Petition for Writ of Certiorari — Village of Depew v. Gummo

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SUPE EGRa

No.

IN THE

Supreme Court of the United States

October Term, 1995

VILLAGE OF DEPEW, NEW YORK,

Petitioner,

vs.

WILLIAM M. GUMMO,

Respondent.

On PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

CourT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

PAUL D. WEISS, ESQ.

Counsel of Record

WEISS & STEIN

Attorneys for Petitioner

1716 Liberty Building

Buffalo, New York 14202

Telephone: (716) 855-1777

TIMES APPELLATE PRINTING, INC.—Telephone (716) 344-2000

QUESTIONS PRESENTED

1. Is the decision of the United States Court of Appeals for

the Second Circuit in conflict with the rules regarding the

retroactive application of statutes as set forth by this Court

in Rivers v. Roadway Express, Inc., __ U.S.__, 114 §.Ct.

1510 (1994) and Landgraf v. USI Film Products,

U.S.___, 114 S.Ct. 1483 (1994)?

2. Does Section 431 1(b) of the Uniformed Armed Services

Employment and Reemployment Rights Act, 38 U.S.C.

$4301 et seq. apply to cases that were pending when the Act

was passed?

3. Did the United States Court of Appeals for the Second

Circuit err in vacating summary judgment for the petitioner,

where there was no evidence before the court that the

plaintiff's membership in the Air Force Reserves was a

determinative factor in the decision to terminate his

employment?

LIST OF PARTIES

The caption of the case contains the names of all parties.

iil

TABLE OF CONTENTS

QUESTIONS PRESENTED .................

se hows ke es we oe

I. The Factual Background.................

II. Proceedings in the Courts Below............

REASONS FOR GRANTING THE WRIT ........

I. The Second Circuit’s Retroactive

Application of USERRA Conflicts

with the "Clear Statement" Rule

Recently Reaffirmed by this Court

in Rivers v. Roadway Express, Inc.

and Landgraf v. USI Film Products ........

II. The Issues Decided by the Panel are of

National Importance, Inasmuch as They

Involve The Interpretation of Recent

Amendments to Federal Veteran and

Military Reservist Rights Legislation ......

I Bg ys bk ee ee we

TABLE OF AUTHORITIES

Cases:

Blackmon v. Observer Transportation Co.,

102 Lab.Cas. (CCH) ¢ 11,450

Eke Rae er ee ree 22

Britt v. Georgia Power and Light,

677 F.Supp. 1169 (N.D.Ga. 1987) .......... 9, 22

Burkart v. Post-Browning, Inc.,

Go ©.a8 bee Gee Gal. BOONE as Se we 0 9, 21

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)... 10, 20

Clayton v. Blachowske Truck Lines,

640 F.Supp. 172 (D.Minn. 1986),

Gia, S19 Fae Tae CC TSR) i ee ee 9

Henry v. Anderson,

522 F.Supp. 1112 (E.D. Tenn. N.D. 1981) ...... 33

Kaiser Aluminum & Chemical Corp. v. Bonjorno,

Se UB. BET Ce i ee ew 14

Landgraf v. USI Film Products,

__—«xULS.. _ SIO SAE. ASI CI) wc passim

McCormick v. Carnett-Partsnett Systems, Iic.,

396 F.Supp. 251 (M.D.Fla. 1975) ........... 22

Monroe v. Standard Oil Co.,

452 U.S. 549 (1981) .. 7, 8, 9, 10, 11, 12, 14, 15, 18

Cases:

Murray v. Gibson, 15 How. 421 (1854) ........ 14

Patterson v. McLean Credit Union,

SPt E50. te Lie 6 Oe alee ee i, iz,

Rivers v. Roadway Express, Inc.,

__U.S.__, 114 S.Ct. 1510 (1994) ....... passim

Sawyer v. Swift & Company,

$36 F.2¢ 1257 (10th Cir. 1968)... ......2.. £3

Schwab v. Doyle, 258 U. S. 529 (1922) .......... 14

United States v. Heth, 3 Cranch 399 (1806) ...... 14

Statutes:

Veterans’ Reemployment Rights Act of 1968

58 U.S.C. GAME OO £6. tS Oe ie i, OR

Uniformed Services Employment and

Reemployment Rights Act of 1994 ["USERRA"]

38 U.S.C. §4311(b), 108 Stat. 3153 5. ww... passim

USERRA Pub.L.No. 103-353,

OR Sk: Dare Wee es eves Se SG 2, 3; 16

USERRA Pub.L.No. 103-353,

Mie Mt. SE7S GO) ee be ae 4a, im 13, 6

Statues:

The Civil Rights Act of 1991,

Pub.L.No. 102-166, 105 Stat. 1071 §102 ..... 11, 12

N.Y.S. Civil Service Law $75 .......... 4,6, 19

N.Y.S. Civil Practice Law and Rules §7804(g) .... 6

Legislative History:

H.R.Rep.No. 65, 103d Cong., 2d Sess. 18,

reprinted in 1994 USCCAN at 2449 ........ 11, 12

Joint Explanatory Statement on H.R. 995,

140 Cong.Rec.H. 9155 (daily ed. Sept. 13, 1994),

reprinted in 1994 USCCAN 2493, 2515) ..... 12, 15

Appendices:

A. Opinion of the United States Court of

Appeals for the Second Circuit, January 19, 1996 Al

B. Memorandum and Order of the United

States District Court for the

Western District of New York, April 28, 1995 . A33

C. Judgment of the United States District

Court for the Western District of New York,

cmpered On NERY Z, IOee 6c icc cee wees es A40

Petitioner the Village of Depew, New York respectfully

prays that a writ of certiorari issue to review the decision

and order of the United States Court of Appeals for the

Second Circuit in this case.

OPINIONS AND ORDERS BELOW

The Opinion of the United States Court of Appeals for

the Second Circuit was issued on January 19, 1996. The

Opinion has not been reported, and is reprinted in the

Appendix at Al.

The Memorandum and Order of the United States

District Court for the Western District of New York was

issued on April 28, 1995. The Memorandum and Order is

not reported, and is reprinted in the Appendix at A33.

Judgment was entered on May 2, 1995, and is reprinted in

the Appendix at A40.

JURISDICTION

Subject matter jurisdiction in the United States District

Court for the Western District of New York was predicated

on the Veterans’ Reemployment Rights Act, 28 U.S.C.

§2022. The United States Court of Appeals for the Second

Circuit entered its Opinion vacating the judgment of the

District Court and remanding for further proceedings on

January 19, 1996.

The jurisdiction of the Supreme Court of the United

States is invoked pursuant to 28 U.S.C. §1254(1), and in

accordance with Rule 10 of the Rules of this Court.

STATUTORY PROVISIONS INVOLVED

This case involves the Veterans’ Reemployment

Rights Act of 1968, 38 U.S.C. §2021 et seg. The specific

provision at issue in this case is 38 U.S.C. §2021(b)(3),

which was renumbered §4301(b)(3) pursuant to Pub.L.No.

102-568, §506 (1992). The provision reads as follows:

(3) Any person who seeks or holds a position

described in clause (A) or (B) of subsection (a) of

this section shall not be denied hiring, retention in

employment, or any promotions or other incident or

advantage of employment because of any obligation

as a member of a Reserve component of the Armed

Forces.

The case also involves the Uniformed Services

Employment and Reemployment Rights Act of 1994, 38

U.S.C. §4301, et seg. The specific provisions at issue are

38 U.S.C. §4311(b), Pub.L.No. 103-353, 108 Stat. 3153 §2;

Pub.L.No. 103-353, 108 Stat. 3175 §8(b); and Pub.L.No.

103-353, 108 Stat. 3175 §8(a).

38 U.S.C. §4311(b) provides:

(b) An employer shall be considered to have denied

a person initial employment, reemployment,

retention in employment, promotion, or a benefit of

employment in violation of this section 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

itn, inks ts

A MiB ds Ca

ee la Cat ls ra a!

can prove that the action would have been taken in

the absence of such membership, application for

membership, performance of service, application for

service, or obligation.

Pub.L.No. 103-353, 108 Stat. 3175 §8(b) provides:

(b) DISCRIMINATION.- The provisions of section

4311 of title 38, United States Code, as provided in

the amendments made by this Act, and the

provisions of subchapter III of chapter 43 of such

title, as provided in the amendments made by this

Act, that are necessary for the implementation of

such section 4311 shall become effective on the date

of enactment of this Act.

Pub.L.No. 103-353, 108 Stat. 3175 §8(a) provides in

pertinent part:

(a) REEMPLOYMENT.

(1) Except as otherwise provided in this Act, the

amendments made by this Act shall be effective with

respect to reemploymenis initiated on or after the

first day after the 60-day period beginning on the

date of enactment of this Act.

(2) The provisions of chapter 43 of title 38, United

States Code, in effect on the day before such date of

enactment, shall continue to apply to reemployments

initiated befr-e the end of such 60-day period.

STATEMENT OF THE CASE

I. The Factual Background

William M. Gummo ["Gummo"] commenced his

employment with the Village of Depew Police Department

[the "Department"} on August 2, 1977 as a police officer.

On December 12, 1986, Gummo enlisted in the United States

Air Force Reserves. During substantially the entire time of

Gummo’s employment, the Department’s policy required

police officers to provide advance notice and authorization

for time off from scheduled duty, including the prior

submission of military orders which necessitated military

leave. (A. 3-4, 34).

Gummo’s failure to submit military orders for his 1989

tour of duty resulted in a confrontation between Gummo and

Police Chief John T. Maccarone on January 4, 1989.

Gummo yelled and screamed at the Chief, walked out of the

Chief’s office without being dismissed, and said in the

presence of other Department employees that "somebody

should choke" the Chief. (A. 4-5, 35).

Following this confrontation, Gummo was charged

pursuant to New York State Civil Service Law ("CSL") §75

with conduct unbecoming an officer of the Department,

disobedience of an order, and insubordination toward a

superior officer. The Village Board held a hearing pursuant

CSL §75 and found Gummo guilty of misconduct and

insubordination. Gummo received a thirty (30) day

suspension without pay, which was not appealed. (A. 5, 35).

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The second disciplinary action taken by the Village

resulted in Gummo’s termination, and relates to his conduct

on June 8 and 27, 1989.

On June 8, 1989, Chief Maccarone denied a request

made by Gummo on the previous day to have the June 8th

night shift off for military leave, because Gummo had not

submitted a military order to verify the need for such leave,

as required by the Department’s longstanding policy. The

Chief advised Gummo on the morning of June 8th that he

could either obtain such an order or switch shifts with

another officer. (A. 5, 35-36).

Later on June 8, 1989, Gummo advised Chief Maccarone

that the military had informed him that the requested notice

was in the mail. Based on this representation, Chief

Maccarone departed from the written military order

requirement and told Officer Gummo that he did not have to

report for duty at 11:00 p.m. that night. (A. 5-6, 36).

