Opinion
CIVIL ACTION NO. SA-99-CA-1110 OG
March 4, 2003
ORDER CONCERNING CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF LIMITATIONS
I. Introduction
With the liability question in this employment discrimination case decided in favor of the plaintiffs (see Docket Entry 71), the litigation moves to its next phase, that is, a determination of the damages to which plaintiffs are entitled under the Uniform Services Employment and Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. § 4301, et seq. However, before damages can be calculated the Court must first determine the period of time, pre-filing, during which damages accumulated and are recoverable under the Act. USERRA does not provide an express statute of limitations governing civil actions, such as this one, brought under the Act. 38 U.S.C. § 4323. The parties briefed this issue through cross-motions for partial summary judgment. They also consented to my jurisdiction pursuant to 28 U.S.C. § 636 (c) for the limited purpose of ruling on this legal issue.
Docket Entries 79 and 80.
Docket Entry 76.
After having considered the arguments of the parties, the applicable law and the record as a whole, I hereby hold that the four-year federal residual statute, as codified in 28 U.S.C. § 1658, is applicable to the claims for damages presented here.
Accordingly, I hereby GRANT plaintiffs' request for partial summary judgment and find that plaintiffs are entitled to claim damages for the four years preceding the filing of their suit, that is, from October 4, 1995, through the date of judgment. I further hold that the doctrines of laches and estoppel, as asserted in this case, do not bar plaintiffs' claims for relief. The City's motion for partial summary judgment is, GRANTED, IN PART, only to the extent it alternatively argues in support of applying section 1658 to the case. In all other respects, the City's motion is DENIED.
II. Statement of The Case
This is a discrimination action filed on October 4, 1999 by a group of non-career military reservists against their employer, the City of San Antonio ("the City"). The suit is brought pursuant to the provisions of USERRA. Specifically, plaintiffs, who are employed as firefighters and EMS personnel, claim the City's practice of excluding military leave from the twenty-seven hour cap imposed on lost overtime unlawfully discriminates against them because of their military status. Other employment practices being challenged in this case include "bonus day" leave, "perfect attendance" leave, as well as unscheduled overtime compensation and upgrading opportunities. Plaintiffs argue the City, in implementing these employment practices, unlawfully discriminates against them by deeming them "absent" from work whenever they are on leave fulfilling their military reserve duties, as opposed to viewing them as "constructively present at work." Plaintiffs contend the City's practices have resulted in disparate treatment discrimination on the basis of their military reserve status. Through the filing of this lawsuit, plaintiffs seek declaratory and injunctive relief, as well as reimbursement for lost wages or back pay and other benefits of employment they were denied as a result of the City's discriminatory practices. Further, plaintiffs maintain that because the City's failure to comply with the provisions of USERRA were willful, they are also entitled to an award of liquidated damages.The material facts of this case are largely undisputed. It is for this reason the parties agreed early in the case to bifurcation, to allow the court to first consider the issue of liability under USERRA, before addressing the issue of damages. The issue of liability under USERRA was presented in the form of cross-motions for partial summary judgment. On March 28, 2002, the Court (by the Honorable Orlando Garcia) granted plaintiffs' partial motion for summary judgment, finding that the plaintiffs met their burden of establishing that their military service was a motivating factor in the application of the challenged City's employment practices and policies. The Court concluded that: "[w]hile the City has argued that it has not intentionally or purposefully singled out those employees who have military reserve duty such as the plaintiffs, the enactment and application of its policies and procedures concerning the employment benefits at issue in this case, does violate the rights afforded to these individuals under USERRA." In finding that the City had failed to meet its burden of showing that it would have taken the same actions, regardless of the plaintiffs' military reserve obligations, the Court denied the City's cross-motion for partial summary judgment, allowing the damages portion of the case to proceed to a bench trial.
Docket Entry 61, the parties' amended joint-stipulated facts.
Docket Entries 56 60.
Docket Entry 71, at 3. The Summary Judgment Order on the issue of liability under USERRA is fully incorporated into this Order. Id. at 1-32.
Id. at 32.
