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Dorris v TXD Services, LP

Case No. 12-3096 (C.A. 8, Feb. 27, 2014)

Jonathan Dorris, a member of the Arkansas Army National Guard, appeals the district court’s grant of summary judgment dismissing his claim that TXD Services (“TXD”) violated the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. §§ 4301 et seq., when it terminated Dorris while he was deployed on active duty in Iraq. The legal basis of the claim changed during the summary judgment process. After careful review, we conclude the modified claim turns on one or more essential facts that the summary judgment record simply does not address. Accordingly, we reverse the grant of summary judgment and remand.

I.



A. Background Facts. We recite the record facts in the light most favorable to Dorris, the party opposing summary judgment. Dorris began working for TXD as a floor hand at rigs near Morrilton, Arkansas in early 2007. In April, Dorris received Warning Orders that he would be mobilized within six months in connection with Operation Iraqi Freedom. He notified his direct supervisors and TXD’s human resources department. After receiving definite orders in early September, Dorris spoke with TXD managing partner Joe Poe, inquiring whether TXD would make up the difference in Dorris’s salary while he was deployed. Poe declined, commenting that “if you’re not working for me, I can’t be paying you.” Dorris worked for TXD until September 11, 2007, and reported for training at Fort Chaffee on October 1. He served on active duty in Iraq for approximately 12 months beginning in January 2008.

In October 2007, Dorris received a letter from TXD’s benefits administrator advising that he was eligible for Continuation Coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) and identifying the triggering event as “Termination of Employment.” His wife called and told Dorris he had been fired. Understandably alarmed, Dorris called the TXD human resources department at its Morrilton and Dallas-Forth Worth offices. He was told in both calls that he had been “terminated for not showing up to work.” Dorris requested that Poe contact him, but Poe never did. TXD did not dispute this testimony except to submit an “Exit Checklist” reciting that Dorris “Quit” on September 11.
 

 

Judge(s): Steven Colloton
Jurisdiction: U.S. Court of Appeals, Eighth Circuit
Related Categories: Employment
 
Circuit Court Judge(s)
William Benton
Steven Colloton
Steven Colloton

 

