ALICE M. BATCHELDER, Circuit Judge.
Plaintiff-Appellant Brian Petty appeals the district court's summary judgment and judgment on partial findings in favor of Metropolitan Government of Nashville-Davidson County ("Metro") on claims that Metro violated his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. §§ 4301-4334. Because the district court erred in its application of §§ 4312 and 4313, we reverse the district court's grant of summary judgment for Metro on two claims asserted under these provisions, and order that summary judgment be entered in favor of Petty on those claims. Further, because the district court made errors of both fact and law in its judgment on partial findings under § 4311, we vacate that judgment.
The central dispute in this case is whether Metro violated USERRA in its treatment of Petty, a former police officer who left the department for active duty with the United States Army and who sought reemployment with the department after completion of his military service. There are few, if any, disputes regarding the factual background as described by the district court in its order granting summary judgment for Metro:
Petty v. Metro. Gov't of Nashville-Davidson, No. 3:05-0680, 2006 WL 3333509 at *1-5, 2006 U.S. Dist. LEXIS 83787 at *2-16 (M.D.Tenn. Nov. 16, 2006) (internal citations omitted; footnotes in original). Pertinent to this appeal, Petty's complaint alleged that Metro violated his rights under USERRA in that: (1) Metro delayed rehiring him for the purpose of subjecting him to the department's return-to-work process; (2) Metro did not properly rehire him because he was not placed in the position to which he was entitled; and (3) Metro impermissibly denied him the ability to work off-duty security jobs. These claims were asserted as violations of the reemployment provisions of USERRA, §§ 4312-4313, and the antidiscrimination provision of the Act, § 4311. Both parties moved for summary judgment. Petty's motion was denied, and the district court granted Metro's motion on all claims except those arising from the denial of Petty's request for off-duty work. The off-duty work claims proceeded to a bench trial, at the conclusion of which the district court entered a judgment on partial findings in favor of Metro. Petty now appeals.
II. STANDARD OF REVIEW
We review de novo a district court's grant of summary judgment, using the same standard applied by the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.1999) (en banc). Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). We must review all the evidence, facts, and inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To withstand summary judgment, the nonmoving party must present sufficient evidence to create a genuine issue of material fact. Daniels v. Woodside, 396 F.3d 730, 734 (6th Cir.2005). "A mere scintilla of evidence is insufficient; `there must be evidence on which the jury could reasonably find for the [non-movant].'" Id. at 734-35 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Summary judgment is appropriately entered "against a party who fails to make a showing sufficient to establish the existence of an element
A different standard is applied to the entry of a judgment on partial findings. The district court is not required to draw any special inferences, and it is permitted to weigh the evidence and resolve any conflicts therein. Int'l Union of Operating Eng'rs, Local Union 103 v. Indiana Constr. Corp., 13 F.3d 253, 257 (7th Cir. 1994). On appeal, we review legal determinations de novo and the relevant findings of fact for clear error. Sharp ex rel. Estate of Sharp v. United States, 401 F.3d 440, 443 (6th Cir.2005).
III. STRUCTURE OF USERRA
Statutory protection of job security for armed services members has a long history, dating back to the Selective Training and Service Act of 1940. USERRA is the latest iteration of these protections, and was enacted in part as a result of Congress's finding that "existing veteran's right statutes [were] overly complex and ambiguous, leaving veterans and employers confused as to their rights and responsibilities." Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 304 (4th Cir.2006) (quoting Lapine v. Town of Wellesley, 970 F.Supp. 55, 58 n. 2 (D.Mass.1997)). Congress thus sought "to clarify, simplify, and where necessary, strengthen the existing veterans' employment and reemployment rights provisions." Id. Courts have recognized that "[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." Francis, 452 F.3d at 303 (alteration in original). Relevant pre-USERRA case law is properly considered as a guide to interpreting USERRA. Id.
For the purposes of this case, USERRA performs four key functions. First, it guarantees returning veterans a right of reemployment after military service. 38 U.S.C. § 4312. Second, it prescribes the position to which such veterans are entitled upon their return. 38 U.S.C. § 4313.
