Jimenez v. Holbrook Plastic Pipe Supply, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CHRISTI LEE JIMENEZ,

Plaintiff, MEMORANDUM & ORDER

21-CV-2472 (JS)(AYS)

-against-

HOLBROOK PLASTIC PIPE SUPPLY,

INC.; and CAROLYN OLSEN,

Defendants.

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APPEARANCES

For Plaintiff: Matt Crotty, Esq.

Riverside NW Law Group, PLLC

905 West Riverside Avenue, Suite 208

Spokane, Washington 99201

Michael Joseph Scimone, Esq.

Outten & Golden LLP

685 Third Avenue, 25th Floor

New York, New York 10017

Thomas Jarrard, Esq.

The Law Office of Thomas G. Jarrard

1020 North Washington Street

Spokane, Washington 99201

For Defendants: Richard T. Cordano, Esq.

Colleen F. Dowd, Esq.

Russo, Karl, Widmaier & Cordano PLLC

400 Townline Road, Suite 170

Happauge, New York 11788

SEYBERT, District Judge:

On May 4, 2021, Plaintiff Christi Lee Jimenez

(hereafter, “Plaintiff” or “Jimenez”) commenced this action

against Holbrook Plastic Pipe Supply, Inc. (hereafter, “HPPS”)

pursuant to the Uniformed Services Employment and Reemployment

Rights Act, 38 U.S.C. § 4312, (hereafter, “USERRA”) alleging:

(1) HPPS failed to reemploy her in accordance with the statute

upon her discharge from the armed services; and (2) the discharge

was willful such that she is entitled to liquidated damages. (See

generally, Compl., ECF No. 1.) On July 26, 2022, Plaintiff filed

a Second Amended Complaint which added Carolyn Olsen (hereafter,

“Olsen”) as a Defendant. (See Am. Compl., ECF No. 33.) Presently

before the Court are Plaintiff’s Motion for Partial Summary

Judgment (hereafter, “Plaintiff’s Motion”) (ECF No. 49) and

Defendants’ Cross-Motion for Summary Judgment (hereafter,

“Defendants’ Motion”) (ECF No. 53). For the reasons that follow,

Plaintiff’s Motion is GRANTED in part and DENIED in part, and

Defendant’s Motion is DENIED in its entirety.

[Remainder of page intentionally left blank]

BACKGROUND1

I. The Parties

Defendant HPPS is a New York company in the business of

selling pipes to contractors, including government contractors.

1 The following facts are taken from Plaintiff’s Local Rule 56.1

Statement (hereafter, “Pl’s 56.1 Stmt.”) (ECF No. 49-1);

Defendants’ Local Rule 56.1 Counterstatement (hereafter, “Defs’

56.1 Counterstmt.”) (ECF No. 51-1); Defendants’ Local Rule 56.1

Statement (hereafter, “Defs’ 56.1 Stmt.”) (ECF No. 53-16);

Plaintiff’s Local Rule 56.1 Counterstatement (hereafter, “Pl’s

56.1 Counterstmt.”) (ECF No. 54-1); Defendants’ Response to

Plaintiff’s Local Rule 56.1 Statement of Additional Facts

(hereafter, “Def’s Reply 56.1 Stmt.”) (ECF No. 55-1); and the

declarations and exhibits submitted relative to the instant

Motions (ECF Nos. 49-51, 53-54.)

Unless otherwise noted, a standalone citation to a party’s Rule

56.1 statement throughout this Order means the Court has deemed

the underlying factual assertion undisputed. Any citation to a

Rule 56.1 statement incorporates by reference the documents cited

within. Where relevant, however, the Court may also cite directly

to an underlying document. The Court has deemed true undisputed

facts averred in a party’s Rule 56.1 statement to which the

opposing party cites no admissible evidence in rebuttal. See

Steward v. Fashion Inst. of Tech., No. 18-CV-12297, 2020 WL

6712267, at *8 (S.D.N.Y. Nov. 16, 2020) (“[P]ursuant to Local Civil

Rule 56.1 [the movant’s] statements are deemed to be admitted where

[the non-moving party] has failed to specifically controvert them

with citations to the record.” (quoting Knight v. N.Y.C. Hous.