Chief Maccarone never received official orders or any

other document from the United States Air Force

substantiating Gummo’s claim he needed to have the June

8th, 1989 shift off. When Gummo returned to duty

following his two week military leave, the Chief met with

him on June 27, 1989 to ascertain why the military orders

had not been forwarded. Gummo acknowledged that neither

a letter nor military orders referencing the need for leave on

June 8th, 1989 had been sent to the Chief. Gummo then

repeatedly refused to answer questions put to him by his

commanding officer. With Gummo’s knowledge, this

meeting was tape recorded. (A. 6-7, 36).

As a result of the events of June 8th and June 27,

disciplinary charges were preferred against Gummo relating

to his false statements to his commanding officer and his

insubordination. Pursuant to CSL §75, the Village Board of

Trustees adopted a resolution appointing an impartial Hearing

Officer to adjudicate the charges preferred against Gummo.

During the two day hearing, both parties were represented by

counsel and were given a full opportunity to offer evidence,

including the testimony of sworn witnesses, and to cross-

examine witnesses. A complete transcript of the hearing was

made. (A. 7, 32, 37-38).

The Hearing Officer sustained three of the four charges

against Gummo, finding Gummo guilty of making two false

statements to the Chief on June 8, 1989, and of disobeying

lawful directives from his commanding officer when he

refused to answer questions on June 27, 1989. Observing

that Gummo had been disciplined for violating the

Department’s rules on several prior occasions, the Hearing

Officer recommended that he should be discharged. On

January 31, 1990, the Village Board unanimously voted to

adopt the Hearing Officer’s Recommendations and terminated

Gummo. (A. 7, 31-32, 37).

Gummo appealed his discharge through a New York

State Civil Practice Law and Rules Article 78 petition

brought before New york State Supreme Court. The Article

78 petition was transferred to the Appellate Division, Fourth

Department, pursuant to Civil Practice Law Rules §7804(g).

However, Gummo thereafter abandoned the appeal. (A. 7).

II. Proceedings in the Courts Below

Gummo commenced the instant suit by Complaint dated

March 8, 1993, alleging that his two suspensions and the

termination of his employment violated the Veterans’

Reemployment Rights Act, 38 U.S.C. §2021 er seq., with

subject matter jurisdiction predicated upon 38 U.S.C. §2022.

After a period of discovery, petitioner moved for summary

judgment dismissing the complaint on October 4, 1993.

Gummo cross-moved for partial summary judgment on

October 22, 1993. The motions were submitted for

disposition by the District Court on November 5, 1993.

By Memorandum and Order dated April 28, 1995, the

District Court granted the petitioner’s summary judgment

motion to dismiss the complaint and denied respondent's

cross-motion for partial summary judgment, both pursuant to

the Federal Rules of Civil Procedure 56. (A. 33).

Plaintiff appealed from the decision to the United States

Court of Appeals for the Second Circuit. The majority of

the three member panel vacated the judgment of the District

Court, remanding for further proceedings.

The majority quoted this Court’s interpretation of the

language of the relevant statutory provision, 38 U.S.C.

§2021(b)(3), as having "the significant but limited purpose of

protecting the employee-reservist against discriminations like

discharge and demotions, motivated solely by reserve status."

(A. 14, quoting, Monroe v. Standard Oil Co., 452 U.S. 549,

559 (1981)). However, the majority expressly rejected the

Monroe sole-motivation test, and instead retroactively applied

the "but-for" mixed-motive and burden shifting language

enacted in the Uniformed Services Employment and

Reemployment Rights Act of 1994, ["USERRA"], 38 U.S.C.

§4311(b). (A. 17-18).

Senior District Judge Milton Pollack, sitting by

designation, dissented in an opinion which extensively cited

this Court’s decision in Rivers v. Roadway Express, Inc. , 14

S.Ct. 1510, 1519 (1994). Criticizing the majority’s decision,

Judge Pollack noted this Court’s requirement that the text of

a Statute contain a "clear expression of congressional intent

to reach cases that arose before its enactment" in order to

permit retroactive application. (A. 30, citing, Rivers, 114

S.Ct. at 1516).

Accordingly, Judge Pollack concluded that this Court’s

"sole motivation" test, as set forth in Monroe v. Standard Oil

Co., 452 U.S. at 559, remains the applicable standard for

causes of action accruing prior to the enactment of USERRA:

Congress’s failure unequivocally to state that

USERRA applies to cases brought before the law’s

effective date signifies that a "sole motivation" test

should be applied to cases, such as the present one,

which were brought prior to October 13, 1994. (A.

30).

By Order dated February 13, 1996 the Second Circuit

granted petitioner’s motion to stay issuance of mandate

pending the filing of the instant writ.

REASONS FOR GRANTING THE WRIT

I. The Second Circuit’s Retroactive

Application of USERRA Conflicts

with the "Clear Statement" Rule

Recently Reaffirmed by this Court

in Rivers y. Roadway Express, Inc.

and Landgraf v. USI Film Products.

This Court has held that the Statutory authority under

which Gummo sought relief, 38 U.S.C. §2021, ef Sé€q., was

enacted "for the significant but limited Purpose of protecting

the employee-reservist against discriminations like discharge

and demotions, motivated solely by reserve status." Monroe

v. Standard Oil Company, 452 U.S. 549, 558 (1981).

Following Monroe, the federal courts have uniformly

applied the "sole-motivation" Standard in holding that

summary judgment is an appropriate means of resolving a

Suit brought under the Act. The courts have held that even

if the employee’s military status has played some role in the

adverse employment decision, summary judgment in favor of

the employer is warranted where the employer can point to

a sufficient, non-pretextual reason for discharge irrelevant to

the employee’s military status. !

See, e.g., Burkart v. Post-Browning, Inc., 859 F.2d 1245 (6th Cir.

1988); Clayton v. Blachowske Truck Lines, 640 F.Supp. 172 (D.Minn.

1986), aff'd, 815 F.2d 1203 (8th Cir. 1987): Sawyer v. Swift &

Company, 836 F.2d 1257 (10th Cir. 1988); Brizt v. Georgia Power

and Light, 677 F.Supp. 1169 (N.D.Ga. 1987).

Therefore, to satisfy the Monroe test, police officer

Gummo was required to point to evidence that would have

permitted the court below to find that his discharge was not

motivated by his insubordination, acting in a manner which

was unbecoming an officer, and lying to the police

department’s commanding officer, but rather was solely

because he was a reservist. Celotex Corp. v. Catrett, 477

U.S. 317, 322-323 (1986).

Applying the Monroe sole-motivation standard, the

District Court granted summary judgment in favor of the

petitioner, finding the record was "replete" with evidence of

Gummo’s refusal to obey orders, insubordination, and failure

to comply with Department policies. (A. 38).

The Second Circuit vacated and remanded, concluding

that the District Court "should not have employed the sole

motivation test employed by Monroe and its progeny." The

Second Circuit held the District Court should have instead

applied the "existing language" of the Uniformed Services

Employment and Reemployment Rights Act [hereinafter

"USERRA"], which became effective on October 13, 1994,

long after this case arose. Relying on the 1994 legislative

history of USERRA, the Second Circuit held the so-called

"pbut-for" test should govern with respect to whether

Gummo’s 1989 discharge was unlawfully discriminatory. (A.

19).

The question of the retroactive application of an

employment discrimination statute which was amended in

response to a U.S. Supreme Court decision was precisely the

issue resolved by the Supreme Court in the recent cases of

Rivers v. Roadway Express, Inc., _ U.S. ___, 115 S.Ct.

——

1510 (1994) and Landgraf v. USI Film Products,

__ US. _, 114 S.Ct. 1483 (1994).

In Rivers, the district court dismissed the plaintiffs’

discriminatory discharge claims, relying upon the U.S.

Supreme Court’s holding in Patterson v. McLean Credit

Union, 491 U.S. 164, 171 (1989). While the appeal in

Rivers was pending, the Civil Rights Act of 1991 became

law. The Sixth Circuit ruled that 42 U.S.C. §1981 as

interpreted in Patterson, not as amended by §101 of the Civil

Rights Act of 1991, governed the case. This Court affirmed,

ruling that §101 does not apply to a case that arose before it

was enacted. Rivers, 115 S.Ct. at 1514.

The Court held in Rivers that in order to defeat the

customary presumption against retroactive application of a

Statute, the "clear expression" of congressional intent to

reach cases that arose before the act’s enactment must appear

in the statute. Rivers, 114 S.Ct. at 1516, 1519.

In the instant case, the Second Circuit did not rely upon

any Clear expression of congressional intent in the text of

USERRA in ruling that the "but-for" test should govern with

respect to whether Gummo’s 1989 discharge was unlawfully

discriminatory. Rather, the Second Circuit adopted the

argument that the 1994 legislative history of USERRA

suffices to indicate that Congress was merely enacting the

new language of §4311(b) as a "reaffirmation" of the original

intent of Congress in 1968.”

As quoted by the Second Circuit, the legislative history

> Appendix at pp. 17-18, quoting, H.R.Rep.No. 65, 103d Cong., 2d

Sess. 18, 24, reprinted in 1994 USCCAN at 2449, 2457.

of USERRA states that the courts which have followed the

Monroe standard rather than the "but-for" standard "have

misinterpreted the original legislative intent and history of 38

U.S.C. 2021(b)(3) and are rejected on that basis."’

The Second Circuit acknowledged that the text of the

1994 Act provides that amendments made by the Act "that

are necessary for the imp!ementation of such section 4311

shall become effective on the date of enactment of this Act."

(A. 18, quoting, Pub.L.No. 103-353 §8(b)). However,

relying upon legislative history indicating that §4311(b) is

merely a "codification" of existing law, the Second Circuit

held that the "but-for" test introduced in the 1994 Act is

applicable to cases arising prior to the enactment date.‘

In Rivers, this Court considered and rejected the same

rationale adopted here by the Second Circuit. The Rivers

petitioners contended that the legislative history of the Civil

Rights Act of 1991 indicated that Congress specifically

intended to retroactively "restore" prior law which this Court

had misinterpreted. The Rivers petitioners contended there

is a presumption in favor of the retroactive application of

such restorative statutes, and pointed to evidence in the

> Appendix at p. 16, quoting, H.R.Rep.No.65, 103d Cong., 2d Sess.

at 24, 1994 USCCAN at 2457. Petitioner’s research indicates that

every court which has acknowledged the U.S. Supreme Court’s

Monroe v. Standard Oil decision has adhered to the “sole motivation”

test. Monroe has been cited in almost 200 opinions, and no court

considering Monroe has ever questioned its holding that the adverse

employment action taken against an employee must be “solely

motivated” by reservist status to warrant redress under the Act.

