Opinion
No. 3:03-CV-182 (Phillips).
July 19, 2004
MEMORANDUM AND ORDER
Plaintiff, Michael Shane Mills, has brought a claim of discrimination under the Uniformed Services Employment and Re-employment Rights Act of 1994, 38 U.S.C. §§ 4301-33 (USERRA), the Tennessee Public Protection Act, Tenn. Code Ann. § 50-1-304, and a claim for common law retaliation, against his former employer, Earthgrains Baking Companies, Inc., for terminating his employment as a result of his military service obligations.
This matter is presently before the court on a motion for summary judgment by defendant Earthgrains. The plaintiff opposes the motion. For the reasons which follow, Earthgrains' motion for summary judgment will be DENIED.
Statement of Facts
The facts, taken in a light most favorable to plaintiff, are as follows: Mills was hired by Earthgrains in October 1998 as a route sales representative. As a route sales representative, Mills operated a delivery truck and delivered bakery goods to the customers assigned to his route. Mills regularly scheduled work days were Monday, Tuesday, Thursday, Friday and Saturday. His regularly scheduled days off were Wednesday and Sunday. Mills reported to Robert Burgess, Route Supervisor, and to Robert Rice, Sales Manager. Both Burgess and Rice reported to Gene Haun, Director of Sales. Mills alleges that Rice and Haun were involved in the decision to terminate his employment with Earthgrains.Mills was a member of the Army National Guard. As part of his Guard duty, he was required to report for drills one weekend per month, and for a minimum of two weeks each summer. Drills were usually scheduled one Saturday and Sunday each month.
During his employment with Earthgrains, Mills states his requests for time off to attend Guard duty were met with resistence. Burgess on numerous occasions pressured Mills to get out of his Guard duty stating that Haun and Rice were tired of dealing with it since the route supervisor was often required to work if a route sales representative was out. Due to the pressure from his supervisors, Mills received approval from the National Guard to fulfill his Saturday drill obligations on Wednesday, his regularly scheduled day off. Prior to September 11, 2001, the National Guard was willing to accommodate members' work schedules. After September 11, the National Guard required Mills to attend scheduled Saturday drills and would not allow him to fulfill his obligations on Wednesdays.
During 1999, 2000 and 2001, when Mills advised Burgess of his Guard orders for the two week summer drills, he was instructed to get out of the orders. Mills was able to obtain a release from his two week duty obligation. However, after September 11, 2002, summer drills became mandatory. When Mills turned in his orders for summer Guard duty in May 2002, he was told by Burgess to get out of the orders "or else." Mills states that Burgess advised him that Haun and Rice wanted him to get out of going to Guard duty. Mills informed Burgess that he could not get out of the orders because attendance was now mandatory. Mills advised Larry Strunk, Earthgrains Human Resources Manager, of the situation. Strunk spoke to Haun and advised him that the company had to let Mills off for Guard drills. Mills was then allowed time off to attend his two week training in California.
Mills also sought assistance from his commanding officer in the Guard, Orlie Wood. Sergeant Wood testified that Mills had discussed his problems being excused from work to attend Guard functions. Sergeant Woods further testified that during the Spring of 2002, Mills advised him that his employer did not want to excuse him from work to attend annual training scheduled for May 31, 2002 through June 21, 2002, and had threatened to terminate his employment. Sergeant Woods talked with an employee of Earthgrains about excusing Mills from work in order to attend the annual training. Earthgrains inquired about the process to have Mills excused from the required training and informed Sergeant Woods that they would forward correspondence to the appropriate office. Earthgrains request for an exception was denied and Mills was required to attend the annual training.
On May 17, 2002, before Mills left for his annual training in California, an incident arose at Shannondale Nursing Home, a customer on Mills route. During a delivery, Mills hugged an employee, Tara Cotter, and left a bruise on her arm. Ms. Cotter's bruised arm was seen by Sandy Garlington, Sharrondale's Director of Food Service, who called Burgess and informed him that Mills could not return to Shannondale. Rice conducted an investigation into the Shannondale incident. During Rice's interview with Cotter, she told Rice that Mills was just kidding around and that she did not want anything to happen to him. Rice assured Garlington that Mills would be removed as the route sales representative responsible for servicing Shannondale's account.