Auth., No. 03-CV-2746, 2007 WL 313435, at *1 (S.D.N.Y. Feb. 2,

2007))); Lumbermens Mut. Cas. Co. v. Dinow, No. 06-CV-3881, 2012

WL 4498827, at *2 n.2 (E.D.N.Y. Sept. 28, 2012) (“Local Rule 56.1

requires . . . that disputed facts be specifically controverted by

admissible evidence. Mere denial of an opposing party’s statement

or denial by general reference to an exhibit or affidavit does not

specifically controvert anything.”). “Additionally, to the extent

[a party’s] 56.1 statement ‘improperly interjects arguments and/or

immaterial facts in response to facts asserted by [the opposing

party] without specifically controverting those facts,’ the Court

has disregarded [such] statement[s].” McFarlance v. Harry’s

Nurses Registry, No. 17-CV-6360, 2020 WL 1643781, at *1 n.1

(E.D.N.Y. Apr. 2, 2020).

(Def’s 56.1 Stmt. at ¶3.) Defendant Olsen is the sole owner of

HPPS. (Id. at ¶4.) Plaintiff Jimenez was employed at HPPS from

May 2009 to April 2017. (Pl’s 56.1 Stmt. at ¶1, 5.) While employed

at HPPS, Jimenez’s job title was “Accounts Payable” and Jimenez

was responsible for, inter alia, managing certain accounts,

processing purchase orders, checking the packing slips of

purchasing orders, verifying credit card receipts, paying vendors,

and receiving money. (Id. at ¶2; Defs’ 56.1 Stmt. ¶9.)

II. Jimenez Joins the U.S. Army

In April 2017, Jimenez informed HPPS that she was joining

the U.S. Army. (Defs’ 56.1 Stmt. ¶13.) At the time, Jimenez’s

base salary was $44,000 per year, which was approximately $20 per

hour worked. (Id. at ¶11-12.) Jimenez served in the U.S. Army

from May 2, 2017 to May 12, 2020, when she was honorably discharged

for medical reasons. (Pl’s 56.1 Stmt. ¶¶7-8.) Upon Jimenez’s

departure from HPPS, HPPS hired an employee to take on Jimenez’s

former job duties. (Defs’ 56.1 at ¶15.)

III. Jimenez Returns Upon Her Discharge from Active Duty

Jimenez was honorably discharged from active duty with

the U.S. Army on May 12, 2020, due to “retirement” and “permanent

disability.” (Id. at ¶¶ 17-18.) Following her discharge from the

armed services, Jimenez visited HPPS on at least three separate

occasions between July 2020 and September 2020. (Id. at ¶¶19-20).

It is undisputed that during these visits, Jimenez did not ask

anyone at HPPS for reemployment. (Id.; see also Pl’s 56.1

Counterstmt. ¶19.)

The parties dispute, however, whether and when Jimenez

made a request for reemployment at a different time. Plaintiff

asserts she asked for reemployment within 90 days of May 12, 2020,

the date of her discharge from the U.S. Army.2 (Pl’s 56.1 ¶10.)

In particular, Plaintiff asserts she asked HPPS to reemploy her by

way of the following events.

a. Jimenez Calls Olsen on July 28, 2020

First, Jimenez posits she had a telephone conversation

with Olsen on July 28, 2020 whereby she informed Olsen she

completed her military service and wanted to return to work. (Pl’s

56.1 ¶11; see also Jimenez Dep.3, ECF No. 50-1, at 36:12-15.)

Olsen does not dispute that this call took place, and that Jimenez

informed her that she wanted her job back during the call. Indeed,

when asked whether at some point, Olsen had learned that Jimenez

was out of the military and trying to come back to work at HPPS,

Olsen testified she “remember[ed] that [Jimenez] sent [her] maybe

an email or told [her] on the phone or called [her] . . . on the

2 Ninety days from May 12, 2020 is August 10, 2020.

3 The Court notes there were multiple depositions taken by the

parties in this matter, which were filed by the parties as exhibits

to the instant Motions using distinct identifiers. For clarity,

the Court refers to deposition transcripts by abbreviated name and

ECF number as they appear on the docket.

28th of July.” (Olsen Dep II, ECF No. 51-6, at 124:18-125:4.)

