Huff v. Winston

790 S.E.2d 226

Pamela Ennis Huff

v.Michael G. Winston, Sheriff, In His Official Capacity

Record No. 151688

Supreme Court of Virginia.

September 8, 2016

Robert Michael Doherty, Roanoke, (William M. Braxton; Thomas E. Strelka ; Linda Leigh R. Strelka ; Braxton & Doherty; Strelka Law Office, on briefs), for appellant.

Jim H. Guynn, Jr. (Bret C. Marfut ; Guynn & Waddell, on brief), Salem, for appellee.

PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Russell, S.J.

OPINION BY JUSTICE WILLIAM C. MIMS

In this appeal, we consider the circumstances under which the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301 –4333 (“USERRA”), provides for a two-year convalescence period. We also consider whether 38 U.S.C. §§ 4312 and 4313 apply to claims based on an employer's conduct after reemployment.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

A. Factual Background

Pamela Ennis Huff (“Huff”) was initially hired by the Roanoke County Sheriff's Office (the “Sheriff”) in November 2001 as a Deputy Sheriff. At the time, she was also a member of the United States Army Reserve.

In December 2009, Huff was serving as a Deputy Sheriff Bailiff when she was called to active duty and deployed to Afghanistan.¹ During her tour of duty, Huff suffered a broken nose, injuries to her hip and spine, and a concussion, which resulted in a traumatic brain injury. In April 2011, she was diagnosed with post-traumatic stress disorder (“PTSD”) and major depressive disorder.

Huff returned from Afghanistan in May 2011, and she was discharged from active duty shortly thereafter. Upon her return, she contacted the Sheriff regarding reemployment. In July 2011, the Sheriff rehired Huff as a Deputy Sheriff Bailiff.

Despite treatment at the Salem VA Medical Center, Huff continued to suffer from PTSD and depression-related symptoms during her employment. After certain incidents came to the Sheriff's attention, Huff was twice required to undergo “Fitness for Duty Evaluations.” The Sheriff deemed Huff fit for duty on both occasions.

In August 2011, Huff requested unpaid leave on Fridays due to ongoing counseling sessions that were scheduled for Thursday evenings. The Sheriff advised her that he could not provide leave on every Friday if she remained in the court services division. Instead, he offered to transfer her from court services to corrections to provide the office with greater scheduling flexibility. Huff considered the transfer a demotion, and declined to accept it. The Sheriff then indicated that she could take up to thirty days unpaid administrative leave to seek counseling and treatment. Beginning in late November 2011, Huff took thirty days leave pursuant to the Family and Medical Leave Act.

Upon her return, Huff was authorized by her treating physician to work on a full-time, “light duty” basis through April 1, 2012. She began working in this capacity, and later submitted a request to remain on full-time, light duty through June 2012. However, in March 2012, Huff suffered a heart attack, which was deemed “service related” by her treating physician. After her heart attack, Huff went on disability leave.

Huff's physician subsequently cleared her to return to work on a part-time, “full duty” basis from October 22, 2012 to January 21, 2013. Three days later, the Sheriff terminated her employment due to her inability to return to work in a full-time capacity.

B. Procedural Background

Huff filed a complaint in the Circuit Court of Roanoke County, asserting four counts against the Sheriff. In relevant part, the complaint alleged that (1) the Sheriff failed to properly reemploy Huff and failed to make reasonable efforts to accommodate her disability in violation of 38 U.S.C. § 4313, and (2) the Sheriff was required to allow Huff a two-year convalescence period before terminating her employment pursuant to 38 U.S.C. § 4312.²

The parties submitted competing motions for summary judgment on the above counts. Relying on Francis v. Booz, Allen & Hamilton, Inc. , 452 F.3d 299 (4th Cir. 2006), the circuit court ruled that Sections 4312 and 4313 apply only until the moment of reemployment. Because the Sheriff rehired Huff in the same position that she had left during her deployment, the circuit court found these provisions were inapplicable to her claims. Accordingly, the court granted the Sheriff's motion for summary judgment.

