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Bradberry v Jefferson County, Texas

Case No. 12-41040 (C.A. 5, Oct. 17, 2013)

Joel Bradberry brought suit against his former employer, the Jefferson County Sheriff’s Department. He alleged that after fulfilling his two-week training obligation with the United States Army Reserve, he was terminated in violation of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. §§ 4301-4335, and TEXAS GOVERNMENT CODE §§ 613.001- 613.023. Bradberry moved for partial summary judgment on the ground that Jefferson County was collaterally estopped from relitigating facts determined in a state administrative proceeding. The district court denied the motion but granted Bradberry’s request to certify its order for appeal pursuant to 28 U.S.C. § 1292(b). We agreed to take the appeal. We AFFIRM.


Bradberry was employed by Jefferson County as a corrections officer from February 2007 to December 2008. During that time, he also was a member of the United States Army Reserve. Bradberry was ordered to report for his annual Reserve training from September 1 through September 12, 2008, and was scheduled to return to civilian work on September 13. He provided a copy of his orders to Jefferson County prior to reporting for military duty. Bradberry did not report back to work until the evening of September 16, missing scheduled work shifts on September 13 and 14.

According to Bradberry, as a result of Hurricane Ike’s imminent landfall on September 13, Army Captain Dwayne Rose orally extended his orders and required him to go to Abilene, Texas, and remain there until released. Bradberry contacted Jefferson County on September 12 to report that he would not be at work the next day because of his new military orders. Bradberry was released from duty at 7:00 a.m. on September 15, and he reported to work the next day. He was scheduled for a midnight shift on September 17.

Jefferson County ordered Bradberry to provide documentation about the extension of his military duty to include September 13-16, the dates not covered by his original orders. Although Bradberry provided memoranda from his commanding officers, he did not provide the type of documentation the County requested. The County initiated an internal investigation into Bradberry’s conduct, then terminated him in December 2008.


Judge(s): Leslie H. Southwick
Jurisdiction: U.S. Court of Appeals, Fifth Circuit
Related Categories: Administrative Law , Civil Procedure , Conflict of Laws , Employment
Circuit Court Judge(s)
Emilio Garza
Catharina Haynes
Leslie Southwick



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hartwell (in re swate), 99 f.3d 1282, 1290 (5th cir. 1996) (noting that some of before the alj; and (3) the alj’s determination was necessary to the decision. this approach has been adopted for userra claims in several circuits. see interruption for military duty. no. 12-41040 address section 4311 but with occasional incorporation of elements of section meaningless substitute explanation. was not absent without leave, and did not fail to provide adequate case: 12-41040 document: 00512412336 page: 1 date filed: 10/17/2013 or the reemployment provision. instead, he cited the entire userra statutory reemployment and the latter providing rules for documenting the service. is to hear a certain case prevent a federal district court – which of course is not 1002.22. the employer, though, is not liable under userra if it “can prove that conduct, then terminated him in december 2008. status was a motivating factor in the employer’s actions. 38 u.s.c. § 4311 (c)(1). no. 12-41040 workplace or being subject to the usual discipline. that discipline can include service.”5 work from a weekend drill. userra, 70 fed. reg. at 75259 (discussing gordon v. wawa, a. discrimination claim (3) except as provided in subsection (f), the person reports to, 4312. because our review of the district court’s denial of collateral estoppel affirmative defenses under userra. the defenses create factual issues beyond mutuality and permitted a plaintiff not involved in the earlier litigation to estop from previous proceedings in which both parties were involved. consequently, the alj’s finding about the real reason bradberry was discharged was a military service. there also is evidence to support that the county actually to reemploy. in its response, the county implied that bradberry raised a claim united states court of appeals case: 12-41040 document: 00512412336 page: 3 date filed: 10/17/2013 two times is suspended. tex. occ. code § 1701.4521. our examination of these completion of service. see § 4312(a)(1), §4312(e)(1)(a)(i). tcleose to amend the f-5 report “to show that [bradberry] was terminated we step back briefly from the issues of this case to get some perspective userra that bars employment discrimination on the basis of military service. fact-findings that rejected the trio of reasons offered by the county for the county’s brief suggests that chapter 613 is preempted by userra the first relevant proceeding was a state administrative hearing. had military obligations, and all other officers had responded acceptably to the motivating factor” in an employment decision. § 4311(c)(1). employer’s actions involving an employee returning from military service can section 4311’s protection against discrimination and no. 12-41040 make a reasonable interpretation of the evidentiary burdens of those claims and had about what was available that could prove he had been ordered to extend his collateral estoppel, we break down the issues for a section 4311 discrimination that other issues could include whether the military service was a motivating congress enacted userra for three stated purposes: “(1) to encourage reemployment. the county used those reasons to explain why he would have about military leave. the other three are that bradberry was not insubordinate, addition to a right provided under userra. see 38 u.s.c. § 4302(a). the section also notes userra if the person meets reemployment-eligibility criteria taken the action anyway.” 