According to Jimenez, during the July 28, 2020 phone call, Olsen

told her that she “wasn’t going to give [Jimenez]” her “old job

back”, but “might have another position for [her] and [Olsen] would

like to talk about it over lunch.” (Jimenez Dep., ECF No. 50-2,

at 29:5-17; 30:23-31:3.)

b. Jimenez and Olsen Meet for Lunch

Second, Jimenez asserts she met with Olsen for said lunch

sometime between July 28, 2020 and August 5, 2020. (Pl’s 56.1 at

¶17.) According to Jimenez, Olsen discussed a potential job at

HPPS “[f]or a brief second,” but when Jimenez stated she had

questions about the job, Olsen “changed the subject and [they]

never got to talk about [it].” (Jimenez Dep., ECF No. 50-2, at

33:13-25.) Jimenez further testified that Olsen told her to

“e-mail [her] all of the questions that [Jimenez]” had about the

potential new job. (Id. at 35:22-25.)

While Defendants agree Jimenez and Olsen met for lunch,

they dispute the date and content of the lunch conversation as

recalled by Jimenez. (Def’s 56.1 Counterstmt. ¶17.) As to the

date, Defendants contend the lunch meeting occurred on a weekday

at the end of September 2020.4 (Id.; see also Defs’ Ex. 7, ECF

4 Defendants contend the lunch occurred on either September 12,

2020 or September 30, 2020 based upon Olsen’s credit card

statements. (Defs’ 56.1 Stmt. at ¶23.) Plaintiff recalls Olsen

paying for the lunch with cash. (Pl’s 56.1 Counterstmt. at ¶23.)

No. 51-9; Olsen Dep II, ECF No. 51-6, at 83:1-3.) Additionally,

Defendants have a drastically different account of what happened

at the lunch; in particular, Olsen testified: (1) she offered

Jimenez an opportunity to return to work at HPPS in a different

role than she previously occupied (see Olsen Dep. II, ECF No. 51-

6, at 83:4-12); (2) the job offered to Jimenez was a “CDI”

position, which, in short, would require Jimenez to find jobs for

salespeople at HPPS to bid upon (id. at 81:3-82:7); (3) Jimenez

was “not really responding” to Olsen’s job offer and description,

so Olsen told her to go home and think about the offer and give

her a call the next day (Olsen Dep. II, ECF No. 51-6, at 84:9-25);

and (4) in response to Olsen’s offer, Jimenez stated she could not

“come back to work” because she was “under a doctor’s care,”

“taking medicine”, and doing “rehab[ilitation]” (Olsen Dep. II,

ECF No. 51-6, at 85:2-7); and (5) Olsen, understanding Jimenez’s

physical condition, and noting that Jimenez was limping, told

Jimenez if she wanted the job, Jimenez could reach out to Olsen

when she “was ready” to “go over everything again.” (Olsen Dep.

II, ECF No. 51-6, at 85:3-16.)

c. Jimenez Sends Olsen an Email on August 6, 2020

Third, Jimenez testified she sent Olsen an email

following their lunch, dated August 6, 2020. In the email, Jimenez

apologized for the “delay,” requested job details about the

purported new job offered to her by Olsen, requested a $30 per

hour salary, asked for time off on certain federal holidays, and

asked about the expected protocol regarding vacation time.

(Jimenez Dep. I, ECF No. 51-3, at 36:4-23; email attached to

Jimenez Dep., ECF No. 50-1, at 30.) There is no dispute that this

email was sent from Jimenez to Olsen at the correct email address.

(Pl’s 56.1 at ¶24.)

d. Jimenez and Olsen Speak on September 26, 2020

Fourth, Jimenez testified that on September 26, 2020,

Olsen called her by accident, mistakenly believing Jimenez was her

“carpet guy.” (Jimenez Dep I, ECF No. 51-3, at 40:17-41:18.)5

Jimenez believed Olsen’s tone was “very nasty” and decided to

record the call. (Id. at 41:4-21.) During the phone call, Olsen

told Jimenez several times that she could not hire Jimenez, or any

5 The Court notes the deposition transcript mistakenly states that

the phone call occurred on September 6, 2020. It is unclear

whether this was a misstatement on the part of counsel or a

scrivener’s error. In any event, it is undisputed that said phone

call occurred on September 26, 2020. (See Def’s 56.1 Counterstmt.

