MONAGHAN v. COUNTY OF GLOUCESTER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

JAMES MONAGHAN,

Plaintiff,

Civil No. 18-15166 (RMB/SAK)

v.

OPINION

COUNTY OF GLOUCESTER,

AUGUST E. KNESTAUT, and

JOHN DOES 1 THROUGH 50,

Defendants.

APPEARANCES

Sebastian B. Ionno, Esq.

Ionno & Higbee, LLC

140 S. Broadway, Suite 5

Pitman, NJ 08071

On behalf of Plaintiff James Monaghan

Sean P. O’Brien, Esq.

William F. Cook, Esq.

Kayla L. Louis, Esq.

Brown & Connery, LLP

360 Haddon Ave.

Westmont, NJ 08108

On behalf of Defendants County of Gloucester and August E. Knestaut

BUMB, U.S. District Judge

Service in the National Guard is regularly performed by military service men

and women at both the federal and state levels, so not every National Guard training

necessarily constitutes mandatory military service pursuant to the authority of federal

law. Likewise, not every employment squabble is necessarily rooted in an employer’s

discriminatory intent or animus. Federal law prohibiting discriminatory conduct in

the employment context is applicable only in certain circumstances where the

threshold requirements under the applicable statute are met, a point the current

controversy illuminates well.

In the present action, the plaintiff alleges that he was discriminated against in

violation of the Uniformed Services Employment and Reemployment Rights Act

(“USERRA”) for his membership in the New Jersey National Guard. The

defendants reject this contention, arguing that his 20-day suspension from

employment was based on a well-documented instance of insubordination regarding

a day off from work for military training that was mandated pursuant to the

authority of state law, such that Plaintiff’s claims arise outside of the ambit of

USERRA altogether. Now before the Court is the Motion for Summary Judgment

by all Defendants. [Docket No. 54.] For the reasons set forth below, Defendants’

motion shall be granted, in part, and denied, in part.

I. FACTUAL BACKGROUND

The Court recites herein only those facts relevant to its consideration of

Defendants’ present motion, and such facts are generally not in dispute except as

specified below. On July 16, 2001, Plaintiff James Monaghan (“Plaintiff” or

“Monaghan”) began his employment with the Gloucester County Sherriff’s Office

(“GCSO”) as a Sherriff’s Officer. [Docket No. 54-4 (“Defendants’ Statement of

Facts”) ¶¶ 1–2.] Monaghan was employed as a GCSO Sherriff’s Officer until his

recent retirement. [Docket No. 65-1 (“Defendants’ Response to Plaintiff’s Statement

of Facts”) ¶ 1.] During the term of his employment with GCSO, Monaghan also

served with the New Jersey Army National Guard and was deployed overseas for

military service on approximately five (5) different occasions, including to Iraq,

Egypt, Qatar, and Albania. [Docket No. 61-5 (“Plaintiff’s Statement of Facts”) ¶¶ 1–

3.]

Beginning in or around January 2013, Defendant August E. Knestaut

(“Knestaut”) served as one of the two undersheriffs for Defendant the County of

Gloucester (the “County,” and together with Knestaut, “Defendants”), and along

with Undersheriff Andre L. Bay, Undersheriff Knestaut was responsible for, among

other things, overseeing administrative operations and assignments within GCSO,

including reviewing various requests for leave by GCSO employees. [Defendants’

Statement of Facts ¶¶ 4–7.] Plaintiff admits that the County maintains a Military

Leave Policy for its employees who serve in the military, and that such policy

generally provides for time-off “in accordance with applicable federal and state laws

and regulations.” [Docket No. 61-4 (“Plaintiff’s Response to Defendants’ Statement

of Facts”) ¶¶ 8–12.] When making a request for military leave pursuant to GCSO’s

policy, an employee would customarily submit GCSO’s mandated leave request

form and attach the applicable military order for service; however, an employee

could also submit the applicable military order for service upon his return from

military duty if he did not have it in hand when making the initial request for leave.

[Id. ¶ 21.]

On December 4, 2013, Plaintiff submitted a request for military leave for

December 5, 2013. [Defendants’ Statement of Facts ¶ 34.] When making his leave

request, Plaintiff submitted GCSO’s mandated leave request form, but did not submit

any military orders for his service. [Id. ¶¶ 34–35.] Two other GCSO Sherriff’s

Officers also requested military leave for December 5, 2013, but unlike Plaintiff, both

submitted military orders when making their respective requests for leave, so GCSO

supervisors were aware and were able to confirm their military service when they did

not show up to work on December 5, 2013. [Id. ¶ 41.]

On the morning of December 5, 2013, Plaintiff reported to the Battle Lab on

the Fort Dix base in New Jersey. [Id. ¶ 38.] Lieutenant Kimberly Reichert observed

that Plaintiff was absent from work, reported it within GCSO, and sometime later

that same morning, Undersheriff Knestaut ordered Plaintiff to provide GCSO with

the military order for his service by the close of business that day. [Id. ¶¶ 39–45.]

