Keene v. Clark Cnty. Sch. Dist.

RICHARD B. KEENE, Plaintiff, v. CLARK COUNTY SCHOOL DISTRICT, Defendant.

Case No. 2:14-cv-00381-APG-PAL

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

June 30, 2016

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

ECF Nos. 39, 40

Plaintiff Richard B. Keene has brought employment discrimination claims against his former employer, defendant Clark County School District ("CCSD"), for violations of the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. §§ 4301 et seq. USERRA prohibits discrimination against persons because of their service in the uniformed services. Keene's complaint alleges claims for: (1) discrimination and retaliation in violation of §§ 4311(a), 4312 & 4313; (2) retaliation in violation of §§ 4311(c), 4312, & 4313; and (3) failure to provide rights and benefits in violation of § 4316.¹

Keene's complaint alleges numerous acts of discrimination and retaliation by CCSD, including failure to reemploy him in May, June, and November 2008—after completion of his service with the Army—as well as later acts of retaliation. Keene moves for partial summary judgment on whether CCSD violated USERRA when it allegedly failed to reemploy him in May, June, and November 2008. ECF No. 39.

CCSD moves for summary judgment on all of Keene's claims. ECF No. 40. First, CCSD argues that Keene never suffered an adverse employment action while working at CCSD. Specifically, it argues that Keene's June 2008 inquiry was not a request for reemployment under USERRA, and that CCSD properly rehired Keen in November 2008.² It also contends that thereis no evidence that any of CCSD's actions were done with a discriminatory or retaliatory motive. CCSD argues that Keene lacks evidence to support his claim of failure to provide rights and benefits under § 4316(a). Finally, CCSD argues that Keene is not entitled to liquidated damages on any of his claims because there is no evidence that any of CCSD's acts were willful.

Keene is entitled to summary judgment regarding the June and November 2008 events because CCSD did not return him to the position he held before leaving for military service. CCSD is entitled to summary judgment as to Keene's discrimination and retaliation claims related to actions after November 2008. CCSD is also entitled to summary judgment as to Keene's claim for failure to provide rights and benefits under § 4316(a), except those related to his November 2008 reemployment. Genuine issues of material fact exist regarding the other claims and allegations in the complaint, precluding summary judgment for either party.

I. BACKGROUND

Keene began working for CCSD in August 2004 as a math teacher. ECF No. 39-1 at 3. In 2005, Keene applied and was selected for the administrative position of Data Coordinator III, Northeast Region. Id. This was a "range 40" position on CCSD's Unified Administrative Salary Schedule. ECF No. 40-4 at 6. Prior to and throughout his employment with CCSD, Keene also served as a reservist for the Army. ECF No. 39-1 at 3. Keene reported for military duty one weekend a month and for annual training two weeks per year. Id. at 3.

In 2007, Keene informed CCSD that he would be activated by the Army for deployment to Iraq in 2008. Id. at 3-4. In preparation for his deployment, Keene was required to attend various training exercises between August 2007 and May 2008 that required him to take military leave from his job at CCSD. Id. The length of these training exercises ranged from two days to several weeks. Id. Keene provided notice to CCSD prior to each training exercise, and each time was granted leave. Id., see also ECF No. 40-5 at 11. After each training exercise ended, Keene reported back to work at CCSD. ECF No. 39-1 at 4. Keene states that while his requests for military leave were always granted, they were met with hostility by his direct supervisor Arlene Lewis, CCSD's Director of Research and School Improvement. Id., ECF No. 40-5 at 15. Hestates that in early 2008, Lewis told him that he needed to "make up his mind" and decide whether he was working for CCSD or the Army. Id. Lewis does not remember making any such comment and states that she was always very supportive of Keene's military service. ECF Nos. 40-5 at 16, 41-1 at 4-5.

In April 2008, Keene requested approval from CCSD to apply for extended military duty from June 2008 to August 2008. ECF No. 39-1 at 36-38. The request was approved by Lewis. Id. The extended duty was meant to cover the gap period between when Keene's training exercises ended in May and when his unit would be deployed in September. Id. at 4.

On May 5, 2008, Keene began another pre-deployment training exercise that was scheduled to last until May 28. Id. at 4, 19. On May 25, Keene was informed by the Army that his request for extended duty had not been funded and therefore was denied. Id. at 4. Over the next few days, Keene spoke with various Army personnel in the hopes of obtaining funding. Id. at 4-5. However, no funding was approved. Id.