Following the Court's ruling on the issue of liability, I set a status conference in the case. The day prior to the scheduled status conference, the City moved to certify the March 28, 2002 summary judgment ruling for interlocutory appeal, pursuant to 28 U.S.C. § 1292 (b). During the status conference, I discussed the City's motion to certify with the parties and invited their suggestions regarding the sequencing of further proceedings in the case. The parties agreed that in addition to the City's request for an interlocutory appeal of the Court's ruling on the issue of liability under USERRA, other legal issues pertinent to the question of damages, namely determination of the statute of limitations applicable to the case, needed to first be resolved by the Court before scheduling a trial date. Indeed, a legal determination of the start date for calculating damages for which defendant is liable is critical to the scheduling of further proceedings in the case.
Docket Entry 72.
Docket Entry 73.
The parties further agreed that while USERRA does not contain an express provision setting the applicable limitations period for suits filed under the Act, it explicitly prohibits the application of state statutes of limitations. The question, thus, becomes what federal statute of limitations or other "rule of timeliness" applies to the question of damages in this case.
38 U.S.C.A. § 4323(i) (West 2002).
In that regard, the parties submitted a proposed scheduling order for their summary judgment briefing on the issue. In that document the parties "agreed that the Court shall abate any ruling on [the] motion to certify until after the Court rules on the parties' motions for partial summary judgment on the issue of any limitations period applicable to the damages and relief claimed by plaintiffs, so that the damages limitations issue may be considered for inclusion in the motion to certify." I adopted the parties' agreed proposed scheduling order on May 13, 2002.
Docket Entry 75.
Id. at 1-2.
Id.
Also, on May 13, 2002, the parties consented to my jurisdiction pursuant to 28 U.S.C. § 636 (c) for the limited purpose of ruling on: "the pending Motion to Certify Memorandum and Order for Appeal (docket entry 73), and any subsequent motions to certify for appeal the Order of 3/28/02, and [. . .] the anticipated motion(s) for summary judgment relating to damage limitations, and requests to certify for appeal orders relating to the damage limitations issue." Consistent with the parties' limited consent, this Order addresses the legal issue of what statute of limitations applies, if any, to the damages claimed by plaintiffs in this USERRA case.
Docket Entry 76.
See Docket Entry 49, Plaintiff's Third Amended Complaint, at 9-10, for a description of the types of equitable as well as legal relief the plaintiffs seek in this case.
III. Parties' Arguments
The City's cross-motion for summary judgment advances two alternative approaches to the limitations question. First, the City advocates for the borrowing of the two-year statute of limitations applicable to causes of action brought under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 255 (a). The City maintains that plaintiffs' claims under USERRA are analogous to the types of wage discrimination claims usually brought under the FLSA, and as such, the court should apply the FLSA's two-year statute of limitations. The City, however, has failed to present any case authority, decided under USERRA or any other prior statute regulating veterans' employment and reemployment rights, in which the court has borrowed the ELSA limitations period, as the City requests in this case.Alternatively, the City argues that the federal residual four-year statute of limitations found in 28 U.S.C. § 1658 may apply to the case. In making this argument, the City recognizes that by its express terms, section 1658 is applicable to civil actions which arise under an Act of Congress enacted after the date of the enactment of section 1658, i.e. December 1, 1990. Since plaintiffs' action is brought under USERRA, a statute which was enacted on October 13, 1994, after the enactment of section 1658, the City argues the four-year statute of limitations may be applicable to the case.
Id. at 7-8.
Id. at 7.
Id. After plaintiffs embraced the applicability of the four-year statute, the City retreated from its original position and most recently has adamantly objected to the application of § 1658 to the case. Docket entry 80 at 7-10, Docket Entry 83 at 4, and Docket Entry 87 at 4-5.
The parties' disagreement includes the question of how far back in time preceding the filing of their suit the plaintiffs may seek damages. The plaintiffs argue that the residual four-year statute of limitations should be applied from the date they filed the instant suit, October 4, 1999. Accordingly, plaintiffs contend the applicable limitations period for purposes of assessing how far back they are entitled to claim back pay relief, for instance, is four years preceding the filing of their suit; that is, October 4, 1995.
Docket Entry 79, at 5-8 and Docket Entry 80, at 10.
Docket Entry 80, at 10.