20 c.f.r. § 1002.22.3 7 reemployment of such persons upon their completion of such service; and (3) to in which one of the litigants was not a party to the prior proceeding. the court case: 12-41040 document: 00512412336 page: 8 date filed: 10/17/2013 the right to reemployment when their “absence from a position of employment violation of the uniformed services employment and reemployment rights act no. 12-41040 in the reply brief argued that there was a defect in pleading. 460-61 (5th cir. 2007); see also 28 u.s.c. § 1738. we look to texas caselaw to appeal from the united states district court discriminatory intent would not matter. officers standards and education (“tcleose”). the f-5 report describes the court explained it in this way: addition, the license of a law enforcement officer who is dishonorably discharged including details about the notice to be given the employer about the duty. see reemploy an individual following discharge from military service, a court may (2) that the service member’s employer be given advance notice of not be at work the next day because of his new military orders. bradberry was 16 against military service. instead, it protects a civilian employee who has been tcleose record. if the officer seeks employment with another law of his orders to jefferson county prior to reporting for military duty. bradberry facts and procedural history [a]ny person whose absence from a position of employment is for the eastern district of texas requested. the county initiated an internal investigation into bradberry’s extension of his military duty to include september 13-16, the dates not covered require the official to comply with the statute. tex. gov’t code § 613.021. the employment by reason of service in the uniformed services; commanding officers, he did not provide the type of documentation the county employee’s uniformed service in order to be eligible for reemployment.” 20 employment is necessitated” by military service. 38 u.s.c. § 4312(a). as we will dist.] 2001, no pet.). there has not been any argument that the proceedings sch. bd., 403 f.3d 272, 290 (5th cir. 2005). as the district court stated, some of under § 4312 of userra. it is possible that denying reemployment lyle w. cayce 15 no. 12-41040 case: 12-41040 document: 00512412336 page: 4 date filed: 10/17/2013 annual reserve training from september 1 through september 12, 2008, and consider whether collateral estoppel is appropriate here. we are to consider right or the receipt of any such benefit.” 38 u.s.c. § 4302(b). reemployment unreasonable (a section 4312 affirmative defense). in both proceedings to assess the facts on any issue considered to be identical. bradberry had the opportunity to respond to them. bradberry failed to object the service; a section 4311 claim requires a plaintiff to prove his or her “membership, prohibit discrimination against persons because of their service in the uniformed case: 12-41040 document: 00512412336 page: 9 date filed: 10/17/2013 in the united states court of appeals case: 12-41040 document: 00512412336 page: 5 date filed: 10/17/2013 some lengthy period and is trying to regain a vacant position. it is clear, though, for partial summary judgment, he mentioned the notice provisions of section september 2009, an alj found insufficient evidence and ordered the county and employment with a particular employer; of the texas government code. chapter 613 is similar to userra in that it among other things, show that the requirements for notice and documentation services,” then that reason was a motivating factor. u.s.c. § 4312(f)(4). as explained in the provisions just quoted, reemployment and the adequacy of documentation reviewed thereafter. 38 u.s.c. § 4312(f); 20 the individual is a public official” is the proper court to hear the claim. id. 7 granted bradberry’s request to certify its order for appeal pursuant to 28 u.s.c. we address one final disputed point, namely, the degree to which case: 12-41040 document: 00512412336 page: 17 date filed: 10/17/2013 inc., 388 f.3d 78 (3d cir. 2004)). those presented to the alj regarding the f-5 report. the district court stated antimilitary animus that is intended by the supervisor to cause an cited for the proposition that a federal court cannot exercise supplemental 613.021 requiring that a petition to enforce reemployment rights be filed in state those in the military from complying with the usual rules of behavior in the delay or deny reemployment by demanding documentation that does not exist,” fifth circuit we apply these findings to the requirements of a section 4311 of labor. see 38 u.s.c. § 4322(a). in march 2009, the assistant director in 38 u.s.c. § 4311(a). they also mention the next section of userra, which factor and whether he would have been terminated anyway. the district court discrimination claim. under that statute, it matters whether the county was our decisions recognize a fourth factor, namely, whether there are any special userra, 70 fed. reg. at 75251; see also 20 c.f.r. § 1002.32. even when a provide distinct causes of action, as other circuits have earlier held. see, e.g., our question is far simpler: does a statute that identifies which state court jefferson county ordered bradberry to provide documentation about the after bradberry mentioned their absence in a footnote to his summary judgment the action would have been taken in the absence of such membership, enactment, the department of labor adopted regulations pursuant to its declined to address preemption at the summary judgment stage. although the exercise of subject-matter jurisdiction over such a claim. the court itself raised in swate, we acknowledged that “some recent decisions list the fairness congress’s express intent not to supersede any state law that establishes a right or benefit in that a plaintiff “has the burden of proving that a status or activity protected by case: 12-41040 document: 00512412336 page: 13 date filed: 10/17/2013 certainly relevant when deciding whether the stated reasons are valid. texas statutes suggests to us that the alj needed to decide only whether there defenses upon which it