
employment which can result from such service.’” Carroll v. Delaware River Port Auth., 843
F.3d 129, 131 (3d Cir. 2016) (quoting 38 U.S.C. § 4301(a)(1)). To that effect, its
antidiscrimination provision states that:
A person who is a member of, applies to be a member of, performs, has performed,
applies to perform, or has an obligation to perform service in a uniformed service shall
not be denied initial employment, reemployment, retention in employment, promotion, or
any benefit of employment by an employer on the basis of that membership, application
for membership, performance of service, application for service, or obligation.
38 U.S.C. § 4311(a).
USERRA also includes an anti-retaliation provision, under which Vargas’s sole
remaining claim proceeds. It states in pertinent part that, “[a]n employer may not . . . take any
adverse employment action against any person because such person . . . has taken an action to
enforce a protection afforded any person under [USERRA].” 38 U.S.C. § 4311(b)(1).
Furthermore, “[an] employer shall be considered to have engaged in actions prohibited [by the
anti-retaliation provision] if the person’s . . . action to enforce a protection afforded any person
under [USERRA] . . . is a motivating factor in the employer’s action, unless the employer can
prove that the action would have been taken in the absence of such person’s enforcement action.”
38 U.S.C. § 4311(c)(2).
By its plain terms, then, USERRA creates a two-step burden shifting framework that
“differs starkly from the familiar McDonnell-Douglas three-step framework used in most
employment discrimination cases.” Murphy v. Radnor Twp., 542 F. App’x 173, 177 n.3 (3d Cir.
2013). First, an employee bears the “initial burden of showing . . . that the employee’s military
service was a substantial or motivating factor in the adverse employment action.” Carroll, 843
F.3d at 131 (quoting Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001)
(interpreting analogous USERRA antidiscrimination causation provision at 38 U.S.C. §
4311(c)(1)). Second, “[i]f this requirement is met, the employer then has the opportunity to
come forward with evidence to show, by a preponderance of the evidence, that the employer
would have taken the adverse action anyway, for a valid reason.” Id.; see also Gagnon v. Sprint
Corp., 284 F.3d 839, 853 (8th Cir. 2002) (noting that the burden shifting framework Sheehan
sets out under the antidiscrimination provision at 38 U.S.C. § 4311(c)(1) applies equally to the
analogous anti-retaliation provision at 38 U.S.C. § 4311(c)(2)). Thus, unlike retaliation under
McDonnell-Douglas, where the burden of persuasion remains on the employee, under USERRA,
once the employee makes out a prima facie case of retaliation by showing that her action to
enforce a USERRA protection was a motivating factor for an adverse employment action, the
burden shifts to the employer to prove the affirmative defense that the adverse action would have
been taken despite the employee’s protected activity.
Here, the undisputed facts inexorably lead to the conclusion that Vargas cannot make out
a prima facie case of USERRA retaliation. As an initial matter, the parties agree that Vargas
suffered an “adverse employment action” within the meaning of 38 U.S.C. § 4311(b) when CSC
terminated her employment. Where they differ is 1) with respect to whether she engaged in
USERRA protected activity, and 2) whether there is sufficient evidence from which the requisite
causal relationship between the protected activity and her termination could be inferred. These
questions are interrelated. Because Vargas lacks any direct evidence of retaliatory motive
harbored by any CSC decision makers, she argues that the decision to terminate her employment
was made in a “temporal proximity unusually suggestive of retaliatory motive” to her USERRA
protected activity sufficient to suggest a retaliatory motive. Carvalho-Grevious v. Delaware
State Univ., 851 F.3d 249, 260 (3d Cir. 2017) (citation omitted). To resolve this question, it is
necessary to first determine when CSC made the decision to terminate Vargas’s employment,
and second, which conversations – if any – preceded that decision.
There is no genuine dispute that the decision to terminate Vargas’s employment, and to
not consider her for placement in any other CSC position for at least one year thereafter, was
made in mid-November of 2012 when CSC decided to lay off all 121 employees still remaining
in the talent pool. The affidavits submitted by CSC employees establishing this timeline for the
reduction in the overall CSC workforce are not contradicted by Vargas’s deposition testimony.
Nor, as Vargas contends in her response to the instant motion, are there inconsistencies in the
CSC employee affidavits that would create a genuine issue as to when the decision was made.5
With that timeline established, the analysis is straightforward: Vargas can only establish a
prima facie USERRA retaliation claim if she engaged in protected activity before mid-November
of 2012 when CSC decided to eliminate the talent pool. As has been seen, nearly all of the
communications where Vargas expressed concern about her veteran status to CSC management
took place between December of 2012 and April of 2013. Even if these conversations were
USERRA protected activity, they cannot serve as the basis for Vargas’s USERRA retaliation
claim because they happened after CSC decided to terminate her employment.
The record does, however, contain evidence of a single conversation that preceded the
decision to terminate the talent pool when, on November 7, 2012, Vargas “verbally informed
Archana Singh that she was a protected veteran.” CSC contends generally that Vargas’s requests
that CSC take affirmative steps to consider her veteran status in deciding whether her position
would be selected for elimination do not constitute “action[s] to enforce a protection afforded
any person under [USERRA],” 38 U.S.C. § 4311(b)(1), because USERRA (unlike VEVRAA)
Vargas’s contention in opposition to the instant motion that CSC’s decision to require Vargas to complete an
employment application in January of 2013 creates an inconsistency from which a retaliatory motive can be inferred
lacks merit. The record shows otherwise: CSC’S employee affidavits provide a general description of the transition
of AppLabs into CSC’s existing infrastructure in which existing AppLabs employees were required to complete
human resources paperwork so that their integration into CSC’s systems could be completed. JA 164. Plaintiff does
not contend that she was singled out for a different process.
does not require affirmative action, but rather, proscribes disparate treatment of protected
veterans. For her part, Vargas responds that it does not matter whether she was legally correct in
her expressed belief that CSC’s consideration (or lack thereof) of her protected veteran status,
was a USERRA violation, so long as she raised her concerns in a manner that could “reasonably
be interpreted as asserting some protected right” under USERRA.
However, the Court need not resolve the parties’ dispute as to whether Vargas’s
November 7, 2012, conversation with Singh constituted USERRA protected activity because
even assuming that it was, the circumstances of the conversation are such that the temporal
proximity is not, in and of itself, unusually suggestive of retaliatory motive given that the
decision to terminate her employment was the result of a policy that applied to all similarly
situated CSC employees. There is no evidence in the record from which a jury could reasonably
conclude that that the decision to lay off the entire talent pool – a decision that, by all accounts,
was uniformly applied to all 121 employees it affected – was in any way motivated by Vargas’s
November 7 conversation with Singh. Neither is there anything to suggest that Singh was
involved with the decision to lay off the talent pool, nor is there evidence that the individuals
who were responsible for the decision to lay off the talent pool were aware of the conversation.
Accordingly, Vargas is unable to establish that her USERRA protected activity was a motivating
factor for CSC’s decision to terminate her employment. For this reason, she cannot make out a
prima facie case, and summary judgment will be granted in favor of CSC on her USERRA
retaliation claim. An appropriate order follows.
DATED: July 10, 2017
BY THE COURT:
/s/Wendy Beetlestone, J.
WENDY BEETLESTONE, J.
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