On May 24, 2002, Rice met with Mills to discuss the Shannondale incident. Rice told Mills that Garlington would not allow him to return to the Shannondale facility and he had been removed as the route sales representative responsible for Shannondale's account. Mills asked Rice if he was going to be terminated because of the Shannondale incident. Rice told Mills no decision had been made. Rice forwarded the results of his investigation to Human Resources. Mills left for his Guard training a few days later.
Mills attended Guard training in California from May 31, 2002 through June 24, 2002. Upon his return, he learned that his employment with Earthgrains was terminated because of the incident at Shannondale. Mills filed a grievance with his union for wrongful termination. The union voted not to arbitrate Mills' grievance. Mills filed the instant suit for wrongful termination in violation of USERRA, the Tennessee Public Protection Act, and for common law retaliation.
Earthgrains has moved for summary judgment asserting Mills cannot establish that his membership in the National Guard was a motivating factor for his termination. Further, Earthgrains asserts that Mills' employment would have been terminated regardless of his National Guard membership due to his inappropriate conduct at Shannondale. Mills opposes the motion, stating that genuine issues of material fact exist as to Earthgrains motive for firing him, and that Earthgrains is not entitled to judgment as a matter of law.
Summary Judgment Standard
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907.
Analysis Uniform Services Employment and Re-employment Act
Mills complains that his termination was motivated by his military service obligations in violation of USERRA. Since 1994, USERRA has protected reservists from discrimination by public and private employers based on their reservist status:
A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, re-employment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.38 U.S.C. § 4311(a). An employer is liable:
if the person's membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service.38 U.S.C. § 4311(c).
This Court applies the burden-of-proof allocations utilized by most courts in discrimination claims under USERRA, see NLRB v. Transportation Mgmt. Corp., 462 U.S. 393, 401 (1983) (modified by Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U.S. 267 (1994)), rather than the McDonnell Douglas framework applied in other discrimination claims. See Gagnon v. Sprint Corp., 284 F.3d 839, 853 (8th Cir. 2002); Sheehan v. Dept. of Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001); Gummo v. Village of Depew, NY, 75 F.3d 98, 106 (2d Cir. 1996).
The court must make an initial determination of whether there is sufficient evidence from which a rational jury could infer that Mills' status or conduct as a reservist was a substantial or motivating factor in his termination. Mills bears this burden by a preponderance of the evidence. If this evidence exists, then the court must next determine whether it could be said as a matter of law that Earthgrains would have terminated Mills even if he had not been a reservist. Earthgrains bears this burden by a preponderance of the evidence. See Gagnon, 284 F.3d at 853-54; Sheehan, 240 F.3d at 1013; Gummo, 75 F.3d at 106; Transportation Mgmt., 462 U.S. at 400-01.
"The term `motivating factor' means that if the employer was asked at the moment of the decision what its reasons were and if it gave a truthful response, one of those reasons would be the employee's military position or related obligations." Robinson v. Morris Moore Chevrolet-Buick, Inc., 974 F. Supp. 571, 576 (E.C.Tex. 1997) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (addressing Title VII gender discrimination claim and related affirmative defense)). If Earthgrains "relied upon, took into account, considered, or conditioned its decision" on Mills' reservist status, then the reservist status was a motivating factor. Id.
Discriminatory motive may be proven by either direct or circumstantial evidence. See Sheehan, 240 F.3d at 1014. Because direct evidence rarely exists, discriminatory motivation may be reasonably inferred from a variety of factors. These factors include:
proximity in time between the employee's military activity and the adverse employment action, inconsistencies between the proffered reason and other actions of the employer, an employer's expressed hostility towards members protected by the statute together with knowledge of the employee's military activity, and disparate treatment of certain employees compared to other employees with similar work records or offenses.Id.
