Brown v. Con-Way Frieght, Inc.

DALE S. BROWN, Plaintiff, v. CON-WAY FRIEGHT, INC., Defendant.

No. 14 C 2055

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

March 7, 2016

Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Dale S. Brown filed this action against Defendant Con-Way Freight Inc. ("Con-way") alleging it violated Sections 4313 and 4316 of the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301, et seq, when it failed to reemploy him in the job that he had held prior to his deployment to Iraq once he recovered from his service-connected disability. The parties have filed cross-motions for summary judgment. For the following reasons, the Court grants Con-way's Motion for Summary Judgment (Dkt. No. 60) and denies Brown's Motion for Summary Judgment (Dkt. No. 63.)

BACKGROUND

A. Factual Background

Prior to January 2006, Brown was employed by Con-way as a Driver Sales Representative ("DSR"). (Dkt. No. 72 at ¶ 4.) He had a seniority date for shift bidding purposes of May 2004. (Dkt. No. 69 at ¶¶ 10-11.) A DSR's primary job duties included, but were not limited to, loading and unloading freight and operating a tractor trailer. (Id. at ¶ 9.) In addition, Brown was frequently required to lift 50 lbs, sometimes more, over his head. (Dkt. No. 72 at ¶ 12.) In January 2006, Brown was called into active duty in the Naval Reserve. (Id. at ¶ 5.) Brown was honorably discharged in January 2009. (Id. at ¶ 6.) During his time serving the country in Iraq, Brown injured or aggravated his left shoulder, rotator cuff, and bicep. (Dkt. No. 69 at ¶ 16.)

In August 2008, Brown applied to the Veterans Administration ("VA") for benefits for his service-related injuries, including those relevant to this case. (Dkt. No. 72 at ¶ 25.) One month later, Brown attended a hearing before the Navy's Physical Evaluation Board ("PEB"), during which he claimed that he should be assigned to the Navy's Permanent Disability Retired List ("PDRL") due, in part, to his shoulder injuries. (Id. at ¶ 28.) In November 2008, the PEB, after determining that Brown had a 10% disability to his left arm, a 10% disability to his right shoulder, and a 10% disability to his foot, placed Brown on the Navy's Temporary Disability Retired List ("TDRL"). (Id. at ¶ 29.) On September 2, 2009, the VA issued Brown a combined 60% disability rating, 20% of which was related to his shoulder injury. (Id. at ¶ 26.) The VA began paying Brown monthly disability benefits for "static" disabilities, i.e. disabilities deemed to be permanent. (Id. at ¶¶ 26, 27.)

In January 2009, Brown sent Con-way a letter requesting reemployment pursuant to USERRA, and was subsequently reemployed as a Customer Service Representative (CSR) a few weeks later. (Id. at ¶¶ 8-9.) Consistent with his prior representations to the VA and PEB, Brown informed Con-way that his injuries would not allow him to perform his functions as a DSR. (Dkt. No. 69 at ¶ 19; see also Brown v. Con-Way Freight, Inc., 891 F. Supp. 2d 912, 918 (N.D. Ill. 2012) (Court stating that "Brown admitted, from his first communications with Con-way regarding reemployment, that he could not perform the functions of a DSR because he could not do heavy lifting or pushing and pulling.").) Con-way changed Brown's seniority rank to February 2009 at that time. (Id. at ¶ 22.)

On July 25, 2012, Brown gave Trish Engle, his personnel supervisor at Con-way, a copy of a medical release indicating that he had no further work restrictions and could drive trucks again. (Id. at ¶ 24.) In August and October 2012, Brown asked Con-way to reinstate him to his DSR position and adjust his seniority date accordingly. (Id. at ¶ 31.) In an October 18, 2012 letter Con-way responded that it had already met its obligations under USERRA, and that Brown would have to apply for a DSR position when one became available. (Id. at ¶¶ 33-35.) Brown did so, and was placed in a DSR position in March 2013. (Id. at ¶¶ 36-37.) While Con-way states that it rehired Brown to the DSR position in this instance, Brown disputes that characterization. (Dkt. No. 72 at ¶ 11.) Con-way also changed Brown's seniority date to March 2013. (Dkt. No. 69 at ¶ 38.) Had Brown been granted his earlier seniority date of May 2004, he would have been paid an additional $89,857 from July 30, 2012 to March 16, 2015. (Id. at ¶ 42.)

