United States District Court, District of Columbia
For MICHAEL VAHEY, Plaintiff: John Patrick Mahoney, Matthew D. Estes, Steven L. Herrick, LEAD ATTORNEYS, TULLY RINCKEY, PLLC, Washington, DC.
For GENERAL MOTORS COMPANY, Defendant: Trina L. Fairley, LEAD ATTORNEY, CROWELL & MORING LLP, Washington, DC; Clay V. Fulghum, PRO HAC VICE, LATHROP & GAGE LLP, Kansas City, MO.
JOHN D. BATES, United States District Judge.
Plaintiff Michael Vahey, a former employee of General Motors (" GM" )  and an honorably discharged veteran, brings this action against defendant GM alleging a violation of his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (" USERRA" ). Specifically, Vahey alleges (1) a failure to properly reemploy him after returning from his military service, (2) unlawful discharge, and (3) discrimination based on his military absence. GM has moved for summary judgment on all three of Vahey's claims pursuant to Federal Rule of Civil Procedure 56 and Local Civil Rule 7(h).
Upon consideration of GM's motion, the parties' memoranda, and the entire record herein, the Court will deny the motion for summary judgment.
Vahey worked for GM from 1997 to 2005. Deposition of Michael Vahey (" Vahey Dep." ), Ex. A to Def.'s Mot. for Summ. J. (" MSJ" ) [Docket Entry 22-1] at 24, 67; Compl. [Docket Entry 1] ¶ ¶ 10, 16. He started as a contract employee in 1997 at an assembly plant in Baltimore, Maryland, Vahey Dep. at 24, and was first hired as a salaried employee in March 1998, id. at 26. Vahey earned a series of promotions while he worked at the Baltimore plant. Id. at 28-29; Declaration of Michael J. Vahey (" Vahey Decl." ), Ex. A to Pl.'s Opp'n to MSJ [Docket Entry 24-1] ¶ 1; Compl. ¶ 12. He also received expanded job responsibilities. See Vahey Dep. at 32-34.
Vahey applied for and received a lateral transfer to the position of Resident Quality Launch Engineer in August 2004. Id. at 34; Compl. ¶ 15. As a " Resident" Quality Launch Engineer, Vahey was not assigned to the headcount of any particular GM facility, but instead was a General Motors " North America" employee, meaning he would be temporarily assigned (typically for one or two-year periods) to assist with the launch of new products. See Vahey Decl. ¶ ¶ 17, 22. In 2004, GM assigned Vahey to assist with the launch of the Pontiac Solstice at the GM assembly plant in Wilmington, Delaware. Vahey Dep. at 35; Vahey Decl. ¶ 17. During his time at GM, Vahey's supervisors consistently gave him high performance ratings, at one point rating him a " high potential" employee. Vahey Dep. at 35-40; Vahey Decl. ¶ 6; Compl. ¶ 12.
Vahey had been interested in military service since the terrorist attacks of September 11, 2001, but had been reluctant to enlist due to fears that doing so might negatively impact his civilian career with GM. Vahey Dep. at 65; Vahey Decl. ¶ 8; Compl. ¶ 16. Eventually, Vahey learned about the reemployment protections given to returning servicemembers under USERRA. Vahey Dep. at 59-60; Vahey Decl. ¶ 8; Compl. ¶ 16. Under USERRA, individuals who leave a civilian job to perform five or fewer years of military service generally have the right to be reemployed by their civilian employer upon honorable discharge from the military, and may not be terminated without cause for up to one year after their return to work. See generally 38 U.S.C. § § 4311-4316.
In early 2005, Vahey approached his supervisors at GM as well as multiple human resources employees to discuss his desire to take a military leave of absence. Vahey Dep. at 54-55; Vahey Decl. ¶ 9; Compl. ¶ 16. The GM employees Vahey spoke with were supportive of his decision and granted Vahey a military leave of absence, with the understanding that he would return to GM in four years. Vahey Dep. at 57-58; Vahey Decl. ¶ 9; Compl. ¶ ¶ 17-18. After waiting for and receiving formal approval from GM, Vahey enlisted in the United States Army on July 20, 2005. Vahey Dep. at 67-68.
