Carder v. Cont'l Airlines Inc.

636 F.3d 172

190 L.R.R.M. (BNA) 2589

94 Empl. Prac. Dec. P 44,143

160 Lab.Cas. P 10,360

Derek CARDER, an Individual, on behalf of himself and all others similarly situated; Mark Bolleter, an Individual, on behalf of himself and all others similarly situated; Drew Daugherty, an Individual, on behalf of himself and all others similarly situated; Andrew Kissinger, an Individual, on behalf of himself and all others similarly situated, Plaintiffs–Appellants,

v.CONTINENTAL AIRLINES, INC., a Delaware Corporation, Defendant–Appellee.

No. 10–20105.

United States Court of Appeals, Fifth Circuit.

March 22, 2011.

Brian J. Lawler (argued), Alexandra Gail Taylor, Pilot Law, P.C., San Diego, CA, Gene Joseph Stonebarger, Stonebarger Law, A.P.C., Folsom, CA, Charles Michael Billy, Lake Forest, CA, Andrew Struben de Klerk, Frilot, L.L.C., New Orleans, LA, for Plaintiffs–Appellants.Jeffrey C. Londa (argued), Flyn Lee Flesher, Ogletree Deakins, P.C., Houston, TX, for Defendant–Appellee.Appeal from the United States District Court for the Southern District of Texas.Before DAVIS, WIENER, and BENAVIDES, Circuit Judges.W. EUGENE DAVIS, Circuit Judge:

Appellants, members of the United States Armed Forces Reserves and Air National Guard, are currently employed as pilots by Appellee Continental Airlines, Inc. (“Continental”). Appellants filed a class-action complaint in the district court purportedly on behalf of all similarly situated employees at Continental. The complaint raises a number of claims against Continental under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), a statute adopted to prohibit civilian employers from discriminating against their employees because of their military service. Appellants filed this interlocutory appeal from the district court's partial grant of Continental's motion to dismiss under Federal Rule of Procedure 12(b)(6). The district court held that Appellants failed to state a claim for a hostile work environment because USERRA does not provide for such a claim. We granted permission to appeal and for the following reasons, we affirm.

I.

Appellants' class complaint asserts several claims against Continental under USERRA. The complaint which is the focus of this appeal alleges that Continental has created a hostile work environment through “harassing, discriminatory, and degrading comments and conduct relating to and arising out of” Appellants' military service and service obligations. This count of the complaint cites a “continuous pattern of harassment in which Continental has repeatedly chided and derided plaintiffs for their military service through the use of discriminatory conduct and derogatory comments regarding their military service and military leave obligations.” The factual content of this count is based primarily on Appellants' allegations that Continental management has (1) placed onerous restrictions on taking military leave and arbitrarily attempting to cancel military leave; (2) made derisive and derogatory comments to pilots about their military service. Examples of these alleged derisive comments include comments by Continental managers such as the following: “If you guys take more than three or four days a month in military leave, you're just taking advantage of the system.”; “I used to be a guard guy, so I know the scams you guys are running.”; “Your commander can wait. You work full time for me. Part-time for him. I need to speak with you, in person, to discuss your responsibilities here at Continental Airlines.”; “Continental is your big boss, the Guard is your little boss.”; “It's getting really difficult to hire you military guys because you're taking so much military leave.”; “You need to choose between CAL and the Navy.”

Continental moved for dismissal of this hostile work environment claim under Federal Rule of Civil Procedure 12(b)(6). Continental argued that USERRA does not prohibit harassment of military members nor otherwise contemplate a hostile work environment action. The district court agreed. The district court held that the plain meaning of the phrase prohibiting the denial of any “benefit of employment” to a member of the uniformed services based on such membership or the performance of service, 38 U.S.C. § 4311(a), does not include a cause of action based on a hostile work environment.

Some of Appellants' other claims were not dismissed.¹ The district court granted certification and this court granted Appellants permission to pursue this interlocutory appeal of the district court's order dismissing the hostile work environment claim pursuant to 28 U.S.C. § 1292.

II.

“We review the district court's dismissal for failure to state a claim de novo.” Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir.2008). “The court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Id. Questions of statutory interpretation are, of course, reviewed de novo. United States v. Clayton, 613 F.3d 592, 595 (5th Cir.2010).

III.

The issue in this case is whether USERRA, which was adopted to prohibit discrimination against members of the armed forces because of that service, provides a service member with a cause of action against his employer for a hostile work environment. This dispute narrows to an interpretation of USERRA's prohibition against denial of a “benefit of employment” on the basis of military service, as stated in § 4311(a) and further defined in § 4303(2).

We have little direct authority to guide us. “Neither the Supreme Court nor any court of appeals has decided whether a hostile work environment claim is cognizable under USERRA.” Vega–Colon v. Wyeth Pharms., 625 F.3d 22, 32 (1st Cir.2010). Several circuit courts have assumed without deciding that USERRA does provide for such a claim while disposing of the claim on other grounds. Id. at n. 9 (citing Dees v. Hyundai Motor Mfg. Alabama, LLC, 368 Fed.Appx. 49, 53 (11th Cir.2010); Church v. City of Reno, 168 F.3d 498 (9th Cir. Feb.9, 1999)); Miller v. City of Indianapolis, 281 F.3d 648 (7th Cir.2002). A number of district courts have reached differing conclusions on the merits.² Thus, we are the first circuit court to consider whether the statute creates a cause of action for hostile work environment.

A.

Statutory interpretation begins with the statute's plain language. Waggoner v. Gonzales, 488 F.3d 632, 636 (5th Cir.2007). The plain language of USERRA is as follows.

Section 4311(a) of the statute (entitled “Discrimination against persons who serve in the uniformed services and acts of reprisal prohibited”) states the following:

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, 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.

(emphasis added).

In a separate definitions section, the statute defines “benefit of employment”:

The term “benefit”, “benefit of employment”, or “rights and benefits” means any advantage, profit, privilege, gain, status, account, or interest (including 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 rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment.

38 U.S.C. § 4303(2).

A different section of the statute states the purposes of USERRA:

(1) to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service;

(2) to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemployment of such persons upon their completion of such service; and

(3) to prohibit discrimination against persons because of their service in the uniformed services.

Id. § 4301(a)(1)–(3)

From the plain language of § 4301(3), it is clear that one of the purposes of USERRA is to prohibit discrimination and acts of reprisal against service members because of their service. Section 4311(a) defines this discrimination to include the denial of any “benefit of employment.” The language of § 4303(2) defining the word “benefit” and the phrase “benefit of employment” includes the long list of terms “advantage, profit, privilege, gain, status, account, or interest.” But § 4303(2) does not refer to harassment, hostility, insults, derision, derogatory comments, or any other similar words. Thus, the express language of the statute does not provide for a hostile work environment claim.

Given the statute's express prohibition of discrimination against service members, however, we must also consider the statute's legislative history and its underlying policy objectives in an attempt to gain insight into whether Congress intended to create a cause of action under USERRA for harassment of service members. See Rogers v. City of San Antonio, 392 F.3d 758, 762 (5th Cir.2004). We will also compare the language of USERRA to language from other federal anti-discrimination statutes from which courts have inferred a cause of action for hostile work environment.

B.

Appellants have pointed to segments of USERRA's legislative history stating that the statute was intended to be “broadly construed” and given an “expansive interpretation” in favor of service members. The Appellants couple this “broadly construed” language with USERRA's third express purpose—to “prohibit discrimination...