¶32; see also Crotty Delc., Ex. C, ECF No. 49-5.)

one else, “right now.” (Pl’s 56.1 Stmt. at ¶35; see also Crotty

Delc. Ex. C, ECF No. 49-5, in toto.)6

e. The September 30, 2020 Certified Letter

Fifth, on September 30, 2020, Jimenez sent a certified

letter to Olsen and HPPS requesting reemployment. (Pl’s 56.1 Stmt.

at ¶46.) The certified letter included a copy of New York law,

6 Relevant excerpts of the transcript of the September 26, 2020

call between Jimenez and Olsen are as follows:

Ms. Jimenez: I said, I just want to

understand correctly that you’re not hiring

me right now?

Ms. Olsen: No, I can’t right now. That’s

what I’m trying to tell you. It’s not your

fault and nothing to do with you.

(Crotty Delc., Ex. C, ECF No. 49-5, at 2:5-10.)

Ms. Olsen: . . . so as I said, I can’t hire

you now, okay? I’m sorry.

(Id. at 4:18-19.)

Ms. Olsen: . . .I’m sorry that I can’t hire

you at this point.

(Id. at 5:19-20.)

Ms. Olsen: It’s just that I’m not ready to

hire anybody right now.

Ms. Jimenez: Okay.

Ms. Olsen: Okay. Okay. Thank you.

Ms. Jimenez: I understand.

Ms. Olsen: Okay. You take care. Bye-bye.

(Id. at 7:5-11.)

referencing the USERRA, concerning the reemployment of veterans

returning from military service. (Id. at ¶47; Jimenez Decl., Ex.

D, ECF No. 49-18.) The letter went unanswered by both Olsen and

HPPS. (Pl’s 56.1 Stmt. at ¶48.) Jimenez never returned to work

at HPPS. (Pl’s 56.1 Stmt. at ¶49.)

ANALYSIS

I. Legal Standards

A. Summary Judgment

The Court shall grant summary judgment under Rule 56(a)

where “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 for the purposes

of resolving a summary judgment motion “when it might affect the

outcome of the suit under the governing law.” Adamson v. Miller,

808 F. App’x 14, 16 (2d Cir. 2020). “An issue of fact is ‘genuine’

if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Id. (quoting Jeffreys v. City

of N.Y., 426 F.3d. 549, 553 (2d Cir. 2005)).

“The movant bears the burden of ‘demonstrating the

absence of a genuine issue of material fact.’” Nick’s Garage,

Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 114 (2d Cir. 2017)

(quoiting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

The burden of persuasion may be satisfied by either: (1) submitting

evidence that negates an essential element of the non-moving

party’s claim; or (2) by demonstrating that the non-moving party’s

evidence is insufficient to establish an essential element of the

non-moving party’s claim. Id. Once the moving party has met its

burden, the non-moving party must “do more than simply show that

there is some metaphysical doubt as to material facts and instead

offer some hard evidence showing that its version of events is not

wholly fanciful.” Stein v. County of Nassau, 417 F. Supp. 3d 191,

197 (E.D.N.Y. 2019) (citations omitted).

“Summary judgment is inappropriate when the admissible

materials in the record make it arguable that the claim has merit.”

Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010)

(citations and quotation marks omitted). In reviewing the record,

the court “may not make credibility determinations or weigh the

evidence” as such determinations are to be made by the jury, not

the judge. Id. (citing Reeves v. Sanderson Plumbing Prods. Inc.,

530 U.S. 133, 150 (2000)). Accordingly, where an issue as to a

material fact cannot be resolved without weighing the credibility

of a witness, summary judgment is improper. Id.

Finally, courts employ “an extra measure of caution”

before “granting or affirming summary judgment in a discrimination

action because direct evidence of discriminatory intent is rare.”

Moll v. Telesector Res. Grp., Inc., No. 20-CV-3599, 2024 WL 820179,

at *4–5 (2d Cir. Feb. 28, 2024) (citing Holtz v. Rockefeller &

Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001), abrogated in part on

other grounds by Gross v. FBL Financial Services, Inc., 557 U.S.

167 (2009)). “Thus, the court must scrutinize affidavits and

depositions carefully for circumstantial evidence that, if

credited by the factfinder, could reasonably be interpreted as

showing discrimination.” Id.

B. Discrimination and Failure to Reemploy Under USERRA

The USERRA was enacted to protect military service

members from “disadvantages to their civilian careers [that may

occur] as a result of such [military] service.” Woodard v. N.Y.

