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Melissa Ann Moore, Esq., Curt Christopher Hesse, Esq. Moore & Associates, Houston, TX, for Plaintiff-Appellant.
Jessica Lyn Hallmark, Dunham Hallmark, P.L.L.C., Beaumont, TX, for Defendant-Appellee.
Appeal from the United States District Court for the Eastern District of Texas.
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
Judge HAYNES concurs in the judgment only.
LESLIE H. SOUTHWICK, Circuit Judge:
Joel Bradberry brought suit against his former employer, the Jefferson County Sheriff's Department. He alleged that after fulfilling his two-week training obligation with the United States Army Reserve, he was terminated in violation of the Uniformed Services Employment and Reemployment Rights Act (" USERRA" ), 38 U.S.C. §§ 4301-4335, and TEXAS GOVERNMENT CODE §§ 613.001-613.023. Bradberry moved for partial summary judgment on the ground that Jefferson County was collaterally estopped from relitigating facts determined in a state administrative proceeding. The district court denied the motion but granted Bradberry's request to certify its order for appeal pursuant to 28 U.S.C. § 1292(b). We agreed to take the appeal. We AFFIRM.
FACTS AND PROCEDURAL HISTORY
Bradberry was employed by Jefferson County as a corrections officer from February 2007 to December 2008. During that time, he also was a member of the United States Army Reserve. Bradberry was ordered to report for his annual Reserve training from September 1 through September 12, 2008, and was scheduled to return to civilian work on September 13. He provided a copy of his orders to Jefferson County prior to reporting for military duty. Bradberry did not report back to work until the evening of September 16, missing scheduled work shifts on September 13 and 14.
According to Bradberry, as a result of Hurricane Ike's imminent landfall on September 13, Army Captain Dwayne Rose orally extended his orders and required him to go to Abilene, Texas, and remain there until released. Bradberry contacted Jefferson County on September 12 to report that he would not be at work the next day because of his new military orders. Bradberry was released from duty at 7:00 a.m. on September 15, and he reported to work the next day. He was scheduled for a midnight shift on September 17.
Jefferson County ordered Bradberry to provide documentation about the extension of his military duty to include September 13-16, the dates not covered by his original orders. Although Bradberry provided memoranda from his commanding officers, he did not provide the type of documentation the County requested. The County initiated an internal investigation into Bradberry's conduct, then terminated him in December 2008.
The County's explanation of the basis for Bradberry's termination was in an F-5 Report of Separation of Licensee. A Texas law enforcement agency is required to file an F-5 Report on all officers when they leave employment with the agency. The report is filed with the Texas Commission on Law Enforcement Officers Standards and Education (" TCLEOSE" ). The F-5 Report describes the circumstances under which an officer left the agency, and whether he was honorably discharged, generally discharged, or dishonorably discharged. TEX. OCC.CODE § 1701.452. The F-5 Report becomes part of the officer's permanent TCLEOSE record. If the officer seeks employment with another law enforcement agency, the agency is required to review employment termination reports before hiring the officer. 37 TEX. ADMIN. CODE § 217.7(a)(1).
Bradberry's F-5 Report categorized his discharge as " dishonorable," saying he was " terminated for an administrative violation(s) of truthfulness or insubordination." An explanation of separation attached to the report stated that Bradberry was insubordinate, absent without leave, and failed to answer questions truthfully or provide documentation and relevant statements to the Sheriff or any supervisor in the departmental investigation when ordered.
An officer who receives an F-5 Report " may contest information contained in the report" by filing a petition with the TCLEOSE, which then refers the matter to the State Office of Administrative Hearings. TEX. OCC.CODE § 1701.4525(a). An administrative law judge (" ALJ" ) will conduct a hearing to determine whether " the alleged misconduct occurred by a preponderance of the evidence.... If the alleged misconduct is not supported by a preponderance of the evidence, the administrative law judge shall order the report to be changed." TEX. OCC.CODE § 1701.4525(e). Bradberry utilized these procedures. In September 2009, an ALJ found insufficient
evidence and ordered the County and TCLEOSE to amend the F-5 Report " to show that [Bradberry] was terminated at will," and required that the explanation attached to the F-5 Report " should read he was terminated for a disagreement over military leave."