: Appendix at p. 18, quoting, Joint Explanatory Statement on H.R. 995,

140 Cong.Rec.H. 9136 (daily ed. Sept. 13, 1994), reprinted in 1994

USCCAN 2493, 2515.

——

legislative history of the Civil Rights Act of 1991 as

indicating the legislators’ view that a "previously established

understanding" of 42 U.S.C §1981 had been narrowed by

this Court’s decision in Patterson v. McLean Credit Union,

supra. Rivers, 114 S.Ct. at 1515-16.

However, this Court made it clear in Rivers that there is no

presumption in favor of retroactive application of restorative

Statutes. Holding that "clear evidence" of Congress’s

retroactive intent is required to impose even a genuinely

restorative statute retroactively, the Court observed that

"Section 101, and the statute of which it is a part, does not

contain such evidence." 114 S.Ct. at 1518. Further, the

petitioners’ reliance on legislative history was unavailing:

We may assume, as petitioners argue, that §101

reflects congressional disapproval of Patterson’s

interpretation of §1981. We may even assume that

many or even most legislators believed that

Patterson was not only incorrectly decided but also

represented a departure from the previously

prevailing understanding of the reach of §1981.

Those assumptions would readily explain why

Congress might have wanted to legislate

retroactively, thereby providing relief for the persons

it believed had been wrongfully denied a §1981

remedy. Even on those assumptions, however, we

cannot find in the 1991 Act any clear expression of

congressional intent to reach cases that arose before

its enactment... . [T]he text of the Act does not

support the argument that §101 of the 1991 Act was

intended to "restore" prior understandings of §1981

as to cases arising before the 1991 Act’s passage.

Rivers, 114 S.Ct. at 1516 (emphasis added).

The petitioner herein submits that the majority of the

Second Circuit panel in the instant case erred in its reliance

upon the expressions of retroactive intent in the 1994

congressional committee reports, since Congress failed to

clearly manifest any intent to retroactively overturn Monroe

within the statute. As Justice Scalia noted in his concurrence

in Landgraf v. USI Film Products and Rivers v. Roadway

Express, __ U.S. ___, 114 S.Ct. 1522 (1994), Congress

must provide a "clear statement” in the text of the statute

sufficient to defeat the presumption against retroactivity:

No legislative history can do that, of course, but

only the text of the statute itself. That has been the

meaning of the "clear statement” retroactivity rule

from the earliest times. 114 S.Ct. at 1522, citing,

United States v. Heth, 3 Cranch 399, 408, 414

(1806); Murray v. Gibson, 15 How. 421, 423

(1854) Schwab v. Doyle, 258 U.S. 529, 537 (1922);

Kaiser Aluminum & Chemical Corp. v. Bonjorno,

494 U.S. 827, 842-844 (1990) (concurring opinion)

(collecting cases applying the clear statement test).

Simply stated, the text of USERRA does not support the

argument that §4311(b) should be granted retroactive

application to cases pending on appeal at the time of the

USERRA’s enactment.

It bears emphasis that as its only statutory basis for its

retroactive application of 38 U.S.C. §4311(b), the majority

quoted Pub.L.No. 103-353 §8(b), lending emphasis as

follows:

The provisions of section 4311 of title 38, United

States Code, as provided in the amendments made

—"

by this Act... that are necessary for the

implementation of such section 4311 shall become

effective on the date of enactment of this Act.

Conceding that "this provision is perhaps susceptible to

differing interpretations," the panel majority relied upon

legislative reports in concluding that Congress must not have

regarded the "linguistic change" it enacted in 38 U.S.C.

§4311(b) as an amendment that is "necessary for the

implementation of such section 4311." Thus, according to

the majority, the "but-for" standard introduced in §4311 is

not an addition to the Act, but a "codification of existing

law." (A. 18, quoting, Joint Explanatory Statement on H.R.

995, supra).

As the panel’s majority recognized, its interpretation of

Pub.L.No. 103-353 §8(b) is vulnerable on a number of

grounds. As a threshold matter, it can hardly be maintained

that a statutory "codification" which establishes a new

standard of conduct is not an amendment which is necessary

for the implementation of the Act. Obviously, the Act could

not even arguably reach the instant case and provide redress

unless the new "but for" standard set forth in §4311(b) is

implemented rather than the “sole motivation" standard

established by this Court in Monroe.

This Court’s decisions in Rivers and Landgraf make it

amply clear that since §4311(b) establishes a "new standard

of conduct," the important new legal obligations the

provision imposes "bring it within the class of laws that are

presumptively prospective." Rivers, 114 S.Ct. at 1515,

citing, Landgraf. See, Landgraf, 114 S.Ct. at 1505.

As cogently explained by panel member Judge Pollack in

his dissenting opinion, the statutory language relied upon by

the panel majority certainly does not provide any clear

indication of intended retroactive application, as required by

this Court in Rivers. (A. 28). The majority makes the

insupportable assumption that since Pub.L.No. 103-353 §8(b)

can be construed to exclude the new "“but-for" test set forth

in §4311(b) as an amendment "necessary ffor the

implementation" of §4311, the "“but-for" test must be

effective not on the date of enactment, but at some earlier

date. Such statutory construction by "negative inference"

ignores this Court’s admonition that "prospectivity remains

the appropriate default rule." Landgraf, 114 S.Ct. at 1501.°

. As pointed out by Judge Pollack, the only other direct reference

to the effective date of USERRA contained in the statute confirms that

prospective application of USERRA was intended by the Congress.

(A. 28-29, FN 3). Section 8 of Pub.L.No. 103-353, entitled

“Transition Rules and Effective Dates" provides under subsection (a)

in pertinent part as follows:

(2) The provisions of chapter 43 of title 38, United States

Code, in effect on the day before such date of enactment,

shall continue to apply to reemployments initiated before the

end of such 60-day period [beginning on the date of

enactment}.

See, Pub.L.No. 103-353, §8(a). This section, ignored by the panel

majority, belies the panel's “negative inference” construction. The

majority implicitly assumes that since the “but-for” test was not

specifically made effective on the Act’s enactment date by Pub.L.No.

103-353 §(8)(b), the “but-for” test must be effective at some earlier

date. However, the Transition Rules and Effective Dates quoted

above clearly provide that the former statute will continue to govern

reemployments until a specified future date. Compare, Rivers, 114

S.Ct. at 1514; Landgraf, 114 S.Ct. at 1493-95) (rejecting “negative

inference” arguments invoked under canon of expressio unius est

exclusio alterus as sufficient to decide retroactivity issue).

Further, as discussed by Judge Pollack in his dissent, even

the legislative history relied upon by the majority is

ambiguous, inasmuch as it fails to indicate whether the new

standard applies to cases "brought" under "this section" in

the future, or also to cases which "have been brought" in the

past. The reference to "this section" is also unclear, since

the prior version of §4311 contained significantly different

language. (A. 28-29).

The Second Circuit’s ruling entirely relies on the

foregoing ambiguous legislative history and one provision of

the statute which the majority concedes is "susceptible to

differing interpretations." (A. 18). In absence of any clear

statement of retroactive intent in the Act, the Second Circuit

has retroactively applied a new "“but-for" standard which

imposes significant new liabilities and legal obligations. The

conclusion of this Court’s opinion in Rivers leaves no doubt

that the Second Circuit’s ruling is directly contrary to the

"clear statement” rule:

A judicial construction of a statute is an authoritative

statement of what the statute meant before as well as

after the decision of the case giving rise to that

construction . . . . Congress, of course, has the

power to amend a statute that it believes we have

misconstrued . . . . No such change, however, has

the force of law unless it is implemented through

legislation. Even when Congress intends to

supersede a rule of law embodied in one of our

decisions with what it views as a better rule

established in earlier decisions, its intent to reach

conduct preceding the "corrective" amendment must

clearly appear. Rivers, 115 S.Ct. 1519.

Inasmuch as the Supreme Court provided the

authoritative construction of 38 U.S.C. §2021 in Monroe v.

Standard Oil, supra, Congress could only have retroactively

superseded the Supreme Court’s ruling through clear

legislation sufficient to defeat the presumption against the

retroactive application of the statute. Accordingly, the writ

should be granted since the Second Circuit’s retroactive

application of USERRA is in stark conflict with the

applicable decisions of this Court.

Ii. The Issues Decided by the Panel are of National

Importance, Inasmuch as They Involve The

Interpretation of Recent Amendments to Federal

Veteran and Military Reservist Rights Legislation

In deciding the standard and burden of proof applicable

under §4311(b), the Second Circuit decided an important

question of federal law which has not been, but should be,

decided by this Court.

The Second Circuit held that proper analysis of a

summary judgment motion under §4311(b) requirés a

determination of the following two factors:

(a) whether there was sufficient evidence from

which a rational jury could infer that [the plaintiff's]

status or conduct as a reservist was a substantial or

motivating factor in his dismissal; and

(b) if there was such evidence, whether it could be

said as a matter of law that the [employer] would

have discharged him even if he had not been a

reservist. (A. 19).

In the instant case, the Second Circuit has decided that

even where an employer offers uncontroverted proof that the

employee would have been discharged due to misconduct

even if he had not been a reservist, the employee’s claim

under §4311(b) is insulated from summary dismissal so long

as the misconduct was even remotely related to his reservist

obligations.

Here, Gummo claims that after twelve years of

employment with the Village of Depew Police Department,

he was discharged on January 31, 1990 because of his Air

Force Reserve status. The record, however, conclusively

establishes that Gummo was not discharged until he was

found guilty by an impartial Hearing Officer of committing

various acts of misconduct, including insubordination and

lying to his commanding officer. At the two day hearing,

conducted pursuant to New York Civil Service Law Article

75, Gummo was represented by counsel and was afforded a

full opportunity to offer evidence, including the testimony of

sworn witnesses, and to cross-examine petitioner’s sworn

witnesses.

Gummo has himself testified that he yelled at his

commanding officer, walked out of the meeting with the

Chief without being dismissed, and said in the presence of

other Department employees that somebody should "choke"

the Chief. The charges against Gummo for lying to the

Chief and for insubordination were fully and conclusively

adjudicated in the CSL §75 hearing. There is no genuine

issue of fact regarding Gummo’s misconduct. Further, there

is a complete absence of any evidence that the impartial

Hearing Officer who recommended the penalty of discharge

and the Village Board which adopted that recommendation

were motivated by Gummo’s reservist status in any respect

whatsoever. (A. 38).

Petitioner submits that since the Village has pointed to an

absence of evidence necessary to support the nonmoving

party’s claim that his reservist status was a motivating factor

in the Village’s decision to discharge him, summary

judgment was entirely appropriate in the instant case. See,

e.g., Celotex Corp. v. Catrett, supra, 477 U.S. at 322-23.

Rather than dispute the factual findings of the Hearing

Officer, Gummo claims his acts did not constitute misconduct

because they were related to his reservist activities. (A. 38).