Health & Hosps. Corp., 554 F. Supp. 2d 329, 347 (E.D.N.Y. 2008),

aff’d in part, remanded in part, 350 F. App’x 586 (2d Cir. 2009)

(quoting Curby v. Archon, 216 F.3d. 549, 556 (6th Cir. 2000)).

Under the USERRA, persons serving in the U.S. military shall be

“promptly reemployed in a position of employment” in which “the

person would have been employed if the continuous employment of

such person with the employer had not been interrupted by such”

military service, or, alternatively, in a position “of like

seniority, status and pay, the duties of which the person is

qualified to perform.” 38 U.S.C.A. § 4313(a)(2)(A). To take

advantage of employment protections afforded by the USERRA, any

person who served in the U.S. military for a period longer than

180 days must submit “an application for reemployment with the

employer no[] later than 90 days after the completion of the period

of service.” 38 U.S.C. § 4312(e)(1)(D). Such application “need

not follow any particular format” so long as it places the employer

on notice of his or her claim to reemployment. Serricchio v.

Wachovia Sec. LLC, 658 F.3d 169, 180 (2d Cir. 2011) (citing 20

C.F.R. § 1002.118). Further, an “employee is permitted but not

required to identify a particular reemployment position in which

he or she is interested.” Id.

Employment protections offered to former service members

are to be “liberally construed for the benefit of those who left

private life to serve their country.” Serricchio v. Wachovia Sec.,

LLC, 556 F. Supp. 2d 99, 104 (D. Conn. 2008), aff’d, 658 F.3d 169

(2d Cir. 2011) (quoting Fishgold v. Sullivan Drydock & Repair

Corp., 328 U.S. 275, 285 (1946)). Indeed,

the Second Circuit has held that where a

returning servicemember’s application for

reemployment puts the employer on “ample

notice of his claim” to reemployment,

“technical failure[s]” in the form of the

application which do not prejudice the

employer will not prevent USERRA’s rehiring

mandate from binding the employer.

Id. at 105 (quoting Martin v. Roosevelt Hosp., 426 F.2d 155, 159

(2d Cir. 1970)); see also Serricchio, 658 F.3d at 180.

However, such liberal construction of the USERRA’s

application requirement is not without limitations. Serricchio,

556 F. Supp. at 105 (“[T]here are limits to the liberality with

which USERRA is to be applied when determining whether a plaintiff

has properly applied for reinstatement.”). If a returning

servicemember makes only a casual or cursory request for

reemployment without further follow-up with the appropriate hiring

personnel, such request may not be deemed a viable reemployment

application. See McGuire v. United Parcel Serv., 152 F.3d 673,

678 (7th Cir. 1998). Moreover, if a returning servicemember makes

a request for reemployment that is conditional, that is, contingent

upon some other event or term, such request is not considered an

“application” for the purposes of the USERRA. See, e.g., Baron v.

U.S. Steel Corp., 649 F. Supp. 537, 541–42 (N.D. Ind. 1986)

(denying USERRA claim where former employee informed his employer

that he wanted his job back if he did not get accepted to college).

In analyzing a purported conditional request for reemployment, the

Second Circuit has made clear that a request for higher pay or

position upon return from the U.S. military is not necessarily a

“conditional” request which fails to suffice as a proper request

for reemployment under the statute. See Martin, 426 F.2d at 159

(concluding plaintiff’s request for a position he was not entitled

to amounted to a request for reemployment because the request did

“not suggest [plaintiff] was no longer interested in the [original

position] if that was the best he could get”); see also Serricchio,

658 F.3d at 180 (“[In Martin] we rejected the claim that Martin’s

second round of communications did not constitute a demand for

reinstatement simply because [he] requested a position to which he

was not entitled to under the [USERRA]”).

C. Willful Violations of the USERRA

“If the Court determines that the employer’s failure to

comply with the provisions of [the USERRA] was willful,” the Court

“may require the employer to pay the [plaintiff] an amount equal

to” compensatory damages as liquidated damages. 38 U.S.C.

§ 4323(d)(1)(C). “[W]hether a litigant was at fault or acted

willfully or in bad faith are questions of fact.” Serricchio, 658

F.3d at 191 (citing Agiwal v. Mid Island Mortg. Corp., 555 F.3d

298, 302 (2d Cir. 2009) (alterations in original)). Where an

employer “acts reasonably in determining its legal obligation, its

action cannot be deemed willful.” Id. (citing McLauglin v.