relies. application for service, or obligation for service in the uniformed services is a a defendant from relitigating an issue on which it earlier lost if no unfairness section 4311, but it is actually the plaintiff’s burden under section 4312. a prior judgment as an estoppel against the other unless both parties were 4 reemployed because of that military service. the department of labor no. 12-41040 evidence to show the claimed misconduct, the alj orders the report to be by the alj nor briefed by the parties, and no one has tried to compare them to circumstances,” which usually would be at least 30 days. 20 c.f.r. § 1002.85(d); former civilian jobs after temporary military duty. § 4312. these sections on the filing of a motion, petition, or other appropriate pleading by which the military service is less than 31 days. § 4312(e)(1)(a).4 a state administrative proceeding. the district court denied the motion but retaliation should not be confused with the right to reemployment jefferson county was collaterally estopped from relitigating facts determined in see turnage v. jpi multifamily, inc., 64 s.w.3d 614, 620 (tex. app. – hous. [1st bradberry had also filed a complaint with the united states department better understood as one for discrimination under section 4311. later, though, (1) whether collateral estoppel bars relitigation of the alj’s findings in federal matter to the state office of administrative hearings. tex. occ. code § 4 referred to unpled affirmative defenses, without acknowledging the pleading ii. collateral estoppel i. userra termination includes that it was due to “[d]isagreement over military leave.” we userra specifically describes its intended relation to other laws, including the alj’s order summarized the evidence about bradberry’s military both parties were litigants in the prior action, “an inquiry into special discrimination against those in the military when making employment decisions. any supervisor in a departmental investigation when so ordered. no. 12-41040 county’s satisfaction their claimed basis for missing work. reemployment for a discriminatory or retaliatory reason. thus, a the intricacies of texas administrative practice to help us understand whether most fundamentally, what kind of claim has bradberry brought? his complaint be demanded by the employer, though reemployment is to occur immediately no. 12-41040 staub v. proctor hosp., 131 s.ct. 1186, 1194 (2011) (footnotes omitted). the the second section of userra relevant for this case provides reservists district court can exercise subject-matter jurisdiction over a claim under chapter proceedings did not involve both current parties does not apply. texas of the veterans’ employment and training service which is authorized by the county did not raise faulty notice or changed circumstances in this amended involved in the proceeding before the alj; (2) the issue was actually litigated considerations apply only to “offensive collateral estoppel.” see swate v. we do not analyze the possible collateral estoppel effects of the alj’s entitled to the reemployment rights and benefits and other userra, “including the establishment of additional prerequisites to the exercise of any such defenses had been injected into the case. bradberry had the opportunity to considerations that weigh in favor of determining whether a party had an issue of motivation remains an unresolved fact question. was discharged due to a “disagreement over military leave,” or simply ordered, case: 12-41040 document: 00512412336 page: 22 date filed: 10/17/2013 rise to claims under both § 4311 and § 4312. nonetheless, the two before the alj were inadequate in these ways, and we conclude that collateral case: 12-41040 document: 00512412336 page: 10 date filed: 10/17/2013 jefferson county argues that only a state district court in the district where the discussion we have just discussed the burdens of proof in the claim that confronts us. initially, the county raised no affirmative defenses in its answer. a week section 4311 provides that a servicemember “shall not be denied . . . estoppel situations). the supreme court has defined the term as follows: in may 2011, bradberry filed suit in federal court, claiming the county (“userra”), 38 u.s.c. §§ 4301-4335, and texas government code §§ 613.001- “the action would have been taken in the absence of such membership, no. 12-41040 affirmed. 6 enumerated in § 4312. no showing of discriminatory or retaliatory violations of section 4311 (a), (b), and (c). in august 2009, the attorney general the district court considered section 4312’s notice requirements. service. the right depends on the servicemember meeting certain obligations: velazquez-garcia v. horizon lines of p.r., inc., 473 f.3d 11, 16 (1st cir. 2007); maxfield v. the notice. 38 u.s.c. § 4312(b). documentation depends on its availability and regulations on reemployment set out eligibility requirements for reemployment, sheriff or any supervisor in the departmental investigation when ordered. (footnotes omitted). written or [oral] notice of such service to such person’s employer; defenses for the employer. 20 c.f.r. § 1002.139. at will,” and required that the explanation attached to the f-5 report “should the intent to supersede any state law that reduces or eliminates any right provided under subdivisions who serve in the military. the district court noted that there are defect. the county raised its affirmative defenses before the district court and did not specify whether his claim arose under the anti-discrimination provision read he was terminated for a disagreement over military leave.” defendant-appellee did not report back to work until the evening of september 16, missing scheduled their respective defenses. we apply them to the present dispute. against another defendant. supervisor’s intent had actually motivated the ultimate employment action. id. after finding that the county had not proved its stated grounds, an essentially violate this prohibition when “membership, application for membership, service, after two weeks of military duty, then the possibility that the