According to Gummo’s sworn testimony, reproduced in the

record below, the charge that he was insubordinate when he

refused to answer the Chief’s questions about his prior

conduct discriminates against him as a reservist "[p]robably

because the events were related to reserves, it was reserve

activity." Regarding the charge that he falsely represented

that orders were being forwarded, Gummo supported his

claim that he was discriminated against because of his

reservist status "[b]ecause [lying to the Chiet] never could

have been charged if I wasn’t in the military because it’s

based around my reserve commitment with the military."

This claim is deficient on its face because it overlooks

the fact that being a reservist did not in any way require that

Officer Gummo be verbally abusive and refuse to respond to

direct questions from his commanding officer, nor did

reservist status exempt Gummo from longstanding

Department policy forbidding absence from duty without

proper authorization, irrespective of reason.

The immaterial defenses asserted by Gummo do not

contravene the salient and uncontroverted fact that Gummo’s

discharge was for sufficient cause, upon the recommendation

of an impartial Hearing Officer. Accordingly, petitioner

submits there is an absence of evidence to support an

essential element which should be required in order to state

a prima facie case under the Act: Gummo cannot show that

he was discharged because of his military reservist status,

whether as the sole cause or merely a contributing cause,

since Gummo indisputably would have been discharged for

the acts of insubordination and lying to his commanding

officer even if he had not been a reservist.

Case after case has held that the employee is not

insulated from discharge merely because the conduct was

"related" or "based around" reservist status, to use the words

chosen by Gummo. For example, in Burkart v. Post-

Browning, Inc., 859 F.2d 1246 (6th Cir. 1988), the Sixth

Circuit dismissed the employee’s theory that he was insulated

from discharge because his dereliction was occasioned by his

association with the National Guard:

[I]t is not the employee’s ties with the armed

services which led to his discharge. Rather,

the cause of the employee’s discharge is his

Own intentional failure to act responsibly in

reporting and informing the employer of his

future obligations, regardless of whether these

obligations were related to military duty or

some other personal need.

Burkart v. Post-Browning, Inc., supra, 859 F.2d at 1248.

As veterans’ and reservists’ rights legislation has historically

been understood, the fact that an employee’s discharge for

cause is tangentially related to his military obligation does

not preclude judgment as a matter of law for the employer.°

Thus, the Second Circuit’s interpretation of the burden

and standard under the 1994 Act is a critical decision on an

important issue of federal law. The standard as interpreted

by the Second Circuit precludes summary judgment to the

employer on the ground that the employee’s misconduct is

merely related to reservist status, rather than because the

employee has pointed to some colorable evidence which

indicates that his reservist membership or obligation was a

motivating factor in the employer’s decision to discharge

him.

Petitioner maintains the District Court properly held that

Gummo’s status as a military reservist, without more, is not

See, Britt v. Georgia Power and Light, 677 F.Supp. 1169, 1172

(N.D.Ga. 1987) (Even assuming truth of allegations that employee

expected harassment and therefore refused to attend a meeting with

management to discuss his complaints about the company’s failure to

accommodate his reservist obligations, employee’s “decision to dety

the direct orders of his superiors was an independent and significant

reason for discharge"); Henry v. Anderson, 522 F.Supp. 1112, 1115

(E.D. Tenn. N.D. 1981) (reservists’ rights legislation does not require

court to disregard those aspects of employment relationship which

would make continued employment unreasonable); McCormick v.

Carnett-Partsnett Systems, Inc., 396 F.Supp. 251, 256 (M.D.Fia.

1975) (criticizing plaintiff's apparent assumption that his armed forces

Status was "a guarantee that any behavior on the job must be

tolerated"); Blackmon v. Observer Transportation Co., 102 Lab.Cas.

(CCH) { 11, 450 at 23,913 (W.D.N.C., Oct. 28, 1982) (employee

was discharged “not because of military service obligations, but

because of his failure to request a leave of absence from his

employer”).

sufficient to defeat defendant’s motion for summary

judgment.’

It is respectfully submitted that the Second Circuit’s

decision on the important federal question of the standard and

burden which shall apply in USERRA cases improperly

disregards the clear requirement of discriminatory motivation

set forth in the Act. Gummo was discharged by the Village

Board, upon the recommendation of the impartial Hearing

Officer, because he was found guilty of insubordination and

lying te the Chief of Police. That the Board and the Hearing

Officer acted without discriminatory motivation against

military reservists has never been in dispute. (A. 38).

Since this case presents the clear issue of whether

USERRA should be construed to insulate reservists from

disciplinary action where reserve membership is not a

determinative factor in the employer’s action, certiorari

should be granted to so that this Court may decide this

important question of federal law.

Notably, every other police officer in the Department who elected to

serve in the Guard and Reserves managed to do so without

encountering discrimination, as was attested to in the sworn affidavits

of police officers Gorski, Moore, and Ziemba in the record below.

All three officers received their appointments to the Department while

members of the National Guard and Reserves. Chief Maccarone

promoted Moore three times, and promoted Gorski from patrolman to

lieutenant, during the period of Gummo’s employment and while both

Gorski and Moore were reservists. Even Gummo has stated he cannot

recall and does not know of any discriminatory treatment encountered

by these officers. See, e.g., Sawyer v. Swift & Company, 836 F.2d

1257, 1262 (10th Cir. 1988) (reversing grant of summary judgment to

employee who claimed his discharge was due to his absence due to

reserve obligations, where other employee-reservists were given time

off with no problems).

CONCLUSION

For the reasons stated above, a writ of certiorari should

issue to review the order and opinion of the Second Circuit.

Respectfully submitted,

PAUL D. WEISS*

WEISS & STEIN

1716 Liberty Building

Buffalo, New York 14202

(716) 855-1777

Attorney for Petitioner

*Counsel of Record

APPENDIX A

Decision of the United States Court of

Appeals for the Second Circuit,

Decided January 19, 1996.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 578—August Term, 1995

(Argued: November 9, 1995

Decided: January 19, 1996)

Docket No. 95-7551

WILLIAM M. GUMMO,

Plaintiff-Appellant,

—_—V.—

VILLAGE OF DEPEW, NEW YORK,

Defendant-Appellee.

Before:

KEARSE and WINTER, Circuit Judges,

and POLLACK, District Judge.*

* — Honorable Milton Pollack, of the United States District Court for the

Southern District of New York, sitting by designation.

1143

Appeal from judgment of the United States District

Court for the Western District of New York, John T.

Elfvin, Judge, summarily dismissing complaint alleging

discrimination on the basis of membership in United

States military reserves, see 38 U.S.C. § 2021 et seq.

(1988); id. § 4301 et seq. (1994).

Vacated and remanded.

Judge Pollack dissents in a separate opinion.

GLENN EDWARD MURRAY, Buffalo, New

York (Murray & Coleman, Buffalo, New

York, on the brief), for Plaintiff-Appel-

lant.

PAUL D. WEISS, Buffalo, New York (Weiss

& Stein, Buffalo, New York, on the

brief), for Defendant-Appellee.

KEARSE, Circuit Judge:

Plaintiff William M. Gummo, a member of the United

States Air Force Reserves formerly employed by the

Police Department of defendant Village of Depew, New

York (“Village”), appeals from a judgment of the United

States District Court for the Western District of New

York, John T. Elfvin, Judge, dismissing his complaint

alleging that the Village terminated his employment in

violation of the Veterans’ Reemployment Rights Act, 38

U.S.C. § 2021 et seq. (1988) (current version at 38

1144

U.S.C. § 4301 et seq. (1994)) (the “Act” or “VRR Act”).

The district court granted the Village’s motion for sum-

mary judgment on the ground that Gummo could not

show that his termination was motivated solely by, or

had any causal relationship to, his reserve status. On

appeal, Gummo contends principally that summary judg-

ment dismissing his complaint was improper because the

district court erred in applying the sole-motivation test

and because there were genuine issues to be tried with

respect to causation. He also contends that he was enti-

tled to a partial summary judgment in his favor ruling

that the Department’s policy of refusing to grant military

leave without the submission of written official orders

violated § 2024(d) of the Act. For the reasons that fol-

low, we agree that the district court erred in granting

summary judgment, and we therefore vacate the judg-

ment and remand for further proceedings.

I. BACKGROUND

Except to the extent indicated, most of the background

events do not appear to be in dispute.

A. Gummo's Employment With the Police Department

From 1977 until his discharge in January 1990,

Gummo was employed as a police officer by the Depew

Police Department. In December 1986, he enlisted in the

United States Air Force Reserves (“Reserves”) and was

assigned to military duties at the Air Force base in Nia-

gara Falls, New York, some 30 miles from Depew.

Gummo’s military obligations required him to partic-

ipate in training sessions one weekend each month at the

Air Force base and to attend a two-week tour of training

each year (“annual tour”) at a site designated by the Air

1145

Force. As a municipal employee, Gummo was entitled

under state law to be paid his salary during any less-

than-30-day absence for military training. See N.Y. Mil-

itary Law § 242(5) (McKinney 1990).

The Depew Police Department’s policy was to grant

requests for paid military leave when reservists pre-

sented to the Department their official written orders

specifying the dates of their military training. Until

October 1988, Gummo complied with that policy. In that

month, Gummo submitted a handwritten note indicating

his weekend military training dates for November and

December 1988. Police Captain James A. Brennan

instructed Gummo to submit his official written military

orders for all of fiscal 1988-1989. Gummo promptly

complied in part, submitting orders for his weekend

tours but not for his annual tour. On December 25, he

notified Brennan that his next annual tour was scheduled

for June 10-24, 1989, but he did not submit official writ-

ten military orders at that time.

In January 1989, Gummo was instructed to meet with

Police Chief John T. Maccarone to discuss Gummo’s

failure to provide the Department with the official orders

for his annual tour. The parties have different views as to

what occurred at the meeting. Gummo asserts that Mac-

carone questioned him about his military leave and that

Maccarone cursed at him, called him a liar, a sneak, and

a disgrace to the uniform, and twice threatened to “get”

him. The Village asserts that at the meeting, Gummo

yelled and screamed at Maccarone without restraint and

became threatening. In any event, there appears to be no

dispute that the meeting was rancorous, that Gummo left

the meeting peremptorily without having been dis-

missed, and that as he was leaving he said, in the pres-

ence of other Police Department employees, “Somebody

1146

—————

should choke that man.” As a result of this incident,

Gummo was charged with several counts of misconduct,

including conduct unbecoming a police officer, disobe-

dience of an order, and insubordination to a ‘superior

officer. He was found guilty on most counts and was

suspended for 30 days without pay.

In May 1989, Gummo notified Captain Brennan in

writing that the start of his annual tour had been

rescheduled from June 10 to June 9. Gummo attached his

official written military orders, which authorized him to

receive 16 days of leave for military duty (June 9-24), as

well as one day of leave for travel to the Air Force base.

The orders stated that he was to report at the Air Force

base on June 9 at 7:30 a.m.