Richland Shoe Co., 486 U.S. 128, 135 n.13 (1988)). Willfulness in

this context is akin to recklessness, and “where an employer acts

unreasonably, but not recklessly” such conduct is not considered

willful. Id.

II. Discussion

A. Jimenez Submitted a Timely Request for Reemployment

Plaintiff argues she is entitled to partial summary

judgment on her 38 U.S.C. § 4312 claim because she was discharged

from the military on May 12, 2020 and requested her job back on

July 28, 2020, which was well within the 90-day period in which a

veteran may apply for reemployment. (Pl’s Motion, ECF No. 49, at

5.) Defendant argues no such request was made in the 90-day period

because although a phone call was made “on July 28, 2020 to

Defendant [Olsen’s] home phone” such call was merely an “inquiry”

and not a formal request for reemployment. (Defs’ Opp’n to Pl’s

Motion, ECF No. 51, at 11.) Despite Defendants’ contentions that

Plaintiff’s July 28, 2020 phone call was a mere “inquiry” about

reemployment, the record indicates Olsen understood that Plaintiff

wanted her job back either based upon their conversation on that

date or based upon a later email sent by Plaintiff.7 Such

understanding is sufficient to establish that a reemployment

request has been timely made under the USERRA. Indeed, the Second

Circuit does not require a returning veteran to submit a perfect

formal job application in order to request reemployment; rather,

where it is clear the employer received “ample notice” of the

returning veteran’s request for reemployment within the statutory

7 In her deposition, Olsen testified she was aware of Plaintiff’s

request for reemployment within the statutory time period. (Olsen

Dep. II, ECF No. 51-6, at 124:18-125:4) (“I just remember that she

sent me maybe an email or told me on the phone or called me about

the – on the 28th of July, something on a phone call on the 28th

of July that I think it was – I’d have to look. I have – I think

I have something on that but I think it has something to do with

her job. I would imagine it would be her job.”).

The Court finds the email Olsen references in the aforementioned

testimony is the August 6, 2020 email sent from Plaintiff to Olsen,

which would have been sent within the 90-day time frame set by the

statute. While Defendants attempt to create an issue of fact as

to whether the August 6, 2020 email was a timely request for

reemployment, asserting Plaintiff knew that Olsen did not receive

said email (see Defs’ 56.1 Counterstmt., ECF No. 51-1, at ¶20),

the deposition testimony cited by Defendants does not support such

assertion. (Id.) Moreover, regardless of such purported dispute,

the record makes clear Olsen understood Jimenez requested her job

back and did so within the 90-day deadline of August 10, 2020.

period, such request is deemed sufficiently compliant with the

statute. See Serricchio, 658 F.3d at 180. Accordingly, the Court

finds, as a matter of law, that Plaintiff requested reemployment

within the statutory time period.

B. Jimenez’s Request for Increased Salary Did Not Render

Her Application “Conditional”

In addition to concluding Jimenez’s application for

reemployment was procedurally compliant, i.e., she placed her

former employer on notice of her claim to reemployment within the

90-day statutory period, the Court concludes, as a matter of law,

that Jimenez’s request for a salary “in th[e] area” of $30 an hour

was not a conditional request for employment that would absolve

Defendants of their obligations under the USERRA. (Email attached

to Jimenez Dep., ECF No. 50-1, at 30.); see Serricchio, 658 F.3d

at 180 (noting the Second Circuit previously rejected the claim

that a plaintiff is not entitled to reinstatement of his job

position “simply because [he] requested a position to which he was

not entitled to under the [USERRA]”). This is especially true

considering Jimenez was making approximately $20 an hour at HPPS

at the time she left for the miliary (see Defs’ 56.1 Stmt. ¶13),

and where Jimenez’s specific request was for a salary “in th[e]

area” of $30 per hour. (Email attached to Jimenez Dep., ECF No.

50-1, at 30). By her own words, Jimenez indicated she was not

conditioning her request for reemployment upon a “hard” demand for

$30, but rather, implied she was willing to work for less. This

presents a scenario similar to that of the plaintiff in Martin,

whereby the Second Circuit rejected defendants’ claim that

plaintiff’s request for reemployment was conditional where there

was no evidence plaintiff “was no longer interested in [a lower-

level] position if that was the best he could get.” Martin, 426

F.2d at 159. So too here.

