Bearden v. City of Ocean Shores

644 F.Supp.3d 876

Travis BEARDEN, Plaintiff, v. CITY OF OCEAN SHORES, et al., Defendants.

CASE NO. C21-5035 BHS

United States District Court, W.D. Washington, at Tacoma

Signed December 8, 2022

John M. Tymczyszyn, John T. Law PLLC, Bellevue, WA, Thomas G. Jarrard, The Law Office of Thomas G. Jarrard PLLC, Spokane, WA, for Plaintiff.

Elizabeth McIntyre, Law Lyman Daniel Kamerrer & Bogdanovich, Olympia, WA, for Defendant City of Ocean Shores.

ORDER

BENJAMIN H. SETTLE, United States District Judge

This matter comes before the Court on Defendants City of Ocean Shores and Dean Dingler's motions for summary judgment, Dkts. 15, 28. Because Plaintiff Travis Bearden fails to establish a genuine issue of material fact on any of his claims and Defendants are entitled to judgment as a matter of law, the Court grants the motions.

I. BACKGROUND

Bearden was employed as a firefighter for the City of Ocean Shores while he was also a member of the United States Army Reserve. At the end of 2013, Bearden attended basic training as a reservist, followed by advanced individual training. Dkt. 16 at 4. The advanced individual training ended in March 2014 and, thereafter, Bearden returned to work at the City. Id.

During his leave, the City paid Bearden through his use of other paid leave, "Kelly days,"¹ and 21 days of accrued military leave pursuant to RCW 38.40.060. Dkt. 17 at 2, ¶ 3. Bearden exhausted this paid leave in January 2014. Id. He did not return to work until March 2014. Id. Because Bearden was on unpaid leave throughout February 2014, no contributions were made to his retirement plan for that month. Id.

Beginning October 2017, Bearden again went on military leave. He provided the City with an annual schedule of the dates that he was required to report for military duty between October 1, 2017, and September 30, 2018. Dkt. 19 at 3, ¶ 5; 65-66. Bearden submitted this schedule pursuant to a state statute, which provides that public employees are entitled to "twenty-one days" of paid military leave "during each year beginning October 1st and ending the following September 30th in order that the person may report for required military duty, training, or drills." RCW 38.40.060(1).

Bearden subsequently requested paid military leave for March 7, 2018, even though this date was not listed on the schedule. See id. at 3, ¶ 6; 65-66. In response to this request, the City's fire chief at the time, David Bathke, sent Bearden a memorandum requesting him to provide the City with "orders . . . that reflect this March 7, 2018 participation date." Dkt. 17 at 32. Bearden responded that he "did not have orders" and asked Bathke to cite to a "state or federal ruling" requiring orders to be produced. Id. at 34.

Bathke sent Bearden another memorandum, informing him that, under RCW 38.40.060, military leave applied to only required military duty, training, or drills. Id. at 36. Bathke also informed Bearden that he could submit "a letter or other documentation from [his] commanding officer to establish that [his] absence on March 7 was for 'required military duty, training, or drills.' " Id. Ultimately, Bearden did not provide the City with any documentation indicating that he was required to report for military duty, training, or drills on March 7, 2018. Id. at 3, ¶ 7. Accordingly, the City did not charge this day to Bearden's military leave and, instead, charged it to other accrued leave. Id.

In October 2019, Bearden submitted a military order to the City stating that he was required to report to military duty from October 16, 2019, through October 30, 2019. Dkt. 18, ¶ 3; id. at 4. Bearden subsequently submitted another order stating that he was required to report for military duty for an additional nine months—from November 5, 2019, through August 27, 2020. Id. at 2, ¶ 3; 6.

The City charged the initial period of Bearden's absence to his 21 days of paid military leave. Dkt. 17 at 3, ¶ 8. After Bearden exhausted his military leave, he utilized other accrued leave, which he exhausted in February 2020. Id.

On February 19, 2020, the City's human resources specialist e-mailed Bearden, stating: "We wanted to reach out and let you know that as of 02/13/2020, we have put you on 'Leave without pay status', as your Vacation and Kelly time have both been exhausted." Dkt. 18 at 10. That day, Bearden responded, "Perfect. Thank you very much for reaching out." Id. In July 2020, Bearden submitted another order to the City indicating that he would continue on military duty after August 27, 2020, for an additional 273 days. Dkt. 18 at 2, ¶ 3; 8.