Gummo was scheduled, however, to work the night

shift on June 8, starting at 11:00 p.m. and ending at 7:00

a.m. on June 9 (the “June 8-9 night-shift”), i.e., a shift

ending 30 minutes before the start of his annual tour at

the Air Force base. On June 7, 1989, he submitted to

Captain Brennan a written request for military leave

from that shift in order to have time to prepare for and

travel to the annual training session. The request was

initially denied by Maccarone on the ground Gummo had

not submitted military orders with his request.

On June 8, Gummo renewed his request to be relieved

of the June 8-9 night-shift assignment; Maccarone

advised Gummo that he could either trade shifts with

another officer or obtain official written military orders

indicating that he should be relieved of his assignment to

the June 8-9 night-shift. On the afternoon of June 8,

Gummo informed Maccarone that official notice from

the Air Force concerning his military leave for that

evening would be mailed to the Police Department. The

1147

Village states that Gummo said the official “orders”

would be sent; Gummo asserts that he said a “letter”

would be sent. Based on his June 8 conversation with

Gummo, Maccarone instructed Captain Brennan to

remove Gummo’s name from the June 8 duty roster and

informed Gummo that he would be granted the addi-

tional day of military leave.

Gummo asserts that sometime after 7:00 p.m. on June

8, he learned that the letter he had expected from the Air

Force, authorizing military leave for that night’s shift,

would not be forthcoming. Gummo therefore reported

for work at the Department at 11:00 p.m. on June 8. He

worked until 3:00 a.m. on June 9, and was then driven

home by the police lieutenant on duty. He went to the

Air Force base at Niagara Falls to begin his annual tour

of military duty a few hours later.

When Gummo returned to work following the com-

pletion of his annual tour, Maccarone summoned him to

discuss the Department’s nonreceipt of the written

authorization Gummo had promised with respect to

Gummo’s June 8 military leave. When asked about his

statement that written “orders” supporting the June 8

military leave had been mailed to the Department,

Gummo stated that he had said a “letter” would be sent

to the Police Department, having been told by an Air

Force base secretary, whom he identified by her first

name, that a letter would be sent. Gummo refused to

reveal the name of the person who had thereafter

informed him that ne such letter would be sent on June

8, despite being ordered by Maccarone to do so, insist-

ing that that information was irrelevant. Several times

during the meeting, Gummo asked to be allowed to have

counsel or a nearby union representative present to assist

him before answering further questions, but Maccarone

1148

denied his requests. After responding to a series of ques-

tions about his eventual decision to report for work on

June 8, Gummo declined to make any further statements

unless he was permitted to have someone there to assist

him.

Following that meeting, Gummo was charged with

four counts of violating Police Department regulations,

and in July 1989 he was suspended from the Department

pending the resolution of the disciplinary charges. The

Village appointed an impartial hearing officer to conduct

an administrative proceeding. After a two-day hearing,

the officer dismissed one of the charges, but found

Gummo guilty of the other three, to wit, falsely advising

the police chief that military orders were in the mail;

disobeying a lawful order by refusing to answer ques-

tions relating to the events of June 8, 1989; and falsely

stating to Maccarone that he had never claimed that mil-

itary “orders” were being sent to the Department. In

light of the finding of guilt and of Gummo’s prior dis-

ciplinary record, the hearing officer recommended that

Gummo be dismissed from the Police Department.

The Village accepted the recommendation and, in Jan-

uary 1990, terminated Gummo’s employment with the

Department. Gummo initiated a state-court challenge to

his discharge but did not perfect that challenge.

B. The Proceedings in the District Court

Gummo commenced the present suit in March 1993,

alleging that his two suspensions and the termination of

his employment violated the VRR Act because those

actions were motivated by his “status and duty as a

member of the armed forces.” (Complaint 4 23.) He prin-

cipally sought reinstatement and compensation for lost

1149

wages and other lost benefits. After a period of discov-

ery, the Village moved for summary judgment dismiss-

ing the complaint. In support of its motion, the Village

submitted, inter alia, the affidavit of Maccarone, the

depositions of Maccarone and Gummo, and affidavits of

three other Depew police officers who were or had been

reservists and who stated that they had never been sub-

jected to discrimination by the Department on that basis.

The Village took the position that it had terminated

Gummo’s employment only because of his insubordi-

nation and other misconduct and not because of his

reserve status.

Gummo opposed summary judgment. In Maccarone’s

deposition, Gummo had elicited testimony as to Mac-

carone’s views with regard to the statutory benefits

accorded to reservists. For example, Gummo brought out

that some years earlier David Gorski, one of the police-

officer reservists who submitted an affidavit in the pre-

sent case stating that he had never been discriminated

against on the basis of his reserve status, had once com-

plained to the United States Department of Labor about

the Police Department’s treatment of him as a reservist:

Q. Did you. . . ever complain to the Department

of Labor about any reservists or laws that govern

reservists?

A. I didn’t complain to the Department of Labor.

Lieutenant Gorski complained to the Department of

Labor and as a result, they did an investigation.

(Deposition of John T. Maccarone (“Maccarone Dep.”)

at 36.) Maccarone testified that in the wake of Gorski’s

complaint, a Department of Labor official, Frank Curry,

1150

soho Bn eet ath we ol te rat

had come to see him and that the gist of their conversa-

tion was as follows:

I’m quoting him. “You can’t touch [Gorski]. They

can do what they want. They can tell you. They

don’t have to give you a written order on anything.

If they want the day off before, they can do it. If

they want the day off after, they can take it, you

have to accept it.” I said, “You’re out of your

mind.”

(Maccarone Dep. at 39.) The Department of Labor, as a

result of its investigation, found that, with the exception

of one conceded misdeed, Gorski had done “absolutely

nothing wrong” with regard to his reservist status and

requests. (Id. at 36.) Maccarone apparently disagreed:

Q. Were you—did you agree with the—did you

agree with the outcome of the Department of Labor

investigation?

A. No, I did not.

Q. Why?

A. It was obvious from the minute that Mr. Frank

Curry walked in my office that he was not an impar-

tial investigator, that his sole purpose in life was to

protect the reservist.

Q. And that bothered you?

A. Tremendously.

Q. And did you express any unhappiness toward

Mr. Curry?

A. L ordered him out of my office.

(Maccarone Dep. at 37-38.)

1151

Al0

Maccarone testified that he generally believed that,

though most municipalities could afford the expense,

reservists should not receive their full municipal salaries

while they were on paid reserve duty. (Jd. at 33.) He had

sent a municipal official a letter (id. at 32), which was

quoted in a local newspaper, seeking legislation against

what he had referred to as “ ‘double dipping in its most

flagrant form.’ ” The Depew Lancaster Metro Commu-

nity News at 3D (Jan. 22, 1989) (quoting Maccarone

letter).

With respect to the events at issue in the present

action, Maccarone indicated that Gummo had been

denied a promotion, and Maccarone stated his view that

Gummo was attempting to force the Department to

adhere to “the military law right by the letter of the law”

as a means of retaliation for the denial: |

A. . . .. Mr. Gummo was not a problem with his

reserve status from the day he signed up until the

day he discovered he was not going to be

successful lieutenant candidate. Then he started a

course of action that turned him completely around.

Q. What is it—what kind of—after that day for-

ward, did Mr. Gummo abuse his rights as a

reservist?

THE WITNESS: I don’t know if you’d call it his

abuse of his rights, his reservist status. I would call

it an abuse of the departmental status. What he was

doing was he was attempting to use his official mil-

itary status as a weapon to retaliate and get even

with myself and the department.

1152

All

Q. . . .. And how was it —

A. And he was doing things like writing—do

these things like writing [a certain] letter to the

editor.

Q. But the letter had nothing to do with his mil-

itary status?

A. That’s right. But these are the things he

Started doing. And then he started doing things with

his schedule. He wouldn’t be up front as he was in

the past about producing his weekend schedule. He

wouldn’t be up front about producing his two-week

tour schedule. He was just being everything—doing

everything to be obstinate to show that he didn’t

have to cooperate. And he started calling the mili-

tary law right by the letter of the law. “I don’t have

to give you this and I don’t have to give you that.”

(Maccarone Dep. at 74-76.) Maccarone stated that this

“bother[ed]” him because “I’m his employer. He has

another obligation through his employment. . . .” (Jd.

at 76.)

In his own deposition, Gummo had testified to his ver-

sion of the January 1989 meeting with Maccarone, stat-

ing that Maccarone had accused him of lying about his

military leave and had promised to “get” him, which

Gummo interpreted as meaning that Maccarone meant to

retaliate for Gummo’s insistence on his rights under the

VRR Act. (Gummo Dep. at 187-89.) Thus, in opposition

to summary judgment, Gummo contended that the Vil-

lage’s decision to terminate his employment was based

on his status as a reservist and that summary judgment

could not properly be granted against him. He also cross-

1153

Al2

moved for partial summary judgment in his favor, con-

tending that the Department’s policy of refusing to grant

reservists leave without receiving written military orders

was unlawful.

In a Memorandum and Order dated April 28, 1995

(“Opinion”), the district court denied Gummo’s motion

and granted that of the Village. Stating that the purpose

of the Act “is to prohibit employment discrimination

against Reservists ‘motivated solely by reserve status,’ ”

Opinion at 7 (quoting Monroe v. Standard Oil Co., 452

U.S. 549, 559 (1981)), the court concluded that the Act

is inapplicable where “a Reservists’s employment is ter-

minated for reasons other than his status,” Opinion at 7.

The court noted that:

[t]he record is replete with evidence of Gummo’s

refusal to obey orders, insubordination and failure

to comply with the Department’s policies. He does

not controvert most of this evidence but disputes the

characterization of such as “misconduct.” Regard-

less of how these uncontroverted facts are charac-

terized, it was found during the [administrative]

proceeding that Gummo was guilty of misconduct

such as to constitute good cause for discharge.

Id. Finding that Gummo was collaterally estopped from

challenging these administrative findings in a proceed-

ing in federal court, the district court ruled that the Vil-

lage was entitled to summary judgment because “[a]s a

matter of law. . ., Gummo’s Reserve status was not the

sole reason for his discharge.” Jd. at 8.

The district court further reasoned that even if Gummo

could relitigate the findings of misconduct, he had

offered no evidence indicating that he had been sus-

pended or discharged because of his reserve activities.

1154

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Rather, it found, Gummo’s “entire argument rest[ed] on

his allegation that the defendant’s requirement that writ-

ten orders be submitted prior to being granted military

leave is ‘unlawful’. . . . [and] that but for the defen-

dant’s policy, he would never have gotten into the argu-

ments with Maccarone that resulted in his discharge.” Jd.