Later that afternoon, Plaintiff faxed a “Memorandum for Record” signed by military

personnel officer Sergeant Kyle D. Layton, stating that Plaintiff was “observed” at

training; critically, however, the memorandum did not expressly state that Plaintiff

was ordered or directed to report for military training or duty that day. [Id. ¶¶ 49, 51.]

The next day, Friday, December 6, 2013, Undersheriff Knestaut sent Plaintiff

an email seeking clarification as to whether the Memorandum of Record constituted

a valid military order, asking for Sergeant Layton’s contact information, and

directing Plaintiff to confirm whether Sergeant Layton was Plaintiff’s commanding

officer or had the authority to issue the memorandum or otherwise order Plaintiff to

appear for military training. [Id. ¶¶ 56–58.] Undersheriff Knestaut also directed

Plaintiff to respond to his email by no later than Monday, December 9, 2013, at 5:00

p.m. [Id. ¶ 59.] However, Plaintiff did not work again until Tuesday, December 10,

2013, and allegedly did not see—and undisputedly did not respond to—Undersheriff

Knestaut’s email until then. [Plaintiff’s Response to Defendants’ Statement of Facts

¶¶ 60–61.] Undersheriff Knestaut later confirmed that Plaintiff was not required to

monitor his work email on the days he was not scheduled to work. [Plaintiff’s

Statement of Facts ¶¶ 53–54.] Defendants allege that “[i]n his response to

Undersheriff Knestaut, Plaintiff was unable to establish whether the Memorandum

for Record was a valid military order,” a fact Plaintiff denies, arguing instead that the

“whole issue of a Memorandum for [R]ecord or order is nothing but a red haring

[sic] to distract from the real issue” of discrimination. [Defendants’ Statement of

Facts ¶ 68; Plaintiff’s Response to Defendants’ Statement of Facts ¶ 68.]

When Plaintiff did respond to Undersheriff Knestaut’s email upon his return

to work on December 10, 2013, he informed Undersheriff Knestaut that “the

Memorandum for Record is a company level letter that requires an appearance for

military duty,” and he provided Undersheriff Knestaut with the contact information

for Sergeant Layton and Plaintiff’s commanding officer, Major Robert J. Yencha.

[Defendants’ Statement of Facts ¶ 64.] Knestaut later testified that he had seen many

memoranda like the one submitted by Plaintiff during his time as an undersheriff, but

a major difference was that the one Plaintiff submitted did not include the word

“ordered.” [Plaintiff’s Statement of Facts ¶ 58.] Undersheriff Knestaut then

attempted to contact either Sergeant Layton or Major Yencha for further clarification

but was not able to reach them at such time. [Defendants’ Statement of Facts ¶¶ 69–

70.]

On December 23, 2013, Undersheriff Knestaut sent another email to Plaintiff,

informing him that his prior response was insufficient, directing Plaintiff to answer

the questions from his prior email with “yes” or “no,” and asking three additional

questions regarding whether Plaintiff was ordered and required to report for “active

duty training” on December 5, 2013. [Docket No. 20 (“Second Amended

Complaint”), Ex. E.] Plaintiff sent an email in response, attempting to answer some

of Knestaut’s questions, but also stating that he had never been questioned or treated

this way before and expressing that he felt like he was being targeted and harassed.

[Id., Ex. F.] Several hours later, Plaintiff sent Undersheriff Knestaut a second email,

which is at the forefront of this dispute and is reproduced below:

One more thing, who are you to tell me how you want your questions to be

answered!!!??? I’ll answer your “questions” any way I please as long as I feel

they are answered. I am not under any investigation that I’m aware of nor am

I on the stand testifying so you do not get to dictate to me of how you want

your questions to be answered. Try reading my e-mail again, I answered your

questions. I don’t have to list them in order or number them at all just as long

as I answered them. They maybe [sic] not in the order you asked or how they

were answered but the questions were answered. If they weren’t, I also

provided you with the contact info of the individual who could answer any

and all of your questions out of common courtesy since just maybe U/S Bay

and yourself aren’t familiar with the procedures pertaining to the military. So

much for me being considerate. However, I do see a mediocre attempt at

interrogation and I don’t appreciate it [n]or is it warranted.

[Id.] Defendants maintain that by sending the above email, Plaintiff was

insubordinate in violation of GCSO’s Rules of Conduct, but Plaintiff maintains that

he “was expressing his opinion after weeks of relentless harassment by Knestaut over

one training day . . . [which] continued for years.” [Plaintiff’s Response to

Defendants’ Statement of Facts ¶ 81.] According to Plaintiff’s testimony, prior to

Undersheriff Knestaut joining GCSO, Plaintiff had worked at GCSO for 13-15 years

and had turned in these same types of letters of memorandum as he did in this

instance, but never once were they questioned. [Plaintiff’s Statement of Facts ¶ 25.]