C. Ms. Olsen’s Purported Offer of an Alternative Job

Position is Insufficient to Establish Compliance with

the USERRA

Having found Plaintiff made a timely and proper request

for reemployment under the USERRA, the Court now to turns to

Defendants’ alleged defense that they offered Plaintiff

reemployment by way of an alternate position at HPPS. The Court

finds, as a matter of law, Defendants did not comply with their

obligations under the USERRA because either: (1) the offer of an

alternate employment position was made by Olsen and then rescinded

during the September 26, 2020 phone call between the parties; or

(2) the offer of an alternate employment position was not made

“promptly” under the USERRA because it was made on September 30,

2020, following Olsen’s blatant denial of Plaintiff’s request for

reemployment and more than 60 days after Plaintiff’s initial

application for reemployment.

The USERRA requires employers, like HPPS, to “promptly”

reemploy returning service members upon their request. 38 U.S.C.

§ 4313(a). While the USERRA does not specify the number of days

in which an employer must re-instate a qualified veteran in order

to comply with the “promptness” requirement, such promptness

requirement has been interpreted to require reemployment action

within 14 days. See 20 C.F.R. § 1002.181; see also Ozorowsky v.

Bayfront HMA Healthcare Holdings, LLC, No. 20-CV-2564, 2022 WL

445500, at *3 (M.D. Fla. Feb. 14, 2022) (“Absent unusual

circumstances, reemployment must occur within two weeks of the

employee’s application for reemployment.”) (emphasis in original);

Harwood v. Am. Airlines Inc., No. 17-CV-484, 2017 WL 11318161, at

*8 (E.D. Va. Aug. 9, 2017), aff’d, 963 F.3d 408 (4th Cir.

2020)(same).

Based upon the facts posited by the parties, two

potential timelines exist concerning Jimenez’s request for

reemployment, both of which evidence Defendants’ non-compliance

with the “prompt” reemployment requirements of the USERRA.

Plaintiff’s recollection of the timeline of events, corroborated

by documents and testimony, is as follows: (1) Plaintiff spoke on

the phone with Olsen on July 28, 2020 whereby Plaintiff requested

reemployment; (2) Olsen and Plaintiff met for lunch where Olsen

told Plaintiff about an alternate job position; (3) when Plaintiff

followed up on that job position via email on August 6, 2020, such

email went unanswered; and (4) on September 26, 2020, Olsen called

Plaintiff and told her, in no uncertain terms, that she would not

be re-hired at HPPS. (See supra Background.) Alternatively,

Defendants’ recollection of the timeline of events, based upon

documents and testimony, is as follows: (1) Plaintiff spoke on the

phone with Olsen on July 28, 2020; (2) Plaintiff sent an email to

Olsen on August 6, 2020, which Olsen did not receive; (3) Olsen

mistakenly called Plaintiff on September 26, 2020, informing

Plaintiff, in no uncertain terms, that she would not be re-hired

at HPPS; and (4) Plaintiff and Olsen met for lunch either on

September 12, 2020 or September 30, 2020, whereby Olsen offered

Plaintiff a different job position at HPPS. (See id.)

There is no dispute that Olsen was made aware of

Plaintiff’s request for reemployment either on July 28, 2020 or

August 6, 2020. (Olsen Dep. II, ECF No. 51-6, at 124:18-125:4)

(“I just remember that she sent me maybe an email or told me on

the phone or called me about the – on the 28th of July, something

on a phone call on the 28th of July that I think it was – I’d have

to look. I have – I think I have something on that but I think it

has something to do with her job. I would imagine it would be her

job.”). It is similarly undisputed that Olsen called Jimenez on

September 26, 2020 and informed her that she would not be

reemployed at HPPS. See supra n.3. Defendants allege Plaintiff

met with Olsen at some point in September 2020, either on September

12, 2020, or September 30, 2020, based solely upon Olsen’s credit

card statements, at which time Olsen offered Plaintiff an

alternative job position at HPPS. (Def’s 56.1 Stmt. ¶¶ 23-24.)