The City, on the other hand, argues that plaintiffs' claims for damages accrued no later than the effective date of each collective bargaining agreement ("CBA") forming the basis of their claims. As noted in the March 28, 2002 summary judgment order, the CBAs in effect during the times material to this case are the following: the agreement in effect from October 1, 1988 through November 15, 1995, the agreement in effect from November 14, 1995 through September 30, 1999, and the one in effect since September 30, 1999. According to the parties' recent submissions, the City last renegotiated the CBA with the plaintiffs' Union in December of 2002.
Docket Entry 79, at 5. According to plaintiffs' "Statement of Undisputed Facts," the permanent, uniformed members of the City's Fire Department are represented by the International Association of Fire Fighters, Local 624 (the Union), which serves as their exclusive bargaining agent. Since 1974, the Union and the City have executed a series of collective bargaining agreements governing the firefighters' wages, hours, and other terms and conditions of employment. Docket Entry 56, Plaintiffs' Appendix, at ¶ 26.
Docket Entry 71, at 16 fn. 66 (citing to Plaintiffs' Summary Judgment Appendix, at ¶ 27; and Amended Joint-Stipulated Facts, Docket Entry 61, at ¶ 29).
Docket Entry 86, at 2. The City's employment practices challenged in this case are still part of the most recent negotiated CBA between the City and the plaintiffs' Union. Id.
Rejecting the City's arguments, I do not find the effective date of each CBA determinative of the limitations issue under USERRA. In the March 28, 2002 Order, the Court explicitly held that the CBAs between the City and the plaintiffs' Union were irrelevant for purposes of determining liability under USERRA, and accordingly, the City could not rely on those agreements to excuse its actions. Consistent with this holding, I find the City's argument that plaintiffs' USERRA claims should be measured, for accrual purposes, from the effective date of each CBA, unpersuasive since the employment rights at issue in this case are governed by the Act, and not by the CBAs. To thoroughly consider the City's arguments premised on adoption of the FLSA's two-year limitations period, it is useful to review the effective dates of the various CBAs and how the City argues those effective dates affect the accrual of plaintiffs' claims for damages.
Docket Entry 71, at 21-22, and Docket Entry 86, at 4.
The City maintains that plaintiffs' claims related to the first CBA were barred, as a matter of law, on October 1, 1990, two years after the effective date of that CBA; i.e., October 1988. Likewise, the City argues, plaintiffs' claims related to the second CBA were barred, as a matter of law, on November 14, 1997, two years after its effective date of November 14, 1995. The City further states that "[a]ll Plaintiffs were employed prior to this limitations date such that the suit could have been initiated timely for purposes of contesting the second [CBA] — but was not. " Accordingly, the City argues, that the only possible surviving claims arise under the third CBA, which became effective on September 30, 1999, "shortly before Plaintiffs filed suit." The instant suit was filed October 4, 1999. Because plaintiffs' claims under the first and second CBAs accrued long before they filed suit in 1999, the City maintains it is entitled to partial summary judgment with respect to all of plaintiff's claims pre-datingSeptember 30, 1999, the effective date of the third CBA. Alternatively, and at a minimum, the City contends that plaintiffs' claims accrued two years before they filed suit; that is, plaintiffs' claims arising prior to October 4, 1997, should be deemed time-barred.
The City argues that plaintiffs' claims under the first CBA are also barred because USERRA was not enacted until October 13, 1994. Docket Entry 79, at 5 fn.2.
Id. at 5 (Emphasis in Original).
Id. at 6.
Docket Entry 1.
Docket Entry 79, at 6.
Id.
Similarly, the City argues that if the court were to use the federal residual four-year limitations period, 28 U.S.C. § 1658, plaintiffs' claims arising from the first CBA were barred, as a matter of law, on October 2, 1992, four years after the agreement became effective. Under this argument, the City contends the only viable claims arise under the second and third agreements, which became effective November 14, 1995 and September 30, 1999. Accordingly, the City argues that partial summary judgment should be granted in its favor as to any claim pre-datingNovember 14, 1995. Alternatively, the City agrees with the plaintiff that if the court were to apply the limitations period of section 1658, any claims that predate October 4, 1995 are barred as a matter of law.
Id. at 7.
Id. at 8.