county had no litigate.” muckelroy v. richardson indep. sch. dist., 884 s.w.2d 825, 830 (tex. section 4311 discrimination can appear throughout the employment we see this provision as one establishing venue in state court, and it has no changed. tex.occ.code § 1701.4525(e). the report is significant because each generally, affirmative defenses must be presented in the answer. fed.r. no. 12-41040 estoppel. winters v. diamond shamrock chem. co., 149 f.3d 387, 391-92 (5th the related principle of res judicata applies to legal claims, instead of issues, and bars required him to go to abilene, texas, and remain there until released. discuss, “reemployment” includes a return to a civilian position after even a brief on the first day a reservist returns to work. an “employer is not permitted to the employer has the burden to prove the affirmative defense that it would have next, what do these findings mean for userra purposes? in considering not automatically entitled to reemployment when returning from military of chapter 613,” and expressed concern over the lack of guidance regarding the the phrase “motivating factor” is not defined in userra, but the supreme in answering this question, we start by repeating that the issue before the (1) the person (or an appropriate officer of the uniformed circumstances that make it unfair to apply the doctrine. these equitable motion. at bradberry’s request, the court certified the case for interlocutory we will explain, both sections may at times be relevant. evidence . . . . if the alleged misconduct is not supported by a preponderance of effect on the exercise of supplemental jurisdiction in federal court. case: 12-41040 document: 00512412336 page: 12 date filed: 10/17/2013 that bradberry was insubordinate, absent without leave, and failed to answer previous determination was necessary to the decision.” pace v. bogalusa city the alj’s finding that bradberry had been discharged due to a duty, the extension of the period of leave, and the communications between the motivated by bradberry’s military status or only motivated by what it thought 21 that a requirement for collateral estoppel is that the same legal standard be used of military duty. unlike for a section 4311 claim, an “employee is not required the basis for different claims. the court concluded that bradberry’s claim was enforcement agency, the agency is required to review employment termination case: 12-41040 document: 00512412336 page: 6 date filed: 10/17/2013 evaluation of whether special circumstances exist to justify offensive collateral 5 rights and benefits but, rather, protects against denial of reemployment rights act of 1994, as amended, 70 fed. reg. 75246 (dec. 19, 2005). the some claims, the court may resolve “all other claims that are so related to claims the district court rejected collateral estoppel. generally, the issue of texas law applies collateral estoppel “to administrative agency orders is for an abuse of discretion, though, when considering a district court’s official may require the public official to comply with the provision later “shows the employee is not entitled to reemployment. . . .” § 1002.122. training obligation with the united states army reserve, he was terminated in pace, 403 f.3d at 290. the legal standards under userra include that the if a public official fails to comply with a provision of [chapter 613], military had determined there was a military necessity to extending his orders. the ultimate employment action, then the employer is liable under 18 appeal pursuant to section 1292(b). the court certified the following questions: leslie h. southwick, circuit judge: “defenses” of deficient advance notice, failure to return promptly to civilian work conclude that the technical failure to plead all the currently presented defenses joel bradberry brought suit against his former employer, the jefferson in its order denying partial summary judgment, the district court stated determine whether courts in texas would treat a proceeding at the state office 19 411 f.3d 1231, 1238-39 (11th cir. 2005); leisek v. brightwood corp., 278 f.3d 895, 898-99 (9th the doctrine of collateral estoppel, which prevents the same parties or their adverse employment action, and if that act is a proximate cause of not intentionally, did violate” section 4311 (c) by discriminating against him due statement: “the best explanation on the f-5 form for the circumstances” of the discriminatory or retaliatory motive must be shown to establish a the identified state court – from exercising supplemental jurisdiction over the 613. we granted bradberry’s motion for leave to appeal. 613.023. bradberry moved for partial summary judgment on the ground that he was “terminated for an administrative violation(s) of truthfulness or bound by the judgment.” id. at 326-27. the court altered the requirement of tex. gov’t code § 613.021. the district court did not rule on the jurisdictional no. 12-41040 v. bradberry complied with his userra obligations in order to be reemployed § 4312(a). “reemployment” might suggest that a reservist has left a position for analyzed in order to determine whether collateral estoppel applies. is much narrower, applying to a return to the civilian workplace after a period scheme in support of his claim that the county violated his rights. in his motion service in the uniformed services is a motivating factor in the employer’s action”; have been met. the employer bears the burden of proof for any affirmative b. violation of reemployment rights whether: (1) the issue at stake in the userra claim is identical to the one under section 4311, the county responded in terms of bradberry’s being absent been terminated anyway – a defense to section 4311 discrimination. jurisdiction over such a cause of action in light of the specific language of section district court.” the statute that concerned the district court provides: after its 1994 passage to support the decision to require an employer to prove as an affirmative determine whether “the alleged misconduct occurred by a preponderance of the the tcleose order stated: “the subject of this case is the accuracy of the f-5 report 10 obviously, then, a section 4312 claim is not based, as is section 4311, on parklane did not categorize all collateral estoppel situations but only those c.f.r. § 1002.33. whether reemployment rights exist may not be determinable 8(c) is not fatal.” allied chem. corp. v. mackay, 695 f.2d 854, 855-56 (5th cir. userra was one of the reasons” for the employer’s decision. 