At times, the interplay among these provisions has caused some confusion. Compare Curby v. Archon, 216 F.3d 549, 557 (6th Cir.2000) (stating that to recover for a reemployment violation under § 4312, a plaintiff also must show discrimination under § 4311) with Wrigglesworth v. Brumbaugh, 121 F.Supp.2d 1126, 1133-39 (W.D.Mich.2000) (concluding that recovery under § 4312 is separate from and not in any way dependent upon § 4311). We find helpful the Eighth Circuit's description of the relationship among the provisions at issue in this case:
Clegg v. Ark. Dep't of Corr., 496 F.3d 922, 930 (8th Cir.2007). We will use this understanding of USERRA to examine Petty's claims.
IV. REEMPLOYMENT CLAIMS
As it pertains to this case, USERRA's right to reemployment encompasses two guarantees that are embodied in §§ 4312 and 4313. Section 4312 sets forth the basic right of a returning veteran to be rehired by his past employer and the basic prerequisites that the veteran must meet in order to enjoy that right. Section 4313 sets forth the position of employment to which the returning veteran must be rehired and requires that the veteran be "promptly reemployed" in that position. As briefly discussed above, Petty alleges that Metro violated his reemployment rights by: (1) impermissibly delaying his rehiring due to the department's return-to-work process; (2) failing to rehire him in the position to which he was entitled; and (3) impermissibly denying him permission to work off-duty security jobs. We find that Petty is entitled to summary judgment with respect to his first two claims; the third, which we will analyze separately, is not properly asserted as a reemployment claim under §§ 4312 and 4313.
A. Petty's First Two Claims — Delay in Rehiring and Failure to Hire at Proper Position:
Congress has clearly prescribed the prerequisites Petty was required to satisfy to qualify for USERRA's reemployment protection. First, he was required to notify his employer in advance of his departure that he would be leaving for military service. 38 U.S.C. § 4312(a)(1). Second, the cumulative length of such military service must be less than 5 years. 38 U.S.C. § 4312(a)(3). Third, upon his return, he was required to request reemployment from Metro within the time frame outlined in § 4312(e) and with the documentation specified by § 4312(f). Fourth, his separation from service must have been under "honorable conditions." 38 U.S.C. § 4304(2). Metro contends only that Petty failed to provide the documentation requirements of § 4312(f)(1), which provides that upon the request of the employer, the returning veteran shall provide documentation establishing that he has satisfied these four prerequisites.
In 20 C.F.R. § 1002.123, the Department of Labor lists documents that satisfy the documentation requirements of 38 U.S.C. § 4312. Among those listed is a
We conclude that it would be inconsistent with the goals of USERRA to prevent Petty from exercising his right to reemployment because he failed to provide forthrightly information that is statutorily unnecessary to his establishing the right in the first place. First, 20 C.F.R. § 1002.123(a)(2) expressly recognizes that the types of documentation necessary to establish eligibility for reemployment may vary from case to case. The focus of USERRA is on securing rights to returning veterans, not on ensuring that any particular documentation is produced. Second, in compliance with Metro's return-to-work process, Petty signed an authorization granting Metro unfettered access to all of his medical and military records, including a complete DD-214.
Metro, therefore, was not permitted to delay or otherwise limit Petty's reemployment rights in any way; in particular, Metro was not permitted to limit or delay Petty's reemployment by requiring him to comply with its return-to-work process. Section 4302(b) expressly states that USERRA "supersedes any . . . contract, agreement, policy, plan, practice, or other matter 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." By applying its return-to-work process to Petty, Metro not only delayed his reemployment, but as we shall explain, it also limited and withheld benefits to which Petty was entitled under USERRA.