The City further argues that irrespective of which limitations period applies to the case, the entire case is barred by the equitable doctrines of laches and estoppel. Subsequent to the summary judgment order on the liability phase of the case, and despite plaintiffs' opposition, I allowed the City leave to amend its answer to plaintiffs' third amended complaint. The affirmative defenses of laches and estoppel, among others, were asserted at that time. The plaintiffs respond that the City's use of these defenses to bar the suit in toto is untimely since the court has already decided the liability question in favor of the plaintiffs. Plaintiffs further argue that because the City has failed to establish that plaintiffs' delay in filing suit was either unreasonable or otherwise prejudicial the City cannot use these defenses to bar an award of damages.
Id. at 8-9.
Docket Entries 81 and 82.
Docket Entry 82, at 1.
Id.
IV. Summary Judgment Standard
Determination of the limitations period applicable to the damages and relief claimed by plaintiffs in this USERRA case has been presented to me through cross-motions for partial summary judgment. A party is entitled to summary judgment upon motion if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, 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. Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment; the requirement is that there be no genuine issue of material fact. A fact is material if it might affect the outcome of the lawsuit under the governing law. A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. To satisfy this burden, the movant must either submit evidentiary documents that negate the existence of some material element of the nonmoving party's claim or defense, or if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmoving party's claim or defense. Regardless of whether the moving party accompanies its summary judgment motion with affidavits or other evidentiary materials, the motion must be granted if the evidence before the court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied.
Celotex Corp. v. Catrett, 477 U.S. at 323; Wise, 58 F.3d at 195; Burfield v. Brown, Moore, Flint, Inc., 51 F.3d 583, 588 (5th Cir. 1995).
Edwards v. Aguillard, 482 U.S. 578, 595 n. 16 (1987); and Celotex Corp. v. Catrett, 477 U.S. at 325.
Id.
Once the moving party has carried that burden, the burden shifts to the nonmoving party to show that summary judgment is not appropriate. The nonmoving party cannot discharge this burden by referring to the mere allegations or denials of the nonmoving party's pleadings. Rather, the nonmoving party's response must, either by submitting opposing evidentiary documents or by referring to evidentiary documents already in the record, set out specific facts showing the existence of a genuine issue for trial. When both parties move for summary judgment, as in this case, each party must carry its own burden as the movant for its motion and as the non-movant in response to the other party's motion. All justifiable inferences must still be drawn in favor of the losing party.
Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir. 1991).
FED.R.CIV.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. at 250; State of Texas v. Thompson, 70 F.3d 390, 393 (5th Cir. 1995).
Celotex Corp. v. Catrett, 477 U.S. at 324; Fields, 922 F.2d at 1187; Neff v. American Dairy Queen Corp., 58 F.3d at 1065; Engstrom v. First Nat'l Bank, 47 F.3d 1459, 1462 (5th Cir. 1995), cert. denied, 516 U.S. 818 (1995).
See Blackie v. Maine, 75 F.3d 716, 721 (1st Cir. 1996).
See Murphy Expl. Prod. Co. v. Oryx Energy Co., 101 F.3d 670, 673 (Fed. Cir. 1996).
V. Discussion
A. Statute of LimitationsI must decide which statute of limitations applies to this USERRA case. Plaintiffs in this case assert employment discrimination on the basis of their military reserve status, pursuant to Sections 4311 and 4323 of that Act. USERRA is one of a series of statutes enacted over the last half century (at least since the 1940's) to protect the employment and reemployment rights of persons serving in the military. Section 4323 of USERRA does not contain its own statute of limitations. It specifies only that "[n]o State statute of limitations shall apply to any proceedings under this chapter." The City argues that the "most analogous" federal statute of limitations is the two-year statute of limitations applicable to FLSA causes of action, 29 U.S.C. § 255 (a), and urges the court to "borrow" that statute for application to USERRA claims. The plaintiffs, on the other hand, argue in support of the four-year statute of limitations created by Congress for new federal causes of action not having their own limitations period. 28 U.S.C. § 1658.
§ 4323(i) (West 2002).