20 c.f.r. § former providing time deadlines and other details for applications for question, but it is one of the issues certified for our review. as we will discuss, (4) that the service member return to work or apply for noncareer service in the uniformed services” by reducing employment no. 12-41040 relitigating issues resolved in the earlier proceeding.” id. at 326. it recognized occasionally implicate both parts of the act: “only a handful of texas attorney general opinions addressing the provisions examination of the district court’s decision is de novo. section 4312. 8 standards the alj may have used in making these three findings. those are not affirmative defenses but are parts of bradberry’s case. it also district courts in this circuit have used this analysis. e.g., snowman v. imco recycling, inc., a suit from being brought again on an event that was the subject of a previous legal cause of by referring to a “motivating factor,” the statute does not textually suggest the length of service. § 4312(f). these userra standards were not discussed considered bradberry to be absent without leave and insubordinate. an officer who receives an f-5 report “may contest information contained that military service be the sole factor. a department of labor regulation states it will ever be necessary to decide whether preemption applies. a resolution of proper advance notice of his reserve obligations, which is an obligation under service in which such service is performed) has given advance must be promptly reemployed following a return from a period of service. 38 accordance with the provisions of subsection (e). occ. code § 1701.452. the f-5 report becomes part of the officer’s permanent reemployment rights sections, we briefly address some similarities. a userra decision on a section 4312 claim because no one has briefed it. we note, though, 1701.4525(a).1 (1) that the service member be absent from a position of civilian actions by the employer after the return that are not related to resolving the evidence, the administrative law judge shall order the report to be changed.” with a disqualifying discharge or under other than honorable novo. united states v. brackett, 113 f.3d 1396, 1398 (5th cir. 1997). our review was enough evidence to allow the f-5 report to reflect a dismissal due to necessary finding. we will assume in our analysis that it was. tex. occ. code § 1701.4525(e). bradberry utilized these procedures. in respond and made no objection. the district judge considered the defenses. we requirement as a general requirement for the application of issue preclusion.” employer’s actions was bradberry’s “membership, application for membership, can hear a claim. whatever section 613.021 means for state court lawsuits, it is due to prior administrative proceedings concerning his discharge. he relies on finally, an issue could be that circumstances had changed so as to make a wide variety of situations that arise in the workplace and are discriminatory additional reasons offered by the county for his termination. “failure to give preclusive effect to the alj’s findings of fact will allow defendant section 4321 of title 38 to review such complaints, found that the county, “while an individual entitled to a benefit under the provision. on september 13, army captain dwayne rose orally extended his orders and the parties on appeal have argued issues that arise under a provision of bradberry argues that he has already met his burden of proving discrimination which those prior proceedings were held.” norris v. hearst trust, 500 f.3d 454, no. 12-41040 22 used to assess them [must be] the same in both proceedings.” copeland v. military service, their employers and others “by providing for the prompt app. – dallas 1994, writ denied) (quotation marks omitted). some the county’s explanation of the basis for bradberry’s termination was in argued the section 4311 affirmative defense that he would have been terminated treatment those . . . proceedings would receive in the courts of the state . . . in military service. tex. gov’t code § 613.002. if a state or local entity fails to how he had not complied. the memorandum states that other county officers well. after bradberry couched much of his argument in terms of discrimination 1 20 leave is not sufficient to prove motivation under section 4311, a discriminatory bradberry was employed by jefferson county as a corrections officer from raised by the county. for the fifth circuit service member was denied reemployment may grant relief. only one case is servicemember to reemployment rights and benefits provided by case: 12-41040 document: 00512412336 page: 18 date filed: 10/17/2013 issue was certified for interlocutory appeal, it is unclear at this stage whether entitled to preclusive effect. it has narrowed its argument on appeal just to say servicemember give “notice as far in advance as is reasonable under the a district court in the district in which the individual is a public employment decision, then requiring that a employer prove an affirmative defense that the 12 because the statutes have incompatible notice requirements. the district court (quoting 28 u.s.c. § 1367(a)). the exercise of supplemental jurisdiction is on the available evidence. no. 12-41040 our decisions improperly suggest the equitable factor applies to all collateral 13 these regulations were adopted in 2005. uniformed services employment and 5 nevertheless use that judgment ‘offensively’ to prevent a defendant from whether state agency decisions are usable in federal court “is determined by the bradberry’sf-5 report categorized his discharge as “dishonorable,” saying no. 12-41040 we conclude that a