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Andritzky v. Concordia University Chicago

April 8, 2010

FRANK ANDRITZKY PLAINTIFF,
v.
CONCORDIA UNIVERSITY CHICAGO, JOHN JOHNSON, MANFRED BOOS, AND GARY WENZEL, DEFENDANTS.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

Frank Andritzky has filed a three-count complaint against his former employer, Concordia University Chicago ("CUC"), and CUC administrators, John Johnson, Manfred Boos, and Gary Wenzel, asserting claims under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301, et seq. ("USERRA"), for discrimination (Count I), retaliation (Count II), and failure to reemploy (Count III). Defendants have filed a partial motion to dismiss claims arising before July 6, 2005, as time-barred under Fed. R. Civ. P. 12(b)(6). For the reasons stated below, defendants' motion is granted as to plaintiff's claims of USERRA violations that arise from events occurring before October 10, 2004, and denied in all other respects.

FACTS

The facts alleged in the complaint are taken as true for purposes of the instant motion. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993). CUC hired plaintiff as a professor of political science in 1988, after which he worked under a series of multi-year contracts on tenure track. Between June 1999 and January 2007, plaintiff was on active duty with the Army. Plaintiff alleges that, between January 2002 and December 2007, CUC took adverse employment actions against plaintiff because of his military service. Specifically, plaintiff identifies six adverse employment actions (January 9, 2002, December 11, 2003, December 17, 2004, November 15, 2005, December 12, 2006, and December 25, 2007) in connection with his claims for discrimination, retaliation, and failure to reemploy.

Plaintiff alleges that, on or about January 9, 2002, CUC demoted him to probationary status by requiring him to sign a one-year contract, and that some of those involved in the decision commented on plaintiff's military service. For example, on May 17, 2002, defendant Boos questioned plaintiff about the possibility of his return to active duty and expressed concern about the consistency of his presence at CUC. Worried that the demotion was due to his military service, plaintiff protested to CUC's president at the time, Dr. George Heider. Subsequently, Dr. Heider instructed defendant Boos to reconvene the Faculty Review Council, and plaintiff's multi-year contract was restored.

Plaintiff was recalled to active duty in or about March 2003. Plaintiff alleges that, over the next few years, CUC forced him to sign a one-year contract on three occasions: December 11, 2003, December 17, 2004, and November 15, 2005. Plaintiff further alleges that CUC forced him to sign the contracts so that CUC could terminate him at any time after his return from active duty.

On or about October 1, 2006, plaintiff informed CUC's Chair of the Department of History and Political Science, Dr. David Settji, that plaintiff was scheduled to retire from the Army in early 2007. One month prior to plaintiff's retirement, on December 12, 2006, CUC again presented him with a one-year contract. Plaintiff did not sign the contract until March 23, 2007. Prior to that date, plaintiff returned to full-time employment at CUC, discussed the contract with defendants Johnson and Wenzel, and submitted documentation in support of his re-application for the 2008-2009 school year. As with all previous one-year contracts, plaintiff signed the March 23, 2007, contract under protest and asserting that it violated USERRA.

On December 25, 2007, plaintiff received a letter from defendant Johnson stating that CUC would not renew plaintiff's current contract after it ended on June 30, 2008. At the time, plaintiff was in the top ten to fifteen percent in seniority among CUC associate professors.

Plaintiff alleges that defendants discriminatorily denied him reemployment, retention in employment, promotion, and other benefits of employment when defendants demoted him to probationary status, offered one-year contracts, gave notice of contract termination, and terminated him because of his military status (Count I). Plaintiff further alleges that defendants' adverse employment actions retaliated against plaintiff for seeking to enforce his rights under USERRA (Count II) and that defendants violated USERRA by failing to reemploy plaintiff because of his military status (Count III).

DISCUSSION

Legal Standard

The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to rule on its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court accepts all well-pleaded allegations of the complaint as true and draws all reasonable inferences in the plaintiff's favor. McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006). Nevertheless, the complaint must plead sufficient facts to suggest plausibly that the plaintiff is entitled to relief. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007).

Statute of Limitations

Arguing that the federal four-year statute of limitations, 28 U.S.C. § 1658, applies to plaintiff's claims, defendants have moved to dismiss plaintiff's claims of USERRA violations that arise from events occurring before July 6, 2005. The instant complaint was filed on July 6, 2009. Defendants argue that, (1) the federal four-year statute of limitations ("§ 1658") applies to USERRA after its enactment in 1994, and (2) the Veterans' ...


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