I do not find the City's arguments compelling: Plaintiffs' USERRA claims under are not analogous to ELSA claims. As discussed in the March 28, 2002 summary judgment ruling, the twenty-seven hour cap, one of plaintiffs' primary claims in this case, was created as an exception to the FLSA's overtime requirements. Likewise, plaintiffs' other claims, particularly those involving denial of overtime and training opportunities, and the treatment of military leave for purposes of bonus day and perfect attendance leave under the CBA, neither involve ELSA violations nor are they similar thereto. Further, the City has failed to provide any case authority under USERRA, or any previous statute governing veterans' employment and reemployment rights, in which a court borrowed the FLSA statute of limitations as the City asks this court to do here. I agree with the plaintiffs that in the absence of an "analogous" federal statute of limitations, the federal residual four-year statute of limitations, found in 28 U.S.C. § 1658, should be applied.
See Docket Entry 71, at 16-23.
See Docket Entry 86, at 6.
Recognizing that borrowing an analogous state or federal statute of limitations could lead to inconsistent results, Congress adopted a uniform and general statute of limitations of four years for federal causes of action not governed by an explicit limitations period. Section 1658 of Title 28 provides:
Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section [12/1/90] may not be commenced later than 4 years after the cause of action accrues.
As noted previously, USERRA was enacted on October 13, 1994, after the date of enactment of section 1658. Although USERRA amended a prior statute, I nevertheless find that it is "an Act of Congress enacted" after December 1, 1990. In this regard, cases brought under 42 U.S.C. § 1981 provide some guidance as to how the courts should analyze the applicability of section 1658 to claims premised on statutes amended after enactment of the residual statute. In Zubi v. AT T Corporation, an employment discrimination case under section 1981, the Third Circuit analyzed the possible approaches to determine whether a statute was, in effect, a new Act, and therefore subject to application of the residual statute of limitations. Explaining that the preferable interpretation of section 1658 would provide litigants the most certainty in application, the Court attempted to draw a bright line rule:
See North Star Steel Co. v. Thomas, 515 U.S. 29, 32 (1995) (where the United States Supreme Court, in addressing the traditional rule and expectation that federal courts look to state rather than federal law to "borrow" a limitations period, stated that "`[t]his expectation is reversed for statutes passed after December 1, 1990, the effective date of 28 U.S.C. § 1658 (1988 ed., Supp. V), which supplies a general, 4-year limitations period for any federal statute subsequently enacted without one of its own.'").
219 F.3d 220 (3rd Cir. 2000).
[W]hen Congress amends a preexisting statute it does not create a `new act,' and claims arising under the statute as amended continue to arise under the preexisting statute. It is, thus, only when Congress establishes a new cause of action without reference to preexisting law that Section 1658 applies. Thus, when determining whether Congress has amended a preexisting statute or created a "new act," how Congress characterizes its own action should be determinative. We conclude that this is the closest thing to a bright line that can be drawn while remaining faithful to the statutory text and its legislative history.
Id. at 225 (emphasis added).
The Court in Zubi, then determined that when Congress passed the Civil Rights Act of 1991, it was merely amending 42 U.S.C. § 1981, making section 1658 inapplicable. While the Zubi approach has been endorsed by the Eighth and Seventh Circuits, as well as numerous lower courts, the federal courts are still split in determining which statute of limitations applies to suits brought under the amended version of section 1981.
See e.g., Madison v. IBP, 257 F.3d 780, 797-98 (8th Cir. 2001), cert. granted, 122 S.Ct. 2583 (2002); and Jones v. R.R. Donnelley Sons Co., 305 F.3d 717, 724-25 (7th Cir. 2002). See also Coleman v. Shoney's, Inc., 145 F. Supp.2d 934, 938 (W.D. Tenn. 2001); and Campbell v. National R.R. Passenger Corp., 163 F. Supp.2d 19, 23-24 (D.D.C. 2001).
See Harris v. Allstate Insurance Co., 300 F.3d 1183, 1186-87 (10th Cir. 2002) ("The Civil Rights Act of 1991 . . . essentially created a new cause of action to challenge an employer's discriminatory post-formation conduct."); and Kinley v. Norfolk Southern Railway Company, 230 F. Supp.2d 770, 776 (E.D. Ky. 2002) (applying the four year statute of limitations created by 28 U.S.C. § 1658 to plaintiff's § 1981 claim).