Vahey spent four years on active duty with the Army, including sixteen months deployed overseas. Id. at 80. During those four years he made occasional contact with GM's human resources staff to express his desire to return to his job at GM after his military service. See id. at 75-78 (" I'm still alive and it's still my intent to return to my career." ); Vahey Decl. ¶ ¶ 11-12; Compl. ¶ 21. As his military service came to an end, Vahey applied for reemployment with GM. See Vahey Dep. 86-89; Compl. ¶ 23.
As early as April 23, 2009, the GM Human Resources team began discussing Vahey's
return from active duty. Ex. B to Pl.'s Opp'n to MSJ [Docket Entry 24-2] at D00306. On May 4, 2009, Theresa Fellows-Bechard emailed her human resources colleague Paul Dobos, asking for " the date of Mike Vahay's [sic] return from leave," calling this " a critical piece of information as we try to plan for the GMSP." Id. at D00301. " GMSP" stands for " General Motors Severance Program." See Ex. F to Pl.'s Opp'n to MSJ [Docket Entry 24-6] at D00040.
Vahey visited the GM plant in Wilmington, Delaware on May 5, 2009, with two months of active duty remaining. Vahey Dep. at 87-88; Vahey Decl. ¶ 13. He met with Paul Dobos, with whom he discussed the impending closure of the GM plant in Wilmington and the significant financial troubles that were then facing GM and the American automotive industry. Vahey Dep. at 87-94; see also First Affidavit of Jeffrey Haladik, Ex. C to MSJ (" First Haladik Aff." ) [Docket Entry 22-3] ¶ 4. Eventually, Dobos " said something about a separation package" and suggested that Vahey " would be getting severed." Vahey Dep. at 89; see also Vahey Decl. ¶ 13 (" Mr. Dobos stated to me that General Motors' outlook was not positive and that I would likely be severed." ). Vahey " felt that as a North America employee that the closure of the Wilmington plant should not necessarily affect" him, so he raised the possibility of " other opportunities" at other GM facilities. Vahey Dep. at 89-91. According to Vahey, Dobos said " [s]omething to the effect that that wasn't going to happen." Id. at 91.
After Vahey's visit to the plant, internal discussions continued regarding Vahey's desire to return to work at GM. On June 10, 2009, Paul Dobos emailed Theresa Fellows-Blanchard: " Wilmington will have a small GMSP 8/1/09. Let me know if [Vahey] will be included in that one pending what legal and policy tell you." Ex. B to Pl.'s Opp'n to MSJ at D00309. On June 17, 2009, Dobos confirmed that " Mike [Vahey] will be on Wilmington GMSP list." Id.
Vahey was honorably discharged from the United States Army on July 20, 2009, and he visited Paul Dobos at the GM Wilmington plant a few days later, on July 23, 2009. Vahey Dep. at 99-101; Vahey Decl. ¶ 15. Dobos explained that Vahey was going to be formally added to the employment rolls for two weeks, retroactive to his final day of military service, July 20, 2009, and then he would be terminated on July 31, 2009. Vahey Dep. at 98; Vahey Decl. ¶ 15. After that, Vahey would receive six months of severance pay (about $39,000), in exchange for signing the " GM Severance Program Release Agreement." Vahey Dep. 114-16; Vahey Decl. ¶ 15; Compl. ¶ 31. Although Vahey was formally on the GM payroll for two weeks, Vahey Decl. ¶ 19, there is no indication from the record that he actually performed any job-related duties, nor was there any discussion of his employment being extended after July 31, 2009, see id.