On October 27, 2020, Bearden e-mailed the City's new fire chief, Mike Thuirer, requesting payment for 21 days of military leave beginning October 1, 2020, pursuant to RCW 38.40.060. Id. at 12. The City's human resources specialist responded to Bearden, informing him that, under RCW 38.40.060(4)(a),² public employees are entitled paid military leave only for days that they are scheduled to work. Id. at 14-15. She explained that Bearden was not entitled to paid military leave because he was on a "Military Leave of Absence, effective November 5, 2019, and ha[d] no scheduled work days." Id. at 15. As a result, Bearden was not charged any paid military leave following September 30, 2020.

Bearden sued the City alleging six violations of, and a claim for liquidated damages under, the Unformed Services Employment and Reemployment Rights Acts ("USERRA"), 38 U.S.C. § 4301 et seq. Dkt. 1 at 5-7. He subsequently amended his complaint, adding the City's mayor, Crystal Dingler,³ as a defendant and adding a claim that Defendants violated the Washington Law Against Discrimination ("WLAD"), RCW Ch. 49.60. Dkt. 23 at 2, 10.

The primary basis for Bearden's USERRA claims appears to be the City's refusal to charge him paid military leave under RCW 38.40.060 both on March 7, 2018, and for 21 days between October 1, 2020, and September 30, 2021. Indeed, in counts 1, 2, 4, and 5, Bearden claims that Defendants violated various provisions of USERRA that prohibit employers from denying employees in the uniformed services certain rights and benefits to which they are legally entitled.⁴ In count 3, Bearden claims that Defendants violated 38 U.S.C. § 4311(b)—a statute prohibiting employers from discriminating against or taking adverse employment actions against those who seek to enforce rights protected under USERRA—by taking adverse employment actions against him and by constructively discharging him.⁵ Id. at 9. And in count 6, Bearden claims that the City violated 38 U.S.C. § 4318—a statute regarding employee pension benefit plans—by maintaining a retirement plan that imposes requirements on members of the uniformed services beyond those required or permitted by USERRA. Id.

Regarding WLAD, Bearden claims in count 7 that Defendants "violated [his] WLAD-guaranteed protection from military related employment discrimination." Id. at 10.

The first motion for summary judgment, Dkt. 15, is directed at Bearden's USERRA claims. Defendants contend that Bearden was not entitled to paid military leave for March 7, 2018, because he did not substantiate his request with documentation indicating that he was required to report for military duty on that day. Id. at 10. Defendants further argue that Bearden was not entitled to 21 days of paid military leave between October 1, 2020, and September 30, 2021, because he was not scheduled to work any day during that period. Id. at 10-11. Defendants also assert that Bearden's discrimination claim under USERRA fails because he cannot establish that he has experienced an adverse employment action. Id. at 14. And Defendants contend that, under state law, Bearden—not the City—was required to take steps to obtain retirement system service credit from the Department of Retirement Systems. Id. at 7-8.

In response, Bearden does not address whether he was entitled to paid military leave for March 7, 2018, or whether the City failed to take steps to obtain retirement system service credit for the month of February 2014. See Dkt. 20. Instead, he claims that he was entitled to 21 days of paid military leave between October 1, 2020, and September 30, 2021, under RCW 38.40.060 regardless of whether he was actually scheduled to work any day during that period. Id. at 20-23. He further contends that, by requiring him to be scheduled to work to qualify for paid military leave under RCW 38.40.060, the City violated 20 C.F.R. § 1002.149, which provides that entitlement to non-seniority rights and benefits is not dependent on how the employer characterizes the employee's status during a period of military service. Id. at 20. Bearden also argues that the City violated 38 U.S.C. § 4316(d)—a statute prohibiting employers from requiring a person on military service to use vacation leave—by charging his absence on March 7, 2018, to his non-military accrued leave.⁶ Id. at 18 n.5.

He also asserts that a fact issue exists to support his claims of discrimination and constructive discharge under USERRA. Id. at 14-15. In support of this argument, Bearden cites to a declaration of Bathke that describes an apparent conspiracy, involving Mayor Dingler, several firefighters, and other City employees, to terminate Bearden's employment with the City. Specifically, Bathke states that Mayor Dingler informed him that she was getting pressure from several firefighters at the department "to find a way to discipline and terminate" Bearden because "his time away for military duties . . . was limiting their ability to select time off." Dkt. 20-2, Ex. A, ¶ 7. Bathke also states that Mayor Dingler directed him to "require advanced written documentation of military leave orders from Lt[.] Bearden in hopes he would resign his employment or . . . Dingler could terminate him for insubordination." Id. ¶ 8. Furthermore, according to Bathke, several firefighters informed him that "they were going to make Travis Bearden's life at the fire station 'Living Hell' and they were...