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Click the maroon box above for a formatted PDF of the decision.
wrongful termination.” dorris returned to the united states and was ready to resume that he had been “terminated for not showing up to work.” dorris requested that poe corporate entity, offered dorris a job and dorris never followed up. in april 2009, act (“userra”), 38 u.s.c. §§ 4301 et seq., when it terminated dorris while he was sections 4311(a)and § 4316(b)(1)explicitlyprotect “benefits” of employment, reprinted in 1994 u.s.c.c.a.n. 2449, 2466 (“[a] departing serviceperson is to be loken, circuit judge. undisputed that txd had been out of business for ten months and therefore “the placed on a statutorily-mandated military leave of absence while away from work a contract [or] policy . . . established while [dorris was] perform[ing military] cir. 2011) (quotation omitted). applying this broad definition to the sparse record the cobra letter, the district court noted, did not establish that dorris was3 the person’s . . . service . . . in the uniformed services is a motivating factor in the ______________________________ seeking reemployment. poe testified he was told that txd trucking, a separate term military obligations.” txd submitted an affidavit by poe averring that txd § 4312(a) when he was denied reemployment in december 2008, because it is1 active employee for the duration of his military commitment, nor is there evidence contact him, but poe never did. txd did not dispute this testimony except to submit txd services, lp 560-62 (1981); see also sandoval v. city of chi., 560 f.3d 703, 705 (7th cir.), cert. intervening reduction in force” as an example of changed circumstances). f.3d 758, 769 (5th cir. 2004), cert. denied, 545 u.s. 1129 (2005); accord crews v. relevant part: “(a) a person who . . . performs . . . service in a uniformed service shall 922, 930-31 (8th cir. 2007) (dramatic shift in job duties); maxfield, 427 f.3d at 552 (transfer to a job with less desirable hours). we construe the statute “broadly and in dorris was hired by foxxe to the same position he had held at txd. to employees having similar seniority, status, and pay who are on not have considered him an active or current employee. he would not “requir[es]employers, with respect to rights and benefits not determined by seniority, an “exit checklist” reciting that dorris “quit” on september 11. applying § 4316(b)(1)’sequal-treatment standardtothiscase,thefirstquestion determined by seniority” of dorris’s employment with txd. txd posits that being page complaint alleged that txd “violated plaintiff’s rights under userra” by seniority, txd failed to comply with the mandates of § 4311(a) and § 4316(b)(1) 2007 was a disputed issue of fact but concluded this issue did not control whether3 district court’s grant of summary judgment dismissing his claim that txd services in february 2008, while dorris was on active duty in iraq, txd sold ii. jonathan dorris, a member of the arkansas army national guard, appeals the seniority as are generally provided by the employer of the person spoke with txd managing partner joe poe, inquiring whether txd would make up for the eastern district of arkansas - batesville furlough to remain on any list of txd’s active or current employees.” in other -7- triggering event as “termination of employment.” his wife called and told dorris of long-term military leave was on the list. that general policy would tend to show organizations, sgt dorris would have been entitled to reemployment due to ____________ united states court of appeals were hired by foxxe following the asset sale, permitting the inference that being on txd’s employees, and that no unemployment claims were asserted against txd or unreasonable.” 38 u.s.c.§ 4312(d)(1)(a); see 20 c.f.r. § 1002.139(a) (citing “an over txd’s operations without interruption. the sale contract included as an exhibit submitted: september 24, 2013 -10- of establishing compliance with § 4311(a) and § 4316(b)(1) if jonathan dorris was employer’s contract, policy, practice or plan.” rogers v. city of san antonio, 392 the judgment of the district court is reversed, and the case is remanded for which userra broadly defines as including “any advantage, profit, privilege, gain, userra’s anti-discrimination provision, § 4311(a). txd’s sale of assets to foxxe2 in this case, userra’s purposes, § 4311(c)(1), and the fact that relevant before us, a reasonable jury could find that the opportunity for seamless transfer of service.” txd submitted poe’s affidavit reciting that no employee absent because furlough or leave of absence under a contract, agreement, policy, appeals. we review the grant of summary judgment de novo. maxfield v. cintas 481 f.3d 1367, 1369-70 (fed. cir. 2007). this standard of equal-but-not- all personnel currently employed by txd] so that when he returned, he would not including his name on a list of employees that was a part of the asset sale [to] filed: february 27, 2014 treated. . . . mr. dorris also has not offered any evidence that txd userra. see 20 c.f.r. § 1002.49 [sic; should be § 1002.149]. not address. accordingly, we reverse the grant of summary judgment and remand. summary judgment process. after careful review, we conclude the modified claim favor of its military beneficiaries.” lisdahl v. mayo found., 633 f.3d 712, 718 (8th -3- -2- in response, txd’s reply brief argued that whether dorris quit or was fired denied a benefit not determined by seniority when he was left off the employee list substantially all its assets to foxxe energy holdings, llc (“foxxe”), which took warning orders that he would be mobilized within six months in connection with military service was “a motivating factor” in his not being on the list, the burden accrues by reason of an employment contract or agreement or an employer policy, is of no effect.”). txd did not violate its duty to reemploy dorris because it went out shall be entitled to the reemployment rights and benefits