Accepting, for sake of arguendo, that the lunch meeting occurred

on September 12, 2020 and Olsen did offer Plaintiff a job, any

such offer was clearly rescinded by way of the September 26, 2020

phone call among the parties. Alternatively, accepting for sake

of arguendo that the lunch meeting occurred on September 30, 2020,

notwithstanding Defendants have offered no explanation as to how

that meeting would have come to be following the September 26,

2020 phone call, any such job offer made on that date, which would

have been 55 to 64 days after Plaintiff requested reemployment,

could not have complied with the “prompt” reemployment required by

the USERRA. 38 U.S.C. § 4313(a); 20 C.F.R. § 1002.181.

Therefore, the Court finds Plaintiff met all

requirements for reemployment under the USERRA and Defendants

failed to comply with the statute by not promptly offering

Plaintiff either her former position or a like position.

Accordingly, Plaintiff’s Motion for Partial Summary Judgment is

GRANTED insofar as it seeks a finding that Defendants failed to

reemploy Plaintiff in accordance with the USERRA.8 Consequently,

and for the same reasons, Defendants’ Motion for Summary Judgment

is DENIED.

D. A Genuine Dispute of Material Facts Exists as to

Plaintiff’s Liquidated Damages Claim

As discussed supra, “[i]f the Court determines that the

employer’s failure to comply with the provisions of [the USERRA]

was willful,” the Court “may require the employer to pay the

[plaintiff] an amount equal to” compensatory damages as liquidated

damages. 38 U.S.C. § 4323(d)(1)(C). “[W]hether a litigant was at

fault or acted willfully or in bad faith are questions of fact.”

Serricchio, 658 F.3d at 191 (citing Agiwal, 555 F.3d at 302)

(alterations in original). Where an employer “acts reasonably in

determining its legal obligation, its action cannot be deemed

willful.” Id. (citing McLauglin v. Richland Shoe Co., 486 U.S.

128, 135 n.13 (1988)). Willfulness in this context is akin to

recklessness, and “where an employer acts unreasonably, but not

recklessly” such conduct is not considered willful. Id.

8 For the avoidance of doubt, the Court has reviewed the parties’

respective submissions concerning Defendants’ affirmative

defenses. For the reasons stated herein, Plaintiff’s Motion for

Summary Judgment insofar as it seeks dismissal of Defendants’

Affirmative Defenses 1-5 and 7-15 is GRANTED. The Court finds,

however, Defendants’ Sixth Affirmative Defense (for failure to

mitigate) to be viable and such Defense may be raised during the

forthcoming trial on damages.

Here, there are material factual disputes which preclude

a determination of whether Defendants’ violation of the USERRA was

“willful.” For example, there is evidence that Defendant offered,

or was contemplating offering, Plaintiff an alternative job

position upon her discharge from the military, which suggests

Defendants’ good-faith attempt to comply with the statute. See,

e.g. Jimenez Dep., ECF No. 50-2, at 33:13-25 (noting Olsen

discussed a potential different job at HPPS that Jimenez could

do). In contrast, Defendants admit Olsen was told by another

employee of HPPS that she was legally obligated to reemploy

Jimenez, and as the Court has concluded, Olsen did not do so.

(See, e.g., Defs’ 56.1 Counterstmt. at ¶16). Based upon these

alleged facts, and the fact-intensive inquiry required to

determine whether an employer’s violation of the USERRA was

“willful,” the Court finds a dispute of fact exists as to whether

Defendants willfully violated the USERRA. Accordingly,

Defendants’ Motion for Summary Judgment as to Plaintiff’s

liquidated damages claim is DENIED.

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CONCLUSION

For the stated reasons, it is HEREBY ORDERED:

I. Plaintiff’s Motion for Summary Judgment (ECF No. 49) is

GRANTED insofar as it seeks:

(1) a finding that Defendants violated 38 U.S.C. § 4312,

et seq. for failure to reemploy her upon her discharge

from the U.S. Military; and

(2) dismissal of Defendants’ Affirmative Defenses 1-5 and

7-15;

II. Defendants’ Cross-Motion for Summary Judgement is DENIED in

its entirety;

III. In light of the foregoing, by no later than January 21, 2025,

the parties shall submit a joint letter to the Court stating:

(1) whether they wish to attend mediation on damages;

(2) whether they wish to attend a settlement conference

before Magistrate Judge Lindsay on damages; or

(3) if they are not interested in participating in

mediation or a settlement conference, their

availability for a trial on damages in summer 2025.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: December 19, 2024

Central Islip, New York