It is of no consequence here that Metro believes it is obligated to "ensure that each and every individual entrusted with the responsibility of being a Metropolitan Police Officer is still physically, emotionally, and temperamentally qualified to be a police officer after having been absent from the Department." In USERRA, Congress clearly expressed its view that a returning veteran's reemployment rights take precedence over such concerns. Metro does not question Petty's physical qualifications; instead, it questions only whether his conduct during his military service would disqualify him from returning to service in the police department. But Petty's separation from military service is classified as "under honorable conditions," which Congress has made clear suffices to qualify him for USERRA benefits, 38 U.S.C. § 4304(2). To the extent that his military service may have in fact left Petty unfit to carry out his duties as a police officer but
The district court determined that Metro's return-to-work procedures could be applied to Petty, finding that because they are applicable to all individuals regardless of military service, these procedures did not constitute "additional prerequisites." In this, the district court erred. First, § 4302(b) does not limit its superseding effect only to "additional prerequisites." It supersedes any "policy, plan, [or] practice" that "reduces, limits, or eliminates in any manner any right or benefit" provided by USERRA, "including," but not necessarily limited to, "the establishment of additional prerequisites." Second, Metro's return-to-work procedures do constitute "additional prerequisites" for returning veterans, because the procedures are in addition to the requirements Congress specified for the exercise of USERRA's reemployment rights. The district court apparently viewed the term "additional prerequisites" as meaning "additional to the employer's existing prerequisites," and concluded that Metro's procedures are not discriminatory because they apply to all individuals returning to the department. But this analysis is not appropriate for a claim brought under § 4312, and the superseding effect of § 4302(b) is not so limited; Metro's return-to-work procedures are indeed superseded by USERRA's reemployment provisions.
It is important to note that Petty was not required to make any showing of discrimination in order to sustain either of his reemployment claims. The district court incorrectly characterized part of Petty's reemployment claim—that part dealing with the position to which he was reinstated—as being part of his discrimination claims and therefore held that it required a showing of discrimination. The district court did not state its authority for this, but Metro finds support for the court's view in the following language from this Circuit's decision in Curby v. Archon: "a person seeking relief under § 4312 must also meet the discrimination requirement contained in § 4311." 216 F.3d at 557. However, this language from Curby was merely dicta and is therefore not binding precedent. See Wrigglesworth, 121 F.Supp.2d at 1137 (characterizing this part of Curby as dicta); Jordan v. Air Prods. & Chems., Inc., 225 F.Supp.2d 1206, 1208 (C.D.Cal.2002) (same). Furthermore, subsequent to Curby, the Department of Labor specified that "[t]he employee is not required to prove that the employer discriminated against him or her because of the employee's uniformed service in order to be eligible for reemployment." 20 C.F.R. § 1002.33; accord Francis, 452 F.3d at 303 ("[T]he procedural requirements of the two provisions differ. An employee proceeding under § 4311 has the burden of proving that the employer discriminated against him or her based on a status or activity protected by USERRA.
Because we have found that Petty met § 4312's prerequisites, and that § 4313 is applicable here notwithstanding any discrimination considerations, we must now determine whether Metro violated § 4313 in failing to rehire Petty at the appropriate level of employment. Section 4313 provides the order of priority for the placement of returning veterans:
38 U.S.C. § 4313(a). Metro does not dispute that Petty was not placed in any of the positions apparently mandated by § 4313 (e.g., his former position as patrol sergeant). Rather, Metro argues only that it did not violate § 4313 because, having perhaps been dishonest in the return-to-work process, Petty may not be qualified to hold these positions. This argument is without merit.
At the point at which Petty was entitled to reemployment under §§ 4312 and 4313, Metro had no basis on which to question his qualifications. Petty had satisfied the only prerequisites to § 4313— those specified in § 4312—and Metro's attempt to impose additional prerequisites through its return-to-work process was, as we have already explained, wholly impermissible. See 38 U.S.C. § 4302(b) (USERRA supersedes local policies). The process, then, including Petty's alleged
Furthermore, Metro cannot avoid this conclusion by arguing that its second investigation into Petty's conduct during the return-to-work process had not been completed at the time of Petty's filing of this action, and Metro therefore had not been able to determine whether Petty was qualified for reemployment in his original position with the police department. First, investigations spawned by the improper application to Petty of the return-to-work process cannot serve to delay Petty's statutory right to reemployment if the prerequisites for reemployment have been met. Second, § 4313 includes a promptness requirement that Metro clearly violated notwithstanding any concerns that it may have harbored regarding Petty's truthfulness. "Prompt reemployment" required by § 4313(a) means reemployment
20 C.F.R. § 1002.181 (emphasis added). Because of its return-to-work process, Metro took three weeks to "rehire" Petty, and even then it did not place Petty in the correct position as outlined in § 4313. Metro cannot justify these delays; neither a return-to-work process that has been superseded by statute nor any investigations resulting from that process constitute the "unusual circumstances" that the Department of Labor has specified may justify a less timely reinstatement. 20 C.F.R. § 1002.181. Third, in any event, the burden of proving that a returning veteran is not qualified under § 4313 falls on the employer, not on the employee. McCoy v. Olin Mathieson Chem. Corp., 360 F.Supp. 1336, 1339 (S.D.Ill.1973). Metro cannot defeat the "prompt reemployment" guarantee of § 4313 by engaging in never-ending investigations into Petty's qualifications. Indeed, courts have recognized that:
Id. Metro has never proved Petty's disqualification for reemployment. Indeed, even today, approximately three years after Petty originally sought reemployment, Metro simply argues that, pending the outcome of its second investigation, it believes that Petty may be unqualified. Metro has wholly failed to carry its burden of proving Petty's disqualification and has therefore clearly violated § 4313.