Plaintiff points out that since this incident with Monaghan, Undersheriff Knestaut

has followed up on several occasions with other Sherriff’s Officers taking military

leave to get paperwork showing that they had each been “ordered” to perform

military service. [Id. ¶ 48.] Defendants do not dispute this fact. [Defendants’

Response to Plaintiff’s Statement of Facts ¶ 48.]

GCSO continued to follow-up with the New Jersey National Guard

throughout 2014 regarding Plaintiff’s December 5, 2013, training day, which Plaintiff

alleges included “harassing and borderline-defamatory calls to Plaintiff’s superior

officers” in the New Jersey National Guard. [Second Amended Complaint ¶ 43.] In

one communication, dated March 27, 2014, Undersheriff Bay wrote that he

“believe[d] Officer Monaghan may be . . . abusing the system” after indicating that

Plaintiff had been on military leave for 23 of the first 40 working days of 2014 and

that he would be on military leave for the entire month of April—which Plaintiff

notified GCSO about shortly after his shift crew had been ordered to switch from day

shift to night shift for the month of April. [Id., Ex. G.] In response, Plaintiff alleges

that GCSO changed its practice by which Sheriff’s Officers would bid for shifts by

seniority and began “award[ing] sought-after shifts to less senior officers,” which

Plaintiff argues “created a conflict between Plaintiff’s work schedule” and his “orders

to appear for military duty.” [Id. ¶¶ 45, 47.]

The New Jersey National Guard ultimately provided GCSO with an Inactive

Duty Performance Certificate on January 23, 2014, putting the matter to rest by

confirming that Plaintiff’s training on December 5, 2013, was for inactive duty

training. [Defendants’ Statement of Facts ¶ 90.] On February 4, 2014, Plaintiff was

issued a Preliminary Notice of Disciplinary Action for sending an insubordinate

email on December 23, 2013. [Defendants’ Statement of Facts ¶ 94.] Once the notice

was finalized later that month, Plaintiff was issued a 20-day suspension. [Id. ¶¶ 96,

98.] Plaintiff sought an internal appeal with Civil Service, but ultimately withdrew

his appeal on October 11, 2017. [Id. ¶ 99.] Plaintiff testified that he served some of his

20-day suspension in 2016 and some in 2017. [Plaintiff’s Statement of Facts ¶ 33.]

Prior to initiating the present action, Plaintiff filed a USERRA Form 1010

claim with the U.S. Department of Labor (“USDOL”) on February 18, 2014,

alleging harassment and discrimination in relation to his military obligations.

[Defendants’ Statement of Facts ¶¶ 103–104.] However, the USDOL issued its

findings on April 25, 2014, that it did not find evidence to support a violation of

USERRA. [Id. ¶ 109.] In the Second Amended Complaint, Plaintiff alleges that

GCSO’s unlawful discriminatory conduct continued through 2016, and he describes

two other incidents, in particular: first, that “Plaintiff was written up for failing to

properly display his badge number,” despite the fact that many other officers

displayed their badge numbers in the same manner as Plaintiff; second, that Plaintiff

was “verbally reprimanded and threatened with a write up” for delegating an

assignment to a junior officer. [Second Amended Complaint ¶¶ 49, 51.] Plaintiff

alleges that both later incidents constitute unlawful harassment on the basis of his

protected military status in violation of USERRA. [Id. ¶¶ 50, 52.]

II. PROCEDURAL BACKGROUND

Plaintiff filed a complaint in this action on February 9, 2018, in the Superior

Court of New Jersey, initially alleging violations of New Jersey law only, including

the New Jersey Law Against Discrimination (“NJLAD”), the New Jersey

Conscientious Employee Protection Act (“NJCEPA”), the New Jersey Constitution,

and the New Jersey Civil Rights Act of 2004. [Docket No. 1, Ex. A.] Plaintiff was

granted leave to add a federal law claim under USERRA and filed an Amended

Complaint with the Superior Court on October 12, 2018. [Docket No. 1, Ex. B.] As

of October 19, 2018, Superior Court Judge Jean S. Chetney dismissed, with

prejudice, each of Plaintiff’s state law claims. [Docket No. 1, Ex. C.] With Plaintiff’s

only remaining claim being his USERRA claim, Defendant filed a Notice of

Removal with this Court on October 22, 2018. [Docket No. 1.]