finding that bradberry was discharged due to a the county’s response, bradberry made no objection to the additional defenses bradberry urges the court to treat the alj’s findings regarding his termination the united states army reserve. bradberry was ordered to report for his documentation regarding the reasons for his absence. the alj clearly made mandates reemployment of someone “whose absence from a position of no. 12-41040 continuum, from consideration for hiring to employee termination. section 4312 discharge that will not be affected, as bradberry’s was not, by an alj’s later treatise has usefully drawn from the statutory language and caselaw how an that bradberry “was not forthcoming or cooperative” with the request for supreme court’s interpretation of the evidentiary burdens of section 10(c) of the national county sheriff’s department. he alleged that after fulfilling his two-week overview completed, we now determine how much of this is before us. this constitutional issue on interlocutory appeal is premature. service.” 38 u.s.c. § 4311(c)(1). the regulation elaborates on this provision: “if intent is necessary to establish a violation of § 4312. by contrast, being reviewed. the county set out what it had requested from bradberry and bradberry’s termination. less clear is if the alj actually found that bradberry honorably discharged, generally discharged, or dishonorably discharged. tex. (5) that the service member not have been separated from service see pace, 403 f.3d at 290. additionally, “both the facts and the legal standard was scheduled to return to civilian work on september 13. he provided a copy by the time the summary judgment motion was fully briefed, several according to bradberry, as a result of hurricane ike’s imminent landfall years]; and servicemember to be eligible for reemployment: we therefore hold that if a supervisor performs an act motivated by discretionary, with statutory factors to guide the exercise of the discretion. 28 defense that it would have terminated the employee anyway. id. at 75250. assigning an misconduct. of course, determining why an officer was really terminated is on the doctrine of collateral estoppel to prevent the county from relitigating the having identified differences between the anti-discrimination and the not result in unfair surprise[,] . . . technical failure to comply precisely with rule legitimacy of bradberry’s extension of military leave. a memorandum was sent service in the uniformed services with respect to a position of employment benefits of this chapter if – bradberry argues there are four findings by the alj that are precluded his own suit. see 38 u.s.c. § 4323(a)(3)(c). necessitated by reason of service in the uniformed services shall be cir. 2002); sheehan v. dep’t of the navy, 240 f.3d 1009, 1013 (fed. cir. 2001); gummo v. vill. 4312 but did not specifically state that the county violated userra by failing the employer is then required, if it has asserted the affirmative defense, to prove § 4311 does not provide for entitlement to userra's reemployment before garza, southwick, and haynes, circuit judges. iii. preemption employee the burden to prove the prohibited reason was a “motivating factor” in an 38 u.s.c. § 4311(c)(1). for a section 4312 claim, a plaintiff must, case: 12-41040 document: 00512412336 page: 7 date filed: 10/17/2013 joel bradberry, clerk the individual succeeds in proving that the status or activity protected by “adequate opportunity to litigate” include representation by counsel, witness to a returning servicemember could, depending on the facts, give it was unclear which provision of userra bradberry was using. none of the the relevant statute says “a [state] district court in the district in which was answering “whether a litigant who was not a party to a prior judgment may insubordination and failure to truthfully answer questions or in the report” by filing a petition with the tcleose, which then refers the has been no suggestion that abstention applies here. of collateral estoppel: “under this mutuality doctrine, neither party could use made bradberry’s reemployment unreasonable. bradberry’s reply argued that a jurisdictional issue, which was whether a federal court “can exercise 1983). the defense may be considered if it was raised “at a pragmatically without leave and failure to document, which raise facts relevant to section 4312 application for membership, service, application for service, or obligation for reemployment, retention in employment, . . . or any benefit of employment” returning veterans and expressly forbade modification of these protections by application for membership, service, application for service, or obligation for application for membership, service, application for service, or obligation for estoppel is potentially available. claim, then for a section 4312 reemployment claim, and finally analyze whether parties presented arguments explicitly stating that sections 4311 and 4312 were as final in this litigation, thus precluding jefferson county from relitigating the statutory authority. 38 u.s.c. § 4331(a); 20 c.f.r. §§ 1002.1-1002.314. c.f.r. §§ 1002.122-1002.123. 6 extended. except as specifically provided otherwise, userra does not exempt provide documentation and relevant statements to the sheriff or specifically, defendant would have terminated plaintiff for his 2 though we have held that the finding of a disagreement about military in the action . . . that they form part of the same case or controversy.” id. at 165 accept that sentence as a fact finding because it resolved a factual issue based having determined the alj’s findings can at times be preclusive, we now cintas corp. no. 2, 427 f.3d 544, 551 (8th cir. 2005); coffman v. chugach support servs., inc., when the agency is acting in a judicial capacity and resolves disputed issues of response to bradberry’s motion for partial summary judgment. in his reply to effort in this case to show that bradberry was treated differently than other defensive use occurs when a defendant seeks to prevent a plaintiff issue was previously adjudicated; (2) the issue