The court concluded that Gummo had failed to provide

any authority to support his assertion that the Depart-

ment’s policy violated the Act, and that “in the absence

of any allegation that the policy was designed to hinder

Reservists from participating in their military duties,”

id., his arguments were insufficient to raise a question of

material fact as to the Village’s motive for discharging

him. Judgment was entered dismissing the action as a

matter of law, and this appeal followed.

II. DISCUSSION

On appeal, Gummo contends principally that the sole-

motivation test should not have been applied and that

there was sufficient evidence to permit a reasonable

juror to find a causal link between his membership in the

Reserves and his discharge. We agree.

A. The Motivation Requirement Under the VRR Act

The VRR Act was enacted in 1968. One of its pur-

poses was to encourage noncareer service in the uni-

formed services by minimizing the disadvantages to

civilian careers and employment that could result from

such service. See S. Rep. No. 1477, 90th Cong., 2d Sess.

(1968), reprinted in 1968 U.S. Code Cong. & Admin.

News (“USCCAN”) 3421, 3421-22. It provided, inter

alia, that an employee “shall upon request be granted a

leave of absence by such person’s employer for the

1155

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period required to perform. . . inactive duty training.”

38 U.S.C. § 2024(d) (1988). Prior to 1994, § 2021 of the

Act (which was renumbered § 4301 in 1992, and rele-

vant parts of which were renumbered § 4311 in 1994)

provided, in pertinent part, that

[a]Jny person who [is employed by the state or a

political subdivision thereof] shall not be denied

hiring, retention in employment, or any promotion

or other incident or advantage of employment

because of any obligation as a member of a Reserve

component of the Armed Forces.

38 U.S.C. § 2021(b)(3) (1988) (renumbered § 4301(b)(3)

pursuant to Pub. L. No. 102-568, § 506 (1992); renum-

bered § 4311 in Pub. L. No. 103-353, § 2 (1994)). In

1981, the “because of any obligation” language of

§ 2021(b)(3) was interpreted by the Supreme Court as

having “the significant but limited purpose of protecting

the employee-reservist against discriminations like dis-

charge and demotion, motivated solely by reserve sta-

tus.” Monroe v. Standard Oil Co., 452 U.S. at 559. In so

Stating, the Court relied on the legislative history of that

section, including a House of Representatives Commit-

tee report which stated that the section

amplifies existing law to make clear that reservists

not on active duty, who have a remaining Reserve

obligation, whether acquired voluntarily or invol-

untarily, will nonetheless not be discriminated

against by their employees [sic] soley [sic] because

of such Reserve affiliation.

Id. at 558 (quoting H.R. Rep. No. 1303, 90th Cong., 2d

Sess. 3 (1968) (brackets in Monroe)). In Monroe, the

Supreme Court had ruled that the VRR Act did not

require employers to make work-scheduling accommo-

1156

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NG SRA Aafia IK POE RAM

tk a das RAN Re IR 2 RO te

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dations for reservists that were not made for other

employees, i.e., to provide a reservist with “a special

work-scheduling preference.” 452 U.S. at 561. Follow-

ing Monroe, other courts interpreted § 2021(b)(3) as per-

mitting the exoneration of an employer who could point

to a nonpretextual reason for an adverse employment

decision that was irrelevant to the employee’s military

status, even if that status played some role in the deci-

sion. See, e.g., Burkart v. Post-Browning, Inc., 859 F.2d

1245, 1247 (6th Cir. 1988); Sawyer v. Swift & Co., 836

F.2d 1257, 1262 (10th Cir. 1988); Clayton v. Blachowske

Truck Lines, Inc., 640 F. Supp. 172, 174 (D.Minn. 1986),

aff’d, 815 F.2d 1203 (8th Cir. 1987).

In 1994, Congress enacted the Uniformed Services

Employment and Reemployment Rights Act

(“USERRA”) to replace the VRR Act in order to “clar-

ify, simplify, and, where necessary, strengthen the exist-

ing veterans’ employment and reemployment rights

provisions.” H.R. Rep. No. 65, 103d Cong., 2d Sess. 18

(1994) (“House Report” or “Report”), reprinted in 1994

USCCAN at 2449, 2451. USERRA was designed to

“[cJontinue to prohibit discrimination or acts of reprisal

against anemployee. . . because of a past, current, or

future military obligation,” House Report at 17, 1994

USCCAN at 2450, but it eliminated the “because of”

language of § 2021(b)(3), and Congress disavowed the

sole-motivation requirement inferred by Monroe and its

progeny. The language was modified to state that an

employer violates the Act if an employee’s “membership

. . 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. . . or obli-

gation.” 38 U.S.C. § 4311(b) (emphasis added).

1157

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The Village argues that the district court properly

applied the Monroe sole-motivation test in the present

case in preference to the existing language of § 4311(b)

because USERRA, which became effective on October

13, 1994, long after the events involving Gummo, did

not expressly overrule Monroe. Given Congress’s power

to amend a statute to clarify its original intention when

the courts have misperceived that intention, and to make

such clarifications applicable to cases begun before pas-

sage of the clarifying statute, see generally Rivers v.

Roadway Express, Inc., 114 S. Ct. 1510, 1519 (1994);

Mrs. W. v. Tirozzi, 832 F.2d 748, 755 (2d Cir. 1987), and

given the congressional descriptions of § 4311(b) dis-

cussed below, we disagree.

The report of the House of Representatives Commit-

tee on Veterans’ Affairs accompanying the House bill

that eventually became USERRA stated that “the origi-

nal intent of Congress when it enacted current section

2021(b)(3) of title 38, in 1968” was not the imposition

of a sole-motivation test, House Report at 24, 1994

USCCAN at 2457, and that the cases applying the “sole

factor” test suggested by Monroe had misinterpreted

Congress’s intent:

To the extent that courts have relied on dicta from

the Supreme Court’s decision in Monroe v. Standard

Oil Co., 452 U.S. 549, 559 (1981), that a violation

of this section can occur only if the military obli-

gation is the sole factor (see Sawyer v. Swift & Co.,

836 F.2d 1257, 1261 (10th Cir. 1988)), those deci-

sions have misinterpreted the original legislative

intent and history of 38 U.S.C. § 2021(b)(3) and are

rejected on that basis.

1158

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House Report at 24, 1994 USCCAN at 2457. The Report

stated that the new language of § 4311(b) was “simply a

reaffirmation of the original intent of Congress,” House

Report at 24, 1994 USCCAN at 2457, “that the standard

of proof in a discrimination or retaliation case is the so-

called ‘but-for’ test and that the burden of proof is on

the employer, once a prima facie case is established,” id.

The report of the Senate Committee on Veterans’ Affairs

likewise stated that § 4311’s explicit mixed-motive and

burden-shifting language simply reflected Congress’s

| original intent:

New section 4311(b) would provide, consistent

with current law, that the employer would be con-

sidered to have committed a prohibited act of dis-

crimination under the VRR law if the claimant’s

covered connection with service was a motivating

factor in the employer’s action, unless the employer

showed that the action complained of would have

been taken in the absence of service connection.

This provision is a reaffirmation of the original

intent of Congress when it enacted current section

4301(b)(3) of title 38 in 1968. The Committee

intends. . . that the burden of proof with respect to

this affirmative defense would be on the employer.

S. Rep. No. 158, 103d Cong., 2d Sess. 45 (1994) (“Sen-

ate Report”) (emphasis added).

Explicitly rejecting Monroe, both congressional

reports stated that courts applying § 4311(b) should

instead use the scheme of burden-of-proof allocations

approved by the Supreme Court in NLRB v. Trans-

portation Management Corp., 462 U.S. 393, 401 (1983),

for actions under the National Labor Relations Act.

: House Report at 24, 1994 USCCAN at 2457; Senate

1159

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Report at 45. Under that scheme, a claimant carries his

burden of proving a prima facie case of discrimination

by showing, by a preponderance of the evidence, that his

protected status was “a substantial or motivating factor

in the adverse [employment] action”; but the employer

may nonetheless escape liability by showing, as an affir-

mative defense, that it would have made the same deci-

sion without regard to the employee’s protected status.

Transportation Management, 462 U.S. at 401.

We reject the Village’s contention that this analytical

scheme was not meant to apply to preexisting cases such

as the present case. With respect to § 4311, USERRA

states as follows:

The provisions of section 4311 of title 38, United

States Code, as provided in the amendments made

by this Act,. . . that are necessary for the imple-

mentation of such section 4311 shall become effec-

tive on the date of enactment of this Act.

Pub. L. No. 103-353, § 8(b) (emphasis added). Though

this provision is perhaps susceptible to differing inter-

pretations, the legislative history statements, describing

§ 4311 as simply a reaffirmation of Congress’s original

intent in enacting § 2021(b)(3), strongly indicate that

Congress did not regard the linguistic change as an

amendment that is “necessary for the implementation of

such section 4311.” This was made more plain by a

bicameral report with respect to the effective dates on

which USERRA’s various provisions were to become

effective: it was agreed that “the standard and burden of

proof set forth in section 4311(b) are not additions to the

Act but are a codification of existing law.” Joint

Explanatory Statement on H.R. 995, 140 Cong. Rec. H

9136 (daily ed. Sept. 13, 1994), reprinted in 1994

1160

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;

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USCCAN 2493, 2515. Accordingly, the House Report

Stated expressly that the Transportation Management

standard and burden of proof is [sic] applicable to

all cases brought under this section regardless of the

date of accrual of the cause of action.

House Report at 24, 1994 USCCAN at 2457 (emphasis

added).

Given Congress’s clear statements as to its original

intent in enacting the VRR and its wish to have the

courts apply § 4311(b) in accordance with that intent to

all cases regardless of their vintage, we conclude that the

district court should not have employed the sole-moti-

vation analysis adopted by Monroe and its progeny.

Proper analysis, in connection with the Village’s sum-

mary judgment motion, required a determination of (a)

whether there was sufficient evidence from which a

rational jury could infer that Gummo’s status or conduct

as a reservist was a substantial or motivating factor in

his dismissal; and (b) if there was such evidence,

whether it could be said as a matter of law that the Vil-

lage would have discharged him even if he had not been

a reservist.

B. The Record in the Present Case

A party moving for summary judgment bears the bur-

den of establishing that there exists no genuine issue of

material fact warranting a trial, see, e.g., Adickes v. S.H.

Kress & Co., 398 U.S. 144, 157 (1970), and that the affi-

davits and depositions, etc., “show that. . . the moving

party is entitled to a judgment as a matter of law,” Fed.

R. Civ. P. 56(c). In moving for summary judgment

against a party who will bear the ultimate burden of

proof at trial, the movant may satisfy this burden by

1161

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pointing to an absence of evidence to support an essen-

tial element of the nonmoving party’s claim. See, e.g.,

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

In ruling on such a motion, the district court must view

the evidence in the light most favorable to the party

opposing summary judgment and must draw all permis-

sible inferences from the submitted affidavits, exhibits,

interrogatory answers, and depositions in favor of that

party. See, e.g., Anderson v. Liberty Lobby Inc., 477 U.S.