From 2008 to 2013, Brown was evaluated at 18 month intervals to determine whether he could return to active duty. (Id. at ¶ 31.) In February 2013, six months after representing to Con-way that he no longer had any work restrictions, Brown submitted a certified Formal Hearing Petition to the Navy's PEB stating that he was unfit for service and that he should be assigned to the Permanent Disability Retired List. (Id. at ¶ 35.) In his Petition, Brown cited 10% disabilities for each of the following: right shoulder pain, left shoulder pain, lumbosacral strain, plantar fasciitis left foot, and a foot injury. (Dkt. No. 61-8 at 1-2.) On March 5, 2013, the PEB concluded that Brown had service-related disabilities to his left and right shoulders that created "a significant impact [his] ability to perform his [military] duties including: unable to do prolonged, heavy work overhead," and assigned him a total disability rating of 20%. (Dkt. No. 72 at ¶ 37.) Brown subsequently filed this suit on March 24, 2014.

B. Prior Litigation

In July 2010, Brown brought an action against Con-way alleging that the company violated USERRA when it reemployed him in a lower-paying position following his honorable discharge. See Brown v. Con-Way Freight, Inc., 891 F. Supp. 2d 912 (N.D. Ill. 2012) (hereinafter "Brown I").¹ Brown's 2010 Complaint alleged that he had "suffered a permanent disability" during his military service that prevented him from working as a DSR, though the parties now dispute whether the Court made a factual finding on the permanency issue. (Dkt. No. 72 at ¶¶ 18, 23.) The Court ultimately granted Con-way's motion for summary judgment, holding that Con-way had met or exceeded its reemployment obligations to Brown under USERRA when it created a CSR position for him in 2009. (Id. at ¶ 22.) Accordingly, the Court entered judgement for Con-way on all claims. (Id.) Brown did not appeal the Court's decision.

STANDARD OF REVIEW

On cross-motions for summary judgment, each movant must satisfy the requirements of Rule 56 of the Federal Rule of Civil Procedure. See Cont'l Cas. Co. v. Northwestern Nat'l Ins. Co., 427 F.3d 1038, 1041 (7th Cir. 2005). Summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. See Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court will "limit its analysis of the facts on summary judgment to evidence that is properly identified and supported in the parties' [Local Rule 56.1] statement." Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 529 (7thCir. 2000). Where a proposed statement of fact is supported by the record and not adequately rebutted, the court will accept that statement as true for purposes of summary judgment. See Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) ("'Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter[;] rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.'").

DISCUSSION

Brown contends that Con-way violated his rights under USERRA Sections 4313 and 4316 respectively when it failed to reassign him to his proper escalator position² with his appropriate seniority date after he recovered from his injuries. (Dkt. No. 1.) Con-way, in its own motion for summary judgment, responds by arguing that it has already met its obligations under USERRA, as decided in Brown I, and that no ongoing obligations exist in this case.

As a general matter, "[t]he USERRA provides that a person who has performed service in 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 ... performance of service.'" See, e.g., Pfeifer v. Caterpillar Inc., No. 98 C 542, 2000 WL 310312, at *12-13 (N.D. Ill. Mar. 24, 2000) (quoting 38 U.S.C. § 4311(a)). More specifically, the USERRA performs four key functions:

First, it guarantees returning veterans a right of reemployment after military service. 38 U.S.C. § 4312. Second, it prescribes the position to which such veterans are entitled upon their return. 38 U.S.C. § 4313. Third, it prevents employers from discriminating against returning veterans on account of their military service. 38 U.S.C. § 4311. Fourth, it prevents employers from firing without cause any returning veterans within one year of reemployment. 38 U.S.C. § 4316.

Petty v. Metro. Gov't of Nashville-Davidson Cty., 538 F.3d 431, 439 (6th Cir. 2008). "Courts have recognized that '[b]ecause USERRA was enacted to protect the rights of veterans and members of the uniformed services, it must be broadly construed in favor of its military beneficiaries.'" Id. (quoting Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299 (4th Cir. 2006)); see also Davis v. Advocate Health Ctr. Patient Care Exp., 523 F.3d 681, 683 (7th Cir. 2008).

A. Section 4313 Claim³

Brown contends that Con-way failed to meet its obligations under Section 4313 when it refused to reemploy him to his escalator position after he had fully healed. In making this argument, Brown states that Section 4313's "reasonable efforts"...