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Washington v. Blue Grace Logistics, LLC

United States District Court, M.D. Florida, Tampa Division

January 3, 2018

KEVIN WASHINGTON, Plaintiff,
v.
BLUE GRACE LOGISTICS, LLC, Defendant.

          ORDER

          JAMES D. WHITTEMORE UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is Defendant's Dispositive Motion for Summary Judgment (Dkt. 36), which Plaintiff opposes in part (Dkt. 45). Plaintiff, a former sales employee of Defendant, brought a nine count complaint alleging violations of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. § 4301, et seq., the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601, et seq., Title VII of the Civil Rights Act of 1964, § 701 et seq., 42 U.S.C. § 2OOOe et seq., and the Florida Civil Rights Act of 1992, Fla. Stat. §§ 760.01 -760.11 (Counts I, II, IV, VIII, and IX). Plaintiff does not oppose summary judgment on his claims of race discrimination in Counts V, VI, and VII, or on his claim for FMLA interference in Count III. (Dkt. 45 at 1 n.l). Upon consideration, Defendant's motion (Dkt. 36) is GRANTED in part and DENIED in part.

         I. MATERIAL UNDISPUTED FACTS

         Plaintiff is a service member in the U.S. Navy Reserves, having served in the military since June 2008. (Klingensmith Aff. ¶ 6, Dkt. 36-2; Washington Aff. ¶ 4, Dkt. 45-1). He began working for Defendant on June 1, 2015 as a sales representative. (Dkt. 36 ¶ 6). To take off work, he was required to obtain permission from his supervisor. (Washington Dep. 143:2-18, July 7, 2017, Dkt. 47; Klingensmith Aff. ¶ 11, Dkt. 36-2). On March 7, 2016, he provided written notice of annual military leave for March 14 through March 25, 2016. (Dkt. 36-26). He attended military training at MacDill Air Force Base. (Washington Dep. 268:17-269:1, Dkt. 48).

         On March 11, the last business day before his military training, Plaintiff was placed on a performance plan. (Counseling Record, Mar. 11, 2016, Dkt. 36-30). That same day, at 3:56 p.m., he notified his supervisor that he had a personal emergency and would be out the remainder of the day, to which his supervisor responded "Will be in touch[.]" (Text Message Exchange, Mar. 11, 2016, Dkt. 45-3). On March 18, while on military leave, he filed a Charge of Discrimination with the Equal Employment Opportunity Commission. (Dkt. 36-32). On March 23, he submitted a request for FMLA leave for June 13 through July 29, 2016. (Dkt. 36-33). On March 25, he was terminated. (Klingensmith Aff. ¶ 18, Dkt. 36-2). This action followed.

         II. STANDARD

         Summary judgment is appropriate where "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). "A genuine factual dispute exists only if a reasonable fact-finder 'could find by a preponderance of the evidence that the [non-movant] is entitled to a verdict.'" Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is material if it may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).

         The moving party bears the initial burden of showing the court, by reference to materials on file, that there are no genuine disputes of material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11thCir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the moving party fails to demonstrate the absence of a genuine dispute, the motion should be denied. Kernel Records, 694 F.3d at 1300 (citation omitted). On the other hand, '"[i]f no reasonable jury could return a verdict in favor of the nonmoving party, there is no genuine issue of material fact and summary judgment will be granted.'" Lima v. Fla. Dep't of Children & Families, 627 Fed.Appx. 782, 785-86 (11th Cir. 2015) (quoting Beal v. Paramount Pictures Corp., 20 F.3d 454, 459 (11th Cir. 1994)).

         III. DISCUSSION

         A. Counts I and II: USERRA Violations - Discrimination and Retaliation

         In Counts I and II, Plaintiff brings claims for discrimination and retaliation in violation of USERRA. USERRA was enacted to prohibit employment discrimination based on military service. 38 U.S.C. § § 4301, 4311. "Section 4311 prohibits employers from discriminating against employees on the basis of military service and retaliating against individuals[.]" Coffinan v. Chugach Support Servs., Inc., 411 F.3d 1231, 1234 (11th Cir. 2005).

i. Discrimination - Failure to Promote; Failure to Return to Previously Held Position
Section 4311 (a) provides that:
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... retention in employment... 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.

38 U.S.C. § 4311(a). An employer engages in a prohibited action under subsection (a) if the employee's membership, service, or obligation for service in the military is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in absence of such membership, service, or obligation for service. 38 U.S.C. § 4311(c)(1).

         To establish a prima facie case of discrimination, Plaintiff must show by a preponderance of the evidence that his status as a reservist was a substantial or motivating factor in the employment action. Coffinan, 411 F.3d at 1238. "Indeed, [m]ilitary status is a motivating factor if the defendant relied on, took into account, considered, or conditioned its decision on that consideration." Id. (alteration in original, internal quotations and ...


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