242, 255 (1986); United States v. Diebold, Inc., 369 U.S.

654, 655 (1962) (per curiam). If, as to the issue on which

summary judgment is sought, there is any evidence in

the record from which a reasonable inference could be

drawn in favor of the opposing party, summary judgment

is improper. See, e.g., Chambers v. TRM Copy Centers

Corp., 43 F.3d 29, 37 (2d Cir. 1994); Brady v. Town of

Colchester, 863 F.2d 205, 210-11 (2d Cir. 1988). In

determining whether the nonmoving party has presented

evidence sufficient to defeat the motion for summary

judgment, we review the record de novo, drawing all fac-

tual inferences and resolving all ambiguities in favor of

the nonmoving party. See, e.g., Goenaga v. March of

Dimes Defects Foundation, 51 F.3d 14, 18-19 (2d Cir.

1995); Healy v. Rich Products Corp., 981 F.2d 68, 72 (2d

Cir. 1992); Bryant v. Maffucci, 923 F.2d 979, 982 (2d

Cir.), cert. denied, 502 U.S. 849 (1991).

The record in the present case, taken in the light most

favorable to Gummo, sufficed to require denial of the

Village’s motion for summary judgment. First, the evi-

dence permits an inference of hostility on the part of the

Department toward reservists qua reservists. For exam-

ple, the Department had previously dealt with another

reservist’s requests in such a way as to cause the officer

to complain to the United States Department of Labor;

1162

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and when a representative of that federal agency

informed Maccarone that the reservist was entitled to

enforce the law, Maccarone told the federal official,

“*You’re out of your mind’ ” (Maccarone Dep. at 39),

and ordered the official out of Maccarone’s office. In

addition, at his deposition, Maccarone stated that the

Department could not afford to have more than two or

three reservists on its staff (id. at 33); that he was

“bother[ed]” by Gummo’s insistence that the Department

obey “the letter of the law” (id. at 76); and that he was

“not going to let [Gummo] ruin the law enforcement in

the Village of Depew by not having enough people on

duty” (id.). In the same month in which he initially

rebuked Gummo with respect to his requests for

Reserves leave, and, according to Gummo, threatened to

“get” Gummo, Maccarone proceeded to complain to a

local official about the special treatment accorded to

reservists, requesting legislation to end what Maccarone

called “double dipping in its most flagrant form.”

Though requesting legislation is of course valid conduct,

the making and the tone of that request nonetheless con-

firmed Maccarone’s antipathy toward the statutory ben-

efits to which reservists were then entitled. A jury could

easily infer from this record an anti-reservist animus on

the part of the Department.

Further, with respect to the Department’s denial of

Gummo’s June 7 and June 8 requests that he be relieved

of his June 8-9 night-shift assignment, which precipi-

tated the chain of events that led directly to his dis-

missal, a jury could reasonably question the bona fides

of the Village’s stated rationale for the denial, i.e., that

Gummo’s requests were not accompanied by his written

orders. Gummo had submitted those written orders to the

Department in May. The written orders, which are in the

1163

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record, stated that Gummo was to report to the Air Force

base at 7:30 a.m. on June 9; they authorized him to

receive 16 days of leave for military duty (June 9-24);

and they authorized him to receive, in addition, one day

of leave for travel to the Air Force base. Since the

Department had already received the written orders, the

denial of Gummo’s June 7 and June 8 requests on the

ground ‘hat he did not submit written orders seems, at

best, peculiar.

At oral argument of this appeal, the panel inquired

why the previously submitted orders did not meet the

requirement imposed by the Department’s policy. No sat-

isfactory response was forthcoming. Counsel for the Vil-

lage repeatedly responded that the orders set a starting

date of June 9 and that Gummo’s shift was for June 8.

This explanation too seems peculiar in light of the facts

that that June 8-9 night-shift was scheduled to end at

7:00 a.m. on June 9, and that the written orders already

submitted to the Department stated that Gummo’s annual

tour was to commence at 7:30 a.m. on June 9 and that he

was to be allowed a day of leave for travel.

From the fact that Gummo had already submitted the

written orders that the Department continued to demand,

from the absence of any plausible explanation as to why

that submission did not suffice to satisfy the Depart-

ment’s policy, from the Village’s seemingly irrational

position that the Department could not fathom that a

shift ending at 7:00 a.m. on June 9 did not give Gummo

a day for travel to an assignment that was to begin 30

minutes later, and from the many manifestations of the

Department’s antipathy toward reservists’ enforcement

of their statutory rights, a jury could reasonably infer

that the Department’s denial of Gummo’s leave request

on the ground that it was not accompanied by the written

1164

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A23

orders was pretextual, and that that stance and Mac-

carone’s confrontations with Gummo were intended,

because of Gummo’s insistence on his rights as a

reservist, to lead to the termination of his employment.

In sum, we conclude that the evidence in the record,

taken in the light most favorable to Gummo, sufficed to

establish a prima facie case under § 4311(b) and to pre-

clude a ruling as a matter of law that the Village would

have discharged him even if he had not been a reservist.

Accordingly, summary judgment dismissing the com-

plaint was inappropriate. We of course express no view

as to the likely outcome of the case after a trial.

C. Gummo’s Cross-Motion for Partial Summary

Judgment in his Favor

Gummo also pursues on appeal his contention that he

is entitled to partial summary judgment declaring that

the Department’s policy of not granting leave without

the reservist’s presentation of written orders violated the

VRR Act. In support of this contention, he points to a

provision in a United States Department of Labor Hand-

book. We are not persuaded.

The paragraph on which Gummo relies states as

follows:

The request for leave does not have to be in writ-

ing or in any particular form, although a written

request may facilitate proof of eligibility and pre-

vent possible misunderstandings. Furnishing the

employer with a copy of the schedule of training

drills in advance could facilitate the employer's own

work scheduling, but this is not always possible and

is not required by law. The law does not specify

when the request shall be made, nor does it set any

1165

A24

limit on the time that may elapse between leaving

the position and actually commencing the training

duty. At a minimum, the employer must allow the

employee sufficient time to arrive at his training

site, even if it means leaving work early. Misun-

derstandings may be prevented if the employer is

given sufficient advance notice to plan work sched-

ules so as to minimize any inconvenience resulting

from the reservist’s absence.

Department of Labor, Veterans’ Reemployment Rights

Handbook, 18-2 to 18-3 (1988) (emphasis added). The

Handbook, which itself acknowledges that it does not

have the force of law, see id. at 1, appears principally to

interpret the requirements imposed by the Act. The state-

ment that furnishing the employer with written orders “is

not required by law” is not the equivalent of a statement

that such a requirement by the employer violates the law.

The Act provided that the reservist must be given a leave

of absence to perform such inactive-training duty as was

“required.” 38 U.S.C. § 2024(d) (1988). To the extent

that it is possible for an employee to furnish his written

orders, the employer’s requirement that he do so would

appear to seek a reasonable form of proof that is not pro-

hibited by the Act and that is consistent with the tenor of

the Handbook. If furnishing such orders were impossi-

ble, insistence on compliance with such a requirement

could be unreasonable. But the present case is not one in

which it was impossible for the reservist to furnish his

written orders; indeed, as discussed above, those orders

had been furnished. We conclude that Gummo’s cross-

motion for summary judgment was properly denied.

1166

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CONCLUSION

We have considered all of the Village’s arguments in

support of summary judgment in its favor and have

found them to be without merit. The judgment of the dis-

trict court is vacated, and the case is remanded for fur-

ther proceedings not inconsistent with this opinion.

Costs of the appeal to plaintiff.

MILTON POLLACK, Senior District Judge, dissenting.

I respectfully dissent.

This case involves the discharge for insubordination,

lying and obstreperous conduct of a Village policeman

(“appellant”), who was also a Reservist in the United

States Air Force. The discharge was based on the rec-

ommendation of an impartial Hearing Officer who, after

a two day hearing, found the policeman guilty of three

current violations of the Department’s Rules of Conduct

and a history of improprieties as a police officer, involv-

ing reprimands and a suspension for misc~nduct. The

Hearing Officer found that (i) the policeman had been

disciplined for violations of the Department’s rules on

several prior occasions’; (ii) rehabilitation was no longer

a reasonable prospect and (iii) the policeman had

demonstrated an unwillingness and inability to work

under the authority of his superior officer. The Village

| Within the two years preceding his discharge, the police officer had

received reprimands for misconduct towards his Shift Lieutenant and for

disseminating information to the public without proper authorization. He

had also been found guilty of seven counts of misconduct and suspended

for 30 days following an argument with his superior officer.

1167

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Board thereupon unanimously voted to adopt the Hear-

ing Officer’s recommendation and terminated the plain-

tiff. There is no evidence that the parties who authorized

the discharge, the Hearing Officer and the Village Board,

harbored or acted upon any animus with respect to the

policeman’s status as a Reservist.

Following his discharge, the appellant instituted a suit

for state court relief. That challenge was not perfected

and was then abandoned. Three years later, in 1993, he

commenced this suit alleging herein that his disciplinary

history, suspensions and departmental altercations were

motivated by his “status and duty as a member of the

armed forces”. He principally sought reinstatement and

compensation for lost wages and other lost benefits.

The Village responded that it had terminated his

employment only because of his insubordination and

demonstrated repetitive misconduct as a police officer.

Appellant sued herein under the Veterans’ Reem-

ployment Rights Act, 38 U.S.C. § 2021, et seq., a statute

enacted in 1968 which the Supreme Court interpreted in

Monroe v. Standard Oil Company, 452 U.S. 549 (1981),

to require that the plaintiff prove he was discriminitorily

discharged by an employer “motivated solely by [his]

Reserve status”. Jd. at 559. This interpretation, accord-

ing to the 1994 Reports of the Congressional Veterans’

Committees, misconstrued the intent of the 1968

Congress in enacting the law.? Citing these Reports, the

majority opinion of this Court concludes that the Mon-

roe test does not apply to this case and substitutes in its

place the new and supposedly retroactive “but for” stan-

dard enunciated in the Uniformed Services Employment

2 The “mistaken” interpretation of the applicable statute by the

Supreme Court was followed by identical interpretations by the 6th, 8th

and 10th Circuits.

1168

I aaniieaieieiiaiiiiecamanaiimaaiiediidiliel

A27

and Reemployment Rights Act (“USERRA”) [38 U.S.C.

§ 4301, et seq. (1994)]. This “but for” standard means

that it is for the employer to establish that the discharge

would have occurred even if the employee were not a

member of the Reserves.

In support of the theory of a “mistaken” interpretation,

the majority’s Opinion cites the Report of the 1994

House Committee on Veterans’ Affairs accompanying

the 1994 House Bill that eventually became USERRA.