In contrast to the Civil Rights Act of 1991, USERRA was essentially a new Act. Section 4311(b) provides that: "[a]n employer may not discriminate in employment against or take any adverse employment action against any person because such person . . . has exercised a right provided for in this chapter." Section 4311(a) further states that: "[a] person who is a member of [. . .] a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation." The term "benefit of employment" under section 4311 is broadly defined. It includes "any advantage, profit, privilege, gain, status, account, or interest (other than wages or salary for work performed) that accrues by reason of an employment contract or agreement, or an employer policy, plan, or practice and includes [. . .] bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment." Discussing the relevant legislative history preceding enactment of USERRA, cases have noted that although retaining some provisions of preexisting statutes, USERRA was a new legislative scheme designed to " replace the [previous statute known by its acronym "VRRA"] in order to `clarify, simplify, and where necessary, strengthen the existing veterans' employment and reemployment rights provisions." Consistent with this purpose, cases have held that USERRA is "to be broadly construed and strictly enforced."
§ 4311(a) (Emphasis added).
See Yates v. Merit Systems Protection Board, 145 F.3d 1480, 1483 (Fed. Cir. 1998).
§ 4303(2).
See Gummo v. Village of Depew, N.Y., 75 F.3d 98, 106 (2d Cir.) (quoting H.R. Rep. No. 65, 103rd Cong., 2d Sess. 18 (1994), reprinted in 1994 U.S.C.C.A.N. at 2449, 2451) (Emphasis added), cert. denied, 517 U.S. 1190 (1996). See also Fernandez v. Department of the Army, 234 F.3d 553, 557 (Fed. Cir. 2001) (USERRA does not have retroactive application; in passing USERRA, Congress specified that the provisions of § 4311 became effective on the date of enactment); and Newport v. Ford Motor Co., 91 F.3d 1164, 1167 (8th Cir. 1996).
Yates, 145 F.3d at 1484-85; Petersen v. Department of the Interior, 71 M.S.P.R. 227, 239-40 (1996) (discussing the intent of Congress in adopting a mixed-motive burden-shifting scheme in these cases); and Williams v. Department of the Army, 83 M.S.P.R. 109, 112 (1999) (USERRA substantially expanded the scope and coverage of the prior discrimination provision, found in the Veterans' Reemployment Rights Act ("VRRA"), 38 U.S.C. § 2021 (b)(3) (1988)) (Emphasis added). It should be noted that § 2021 was part of chapter 43 of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, Pub.L. No. 93-508, 88 Stat, 1578, reprinted in 1974 U.S.C.C.A.N. 1818, 1837. Chapter 43 is commonly referred to as the Veterans' Reemployment Rights Act ("VRRA"). The provisions of the VRRA were codified at 38 U.S.C. § 4301-4307 (as chapter 43) immediately prior to October 13, 1994, after their renumbering by the Veterans' Benefits Act of 1992, Pub.L. No. 102-568, 1992 U.S.C.C.A.N. (106 Stat.) 4320, from 38 U.S.C. § 2021-2027 (also as chapter 43). They were originally codified when enacted as section 404 of the Vietnam Era Veterans' Readjustment Assistance Act of 1974. See Historical and Statutory Notes following 38 U.S.C.A. Chapter 43 Table (West Supp. 1988). Thus, references to the VRRA include its predecessor statutes. Williams, 83 M.S.P.R. at 112 fn. 1.
Important to the resolution of the limitations question, section 4311(c)(1) of the Act sets forth the parties' respective burdens of proof:
An employer shall be considered to have engaged in actions prohibited under subsection (a) [of USERRA], if the person's membership, application for membership, service, application for service, or obligation to serve 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.
§ 4311(c)(1) (Emphasis added).
Section 4311 was the congressional response to the United States Supreme Court decision in Monroe v. Standard Oil Co. In that case, the Court found that the Vietnam Era Veterans' Readjustment Assistance Act of 1974, USERRA's predecessor statute, "was enacted for the significant purpose of protecting the employee/reservist against discrimination like discharge and demotion, motivated solely by reserve status." Thus, through the enactment of USERRA and specifically section 4311, Congress repealed the "sole cause" standard enunciated in Monroe, insisting instead on the "motivating factor" standard. This greatly relaxed causation standard created new substantive liabilities, and is critical to the March 28, 2002 summary judgment ruling in the case.