Mills testified that he was confronted on numerous occasions by his supervisors at Earthgrains advising him to get out of his Guard orders for military service. Further, there is evidence that Mills' supervisors forced him to use his day off on Wednesday, instead of using Saturday, to complete his weekend drills. Further, Mills' supervisor, Robert Burgess, instructed him to get out of his two week annual training and threatened him with termination if he did not. Terry Fisher, a co-worker, testified in his deposition that on the day that Mills gave his Guard orders to Burgess, he told Mills that "he needed to get out of that." Richard Ledbetter, another route salesman, testified he overhead a conversation between Mills and Burgess regarding Mills' annual Guard training. Ledbetter heard Burgess tell Mills that "he needed to get out of it, that he did not need to go and that he needed to stay and work." Mills testified that Robert Rice instructed him to get out of his drill orders and told Mills that Gene Haun was displeased over his Guard obligations.
Mills also submits the sworn affidavit of Larry Strunk, Earthgrains' former Human Resources Manager. Strunk testified that Haun told him that if he had known that Mills was in the National Guard, he would not have hired him. Regarding Mills' orders to report for annual training, Haun told Strunk, "if he goes, I am not sure that he is going to have a job." Strunk testified that he instructed Haun to let Mills go for his Guard training. Haun replied, "Well, all we've done is fool with this thing. It seems like every time you turn around he has to take a weekend off here and a weekend off there, and he has two weeks off during the summer. This has been a problem ever since he was hired. We have to take care of Shane Mills and his problems related to National Guard. It seems like we need to have someone hired in addition to the regular crew just to take care of Shane Mills' missing days." Whether these statements were made is, of course, disputed. For purposes of summary judgment, however, the court must consider that the statements were indeed made.
Based upon the record, the court finds there is sufficient evidence from which a rational jury could infer that Mills' status as a reservist was a substantial or motivating factor in his termination. The court must next determine whether it could be said as a matter of law that Earthgrains would have terminated Mills even if he had not been a reservist.
Earthgrains asserts that it terminated Mills because of the Shannondale incident. Moreover, Earthgrains states that Mills had been disciplined numerous times prior to the Shannondale incident. This was the second time a customer had requested Mills be removed from an account. Thus, Earthgrains argues it would have terminated Mills regardless of his military service obligations.
Mills argues that the incident at Shannondale was not the real reason he was fired; rather, it was used as a pretext for discrimination. In support of his argument, Mills submits the second sworn affidavit of Larry Strunk, Earthgrains former Human Resources Manager, who testified that he was aware of other salespeople who had been requested not to service a particular route, and they were not fired. He also stated that in cases of serious complaints about an employee, the employee would normally be suspended until the investigation was over, but that did not happen in Mills' case. Nor was a statement taken from Mills prior to the decision to terminate him. Strunk states that Tara Cotter, the Shannondale employee that Mills hugged and bruised, advised Robert Rice when he met with her, that Mills was just kidding around and that she did not want anything to happen to him. In Strunk's opinion, this information was significant, and he further stated that in his opinion, the incident would not have justified Mills' termination.
Taking the evidence in the light most favorable to Mills, Earthgrains has not carried its burden of establishing that it would have terminated Mills notwithstanding his reservist status. The evidence in the record is more than enough to allow a reasonable jury to conclude that Earthgrains' alleged reason for terminating Mills did not actually motivate its decision. This is not to say that Mills will prevail at trial on all of his claims. Whether Earthgrains was motivated by Mills reservist status and whether Earthgrains can prove that its actions would have been taken in the absence of Mills' military status are questions for a jury to decide.
Retaliatory Discharge Claims
Mills also complains that Earthgrains fired him in retaliation for his opposing and refusing to remain silent about Earthgrains' discriminatory actions. In order for Mills to prevail under the Tennessee Public Protection Act, Tenn. Code Ann. § 50-1-304, he must establish (1) his status as an employee of Earthgrains; (2) his refusal to participate in, or remain silent about, illegal activities; (3) his termination; and (4) an exclusive causal relationship between his refusal to participate in or remain silent about illegal activities and his termination by Earthgrains. Anderson v. Standard Register Co., 857 S.W.2d 555, 558 (Tenn. 1993). Illegal activities are defined as "activities which are in violation of the criminal or civil code of this state or the United States or any regulation intended to protect the public health, safety and welfare." Tenn. Code Ann. § 50-1-304(c).