was actually litigated; and (3) the action, fully and finally litigated. the two doctrines frequently overlap. see united states v. userra was one of the reasons the employer took action against him or her, 636(c). because the magistrate judge is a judicial officer of the district court, we will refer to jefferson county argued in the district court that the alj’s findings are not required to file an f-5 report on all officers when they leave employment with declined to bring suit, but a declination does not bar a claimant from bringing cir. 1998). because offensive collateral estoppel is not involved in this case, our questions truthfully or provide documentation and relevant statements to the a reservist is case: 12-41040 document: 00512412336 page: 14 date filed: 10/17/2013 3 [o]ffensive use of collateral estoppel occurs when the plaintiff seeks following the completion of army reserve duty, and absence of proof that the is necessitated by reason of service in the uniformed services.” 38 u.s.c. for collateral estoppel, though, not only must the earlier proceedings have from considering state law issues. int’l coll. of surgeons, 522 u.s. at 174. there significant modification in protection of veterans’ employment rights in 50 years. sufficient time, and [the plaintiff] was not prejudiced in its ability to respond.” work shifts on september 13 and 14. to its failure to reemploy. 38 u.s.c. § 4312(d). these are also affirmative violated userra and chapter 613 of the texas government code when it violation of § 4311. iv. supplemental jurisdiction circumstances under which an officer left the agency, and whether he was to prove that the employer discriminated against him or her because of the the magistrate judge’s rulings as being those of the “district court.” as discussed above, chapter 613 of the texas government code codifies case: 12-41040 document: 00512412336 page: 11 date filed: 10/17/2013 collateral estoppel prevents litigation of an issue when: “(1) the identical claim? there is nothing extraordinary about a state statute limiting which court reemployment in a timely manner after conclusion of service; and court was evaluating a situation in which the supervisor with the animus was u.s.c. § 1367(c). abstention doctrine may also compel a district court to refrain october 17, 2013 jefferson county, texas, did not err in refusing to apply collateral estoppel to the alj’s finding. the no. 12-41040 in the administrative action, has never shown an animus by the county towards disagreement about military service is not the equivalent of a finding that the state law.7 previously litigated unsuccessfully in an action with another party. necessary to the decision. pace, 403 f.3d at 290. the parties have not briefed alj was whether “the alleged misconduct occurred”; when there is insufficient “veterans’ law note,” army lawyer 40 (dec. 1994). almost eleven years after the affirmative defenses are properly in this case. the district court discussed circumstances surrounding his separation from the sheriff’s department. anyway, and the section 4312 affirmative defense of changed circumstances that merrill lynch & co., 47 f.3d 1415, 1422 (5th cir. 1995). case: 12-41040 document: 00512412336 page: 19 date filed: 10/17/2013 but an employer may thereafter terminate if documentation that is received or submits an application for reemployment to, such employer in by his original orders. although bradberry provided memoranda from his released from duty at 7:00 a.m. on september 15, and he reported to work the we apply that understanding here to say that if one reason for the brief, the county filed an amended answer. the defenses it raised were these: either has identical issues to what the alj resolved. the arguments of the parties and the district court’s order primarily whether to apply collateral estoppel is a question of law, making our review de no. 12-41040 no. 12-41040 his motion for partial summary judgment relied 20 c.f.r. §§ 1002.85-1002.86. documentation of the military service may also case: 12-41040 document: 00512412336 page: 16 date filed: 10/17/2013 does not prevent consideration of them. on the congressional enactment. userra was adopted in 1994 as the first case: 12-41040 document: 00512412336 page: 2 date filed: 10/17/2013 plaintiff-appellant instead, it held that once original jurisdiction exists in federal district court over 38 u.s.c. § 4311. the other protects the employment of those returning to their reports before hiring the officer. 37 tex. admin. code § 217.7(a)(1). those in military service. it supports that the county had doubts about the the regulations, on both discrimination and on reemployment rights, 14 jefferson county argues that userra preempts sections 613.001-613.023 (2) [the cumulative length of absences is not more than five 3 under the reemployment provision by arguing that bradberry failed to give (3) that the service member have five years or less of cumulative servicemember satisfies these obligations, the employer has statutory defenses answer. instead, these defenses were raised for the first time in the county’s conditions. of depew, 75 f.3d 98, 106 (2d cir. 1996). the fifth circuit has not spoken on this issue, but next day. he was scheduled for a midnight shift on september 17. two separate sections of userra apply to this case. one concerns position. for example, one section applies to situations such as bradberry’s in labor relations act. id. (citing nlrb v. transp. mgmt. corp., 462 u.s. 393, 401 (1983)). parklane hosiery co. v. shore, 439 u.s. 322, 326 n.4 (1979). the county’s reply to bradberry’s motion raised what it labeled as kathryn piscitelli and edward still, userra manual § 7:5 (west 2012) not the final decision-maker, thus requiring an analysis of whether the periodic request for verification of their service. the department of labor found c. affirmative defenses case: 12-41040 document: 00512412336 page: 21 date filed: 10/17/2013 provides for the reemployment of public employees who are returning from judge haynes concurs in the judgment only. bradberry contacted jefferson county on september 12 to report that he would were insubordination and a dishonest assertion that his military duty had been intent does not need to be shown under section 4312. 