On removal, Defendants requested that this Court grant leave to file a

proposed motion to dismiss. [Docket No. 10.] The Court held a pre-motion

conference on December 12, 2018, at which Plaintiff was Ordered to file a Second

Amended Complaint within 14 days. [Docket No. 18.] Plaintiff filed the Second

Amended Complaint on December 26, 2018. [Docket No. 20.] Two days later, on

December 28, 2018, Plaintiff’s counsel informed the Court that Plaintiff was being

deployed to Qatar, and as a result the Court administratively terminated this action

“with leave to return this case to the active docket upon Plaintiff’s return from

overseas deployment.” [Docket No. 23.] In February 2020, Plaintiff notified the

Court of his return to the U.S. and the case was returned to active status. [Docket

Nos. 25, 26.] The matter then continued with pre-trial discovery, which is now

complete. [Docket No. 50.]

III. JURISDICTION

This Court has jurisdiction over the present action pursuant to 18 U.S.C. §

1331, as Plaintiff alleges a cause of action arising under the laws of the United States,

specifically, USERRA, codified at 38 U.S.C. §§ 4301–4335.

IV. LEGAL STANDARD

A. Summary Judgment

Summary judgment shall be granted if “the movant shows that 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 fact is “material” only if it might impact the

“outcome of the suit under the governing law.” Gonzalez v. Sec’y of Dep’t of Homeland

Sec., 678 F.3d 254, 261 (3d Cir. 2012). A dispute is “genuine” if the evidence would

allow a reasonable jury to find for the nonmoving party. Id. Thus, in considering a

motion for summary judgment, the threshold inquiry before the Court is “whether

there is the need for a 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.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250 (1986).

The movant bears the initial burden of showing through the pleadings,

depositions, answers to interrogatories, admissions on file, and any affidavits “that

the non-movant has failed to establish one or more essential elements of its case.”

Connection Training Servs. v. City of Phila., 358 F. App’x 315, 318 (3d Cir. 2009). “If

the moving party meets its burden, the burden then shifts to the non-movant to

establish that summary judgment is inappropriate.” Id.

In the face of a properly supported motion for summary judgment, the

non-movant’s burden is rigorous. They “must point to concrete evidence in the

record”; mere allegations, conclusions, conjecture, and speculation will not defeat

summary judgment. Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995); accord

Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (noting that “speculation and

conjecture may not defeat summary judgment”) (citing Acumed LLC v. Advanced

Surgical Servs., Inc., 561 F.3d 199, 228 (3d Cir. 2009)).

B. USERRA

Pursuant to USERRA, “[a]n employer may not discriminate in employment

against or take any adverse employment action against” an employee who qualifies

under the statute. 38 U.S.C.A. § 4311(b). USERRA clearly states which members of

the military qualify: “[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.” Id. § 4311(a). Further, USSERA expressly defines the term

“service in a uniformed service” with respect to what forms of military service are

protected from discrimination under the federal statute, in relevant part, as:

[T]he performance of duty on a voluntary or involuntary basis in a uniformed

service under competent authority and includes active duty, active duty for

training, initial active duty for training, inactive duty training, full-time

National Guard duty, State active duty for a period of 14 days or more, State

active duty in response to a national emergency declared by the President. . .

38 U.S.C. 4303(13). Even further, USERRA’s implementing regulations expressly

clarify that not all military service in the National Guard is considered “service in the

uniformed services” pursuant to USERRA:

The National Guard has a dual status. It is a Reserve component of the Army,

or, in the case of the Air National Guard, of the Air Force. Simultaneously, it

is a State military force subject to call-up by the State Governor for duty not

subject to Federal control, such as emergency duty in cases of floods or riots.

National Guard members may perform service under either Federal or State

authority, but only Federal National Guard service is covered by USERRA.

(a) National Guard service under Federal authority is protected by

USERRA. Service under Federal authority includes active duty

performed under Title 10 of the United States Code. Service under

Federal authority also includes duty under Title 32 of the United States

Code, such as active duty for training, inactive duty training, or full-

time National Guard duty.

(b) National Guard service under authority of State law is not protected by

USERRA. However, many States have laws protecting the civilian job

rights of National Guard members who serve under State orders.

Enforcement of those State laws is not covered by USERRA or these

regulations.

20 C.F.R. § 1002.57 (emphasis added).

An employer “shall be considered to have engaged in actions prohibited” by

USERRA “if the person’s membership, application for membership, service,

application for service, or obligation for service in the uniformed services is a

motivating factor in the employer’s action, unless the employer can prove that the

action would have been taken in the absence of such membership, application for

membership, service, application for service, or obligation for service.” 38 U.S.C. §

4311(c)(1) (emphasis added). Thus, USERRA, “by its own terms, establishes a two-

step burden-shifting framework by which to analyze [claims of discrimination].”