and other employment on the list was not a benefit of employment; rather, dorris was not eligible to be on . . . . thus, terminating a departing serviceperson, or forcing him or her to resign . . . immediately receive reasonable consideration from foxxe as a potential employee.” similar seniority, status, and pay who [were] on furlough or leave of absence under in any roster of current employees.” but it is not an assertion of undisputed fact. the list because he was not a “current or active” employee at the time foxxe took over that “if you’re not working for me, i can’t be paying you.” dorris worked for txd employer’s action, unless the employer can prove that the action would have been accordingly, the district court granted txd’s motion for summary judgment. dorris -4- job titles and descriptions, and current salaries.” article iii of the contract further turns on one or more essential facts that the summary judgment record simply does not be denied initial employment, reemployment, retention in employment, the absence of personal animus against dorris for being on military leave. but poe’s employment for service in a uniformed service. motion for summary judgment. the brief began: txd “has not understood the claim the personnel list employees who were then on long-termleavefor reasons other than this last issue is critical, yet neither party addressed it in the summary “did not consider individuals who were absent from employment due to a long-term b. procedural history. dorris filed this lawsuit in november 2010. the two- is whether being placed on the list txd provided to foxxe was a “benefit[] not (a) deemed to be on furlough or leave of absence while prohibited by § 4311(a), if being on the list was a benefit of employment and dorris’s there may be facts that would defeat this legal theory. but on this record, whether advising that he was eligible for continuation coverage under the consolidated § 4311(c)(1). but like the district court we conclude this is a not an issue of material to foxxe, txd ceased to operate as a going concern. inc., 373 f.3d 923, 928-29 (8th cir. 2004). a. background facts. we recite the record facts in the light most favorable promotion, or any benefit of employment by an employer on the basis of that . . . peer employees taking comparable non-military leaves generally provided under the provided that foxxe “will use reasonable efforts to offer employment . . . to those provided to foxxe. cf. nlrb v. mastro plastics corp., 354 f.2d 170, 176-77 (2d 38 u.s.c. § 4316(b)(1); see 20 c.f.r. §§ 1002.149-1002.150. of business while he was on leave. but the pertinent issue is whether txd violated ____________ following the sale. the army then wrote foxxe a letter to make it aware of dorris’s of persuasion and the burden of producing evidence relevant to whether the employer userra provision addresses this issue: further proceedings not inconsistent with this opinion. (“txd”) violated the uniformed services employment and reemployment rights section of the userra statute. prior to close of discovery, txd moved for taken in the absence of such . . . service . . . or obligation for service.” § 4311(c)(1). to treat employees taking military leave, equally, but not preferentially, in relation to uniformed services and acts of reprisal prohibited.” subsection (a) provides in lllllllllllllllllllll plaintiff - appellant the difference in dorris’s salary while he was deployed. poe declined, commenting -5- txd’s operations. this is a fact contention, and it has some logical force. former evidence is far more accessible to the employer warrant placing on txd the burden not a failure to reinstate claim under 38 u.s.c. 4312.” dorris argued (i) he was fired to dorris, the party opposing summary judgment. dorris began working for txd as services shall be -- evidence txd “ever indicated to plaintiff that it would consider him a current or pretextual, and therefore (iii) he has a submissible claim that txd violated after deposing dorris and poe, counsel for dorris filed a brief opposing the plan, or practice.” 38 u.s.c. § 4303(2); see clegg v. ark. dep’t of corr., 496 f.3d cannot excuse his firing, dorris argued. “indeed, he was entitled to be on [the list of list of txd employees provided to prospective employer foxxe. a specific after granting summary judgment on any claim that txd violated its services, lp would not include individuals serving long-term military commitments not determined by seniority that are guaranteed by userra is “not dependent on * * * * * was sufficient evidence for a reasonable jury to find that his military service was “a -6- § 4317(a)(1), and cobra considers employees on long-term leave as “terminated,” (b) entitled to such other rights and benefits not determined by duty not to discriminate against an employee on long-term military leave. it i. affidavit did not address whether txd also excluded (or would have excluded) from allowed employees on leave of absence or furlough to remain on any list deployed on active duty in iraq. the legal basis of the claim changed during the fired. userra requires employers to offer cobra continuation coverage to treated plaintiff the same as all employees on comparable non-military leaves, as from a position of employment by reason of service in the uniformed because it denied dorris a benefit “generally provided . . . to employees having no. 12-3096 dorris was included on the list of txd employees provided to foxxe: city of mt. vernon, 567 f.3d 860, 865-66 (7th cir. 2009); tully v. dep’t of justice, to the two txd human resources employees was evidence he was “fired.” when an employee is on leave to perform military service, his right to benefits denied, 130 s. ct. 196 (2009) (“accommodation . . . is fundamentally different from military service. ____________ been left off the list. see § 4311(c)(1); maxfield, 427 f.3d at 551. practice, or plan in effect at the commencement of such service or words, the district court determined that a plaintiff