Keene states that on May 28, when his pre-deployment training ended and after it was confirmed that he would not be accepted for extended duty, he contacted Lewis to inform her that he would be returning to work at CCSD the following day. Id. at 5. According to Keene, Lewis told him that his "services were no longer required," which Keene understood to mean he was being terminated from his position at CCSD. Id. Lewis states that she does not remember any communication with Keene in May 2008 and that she never informed Keene that his employment was terminated. ECF Nos. 40-5 at 16, 43-4 at 29-30.³

Two days later, on May 30, Keene filed a request for unemployment benefits. ECF No. 39-1 at 5. CCSD did not challenge Keene's request and he received the benefits. Id. Keene states that he sought unemployment benefits to mitigate his wage losses from being terminated by CCSD. Id. The "Info Request" form filled out by CCSD related to this unemployment request states the reason for the separation as "military leave of absence." Id. at 43.

On June 4, 2008, Lewis filled out a performance evaluation for Keene for the 2007-2008 school year. ECF No. 40-6 at 2-3. Lewis gave Keene the highest rating possible in all performance categories. Id. However, in the summary section of the performance review, Lewis wrote that "2007-2008 has been a difficult school year for Dr. Brian Keene. . . . His time and efforts were divided between his duty to our country . . . and his responsibilities here at CCSD. Dr. Keene was unable to perform many of the tasks normally completed by data coordinators for the NE Region as he was absent over 70 days." Id.

After Keene's alleged May 28 communication with Lewis asking to return to work, the next time Keene communicated with CCSD was on June 12, when he sent an email to both Lewis and Marsha Irvin, Superintendent for the Northeast Region. ECF No. 40-5 at 13. In the email, Keene stated that his application for extended duty was not funded as expected and therefore he was back in town. Id. Keene wrote that he saw that CCSD had not yet found a replacement for his position and so he "wanted to offer to come on as a temp to help support these schools through appeals." Id. On June 16, Irvin responded by thanking him for his "offer to assist," and stating that when the district learned he would be away on military leave, it "put a plan in place to handle" the work in his absence. Id.

On July 24, Keene received his orders for mobilization and deployment, requiring him to report for duty on September 7. ECF No. 39-1 at 5. Keene expected to be deployed for several months but, due to health issues, his deployment ended early and he was honorably discharged onOctober 29. Id. at 5, 57.

On November 1, Keene wrote to Martha Tittle, CCSD's Chief Human Resources Officer, asking to be formally reinstated in the school district, pursuant to USERRA. Id. at 57. He stated that he is "entitled to be reinstated as soon as possible in a position equivalent to my former position with any promotions, bonuses, or entitlements that I would have received had I not been away." Id. Keene further wrote that "[s]ince all of the Region Data Coordinators that were hired at the same [time] as I was four years ago have either left the district or been promoted, it is appropriate that I be assigned to the next available range 41 or higher position for which I am properly qualified." Id. Keene named three positions he believed he was eligible for: a range 43 principal position, a range 43 Director II position, and a range 41 Coordinator VI position. Id.

As a result of that letter, CCSD placed Keene in the position of Data Coordinator III, East Region. ECF No. 40-3 at 22-23. This position held the same range 40 salary level as Keene's previous position as Data Coordinator III, Northeast Region. Id. CCSD contends that the pay scale and job duties of the two positions are the same, with the only difference being the geographic region covered. Id. Keene agrees that the pay scale for the two positions was the same, but contends that the positions differed widely in their seniority ranking, promotional opportunities, and job requirements. ECF No. 39-1 at 6. Despite believing he deserved a promotion, Keene accepted the position but continued to "pursue his rights to be properly reemployed with CCSD in 2008 and 2009." Id.

In March 2009, Keene requested to be returned to a classroom teaching position. ECF No. 40-6 at 23-31. Keene contends that he "requested to return to a classroom teaching position not because that was my request, but because I couldn't stand the job I was in at the time because it wasn't the job that I had left. Nor was it the job that I should have been entitled to upon my return." ECF No. 43-2 at 67. Keene also claims that he was being harassed by Robert Alfaro, Superintendent for the East Region. Id. However, Keene's emails and letters around that time indicate that his request was based on medical concerns. See e.g., ECF No....