452 U.S. 549 (1981).
See note 75, supra.
Monroe, 452 U.S. at 559 (Emphasis added). See also Pignato v. American Trans Air, Inc., 14 F.3d 342 (7th Cir.) (holding that in order to establish employer liability in mixed-motive cases, the impermissible motive must be the controlling reason for the adverse action), cert. denied, 512 U.S. 1205 (1994).
See Newport, 91 F.3d at 1167 (noting that USERRA was enacted in response to Monroe and changed Monroe's "sole cause" standard to "a motivating factor" standard).
Docket Entry 71, at 11-31.
For these reasons, I am persuaded that the four-year statute of limitations created by 28 U.S.C. § 1658 should apply to plaintiffs' claims under section 4311 of USERRA. I thus conclude that plaintiffs may premise their USERRA claims for damages on the City's discriminatory employment actions that occurred on or after October 4, 1995, which date is four years preceding the date plaintiffs filed the instant suit. Any claims for damages premised on actions prior to that date are time-barred.
See Kinley, 230 F. Supp.2d at 776 (setting the limitations issue from the date of the filing of the suit).
B. Laches and Estoppel
My determination concerning the applicability of section 1658 to the case disposes of the laches defense. Laches cannot be used to bar relief to which plaintiffs are entitled within the statutory period. "Laches within the term of the statute of limitations is no defense at law." As one Circuit Court stated: "separation of powers' principles dictate that an equitable timeliness rule adopted by courts [ i.e., laches] cannot bar claims that are brought within the legislatively prescribed statute of limitations." In other words, because there is an applicable statute of limitations, "neither laches nor its absence is relevant."
See U.S. v. Mack, 295 U.S. 480, 485 (1935).
Lyons Partnership, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 797-98 (4th Cir. 2001) (laches did not bar plaintiffs' claims in copyright and trademark lawsuit).
DAN B. DOBBS, LAW OF REMEDIES, DAMAGES — EQUITY — RESTITUTION, at 77, § 2.4(4) (2d Ed. West 1993).
Despite this general principle, some cases decided under USERRA's predecessor statute analyzed the timeliness of the suit by considering laches. Even if I were to find section 1658 inapplicable to the case, I would still conclude that plaintiffs' claims for damages for the four years preceding the filing of the instant suit are not barred by laches.
See Wallace, 874 F. Supp. at 376-77. See also Miller v. City of Indianapolis, 281 F.3d 648 (7th Cir. 2002) (an USERRA case where the applicability of section 1658 was not discussed and where laches considered).
See Lyons, 243 F.3d at 799 ("When federal courts, in the exercise of their equitable power, consider laches, they are guided by the limitations period that they would borrow for actions at law and presume that if an equitable claim is brought within the limitations period, it will not be barred by laches.").
The doctrine of laches involves more than merely the passage of time. In order to invoke the doctrine of laches, a defendant must show an inexcusable delay in asserting a right and undue prejudice to the defendant.
See Bush v. Oceans Intern., 621 F.2d 207, 211 fn.3 (5th Cir. 1980) ("Laches is based not on simply the passage of time, as is a statute of limitations, but rather upon changes of conditions or relationships.").
Wallace, 874 F. Supp. at 377. See also Goodman v. McDonnell Douglas Corp., 606 F.2d 800, 804-06 (8th Cir. 1979) (discussing the defendant's burden of proving the affirmative defense of laches as a bar to a suit), cert. denied, 446 U.S. 913 (1980).
The City failed to introduce any summary judgment evidence that any "delay" in the plaintiffs asserting their claims was inexcusable or that the City was prejudiced by such delay. Merely arguing that one of the plaintiffs is retired, as the City has done, does not establish a laches bar. Based on the complexity of this case and in light of the numerous plaintiffs asserting USERRA violations, I cannot conclude that the filing of this suit, five years after the enactment of the USERRA, constitutes an inexcusable delay, particularly when plaintiffs are seeking damages for a limited period of time.