Murphy v. Radnor Twp., 542 F. App'x 173, 176 (3d Cir. 2013). First, the burden is on

the plaintiff alleging discrimination to show that their “military service was a

substantial or motivating factor in the adverse employment action.” Id. (quoting

Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001)). In Murphy the Third

Circuit, citing the Eleventh Circuit, further clarified what constitutes a “motivating

factor” in the context of evaluating a USERRA discrimination claim:

A motivating factor does not mean that it had to be the sole cause of the

employment action. Instead, it is one of the factors that a truthful employer

would list if asked for the reasons for its decision. 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. at 177 (quoting Coffman v. Chugach Support Servs., Inc., 411 F.3d 1231, 1238 (11th

Cir. 2005) (internal quotation marks and citations omitted)).

If the plaintiff meets his burden at step-one of the USERRA framework, “the

burden of proof then shifts to the employer, who must prove that it would have taken

the adverse action for non-discriminatory reasons, regardless of the employee's

[protected] military service.” Id. (citing Sheenan, 240 F.3d at 1013). The applicable

standard of proof that the employer must meet at step-two of the USERRA

framework is known as the “but for” test:

All that is meant [by this standard] is that if the [employer] had two reasons

for taking an adverse action against the [employee], one of them forbidden by

the statute and the other not, and the [employer] can show that even if the

forbidden one had been absent the adverse action would still have been taken,

the [employee] loses.

Id. (quoting Madden v. Rolls Royce Corp., 563 F3d 636, 638 (7th Cir. 2009)).

V. ANALYSIS

In support of their Motion for Summary Judgment [Docket No. 54],

Defendants assert four main arguments: (1) that Plaintiff’s claim fails because

USERRA does not protect inactive duty training pursuant to state law authority; (2)

that Plaintiff’s military service was not a motivating or substantial factor in Plaintiff’s

discipline; (3) that Plaintiff’s discipline would have occurred regardless of his

USERRA-protected military service; and (4) that Defendant Knestaut cannot be

liable under USERRA because there are insufficient facts alleged to implicate his

individual liability. [Docket No. 54-1 (“Defendants’ Brief”), at 11–21.] The Court

will address each of these arguments in turn.

A. Plaintiff’s Inactive Duty Training on December 5, 2013, Is Not

Protected Military Service Under USERRA

The parties do not dispute that the Inactive Duty Performance Certificate,

ultimately provided to GCSO by the New Jersey National Guard on January 23,

2014, “confirmed that Plaintiff’s December 5, 2013[,] military service was for

Inactive Duty Training, not Active Duty,” and according to Plaintiff’s sworn

testimony, military training on that day was specifically for readiness management.

[Defendants’ Statement of Facts ¶ 90, 92; Plaintiff’s Response to Defendants’

Statement of Facts ¶ 90, 92.] The parties also do not dispute that Plaintiff testified

that he was required to attend the December 5, 2013, military training under the

authority of state law. [Id. ¶ 37.] The Court finds that based on the record, the

December 5, 2013, training day was pursuant to the authority of state law, such that

it falls outside the ambit of protected military service under USERRA.

As stated above, Section 4303(13) of USERRA specifies that only certain

military service in the National Guard is protected. The Court finds that Plaintiff’s

training for inactive duty with the New Jersey National Guard on December 5, 2013,

does not fall within any of USERRA’s expressly protected categories of military

service.1 Looking to USERRA’s implementing regulations regarding state National

Guard service, it is clear that only “National Guard service under Federal authority

is protected by USERRA,” and National Guard service pursuant to Federal

authority “includes duty under Title 32 of the United States Code, such as active

duty for training, inactive duty training, or full-time National Guard duty.” 20

1 Specifically, the Court finds that Plaintiff’s inactive duty training by the New Jersey

National Guard on December 5, 2013, did not qualify as “active duty, active duty

for training, initial active duty for training, inactive duty training [pursuant to federal

authority], full-time National Guard duty, State active duty for a period of 14 days or

more, [or] State active duty in response to a national emergency declared by the

President”—those military statuses expressly protected under 38 U.S.C. 4303(13).

The Court also agrees with Defendants’ contention that since Plaintiff was a full-time

GCSO employee on December 5, 2013, he “was not engaged in full-time military

services with the New Jersey National Guard.” [Defendants’ Brief at 13 (emphasis in

original).]

C.F.R. § 1002.57(a). By contrast, National Guard service, including inactive duty

training, “under authority of State law is not protected by USERRA.” Id. §

1002.57(b). Thus, the Court finds that the distinction is clear—inactive duty training

by the New Jersey National Guard is covered by USERRA only when it is performed

pursuant to federal authority.