20 c.f.r. § 1002.33. if department of labor cited userra’s legislative history and caselaw interpreting userra the evidence so far presented in this case or, based on the alj’s summary, a reservist who meets the criteria for reemployment under section 4312 of administrative hearings as a judicial proceeding. an f-5 report of separation of licensee. a texas law enforcement agency is 9 circumstances is unnecessary.” id. therefore, the district court erred in relying no barrier to the exercise of supplemental jurisdiction in federal court. 17 privies from relitigating issues that were litigated and decided in a prior action.6 by a preponderance of the evidence in the administrative proceeding.” nothing terminated plaintiff in the absence of plaintiff’s military status. called bradberry’s possibly deficient advance notice an affirmative defense under court; (2) whether userra preempts chapter 613; and (3) whether a federal the burden for a plaintiff in a section 4311 claim is to prove that military the parklane distinction between offensive and defensive estoppel when the prior reemployment issues can raise section 4311 discrimination questions. service, application for service, or obligation for service in the uniformed by the county to the department of labor when bradberry’s complaint was no. 12-41040 from asserting a claim the plaintiff has previously litigated and lost that these administrative proceedings are not entitled to preclusive effect. february 2007 to december 2008. during that time, he also was a member of state court for those claims. see city of chicago v. int’l coll. of surgeons, 522 insubordination.” an explanation of separation attached to the report stated id. at 856. the district court, in denying collateral estoppel, several times when the department of labor responded to public comments on its proposed at 1192-93. that analysis is not needed here. f i l e d shanbaum, 10 f.3d 305, 310 (5th cir. 1994). on equitable factors in concluding that collateral estoppel did not apply. actually adjudicated the specific issue, but that determination must have been see also 38 u.s.c. § 4312(a)(1). military necessity and impossibility may excuse § 1292(b). we agreed to take the appeal. we affirm. to his military service. later in march, the same assistant director sent a memo resulted. id. at 331. in the case before us, the collateral estoppel issue arises the agency. the report is filed with the texas commission on law enforcement a policy of accommodating the public employees of the state and its political to advance certain affirmative defenses . . . even though it failed to prove them fact properly before it which the parties have had an adequate opportunity to county was motivated by his military status to discharge him. the district court case: 12-41040 document: 00512412336 page: 15 date filed: 10/17/2013 to the attorney general, recommending suit be brought against the county for to foreclose the defendant from litigating an issue the defendant has userra. case: 12-41040 document: 00512412336 page: 20 date filed: 10/17/2013 disagreement about military leave presents the need to consider section 4312 as 347 f. supp. 2d 338, 342 (n.d. tex. 2004). jurisdiction over state law claims when a state statute identifies the appropriate terminated his employment.2 county argues congress intended a uniform set of protections to be available to civ. p. 8(c)(1). even so, if the defense is later presented “in a manner that does 11 an administrative law judge (“alj”) will conduct a hearing to the department of labor summarized five general requirements for a regulations, it applied userra protections for reemployment to a reservist who returned to in his response. thus, he has waived any objection to consideration of these determination that the stated grounds were not proven. there has been no alj’s findings. the court declined to apply collateral estoppel and denied the § 4312(a) (emphasis added). section (3) refers to subsections (e) and (f), the county and bradberry. immediately following that summary was this parklane. id. we concluded that if a case involves mutual estoppel, i.e., where swate, 99 f.3d at 1290. we noted, though, that the requirement originated in same decision would have been made without that reason, is an approach modeled on the no. 12-41040 disadvantages; “(2) to minimize the disruption to the lives of persons performing” from relitigation. one is that the county discharged him due to a disagreement sections are separate and distinct. section 4312 entitles a returning concerning mr. bradberry’s departure from the sheriff’s department.” services.” 38 u.s.c. § 4301(a). all three purposes are relevant in this case. requires us to determine what issues are involved in the current case, there is that section 4312 applies to any military-approved absence from a civilian u.s. 156 (1997). the court did not address the issue for which it is now cited. 2 documentation. the alj detailed the disagreements the county and bradberry is conditioned upon proper advance notice and timely return following the employees who, after absences for one reason or another, did not justify to the law enforcement agency to which the officer later applies sees the report. in some disconnect between what is presented to us and what we conclude must be gone for a period of time on military duty, no matter how brief, and has not been testimony, the ability to cross-examine, and application of the rules of evidence. defendant is not liable to plaintiff because defendant would have that the doctrine of mutuality of parties had traditionally been a bar to the use francis v. booz, allen & hamilton, inc., 452 f.3d 299, 303 (4th cir. 2006). as because of the person’s military service. 38 u.s.c. § 4311(a). an employer will no. 12-41040 the parties consented to proceed before a magistrate judge pursuant to 28 u.s.c. §

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