United States District Court, N.D. Illinois
Matthew B. Ashman, Plaintiff,
Winnebago County Sheriff's Department, et al., Defendants.
FREDERICK J. KAPALA, District Judge.
Defendants' motion for summary judgment  is granted in part and denied in part, and plaintiff's motion for summary judgment  is granted in part and denied in part. Meyers is terminated from this case. The parties are to contact the magistrate judge within the next fourteen days to schedule a settlement conference as to damages.
Plaintiff, Matthew Ashman, is a member of the Illinois Army National Guard. He has sued his ex-employer, Winnebago County Sheriff's Department ("WCSD") and various individuals employed by the WCSD who can be safely ignored except as mentioned below, alleging that he was terminated due to his obligations to the National Guard in violation of the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301 et seq. Currently pending before the court are cross motions for summary judgment as to liability. For the reasons which follow, Ashman's motion is granted in part and denied in part and WCSD's motion is granted in part and denied in part.
The facts of this case are largely undisputed and drawn from the parties' respective Local Rule 56.1 statements and the materials attached thereto. After a period of active duty service in the United States Army, Ashman enlisted in the Illinois National Guard in 1996 and has been a member since. Ashman was hired by WCSD as a corrections officer at the Winnebago County Jail on January 8, 1999. He was ultimately terminated from his employment with WCSD on July 16, 2008. At the time of his termination, Ashman was assigned to D-Team at the jail, which worked twelve-hour shifts from 6:00 p.m. until 6:00 a.m.
Under the collective bargaining agreement ("CBA") in effect for the time period relevant to this lawsuit, employees were given "occurrences" for any unscheduled absence from work, being fifteen minutes or more late for work, failure to timely report attendance, and any unscheduled departure from work lasting more than two hours. If sixty days passed without an occurrence, two accumulated occurrences would be removed from an employee's record. The CBA had a specific, graduated system of discipline as an employee accumulated more occurrences, ranging from warnings to suspensions to an automatic termination at the accumulation of a ninth occurrence. It is undisputed that Ashman was not a model employee when it came to absenteeism. Prior to June 30, 2008, he had accumulated eight occurrences and was thus at risk of an automatic termination in the event he accumulated one more.
On June 30, 2008, the National Guard ordered Ashman to report for duty each day from June 30, 2008 until July 11, 2008 beginning at 8 a.m. Ashman provided the memorandum which memorialized that activation to WCSD. WCSD marked Ashman as on "Military Leave" during each shift he was scheduled to work for that time period, including July 7, 2008. On July 3, 2008, Ashman was informed by his National Guard unit commander that the unit would be granted leave from their military duties for the period of July 4 through July 7, 2008, in celebration of the July 4th holiday. However, Ashman was informed that the unit anticipated that certain transports may arrive during that time frame carrying equipment which would necessitate recalling the unit to provide service. The unit was not ultimately called in while on leave, and Ashman reported back to his unit at 8 a.m. on July 8, 2008. Ashman completed his service requirement and returned to work on July 12, 2008.
On July 9, 2008, the Department of Military Affairs in Springfield, Illinois, issued Orders 191-008 and 191-016. Those orders, apparently cut in an effort to avoid paying the guardsmen who were on leave over the July 4th weekend, represented that Ashman had only been ordered to training by the National Guard from June 30, 2008 through July 3, 2008 and from July 8, 2008 through July 11, 2008. Chief Deputy Kurt Ditzler received the new orders and, to him, Ashman appeared to have no longer been under orders on July 7, 2008, when he missed a regularly-scheduled work shift (July 7, 2008 was the only shift he was scheduled to work between July 4, 2008 and July 7, 2008). Ditzler received those orders through an email from a staff sergeant at Ashman's unit. In that email, the staff sergeant explained to Ditzler that the unit was given a "pass" and thus the new orders were cut, but that the unit remained responsible to return if needed during that time period. The email also noted that the unit was not ultimately utilized during that time period. In any event, Ditzler determined that Ashman's absence on July 7, 2008 was unexcused, since he was not under military obligation according to the more recent orders. Accordingly, after Ashman worked his regularly-scheduled shifts on July 12 and 13, he was terminated pursuant to his accumulation of a ninth occurrence.
Based on the above, Ashman filed a complaint which has been reduced to a single count for violation of USERRA against WCSD, then-Winnebago County Sheriff Richard Meyers, and Ditzler. Both parties have filed motions seeking summary judgment.
"Enacted in 1994, USERRA is the latest in a series of veterans' employment rights laws, replacing its most immediate predecessor, the Veterans' Reemployment Rights Act... of 1974." Crews v. City of Mount Vernon, 567 F.3d 860, 864 (7th Cir. 2009). "The purposes of USERRA are: (1) to encourage noncareer service in the uniformed services...; (2) to minimize the disruption to the lives of persons performing service in the uniformed services... 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.'" Id. (quoting 38 U.S.C. § 4301(a)). "USERRA affords broad protections to service members against employment discrimination...." Id. In relevant part, it provides that "[a] person who... has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, 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). USERRA also provides certain rights to reemployment after a period of service, so long as notice of the service is given and an application for reemployment is timely submitted following the period of service. See 38 U.S.C. §§ 4312, 4313; see generally McGuire v. United Parcel Serv., 152 F.3d 673, 676-77 (7th Cir. 1998). In any event, the courts have been clear that "USERRA is to be liberally construed in favor of those who served their country." McGuire, 152 F.3d at 676.
A. The Non-Termination Claims
In his complaint, Ashman set out, in addition to the discipline leading to his ultimate termination, a laundry list of other WCSD actions he claims violated USERRA. In its motion for summary judgment, WCSD argues that any claims based on those acts are (1) untimely, (2) not a supported by an adverse employment act, (3) moot, and/or (4) without merit because the record discloses that WCSD would have taken the act regardless of Ashman's military service. Ashman does not reply to any of those arguments. Accordingly, the court treats any such response to those arguments as waived and grants summary judgment to WCSD on all of Ashman's USERRA claims except those arising from the discipline leading to his termination. See Johnson v. Gen. Bd. of Pension & Health Benefits of United Methodist Church, 733 F.3d 722, 729 (7th Cir. 2013) (noting that arguments not raised in opposition to a motion for summary judgment are waived). Moreover, WCSD seeks dismissal of the official capacity claims against Meyers (who is no longer the sheriff and would need to be substituted in any event) and Ditzler as duplicative of Ashman's claims against WCSD itself. Again, Ashman does not respond. Thus, the motion is granted as to the official capacity claims as well. See id. Finally, the court notes that, although it is unclear whether there is an individual capacity claim pled against Meyers or not, there is no indication in the record that Meyers had anything to do with the decision resulting in Ashman's discipline and automatic termination. Thus, ...