B. Petty's Third Claim—Denial of his Request for Off-Duty Work:
On appeal, Petty also argues that Metro denied him reemployment rights when it refused to approve his request for off-duty security work. Although it is not clear whether Petty made this argument to the district court, we will briefly explain why this claim is not properly asserted under §§ 4312 and 4313.
Section 4312 "only entitles a service person to immediate reemployment and does not prevent the employer from terminating him the next day or even later the same day." Francis, 452 F.3d at 304. Likewise, once the returning veteran is rehired, § 4312 does not prevent the employer from discriminating against him. "The apparent harshness of this result is addressed by the fact that §§ 4311 and 4316 operate to protect the employee as soon as he is reemployed." Id. Petty did not request permission to engage in off-duty work—and was thus not denied such permission—until approximately ten months after he was reemployed. Section 4312, therefore, is not implicated by Metro's denial of this request.
Furthermore, notwithstanding the timing problem, Petty's ability to engage in off-duty security work is not the type of benefit protected by USERRA's right to reemployment. Section 4312 protects only a service person's right to reemployment, which in turn triggers § 4313's guarantee of the appropriate position of employment. Section 4313 protects only the service person's "seniority, status and pay." See §§ 4313(a)(2)(A), 4313(a)(2)(B). While the ability to perform off-duty work may well have been an added benefit of Petty's position at Metro, it is not part of Petty's "seniority, status and pay." Because §§ 4312 and 4313 do not protect the type of general "benefits" that would include Petty's off-duty work, this claim may not be brought under these provisions.
V. DISCRIMINATION CLAIMS
Petty argues that claims for failure to rehire promptly, failure to rehire at the correct position, and denial of his request to perform off-duty work also constitute violations of USERRA's antidiscrimination provision, § 4311. We have already determined that Petty is entitled to summary judgment on his claims for failure to promptly and properly rehire under § § 4312 and 4313; because he would obtain no added benefit from our addressing them under § 4311, we will not address
To begin, Petty's ability to engage in off-duty security work is the type of benefit protected under § 4311. As it pertains to these claims, § 4311 provides the following:
38 U.S.C. § 4311 (emphasis added). The ability to obtain additional income by working as an off-duty security officer was certainly a "benefit" of serving as a Metro police officer, so any discrimination with respect to this benefit on account of Petty's military service would violate § 4311.
An individual bringing a § 4311 claim has the initial burden of proving a prima facie case of discrimination by showing, by a preponderance of the evidence, that his protected status was a substantial or motivating factor in the adverse employment action(s). The burden then shifts to the employer to prove the affirmative defense that the employment action(s) would have been taken in the absence of the employee's protected status. See 38 U.S.C. § 4311(c)(1); Coffman v. Chugach Support Servs., 411 F.3d 1231, 1238-39 (11th Cir. 2005); Gummo v. Village of Depew, 75 F.3d 98, 106 (2d Cir.1996).
For Petty's military service to have been "[a] motivating factor does not mean that it had to be the sole cause of the employment action. Instead, it is one of the factors that a truthful employer would list if asked for the reasons for its decision." Coffman, 411 F.3d at 1238. "[M]ilitary status is a motivating factor if the defendant relied on, took into account, considered, or conditioned its decision on that consideration." Id. "[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." Francis, 452 F.3d at 303; accord Alabama Power Co. v. Davis, 431 U.S. 581, 585, 97 S.Ct. 2002, 52 L.Ed.2d 595 (1977).