Plaintiff attempts to avoid this straightforward conclusion by arguing that his

inactive duty training on December 5, 2013, was protected Title 32 military duty

under USERRA, and even though the training was technically “ordered” pursuant to

state law authority (i.e., by the Governor of New Jersey), Plaintiff was “following

orders to engage in duty that has been determined by the President’s chain-of-

command to be necessary for homeland security and/or national defense and is

being ordered to perform that duty pursuant to federal law and regulations governing

the operation of the national guard.” [Docket No. 62 (“Plaintiff’s Brief”), at 9.] Not

only does this argument attempt to muddy the clear distinction set forth by

USERRA’s implementing regulations between National Guard service performed

pursuant to federal versus state law authority, but Plaintiff also cites no legal

authority or evidence in support of his argument. In making the argument that his

December 5, 2013, training day was really pursuant to federal authority—even if

technically “ordered” by the state governor—Plaintiff relies almost entirely on the

fact that his December 5, 2013, training was for “‘Code 71 Readiness Management

Period (RMP)’ support training” and that National Guard Regulation 680-1

“confirms that Code 71 RMP training is one of the activities covered in the

regulations.” [Id. at 11.] However, the Court agrees with Defendants that “Plaintiff

has not . . . establish[ed] that the activities contained in NRG 680-1 are exclusive to

federal training exercises pursuant to the regulations and authority of the Office of

the Secretary of Defense.” [Docket No. 65 (“Defendants’ Reply Brief”), at 3

(emphasis added).]

Given USERRA’s clear distinction between National Guard service pursuant

to the authority of federal versus state law, the Court is unpersuaded by Plaintiff’s

argument. Undoubtedly, the functions, activities, and objectives of National Guard

service and training at the federal versus the state levels likely will overlap in many

significant regards. It certainly cannot be the case that any National Guard training

pursuant to the authority of state law, including that for inactive duty as occurred

here, automatically becomes USERRA-protected military service simply because the

training encompasses certain drills and/or directives that are also required at the

federal level. Plaintiff also suggests that the Code 71 RMP training is paid for in part

by federal funding. [Plaintiff’s Brief at 11.] However, it also cannot be the case that

any National Guard training mandated by state law becomes a USERRA training if

it receives a dime of federal funding. This would ignore USERRA’s clear distinction

between military service commanded by federal versus state law authority, and to put

it simply, is not what the federal statute or its implementing regulations provide.

When National Guard service is performed pursuant to state law authority,

USERRA expressly allows for state anti-discrimination laws to govern. Plaintiff has

also already had an opportunity to assert his state law discrimination claims in New

Jersey Superior Court. In any event, the Court finds that Plaintiff has failed to meet

his burden to prove that the December 5, 2013, training day qualifies as protected

military service under USERRA.

B. Whether Plaintiff’s USERRA-Protected Military Service Was a

Motivating Factor for His 20-Day Suspension (USERRA Step-One)

Because the December 5, 2013, training day is not protected military service

under USERRA, the question at step-one of the USERRA framework then becomes

whether Monaghan can meet his burden to show that his allegations of

discrimination encompass other aspects of his military service that were/are

protected under USERRA, and that such USERRA-protected military service was a

motivating or substantial factor in GCSO’s decision to suspend him for 20 days. To

meet his burden at step-one of the USERRA framework, Plaintiff may prove “[t]he

factual question of discriminatory motivation or intent . . . by either direct or

circumstantial evidence,” and “[d]iscriminatory motivation . . . may be reasonably

inferred from a variety of factors, including proximity in time between the

employee's military activity and the adverse employment action, inconsistencies

between the proffered reason and other actions of the employer, an employer's

expressed hostility towards members protected by the statute together with

knowledge of the employee's military activity, and disparate treatment of certain

employees compared to other employees with similar work records or offenses.”

Sheehan, 240 F.3d at 1014.

Defendants argue that this case is “[a]lmost identical to Bradberry”

[Defendants’ Brief at 15], a Fifth Circuit case involving a dispute between a reservist

for the U.S. Army Reserve and his employer, in which the employer terminated the

reservist’s employment for insubordination after he failed to provide the required

documentation for his military service. Bradberry v. Jefferson Cty., Tex., 732 F.3d 540,

543 (5th Cir. 2013). On appeal to the Fifth Circuit, the former employee argued that

he was entitled to summary judgment based on an earlier finding by an

Administrative Law Judge (“ALJ”) that he was “discharged due to a disagreement

about military service,” and according to the reservist, the ALJ’s finding collaterally

estopped his former employer from relitigating the issue before the District Court. Id.

at 551. However, the Fifth Circuit rejected the former employee’s argument,

concluding that the ALJ’s finding was “not the equivalent of a finding that the

County was motivated by his military status to discharge him.” Id. at 552. This Court

agrees with Monaghan that Bradberry will have very limited applicability in the

current dispute, given the different procedural posture, the fact that the collateral

estoppel issue is not asserted here, and even though there are some factual

similarities between the present action and Bradberry, there are many facts in the

present dispute that are unique to Monaghan’s case.

Plaintiff maintains that he “is not alleging that his discipline (the adverse

employment action) was solely limited to the December 5, 2013, inactive training

day, but again, that this incident was a microcosm of the problem that Bay and

Knestaut had with Plaintiff’s overall military service.” [Plaintiff’s Brief at 6.]