The GM Wilmington plant " ceased production operations" on July 28, 2009, leading to the elimination of over 1,000 jobs, First Haladik Aff. ¶ 5, approximately 114 of which had belonged to salaried employees like Vahey, see Ex. D to Pl.'s Opp'n to MSJ [Docket Entry 24-4].  Vahey was among the first six salaried employees terminated in connection with the closing of the plant. See Ex. D to Pl.'s Opp'n to MSJ at D00399. Most GM Wilmington
employees were severed in the months after Vahey's termination, but some received transfers to other GM facilities. See Ex. E, Def.'s Second Supp. Interrog. Resps. [Docket Entry 24-5] at 5 (listing " salaried employees who transferred from the Wilmington plant to another GM facility in connection with the closure of the Wilmington plant" ); see also Def.'s Answer [Docket Entry 8] ¶ 32 (" [N]ot all employees who were working at the Wilmington, Delaware plant were terminated." ). Vahey was never presented with the opportunity to apply for a transfer. Vahey Dep. at 92-95, Vahey Decl. ¶ ¶ 20-21. He claims this opportunity was given to the other salaried employees at the Wilmington plant. Vahey Decl. ¶ 20; see also Declaration of Jeffrey W. Watt, Ex. C to Pl.'s Opp'n to MSJ (" Watt Decl." ) [Docket Entry 24-3] ¶ 2 (" In early June, 2009, manager [sic] at the Wilmington plant called me and the other salaried employees into meetings in which we were offered two options, either apply for a transfer or accept separation and severance." ).
Vahey filed this lawsuit alleging violations of his USERRA rights on April 1, 2011. GM moved to dismiss, relying solely on the release  that Vahey signed upon receiving his severance package. The Court denied the motion to dismiss,  and GM moved for summary judgment at the close of discovery.
II. Standard of Review
A. Summary Judgment
Summary judgment is appropriate when the pleadings and the evidence demonstrate that " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may successfully support its motion by identifying those portions of " the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials," which it believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c)(1); See also Celotex, 477 U.S. at 323.
In determining whether there is a genuine dispute of material fact sufficient to preclude summary judgment, the Court must regard the non-movant's statements
as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A non-moving party, however, must establish more than the " mere existence of a scintilla of evidence" in support of its position. Id. at 252. Moreover, " [i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted). Summary judgment, then, is appropriate if the non-movant fails to offer " evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.
Enacted in 1994, " USERRA is the latest in a series of laws protecting veterans' employment and reemployment rights." 20 C.F.R. § 1002.2. Many courts have noted that USERRA's protections " should be broadly construed in favor of military service members as its purpose is to protect such members." Vega-Colón v. Wyeth Pharms., 625 F.3d 22, 26 (1st Cir. 2010); see also Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946) (Selective Training and Service Act of 1940, one of USERRA's predecessors, " is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need" ). " In enacting the statute, Congress made clear that, to the extent consistent with USERRA, 'the large body of case law that had developed' under previously enacted federal laws protecting veterans' employment and reemployment rights 'remained in full force and effect.'"
Rivera-Meléndez v. Pfizer Pharms., LLC, 730 F.3d 49, 2013 WL 5290017, at *3 (1st Cir. 2013) (quoting 20 C.F.R. § 1002.2). " The purpose of USERRA is to (1) encourage noncareer military service by 'eliminating or minimizing the disadvantages to civilian careers,' (2) minimize the disruption of servicemembers and their employers 'by providing for the prompt reemployment' of servicemembers, and (3) prohibit discrimination against servicemembers." Id. (quoting 38 U.S.C. § 4301(a)).
For servicemembers who spend more than ninety days in the military, Section 4313(a)(2) of USERRA requires reemployment " in the position of employment in which [the servicemember] would have been employed if the continuous employment of such person with the employer had not been interrupted" by military service. 38 U.S.C. § 4313(a)(2)(A). This position--known as the " escalator position" --does not necessarily require a promotion, or even reinstatement to the employee's prior position: " the escalator principle may cause an employee to be reemployed in a higher or lower position, laid off, or even terminated." 20 C.F.R. § 1002.194. " In some cases, for example, the escalator principle could deliver an employee into 'layoff status' if the 'employee's seniority or job classification would have resulted in the employee being laid off during the period of service, and the layoff continued after the date of reemployment.'" Rivera-Meléndez, 730 F.3d 49, 2013 WL 5290017, at *4 (quoting 20 C.F.R. § 1002.194). USERRA also provides that reemployment is not required if " the employer's circumstances have so changed as to make such reemployment impossible or unreasonable." 38 U.S.C. § 4312(d)(1)(A). When invoking this defense, the employer " shall have the burden of proving the impossibility or unreasonableness" of reemployment. Id. § 4312(d)(2).
Once properly reemployed, returning servicemembers who spent more than 180 days in the military " shall not be discharged . ...