See Petry v. Delmara Power Light Co., 631 F. Supp. 1532, 1534 (D. Del. 1986) (four-year delay in bringing a claim under the VRRA did not constitute laches). The instant case is also distinguishable from Miller v. City of Indianapolis, a case relied upon by the City. In Miller, the Seventh Circuit affirmed the district court's holding that the reservists' claims, based on treatment twenty to thirty years earlier at the hands of supervisors who in some instances were retired or dead, were barred by laches. 281 F.3d at 653. While the plaintiffs in this case have been employees of the City for some time, they are seeking damages for a limited period of time only, that is from October 4, 1995. Further, the Seventh Court in Miller explicitly recognized that the facts leading it to find that laches barred plaintiffs' claims were "unusual." Id. at 652. Those facts, including the demonstrated prejudice to the defendant, are simply not present in the instant suit, as I discuss below.
Further, even if the City had supported its claims by competent or probative summary judgment proof, its arguments of prejudice remain unpersuasive. The City advances the following to establish prejudice: (1) that at least one of the named plaintiffs is no longer working for the City, (2) a number of potential witnesses may be retired or no longer available, (3) and that since it has also paid all of its employees under the terms of the CBA (terms which, according to the City, the plaintiffs agreed upon through their Union but which they now claim violate USERRA), the City "would be prejudiced by any additional monetary award."
This argument is presumably speculative as no competent supporting summary judgment proof was presented.
Docket Entry 79, at 8-9.
However, arguments similar to those advanced by the City have been rejected by the courts as being inadequate to establish prejudice and a laches bar. While the City claims prejudicial reliance on the "plaintiffs' representation, through their Union, that the [CBA] would be satisfactory . . .," it failed to provide competent supportive summary judgment evidence. It is undisputed that the City never changed its position regarding the employment practices being challenged in this case in reliance on the CBAs. Further, because employment rights conferred under a federal statute such as USERRA cannot be waived through an employment agreement, such as the various CBAs in effect during the relevant time periods, the City's purported reliance on those agreements is irrelevant. Since the City relies on the same arguments to establish estoppel as it does to support its laches argument, the City's cross motion for summary judgment on both equitable doctrines should bedenied.
See Wallace, 874 F. Supp. at 377 (employer not unduly prejudiced by the cost of defending the suit now instead of earlier and by continuing to conduct its normal business operations); and Novak v. Mackintosh, 937 F. Supp. 873, 880 (D.S.D. 1996) (no prejudice when there was no evidence lost or witnesses unavailable or any evidence that the employer changed its position in any way that would have occurred if there had not been the delay).
Docket Entry 79, at 9.
See Carney v. Cummins Engine Company, 602 F.2d 763, 766-67 (7th Cir. 1979) ("It is immaterial that non-military employees of defendant on leave of absence would not be entitled to overtime opportunities [case citations omitted] since the right of reservists to such opportunities is governed by statute rather than by collective bargaining agreement. Nor does it matter that affording plaintiff relief might conflict with the collective bargaining agreement between defendant and the Union.") (Emphasis added); and Docket Entry 71, at 19-23.
Moreover, to the extent the City has now asserted the equitable doctrines of laches and estoppel as affirmative defenses to bar this suit in toto, those defenses have been waived as the issue of liability has already been determined. The City failed to amend its answer and brief those defenses prior to the Court's entry of summary judgment on the issue of liability. Plaintiffs moved for leave to file their third amended complaint on January 9, 2001, which was granted on January 18, 2001. The City requested leave to file an amended answer to the plaintiffs' third amended complaint on January 16, 2001. The City's answer, however, did not raise laches and estoppel as affirmative defenses. It was at that time, when the issue of liability was still pending, that the City should have asserted these defenses: It failed to do so. Raising them now, after the liability question has been decided, is simply too late.
Docket Entries 46 49.
Docket Entry 47.
VI. Conclusion
Based on the foregoing, I hereby GRANT plaintiffs' request for partial summary judgment (Docket Entry 80) and hold that the plaintiffs may assert their claims for damages for the four year period preceding the filing of their suit; that is from October 4, 1995, through the date of judgment. The City's cross motion for partial summary judgment (Docket Entry 79) is, thus, GRANTED, IN PART, only to the extent it alternatively argues in support of the application of section 1658 to the case. In all other respects, the City's motion is DENIED.