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Dale Brown v. Con-Way Freight

May 15, 2012

DALE BROWN, PLAINTIFF,
v.
CON-WAY FREIGHT, INC.,
DEFENDANT.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Dale Brown ("Brown"), a disabled veteran, brought suit against his employer, Con-way Freight, Inc. ("Con-way"), alleging that the company violated the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301 et seq., when it re-employed him in a lower-paying position following his discharge from the Navy. Now before me is Con-way's motion for summary judgment. For the reasons stated herein, the motion is granted.

I.

The following facts are taken from the parties' Local Rule 56.1 statements, deposition testimony, and exhibits. Unless otherwise noted, these facts are undisputed. Con-way is a nationwide trucking company that conducts business in Illinois. Brown began working for the company in 1987 at Con-way's Des Plaines facility. He now works at the company's Rock Island facility. Brown had a GED and no other formal education, except for some vocational training and certain military certifications, including as a diesel mechanic and heavy equipment operator. Brown was hired as a driver sales representative ("DSR"), a position he held throughout his tenure with the company until his most recent return from military leave. He never occupied a supervisory position at Con-way.

As a DSR, Brown drove a truck and loaded and unloaded freight. Con-way's position description for the DSR position indicates that frequent lifting of up to 50 pounds and occasional lifting of more than 75 pounds is required. It also requires the driver to "position and connect/disconnect a converter dolly with an average weight/pull force of approximately 128 pounds." The tasks that drivers are called upon to perform require them to frequently reach their arms over their heads, bend, push, pull and twist.*fn1 See Def.'s Mot. for Summ. J., Ex. G.

During much of Brown's employment, he was a Naval Reservist, which required several leaves of absence of varying duration.

Brown requested, and was granted, about two weeks of leave in August 1999. Con-way again granted him leave in March 2000, April 2001, and August 2002. During his employment, Brown also received at least ten separate leaves of absence for various injuries or surgeries. Con-way assigned Brown temporary, light-duty jobs at least seven times as he recovered from these injuries.

Brown was called to active duty beginning January 9, 2006. His tour was expected to last for almost a year. Under Con-way policy, the company paid Brown differential pay - the difference between his Con-way pay and his military compensation - for the first year of his deployment.

In September 2006, Brown suffered a shoulder injury in a truck accident during a mission in Iraq. After his initial tour, Con-way granted Brown several extensions of his active duty service, as it was required to do by law. On February 20, 2008, Brown underwent a functional capacity evaluation to determine his ability to work. The doctor who examined him concluded that Brown should not lift more than 40 pounds to chest level, should not lift more than 20 pounds overhead, and should avoid work that involves sudden or forceful torquing of his shoulders. The evaluation indicated that work with outstretched arms might be difficult. Def.'s Mot. for Summ. J., Ex. L. These restrictions are permanent, as Brown's condition is not expected to improve.

In December 2008, Brown called Sharon McCurdy in Con-way's Human Resources department and expressed his desire to return to work. McCurdy has since died. Brown contends that he informed McCurdy that his disability prevented him from performing some of the duties of a DSR, and McCurdy told him the company would have to let him go if it did not find an existing position he could fill. Brown then called a military hotline, where he was informed that McCurdy's information was incorrect. Brown called McCurdy back to discuss the relevant provisions of USERRA. According to Brown, McCurdy told him that she had given him wrong information at the behest of "someone way higher up" in the company than she.

By letter dated January 21, 2009, Brown informed Con-way that he had been released from active duty and requested reemployment with the company. In that letter, Brown included a copy of his functional capacity evaluation discussing his physical limitations. Brown wrote: "At this time I will not be able to continue with my former position of truck driver/representative, due to my injury on active duty[.] [H]owever under the provisions of USERRA sec. 4312 and 4313, I am entitled to retraining and/or an equivalent position and equivalent pay." Def.'s Mot. for Summ. J., Ex. M.

The next day, Brown went to the Con-way facility in Rock Island and filled out a re-employment application. On Jan. 27, 2009, Sandra Tapia from Con-way's Human Resources Department called Brown to discuss his physical limitations and determine whether Brown was willing to relocate. During this exchange, Brown expressed an interest in a position as a customer service representative ("CSR"). Brown also expressed an interest in working as a freight operational supervisor ("FOS"), personnel supervisor, or account executive.

By Brown's recollection,*fn2 there were two FOS positions available at Con-way's Rock Island facility at the time he was seeking reemployment. Brown acknowledged this position would have been a promotion. Jeff Kerbo, Con-way's director of Human Resources, testified that there were no open FOS positions at the Rock Island facility. Kerbo Dep. at 48:18-22. Christopher Meers, who was the service center manager at the Rock Island terminal at the time Brown was seeking re-employment, concurred. Meers testified that the only open positions were DSR positions. Meers Dep. at 56:19-22. Brown contends that he was willing to transfer to another facility, but the record reflects that he told Tapia he was willing to relocate only temporarily, and at Con-way's expense. Pl.'s Resp. to Mot. for Summ. J., Ex. 15.

Brown acknowledges that the company created a CSR position for him. Brown Dep. at 128:15--129:5. Via telephone, Kerbo offered him that position and Brown accepted it, although he acknowledges that he was upset and told Kerbo that accepting a lower-paying position would bankrupt him. Brown Dep. 121:4-123:9. According to Brown, Kerbo offered him the position on a "take it or leave it" basis. Id. at 122:18-19. Asked if the position was offered on a "take it or leave it" basis, Kerbo testified that he did not know what was ...


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