In order to prevail on his common law retaliatory discharge claim, Mills must show (1) that an employment-at-will relationship existed; (2) that he was discharged; (3) that the reason for his discharge was that he attempted to exercise a statutory or constitutional right, or for any other reason which violates a clear public policy evidenced by an unambiguous constitutional, statutory, or regulatory provision; and (4) that a substantial factor in Earthgrains' decision to discharge him was his exercise of protected rights or compliance with clear public policy. Crews v. Buckman Laboratories Int'l, Inc., 78 S.W.3d 852, 862 (Tenn. 2002). See also Guy v. Mutual of Omaha Ins. Co., 79 S.W.3d 528, 535 (Tenn. 2002); Mason v. Seaton, 942 S.W.2d 470, 474 (Tenn. 1997); Stein v. Davidson Hotel Co., 945 S.W.2d 714, 717 (Tenn. 1997); Hodges v. S.C. Toof Co., 833 S.W.2d 896, 899 (Tenn. 1992); Chism v. Mid-South Milling Co., 762 S.W.2d 552, 556 (Tenn. 1988); Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 444-45 (Tenn. 1984).
Tennessee Code Annotated § 58-1-604 provides as follows:
It is a Class E felony for any person, firm or corporation to refuse employment to any person for the sole reason that he is a member of the Tennessee National Guard or to terminate the employment of any such person for such reason or because of absence from his place of employment while attending any prescribed drill, including annual field training.
The Tennessee Code represents a clear statement of public policy as there can be no doubt that the public has an interest in National Guard members honoring their obligations and complying with orders for annual training without fear of having their employment terminated. As stated by the Tennessee Supreme Court, "the purpose of this cause of action is to encourage the employee to protect the public interest." Crews, 78 S.W.3d at 852.
In Mason v. Seaton, 942 S.W.2d 470 (Tenn. 1997), the Tennessee Supreme Court held that the Public Protection Act initially requires the employee to submit evidence of a causal link between the protected act and the employee's discharge, which then imposes upon the employer the burden of showing the reason for the discharge. Id. at 473. Earthgrains has offered a non-discriminatory reason for its termination of Mills — the incident at Shannondale. The burden then becomes Mills' to show that the reason was pretextual, meaning a "phony reason for some action." Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). In order to defeat summary judgment, Mills must present specific admissible facts which realistically challenge Earthgrains' stated reasons. Wilkins v. Eaton Corp., 790 F.2d 515, 521 (6th Cir. 1986); Silpachairn v. Metropolitan Gov't., 797 S.W.2d 625, 629 (Tenn.App. 1990).
As stated above, there is substantial evidence in the record to establish a causal relationship between Mills' requests for leave for military service and his subsequent discharge by Earthgrains. Mills received the orders for Guard training and gave them to his supervisors. Thereafter, he was given an ultimatum to get out of the orders or else. Mills attended guard training and was terminated his first day back at work.
Since the trial court is not to resolve issues of fact in deciding a motion for summary judgment, the determination of whether the circumstances give rise to an inference of retaliatory discharge "must be a determination of whether the proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a retaliatory motive. It is not the province of the summary judgment court itself to decide what inferences should be drawn." Mason, 942 S.W.2d at 473. At this juncture in the proceedings, it seems that Mills has presented more than a scintilla of evidence to support each element of his claim for retaliatory discharge under the Tennessee Public Protection Act and Tennessee common law. There are genuine issues as to material facts in dispute in this case which should be decided by a jury. Street v. J.C. Bradford Co., 886 F.2d 1472 (6th Cir. 1989); Ang v. Proctor Gamble Co., 932 F.2d 540, 545 (6th Cir. 1991); White v. Federal Exp. Corp., 729 F. Supp. 1536, 1553 (E.D. Va. 1990). Therefore, summary judgment is not appropriate.
Conclusion
For the reasons stated above, Earthgrains' motion for summary judgment [Doc. 19] is DENIED. The parties shall prepare for trial.
IT IS SO ORDERED.