Bailey v. Forrest Cnty.

MEMORANDUM OPINION AND ORDER

For the reasons provided below, the Court denies Defendant's Motion for Summary Judgment [23] and denies as moot Plaintiff's Motion for Leave to File Sur-Reply [32].

Plaintiff, a member of the Mississippi Army National Guard, was employed by Defendant in the Forrest County Sheriff's Office and assigned to the Department of Justice's "High Intensity Drug Task Force" ("HIDTA"), which included officers from several local agencies and municipalities under supervision by officers from the Drug Enforcement Administration ("DEA"). In early 2018, Plaintiff received orders for a thirteen-month deployment on active military duty, and he was deployed to Kuwait in the spring of 2018. However, Plaintiff returned home earlier than anticipated because of a medical issue in October 2018.

When Plaintiff returned, Defendant continued to employ him at the Sheriff's Office, but he was not assigned to HIDTA. Plaintiff alleges that the new position paid less than what he made on the task force. Therefore, he contends that Defendant

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discriminated against him because of his military service obligations by altering the benefits of his employment, altering his duties, refusing to reemploy him in the same position, and reducing his compensation in violation of the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). He filed this lawsuit, seeking compensatory and liquidated damages, as well as attorney's fees and expenses. Defendant filed a Motion for Summary Judgment [23].

Rule 56 provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); see also Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). "Where the burden of production at trial ultimately rests on the nonmovant, the movant must merely demonstrate an absence of evidentiary support in the record for the nonmovant's case." Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (punctuation omitted). The nonmovant "must come forward with specific facts showing that there is a genuine issue for trial." Id. "An issue is material if its resolution could affect the outcome of the action." Sierra Club, 627 F.3d at 138. "An issue is 'genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party." Cuadra, 626 F.3d at 812.

The Court is not permitted to make credibility determinations or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding

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whether a genuine fact issue exists, "the court must view the facts and the inference to be drawn therefrom in the light most favorable to the nonmoving party." Sierra Club, 627 F.3d at 138. However, "[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial." Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).

Two sections of USERRA are applicable to this case, each creating its own "distinct cause[ ] of action." Bradberry v. Jefferson County, Tex., 732 F.3d 540, 545 (5th Cir. 2013). Plaintiff cited both sections in his Complaint, but Defendant made no distinction between each cause of action in briefing. The Court will address Defendant's arguments with respect to each one, as applicable.

A. Discrimination - 38 U.S.C. § 4311

First, Plaintiff claims that Defendant discriminated against him because of his military service obligations. Section 4311 "concerns discrimination against those in the military when making employment decisions." Id. "The burden for a plaintiff in a Section 4311 claim is to prove that military status was a motivating factor in the employer's actions." Id. at 551 (citing 38 U.S.C. § 4311(c)(1)). Military status is a "motivating factor" if "one reason for the employer's actions was [the plaintiff's] membership, application for membership, service, application for service, or obligation for service in the uniformed services." Id. An adverse employment action

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"can appear throughout the employment continuum, from consideration for hiring to employee termination." Id. at 547. However, the employer "is not liable under USERRA if it 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." Id. at 545.

First, Defendant argues that it had no control over whether Plaintiff was put back on the task force, and, therefore, that it was not his "employer" with respect to that position. Under USERRA, "'[e]mployer' . . . means any person, institution, organization, or other entity that pays salary or wages for work performed, or that has control over employment opportunities, including . . . a person, institution, organization, or other entity to whom the employer has delegated the performance of employment-related responsibilities . . . ." 38 U.S.C. § 4303(4)(A); see also 20 C.F.R. § 1002.5(d)(1). Federal courts have construed this definition liberally. Garcia v. Spring Ind. Sch. Dist., 2020 WL 8299810, at *1 (S.D. Tex. Mar...