The opinion of the court was delivered by: Varlan/shirley
Plaintiff filed this civil action against defendant claiming that defendant unlawfully terminated him without cause in connection with his military services in violation of the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4311, 4316(c)(1) ("USERRA"), and that defendant is liable for retaliatory discharge under Tennessee common law. This case is currently before the Court on Defendant's Motion for Summary Judgment [Doc. 29]. Plaintiff responded in opposition to defendant's motion [Doc. 37], defendant filed a reply [Doc. 43], and, with leave of court, plaintiff filed a sur-reply [Doc. 70]. Thus, this matter is now ripe for determination. The Court has carefully considered the pending motion, along with the parties' briefs, affidavits, and other relevant pleadings. For the reasons set forth herein, defendants' motion for summary judgment [Doc. 29] will be DENIED.
As the Court is required to do in reviewing a motion for summary judgment, all facts will be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Plaintiff, Captain Alfred C. "Chuck" Anderson, was employed as an Injection Supervisor at defendant, Sanford L.P., d/b/a Sanford Brands, a division of Newell Rubbermaid, Inc. ("Sanford"), in Maryville, Tennessee from December 18, 2000 until July 6, 2006 on an at-will basis. [Doc. 13.] Plaintiff is, and was at all relevant times, a commissioned officer in the United States Army Reserve. [Id.] Plaintiff was mobilized with the 478th Engineering Battalion, Ft. Thomas, Kentucky, for service in Iraq from on or about February 5, 2003 until on or about August 15, 2003. [Id.] Due to his mobilization, plaintiff took a leave of absence from his employment with Sanford. [Id.] After this deployment ended, plaintiff timely reported for work and defendant re-employed him. [Id.] At no time before this mobilization did defendant discipline plaintiff due to any alleged problems with his performance. [Id.] However, defendant issued plaintiff a Performance Optimization Plan dated May 19, 2004 listing several performance deficiencies.*fn1 [Doc. 37-18]
Plaintiff was mobilized for service in Iraq a second time from on or about August 15, 2004 until on or about January 15, 2006, this time with the 844th Engineering Battalion, Knoxville, Tennessee. [Doc. 13.] Plaintiff again took a leave of absence from Sanford due to this mobilization. [Id.] While on active duty, defendant contacted plaintiff twice: the first time telling him to return to work as soon as possible and the second time insisting that plaintiff return to work immediately. [Id.] Plaintiff attempted to comply as limited by his government obligations. [Id.] Plaintiff timely reported for work at defendant and defendant re-employed him. [Id.] After his return to work, plaintiff was required by the Army to attend several weekend training sessions and, on short notice, one longer annual training session. [Id.; Doc. 37.]
From approximately the time of plaintiff's return from his second deployment until his termination, plaintiff reported to Rob Shaw, Operations Manager, and Mr. Shaw reported to Brian Rhodes, Director of Operations. [Doc. 37.] On April 18, 2006, defendant, through Mr. Shaw, executed a written Performance Improvement Plan which included a list of allegations of plaintiff's poor performance in the areas of compliance with company policies and procedures, leadership, and commitment. [Doc. 13.] The concerns about plaintiff's commitment were due to his absences, in part attributed to his military service. [Doc. 37-9.]
In June 2006, Mr. Shaw made a comment to Robert Conklin, another Injection Supervisor, that he had issues with plaintiff "because he is never here." [Doc. 37-23.] Mr. Conklin replied that plaintiff was only gone because of his military duty. [Id.] Mr. Shaw responded, "but he is still gone . . . he is always gone due to his military." [Id.] Plaintiff's employment with defendant was terminated on July 7, 2006 allegedly for plaintiff's failure to meet the expectations of the Performance Improvement Plan. [Doc. 13.]
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper if "the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." The burden of establishing there is no genuine issue of material fact lies upon the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986). The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., 475 U.S. at 587; Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable jury could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Id.
The judge's function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper jury question, and not to weigh the evidence, judge the credibility of witnesses, and determine the truth of the matter. Id. at 249. Thus, "[t]he inquiry performed is the threshold inquiry of determining whether there is the need for trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250.
A. Violation of USERRA Under 38 U.S.C. § 4311
The USERRA protects employees who are absent from employment for service in a uniformed service. Under 38 U.S.C. § 4311, an employer cannot use an employee's military service as a motivating factor for adverse employment action toward the employee, unless the employer can prove that the action would have been taken in the absence of the employee's service. 38 U.S.C. § 4311(c)(1). Plaintiff alleges that defendant ...