The case proceeded to trial on the two remaining counts.³ After Huff presented her evidence, the court granted the Sheriff's motion to strike the first count, while taking the Sheriff's motion to strike the remaining count under advisement. After the Sheriff presented his case, the jury returned a defense verdict on the remaining count.

Huff appeals only the circuit court's decision to grant the Sheriff's motion for summary judgment.

II. ANALYSIS

A. Standard of Review

“In an appeal from a circuit court's decision to grant or deny summary judgment, this Court reviews the application of law to undisputed facts de novo.” St. Joe Co. v. Norfolk Redev. & Hous. Auth. , 283 Va. 403, 407, 722 S.E.2d 622, 625 (2012). This appeal also presents questions of statutory interpretation, which the Court reviews de novo. Conyers v. Martial Arts World of Richmond, Inc. , 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007).

B. Statutory Analysis

Congress enacted USERRA “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[;] 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 to prohibit discrimination against persons because of their service in the uniformed services.” 38 U.S.C. § 4301(a)(1)–(3). To achieve these purposes, the relevant provisions of USERRA provide complementary protections during distinct phases of employment. Accordingly, a brief recitation of the sequencing of these protections is useful.

Section 4311 prohibits an employer from discriminating against an employee 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.” 38 U.S.C. § 4311(a) & (c)(1); see Francis , 452 F.3d at 304. Section 4311 provides “umbrella” coverage: it prohibits discrimination on the basis of service at the “initial employment” and any subsequent “reemployment,” as well as during “retention in employment” and in the awarding of promotions or benefits. 38 U.S.C. § 4311(a). Moreover, Section 4311 prevents an employer from taking retaliatory action in the event that a covered employee exercises a right afforded by USERRA. 38 U.S.C. § 4311(b) & (c)(2).

Section 4312 requires employers to rehire covered employees upon their return from deployment, if those employees have satisfied the prerequisites listed therein. 38 U.S.C. § 4312(a)(1)–(3) ; see In re Petty , 538 F.3d 431, 440 (6th Cir. 2008) ; Francis , 452 F.3d at 304. If a service member satisfies the requirements of Section 4312, then Section 4313 “sets forth the position of employment to which the returning veteran must be rehired and requires that the veteran be ‘promptly reemployed’ in that position.” In re Petty , 538 F.3d at 440 ; see 38 U.S.C. § 4313(a)(1)–(4).

Finally, Section 4316 provides that a service member who has been reemployed under USERRA “shall not be discharged from such employment, except for cause [,]” for a period of up to one year. 38 U.S.C. § 4316(c). This section also ensures that reemployed service members receive certain employment rights and benefits associated with seniority and continuous employment. 38 U.S.C. § 4316(a) –(b). In short, Section 4316 “prevents employers from summarily dismissing those employees for a limited period after they are rehired.” Francis , 452 F.3d at 304.

With this framework for USERRA in mind, we turn to the parties' arguments.

1. The Two–Year Convalescence Period of Section 4312

Huff contends Section 4312 provides a two-year period after the end of deployment during which a service member's job is protected if the service member is convalescing with service-related injuries. See 38 U.S.C. § 4312(e)(2). Thus, she asserts that the Sheriff could not terminate her employment until May 13, 2013. We conclude that the language of Section 4312 does not support this argument.

In relevant part, Section 4312 states:

(a) Subject to subsections (b), (c), and (d) and to section 4304, any person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this chapter if—

(1) the person (or an appropriate officer of the uniformed service in which such service is performed) has given advance written or verbal notice of such service to such person's employer;

(2) the cumulative length of the absence and of all previous absences from a position of employment with that employer by reasons of service in the uniformed services does not exceed five years; and

(3) except as provided in subsection (f), the person reports to, or submits an application for reemployment to, such employer in accordance with the provisions of subsection (e).

....

(e)(1) Subject to paragraph (2), a person referred to in subsection (a) shall, upon the completion of a period of service in the uniformed services, notify the employer referred to in such subsection of the person's intent to return to a position of employment with such employer as follows:

....

(2)(A) A person who is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service in the uniformed services shall, at the end of the period that is necessary for the person to recover from such

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