claiming denial of a benefit not until september 11, 2007, and reported for training at fort chaffee on october 1. he preferential-treatment is consistent with the supreme court’s interpretation of a summary judgment, arguing that dorris has no claim that txd violated 38 u.s.c. benefits of this chapter.” § 4312(a). completion of his long-term military service. see h.r. rep. 103-65(1), at 33 (1993), similarly situated uniformed service members differently than he was “unsettling situation,” stating that, “[h]ad there been no change of hands between an equal-treatment norm”). these burdens. as noncompliance with the specific mandates of § 4316(b) is conduct in response to the evidence presented by txd on this point, mr. dorris returned to the united states on temporary leave in august 2008 and c.f.r. § 1002.149. rather, § 4316(b)(1) defines the employer’s general § 4311(a) jonathan dorris iraq did not affect txd’s legal obligations under userra, such as the duty to before loken, colloton, and benton, circuit judges. sections 4312 and 4313 prescribe when “any person whose absence from a1 reemployment obligation under § 4312 (a ruling dorris does not appeal), the district employment to a successor employer was an “advantage” or “benefit” of txd ___________________________ in this lawsuit, txd did not place dorris’s name on that list. following the asset sale in october 2007, dorris received a letter from txd’s benefits administrator performing such service; and shifts to txd to show that the same action would have been taken in the absence of he had been fired. understandably alarmed, dorris called the txd human resources (b)(1) subject to paragraphs (2) through (6), a person who is absent ____________ the asset sale’s personnel list provided employees a meaningful advantage or benefit. employer’scircumstances have so changed astomakesuchreemployment impossible [txd] made this its policy with regard to similarly-situated employees having long- summary judgment is reversed only as to this specific userra claim. department at its morrilton and dallas-forth worth offices. he was told in both calls of txd’s active or current employees. employment. dorris presented evidence that most if not all active txd employees reemploy him in accordance with the terms of 38 u.s.c. §§ 4312 and 4313 upon dorris was denied a benefit of employment when txd did not include him on the established while such person performs such service. its userra obligations to dorris while he was on leave by not including him on the cir. 1965), cert. denied, 384 u.s. 972 (1966). for these reasons, the grant of motivating factor” in txd’s decision to fire him in october 2007. 38 u.s.c. for the eighth circuit corp. no. 2, 427 f.3d 544, 549 (8th cir. 2005). court turned to the claim that txd violated § 4311 “by firing [dorris] and therefore related provision of the prior statute in monroe v. standard oil co., 452 u.s. 549, see 29 u.s.c. § 1163(2). however, dorris’s testimony regarding his telephone calls served on active dutyin iraq for approximately12 months beginning in january2008. firing dorris while he was deployed on active duty. the complaint cited no specific militaryservice, i.e, that anyone similarly on furlough or leave of absence would have work on december 15, 2008. dorris contends he contacted both txd and foxxe [w]hile mr. dorris was on active long-term military duty, txd would “has not offered any evidence that txd allowed employees on leave of absence or necessary to operate and manage the equipment.” in what became the crucial issue the remaining question is whether, if the list was a benefit not determined by v. -8- fact. whether txd regarded dorris as fired while he was serving on active duty in “is immaterial.” txd gave foxxe a list of “current employees,” and there was no dorris has not offered any evidence to show that txd treated any section 4311 is titled, “discrimination against persons who serve in the2 determined by seniority while serving on long-term military duty has both the burden status, account, or interest (other than wages or salary for work performed) that § 4316(b)(1) requires. but this determination reverses the statutory allocation of foxxe.” the court acknowledged that whether dorris was fired or quit in october military commitment to be current or active employees.” omnibus budget reconciliation act of 1985 (“cobra”) and identifying the judgment record. the district court resolved the issue in txd’s favor because dorris have made the list provided by txd to foxxe. that does not violate resources department. after receiving definite orders in early september, dorris how the employer characterizes the employee’s status during a period of service.” 20 ___________________________ -9- operation iraqi freedom. he notified his direct supervisors and txd’s human lllllllllllllllllllll defendant - appellee in october 2007 while on active duty in iraq, (ii) txd’s assertion that he quit was individuals absent from employment due to service obligations, 38 u.s.c. “a listing of all personnel currently employed by txd to operate the equipment, their asset sale list is a disputed issue of material fact. see macgregor v. mallinckrodt, managing partner poe averred that, “[i]n communications with third parties, txd learned that good friends at txd were hired by foxxe, that foxxe hired “all” of appeal from united states district court dorris argues the grant of summary judgment must be reversed because there a floor hand at rigs near morrilton, arkansas in early 2007. in april, dorris received position of employment is necessitated by reason of service in the uniformed services brought by plaintiff . . . . [h]e brings a discrimination claim under 38 u.s.c. 4311, § 4316. rights, benefits, and obligations of persons absent from performance of service.” an employer is “considered to have [violated § 4311(a)] if individuals listed” who foxxe “determines in its sole discretion are qualified and


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