Metro argues that Petty was denied permission to engage in off-duty employment because he was being investigated at the time of his request and Metro has a policy against approving off-duty requests for officers under investigation. The district court concluded that this policy was the motivating factor behind Metro's denial, that the policy was a legitimate reason and not a pretext for that decision, and that Metro's action was not discriminatory and
In accepting Metro's justification regarding its policy, the district court failed to consider Metro's motivations for launching the investigation that triggered the policy's application to Petty in the first place. Because "[a] motivating factor does not mean that it had to be the sole cause of the employment action," Coffman, 411 F.3d at 1238, the fact that Metro had a legitimate reason for denying Petty's request does not prove that the denial did not also have an improper motivation. This is important in this case, because Petty came within the ambit of the "legitimate" policy only because he was under investigation. If that investigation was motivated by an improper purpose, then it follows that the denial of benefits on the basis of the investigation's existence was also motivated, at least in part, by an improper purpose.
The district court also erred in concluding "that the investigations by [Metro] were nondiscriminatory and did not violate USERRA." Metro has undertaken two separate investigations of Petty. The first was launched on April 14, 2005, to investigate concerns about Petty's honesty in disclosing the details of his military arrest and discharge. These concerns were determined to be "unfounded" in May of 2005, and the investigation was formally closed on July 22, 2005. The second investigation was launched on October 21, 2005, and was aimed at determining whether Petty's submission of a form DD-214 with three fields missing violated department rules against the withholding of information. We will focus on the motivation behind this second investigation, as it was the one ongoing at the time of Petty's request for off-duty work and therefore responsible for triggering the policy requiring Metro to deny his request.
Metro contends that the second investigation generally concerns Petty's truthfulness, and more specifically, his submitting to the Police Department "an altered `Certificate of Release or Discharge from Active Duty.'" In other words, Metro argues that this second investigation, although indirectly involving his military service, is solely motivated by concerns for Petty's honesty and truthfulness.
The district court concluded that "[t]he only evidence before the Court that [Petty]'s military status was a motivating factor in [Metro]'s decision is the opinion of [Petty] himself. . . ." We find this conclusion clearly erroneous. The record contains a chain of email correspondence that took place after the first investigation was concluded but prior to the second investigation. The following is an excerpt from that chain:
This message was sent by Deputy Chief Honey Pike to four individuals, including OPA Director Kennetha Sawyers, approximately two months after the OPA concluded a report finding no merit to concerns about Petty's honesty, and two days prior to Sawyers' formally closing that investigation. Approximately one month after this message was sent, Sawyers decided to do some independent "digging" by calling the Army to inquire further into Petty's service and discharge. This inquiry revealed
This email establishes: (1) that after the first investigation was complete, there was still concern regarding Petty's conduct in service, not his honesty, amongst those who initiated the second investigation, and (2) that the informal investigation that led to the second, formal investigation was quite possibly motivated by those concerns about Petty's military service. Indeed, Sawyers' testimony appears to confirm this latter point; she testified that she continued to investigate Petty—even after signing off on the first investigation's conclusion that the concerns about his honesty were "unfounded"—because she was "uncomfortable with the fact that [Metro] [was] not able to get as much information as [she] wanted with regard to the actual circumstances" of Petty's offense and discharge.
In reaching a judgment on partial findings, a district court must weigh and balance the evidence—all of the evidence. Because the district court failed to do that here, we vacate the judgment on partial findings, and remand to the district court Petty's discrimination claim brought under § 4311.
For the foregoing reasons, we
38 U.S.C. § 4316(a). Even if Petty had cited this provision, its value to him is questionable. First, given that the benefits protected are only those "determined by seniority," this provision would appear to protect only benefits directly tied to his employment at Metro. Second, even if this provision does protect benefits indirectly tied to employment, such as Petty's ability to engage in off-duty security work, the record contains no indication that this benefit is "determined by seniority," and it would therefore not be the type of benefit protected by § 4316.