Defendants do not dispute that some of Plaintiff’s military service during the term of

his employment with GCSO qualified under USERRA and take no issue with

Plaintiff’s argument that his overseas deployment to Iraq, Egypt, Qatar, and Albania

on several different occasions was pursuant to federal authority. [Plaintiff’s Brief at

16.] Plaintiff also broadly alleges that he was treated more harshly than other

military service personnel making similar requests for military leave, and that GCSO

suddenly stopped accepting the types of memoranda he had been providing for years

when making military leave requests. Plaintiff even alleges two incidents of

harassment after the December 5, 2013, military training day when he was unfairly

disciplined for improperly displaying his badge number (even though other officers

displayed their badge numbers the same way as Plaintiff) and for delegating an

assignment to a more-junior officer. The Court finds that Plaintiff’s allegations of

discrimination under USERRA are broader than the December 5, 2013, inactive

duty training day.

For the reasons that follow, the Court finds that there is a genuine (and

narrow) issue as to a material fact, specifically, whether GCSO was motivated by

Plaintiff’s broader USERRA-protected military service in making the decision to

suspend him from employment for an allegedly excessive 20 days. See infra Section

V(C). In his opposition brief, Plaintiff correctly recognizes that his argument depends

in large part on circumstantial evidence to prove that Defendants’ non-

discriminatory reason for his discipline (i.e., insubordination) is pretextual.

[Plaintiff’s Brief at 13.] True, and the evidentiary hurdle Plaintiff must clear to reach

a favorable jury verdict based on such circumstantial evidence will be quite

demanding, considering the timing and nature of his second email to Undersheriff

Knestaut on December 23, 2013—an email Plaintiff must recognize was ill-

conceived to say the least—and taking into consideration this Court’s finding that his

December 5, 2013, training is not covered military service under USERRA. Plaintiff

may be able to evade an unfavorable decision on a motion summary judgment, but

the more difficult issue—whether the circumstantial evidence is strong enough to

reasonably infer a discriminatory motive by GCSO—remains for the jury to decide.

C. Whether Plaintiff Would Have Been Suspended for 20 Days Absent

His USERRA-Protected Military Service (USERRA Step-Two)

If Plaintiff is able to overcome his burden at step-one of the USERRA

framework, the burden then shifts to GCSO at step-two to show that they would

have issued the 20-day suspension regardless of Plaintiff’s broader USERRA-

protected military service. Defendants are correct that the Court “does not sit as a

super-personnel department to oversee a company’s employment practices” in

adjudicating USERRA claims. [Defendants’ Brief at 18 (citations omitted).] The

Court also agrees with Defendants that the second email sent by Plaintiff to

Undersheriff Knestaut on December 23, 2013, was inappropriate and insubordinate

on its face—no one could find otherwise.

In this Court’s mind, Plaintiff’s strongest argument is that his 20-day

suspension was/is excessive in light of all of the circumstances. [Plaintiff’s Brief at

18.] The parties’ briefs demonstrate that whether Plaintiff’s suspension was

excessive, a fact this Court finds very well may impact the outcome of the current

controversy, remains largely in dispute. Plaintiff first argues that if his insubordinate

email on December 23, 2013, was the real reason for his suspension, it would not

have taken until February 4, 2014, for the suspension to be finalized. [Id. at 18–19.]

However, Defendants argue that several different factors contributed to the 43-day

delay, including Plaintiff’s failure to provide an appropriate military order for his

service when requested, GCSO’s ongoing investigation, and that Plaintiff’s “delay”

argument, if meritorious, should have been pursued “through established processes

under his union’s collective bargaining agreement.” [Defendants’ Reply Brief at 4.]

Next, Plaintiff argues that his insubordinate email must be read in the context of his

supervisor’s continued, condescending questioning just hours before the Christmas

holiday, constituting ongoing harassment of Plaintiff by Undersheriff Knestaut that

caused Plaintiff to break his composure. [Plaintiff’s Brief at 19–20.] However,

Defendants maintain that regardless of the underlying circumstances, Plaintiff

“wrote what he wrote,” and what he wrote violates GCSO’s Rules of Conduct

against insubordinate behavior. [Defendants’ Reply Brief at 5.]

The parties do not dispute that Sherriff Morina “testified that the Sherriff’s

department follows progressive discipline and for Monaghan to have received a

twenty (20) day suspension, he must have had something in his file.” [Plaintiff’s Brief

at 20 (citing Plaintiff’s Statement of Facts ¶ 136).] The parties also do not dispute that

there was no “something else” in Plaintiff’s file as far as prior incidents of suspension

or any “forfeiture of time prior to the December 5, 2013, military [training] day,”

which appears to support Monaghan’s conclusion that “a twenty (20) day suspension

. . . for one instance of insubordination is excessive.” [Id. at 20–21.] Plaintiff argues

that this inference is further supported by the fact that another officer was

insubordinate towards Undersheriff Knestaut, “but only resulted in that Officer

receiving a performance notice,” as well as Undersheriff Bay’s indication to

Plaintiff’s supervisors at the New Jersey National Guard that Monaghan “seemed to

have military orders more than other officers” and may be manipulating his military

training dates to get out of work with GCSO. [Id.]