Bradberry had also filed a complaint with the United States Department of Labor. See 38 U.S.C. § 4322(a). In March 2009, the assistant director in Texas of the Veterans' Employment and Training Service which is authorized by Section 4321 of Title 38 to review such complaints, found that the County, " while not intentionally, did violate" Section 4311(c) by discriminating against him due to his military service. Later in March, the same assistant director sent a memo to the Attorney General, recommending suit be brought against the County for violations of Section 4311(a), (b), and (c). In August 2009, the Attorney General declined to bring suit, but a declination does not bar a claimant from bringing his own suit. See 38 U.S.C. § 4323(a)(3)(C).
In May 2011, Bradberry filed suit in federal court, claiming the County violated USERRA and Chapter 613 of the Texas Government Code when it terminated his employment. His motion for partial summary judgment relied on the doctrine of collateral estoppel to prevent the County from relitigating the ALJ's findings. The court declined to apply collateral estoppel and denied the motion. At Bradberry's request, the court certified the case for interlocutory appeal pursuant to Section 1292(b). The court certified the following questions: (1) whether collateral estoppel bars relitigation of the ALJ's findings in federal court; (2) whether USERRA preempts Chapter 613; and (3) whether a federal district court can exercise subject-matter jurisdiction over a claim under Chapter 613. We granted Bradberry's motion for leave to appeal.
The parties on appeal have argued issues that arise under a provision of USERRA that bars employment discrimination on the basis of military service. 38 U.S.C. § 4311(a). They also mention the next section of USERRA, which mandates reemployment of someone " whose absence from a position of employment is necessitated" by military service. 38 U.S.C. § 4312(a). As we will discuss, " reemployment" includes a return to a civilian position after even a brief interruption for military duty.
We step back briefly from the issues of this case to get some perspective on the congressional enactment. USERRA was adopted in 1994 as the first significant modification in protection of veterans' employment rights in 50 years. " Veterans' Law Note," ARMY LAWYER 40 (Dec.1994). Almost eleven years after the enactment, the Department of Labor adopted regulations pursuant to its statutory authority. 38 U.S.C. § 4331(a); 20 C.F.R. §§ 1002.1-1002.314.
Congress enacted USERRA for three stated purposes: " (1) to encourage noncareer service in the uniformed services" by reducing employment disadvantages; " (2) to minimize the disruption to the lives of persons performing" military service, their employers and others " 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." 38 U.S.C. § 4301(a). All three purposes are relevant in this case.
Two separate sections of USERRA apply to this case. One concerns discrimination against those in the military when making employment decisions. 38 U.S.C. § 4311. The other protects the employment of those returning to their former civilian jobs after temporary military duty. § 4312. These sections provide distinct causes of action, as other circuits have earlier held. See, e.g., Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 303 (4th Cir.2006). As we will explain, both sections may at times be relevant.
Section 4311 provides that a servicemember " shall not be denied ... reemployment, retention in employment, ... or any benefit of employment" because of the person's military service. 38 U.S.C. § 4311(a). An employer will violate this prohibition when " membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor" in an employment decision. § 4311(c)(1).
By referring to a " motivating factor," the statute does not textually suggest that military service be the sole factor. A Department of Labor regulation states that a plaintiff " has the burden of proving that a status or activity protected by USERRA was one of the reasons" for the employer's decision. 20 C.F.R. § 1002.22. The employer, though, is not liable under USERRA if it " can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service." 38 U.S.C. § 4311(c)(1). The regulation elaborates on this provision: " If the individual succeeds in proving that the status or activity protected by USERRA was one of the reasons the employer took action against him or her, the employer has the burden to prove the affirmative defense that it would have taken the action anyway." 20 C.F.R. § 1002.22.
The second section of USERRA relevant for this case provides Reservists the right to reemployment when their " absence from a position of employment is necessitated by reason of service in the uniformed services." 38 U.S.C. § 4312(a). " Reemployment" might suggest that a Reservist has left a position for some lengthy period and is trying to regain a vacant position. It is clear, though, that Section 4312 applies to any military-approved absence from a civilian position. For example, one section applies to situations such as Bradberry's in which the military service is less than 31 days. § 4312(e)(1)(A). A Reservist is not automatically entitled to reemployment when returning from military
service. The right depends on the servicemember meeting ...