The record presently before the Court consists of an extensive amount of

circumstantial evidence that the jury may weigh in favor of either party, especially

with regard to whether Plaintiff’s 20-day suspension was excessive. However,

making evidentiary findings is not the role of this Court in deciding a motion for

summary judgment. The jury may find that Monaghan failed to follow established

procedure in requesting military leave as required by GCSO policy, and even if

Plaintiff’s 20-day suspension was excessive, as long as it was not motivated by

Plaintiff’s USERRA-protected military service, it is not unlawful under USERRA.

Further, Plaintiff’s USERRA-protected military service also appears to have

significantly pre-dated the heated email exchange that occurred in December 2013

where Plaintiff was clearly insubordinate to Undersheriff Knestaut.

What is clear to the Court based on the record presently before it is that the

road ahead of Plaintiff is not an easy one for sure, and Plaintiff must overcome

significant evidentiary hurdles to reach a favorable verdict in this case.2 Nevertheless,

the issue as to whether GCSO would have issued a 20-day suspension regardless of

Plaintiff’s broader, USERRA-qualifying military service, primarily consisting of his

prior deployment overseas but excluding the inactive duty training by the New Jersey

National Guard on December 5, 2013, is a disputed question of material fact that

must be left to the jury.

D. Defendant Knestaut Cannot be Liable Under USERRA Based on the

Facts Alleged

Defendants’ final argument is that “Undersheriff Knestaut cannot be held

individually responsible under USERRA” because “Undersheriff Knestaut does not

have the individual power to hire or fire the employees within the Sherriff’s Office . .

. [a]ny decision to hire or terminate an employee is required to be discussed with the

Sheriff.” [Defendants Brief at 21 (citing Coulson v. Town of Kearny, Civ. No. 07-5893

(PGS), 2010 WL 331347, at *7 (D.N.J. Jan. 19, 2010)).] Plaintiff failed to respond to

this argument in his opposition brief and did not otherwise provide any evidence to

show that Undersheriff Knestaut could, in fact, individually alter his employment

2 There is also the issue of what damages Plaintiff would be entitled to if he were to

prevail on his USERRA claim. In the Second Amended Complaint, Plaintiff seeks

liquidated damages pursuant to 38 U.S.C. § 4323(d) [Docket No. 20 ¶ 61], which, if

successful, could equal up to the amount of lost wages or benefits suffered because of

GCSO’s failure to comply with USERRA—which in Plaintiff’s case, could equal up

to an additional 20 days of backpay, provided that the Court determines that

GCSO’s failure to comply with USERRA was willful. 38 U.S.C. § 4323(d)(1)(B)–(C).

Beyond that there is no matter of right to attorneys’ fees and costs. 38 U.S.C. §

4323(h)(2). In any event, any attorneys’ fees and costs would have to be reasonable

and commensurate with the narrow results achieved. See Tobin v. Gordon, 623 F.

Supp. 2d 538, 543 (D. Del. 2009).

status with GCSO. Accordingly, the Court finds that Plaintiff has abandoned his

claim with respect to Defendant Knestaut. See Lutz Surgical Partners PLLC v. Aetna,

Inc., Civ. No. 15-02595 (BRM/TJB), 2021 WL 2549343, at *15 (D.N.J. June 21,

2021) (explaining that on summary judgment a party’s failure to respond to an

argument can be considered an admission of the other party’s argument) (citations

omitted). Considering that Defendants’ argument with respect to Defendant

Knestaut is well-founded in law and fact, as well as Plaintiff’s apparent admission,

the Court shall grant Defendants’ motion with respect to the USERRA claim

asserted again him.

VI. CONCLUSION

Material issues of fact remain, including whether Plaintiff’s USERRA-

protected military service—which does not include the military training on

December 5, 2013—motivated GCSO’s decision to suspend him for 20 days

(relevant at step-one of the USERRA framework), as well as whether the 20-day

suspension was excessive in light of all of the circumstances (relevant at step-two of

the USERRA framework).

Accordingly, the Court shall DENY Defendants’ Motion for Summary

Judgment [Docket No. 54], other than with respect to the USERRA claim against

individual Defendant Knestaut. Defendants’ Motion for Summary Judgment

[Docket No. 54] is GRANTED, in part, in that limited respect, and Plaintiff’s

USERRA claim against Defendant Knestaut fails. An accompanying Order, as of

today’s date, shall issue.

April 19, 2022 s/Renée Marie Bumb

Date Renée Marie Bumb

U.S. District Judge