In this Report, the House Committee contended that the

Original intent of the 1968 Congress was not the impo-

sition of a sole motivation test to be established prima

facie by the veteran. The majority Opinion further cites

the Report of the 1994 Senate Committee on Veterans’

Affairs, which included a statement, contrary to Monroe,

that the 1994 version was merely a “reaffirmation” of

the original intent of the 1968 Congress (not so

expressed by the then Veterans’ Committees or included

in the statute itself) placing the burden of proof with

respect to the affirmative defense on the employer.

In order for the 1994 revised statute to have been

made applicable to pending cases such as this, the new

statute would have to have said so; a congressional com-

mittee’s expression of intent in these reports does not

suffice to add what does not appear in the enactment:

A judicial construction of a statute is an authori-

tative statement of what the statute meant before as

well as after the decision of the case giving rise to

that construction. . . Congress, of course, has the

power to amend a statute that it believes we have

misconstrued. . . . No such change, however, has

the force of law unless it is implemented through

legislation. Even when Congress intends to super-

1169

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sede a rule of law embodied in one of our decisions

with what it views as a better rule established in

earlier decisions, its intent to reach conduct pre-

ceding the “corrective” amendment must clearly

appear.

Rivers and Davison v. Roadway Express, Inc., 14 S.Ct.

1510, 1519 (1994). No such implementation is clearly

apparent within the text of USERRA. In fact, the only

relevant language in the statute indicates an intent that

the provisions of the new statute become effective on

October 13, 1994 and makes no mention of retroactivity:

The provisions of section 4311 of title 38, United

States Code, as provided in the amendments made

by this Act,. . . that are necessary for the imple-

mentation of such section 4311 shall become effec-

tive on the date of enactment of this Act.

Pub. L. No. 103-353, § 8(b). The majority asserts that

“this provision is perhaps susceptible to differing inter-

pretations” and offers its own interpretation: that the

“codification” of the “but for” test was not one of the

provisions necessary for the implementation of § 4311

and that this provision is therefore not effective on the

date of enactment of the Act but at some earlier date.

Although this interpretation may allow the majority nar-

rowly to escape from the presumption that the new

statute applies only from its enactment date, it certainly

does not provide any clear indication of intended

retroactive application.

3 In fact, the only other discussion of an effective date in the statute

confirms that no retroactive application was intended:

(a) Reemployment—{1). . . the amendments made by this Act shall

be effective with respect to employments initiated on or after the first

day after the 60-day period beginning on the date of enactment of this

Act (Oct. 13, 1994}.

(footnote continued)

1170

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Furthermore, the legislative history cited by the

majority does not indicate clearly that the “but for” test

applies retroactively:

[this] standard and burden of proof is [sic] appli-

cable to all cases brought under this section regard-

less of the date of accrual of the cause of action.

H.R. Rep. No. 65, 103d Cong., 2d Sess. 18 (1994). It is

not specified whether the phrase “brought under this sec-

tion” applies to cases “brought” in the future or also to

cases that “have been brought” in the past. Nor is it clear

that this language has any relevance to a prior version of

“this section,” which included significantly different lan-

guage.

The existence of these questions indicates that

although the 1994 Congressional Committees may have

intended to overturn Monroe and to make the conse-

quences of this change retroactive, Congress failed

clearly to manifest any Such intent within the statute. In

Rivers, the United States Supreme Court concluded that

a similar failure was fatal to the cause of retroactivity

under § 101 of the Civil Rights Act of 1991:

We may assume, as petitioners argue, that § 101

reflects congressional disapproval of Patterson's

interpretation of § 1981. We may even assume that

many or even most legislators believed that Pat-

terson was not only incorrectly decided but also

represented a departure from the previously pre-

vailing understanding of the reach of § 1981. Those

(2) The provisions of chapter 43 of title 38, United States Code, in

effect on the day before such date of enactment, shall continue to

apply to reemployments initiated before the end of such 60-day

period.

See Historical and Statutory Notes, 43 U.S.C. § 4301 (citing § 8 of

Pub.L. 103-353) (emphasis added) (citations omitted).

1171

A30

assumptions would readily explain why Congress

might have wanted to legislative retroactively,

thereby providing relief for the persons it believed

had been wrongfully denied a § 1981 remedy. Even

on those assumptions, however, we cannot find in

the 199] Act any clear expression of congressional

intent to reach cases that arose before its enactment

. . . . The text of the Act does not support the argu-

ment that § 101 of the 1991 Act was intended to

“restore” prior understandings of § 1981 as to cases

arising before the 1991 Act’s passage.

Rivers, 14 S.Ct. at 1516 (emphasis added). Thus,

Congress’s failure unequivocally to state that USERRA

applies to cases brought before the law’s effective date

signifies that a “sole motivation” test should be applied

to cases, such as the present one, which were brought

prior to October 13, 1994.

Under this “sole motivation” test, it is the plaintiff

who is required to provide sufficient admissible, relevant

evidence permitting the court below to conclude that his

discharge was not motivated by insubordination or dis-

honesty, but instead solely because he was a Reservist.

See Clayton v. Blachowske Truck Lines, Inc., 640 F.

Supp. 172, 174 (D. Minn. 1986), aff’d, 815 F.2d 1203

(8th Cir. 1987) (to avoid summary judgment, plaintiff

must provide “evidence which raises an inference that

his reserve status was the sole motivation behind his ter-

mination”).

Summary judgment is appropriate in this case because

there is no evidence before the Court that the plaintiff’s

Reservist status was a determinative factor in the deci-

sion to terminate his employment, much less the sole

factor. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-

1172

Se a ted be

A31

23, 106 S.Ct. 2548, 2553 (1986). In the majority’s

unavailing search for such evidence, the majority con-

tends that the Department provided no satisfactory

response as to why the policeman’s previously submitted

military orders did not meet the requirements of the

Department’s notification policy. However, the dispute

over orders, which directly preceded the discharge, was

based not only on the officer’s failure to submit an order

permitting the travel day, but also on the officer’s delay

in actually requesting the travel day:

[e]ven though Gummo had waited until the very last

moment to ask for the day off, the Chief did nor

deny his request and, according to Zolnowski, when

Gummo advised the Chief, the afternoon of June

8th, that he had contacted the base that morning to

arrange for a letter granting him the day off but he

didn’t know when it would arrive, the Chief replied

that he would abide by it and accept it even if it

came in after Officer Gummo had left (T. 253), cer-

tainly not the reaction one would expect of someone

who was out to “get” the officer. I cannot find one

instance during the events which transpired in [sic]

regard to the instant situation, in which the Chief

could be viewed as provoking Officer Gummo.‘

(Hearing Officer’s Recommendation at 52; A. 77)

(emphasis added). Furthermore, the Department’s

request for additional proof of the necessity of a travel

day does not excuse the officer’s subsequent intemper-

4 The lengthy analysis in the majozity opinion indirectly impugning the

bona fides of the Village’s stated rationale for the so-called “denial” of

requests that Gummo be relieved of submitting an order permitting the

travel day is at odds with the explicit finding of the report of the Hear-

ing Officer. Counsel’s responses to questions regarding this “denial” at

our oral hearing appear to have overlooked the content of the adminis-

trative record.

1173

A32

ate insubordination and lack of honesty. The police offi-

cer’s unprofessional response was certainly sufficient

“straw to break the camel’s back”, given the officer’s

past record of insubordination and his earlier undisputed

violation of the Department’s leave policy, for which he

was suspended thirty days.

Given the substantial evidence supporting the exis-

tence of a non-pretextual reason for discharge, the entire

absence of any evidence that the Village Board and the

impartial Hearing Officer were motivated by hostility

towards Reservists, qua Reservists, and the absence of

evidence indicating Reservist discrimination at any time,

we ought not interfere with the right of the Village to

discipline its police officers for personal misconduct.

The Village openly gave the appellant an unbiased inde-

pendent review of all of his official conduct before an

impartial Hearing Officer who conducted the adminis-

trative proceeding. Due process was all that was

required. It is indisputable on this record that appellant’s

Reservist status was not the cause of his discharge,

whichever statute applies. Neither statute permits an

employee to exploit his status as a Reservist in order to

shield himself from the consequences of his misconduct.

See Britt v. Georgia Power and Light, 677 F. Supp. 1169

(N.D. Ga. 1987); McCormick v. Carnett-Partsnett Sys-

tems, Inc., 396 F. Supp. 251, 256 (M.D. Fla. 1975).

I would affirm.

1174

A33

APPENDIX B

Memorandum and Order of the United States

District Court for the Western District

of New York, Dated April 28, 19965.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

93-CV-0221E(M)

WILLIAM M. GUMMO,

Plaintiff,

-vVs-

VILLAGE OF DEPEW, NEW YORK,

Defendant.

MEMORANDUM and ORDER

Plaintiff Gummo, a former police officer with the

Village of Depew Police Department (“the Department”’),

brought this employment discrimination action pursuant

to the Veterans’ Reemployment Rights Act (“the Act’’),

38 U.S.C. §§4301-4307,' alleging that the defendant had

fired him because of his status as a Staff Sergeant in the

United States Air Force Reserve. Before this Court are

the cross-motions of the parties for summary judgment

pursuant to FRCvP’ 56. The defendant’s motion will be

granted and the plaintiff's denied.

' Before the Act was amended in 1992, these provisions were found

under sections 2021-2027.

* Federal Rules of Civil Procedure.

A34

The undisputed facts are as follows.’ Gummo was a

police officer with the Department from 1977 until his

termination January 31, 1990. On December 12, 1986 he

enlisted in the United States Air Force Reserves, which

necessitated his spending one weekend of each month in

military training and attending a two-week summer

training session annually (‘‘the annual tour”). During

substantially the entire time of his employment, the

Department’s policy required police officers who were in

the Reserves to provide advance notice—including

submission of official military orders—of the need for

time off from their scheduled duty. Gummo was

informed of this policy by the Department’s Police Chief

Maccarone following his enlistment in the Reserves and

he complied with such until October 1988 when, instead

of submitting military orders he submitted a handwritten

note indicating his weekend training dates for October

through December. A Capt. Brennan instructed Gummo

by letter dated October 20th to submit instead his

military orders, and for all of the fiscal year which ended

at some point in 1989. Gummo partially complied with

this request, submitting on October 23rd his military

orders, but only for his weekend training sessions and

not those for his annual tour. Later (December 23rd) he

apprised Brennan that his annual tour was scheduled for

June 10 through 24, 1°89 but he did not submit military

orders therefor.

discussed, ‘“‘accepted’’ and not controverted the

statement—see Plaintiff's Statement of Disputed Material Facts

Pursuant to Local Rule 25—the facts set forth therein are deemed

admitted. See Local Rule of Civil Procedure 56.

— ee

A35

Maccarone, Gummo’s “chief superior’ officer, met

with Gummo January 4, 1989 to discuss Gummo’s

failure to provide the orders. An argument ensued during

which Gummo yelled and screamed at Maccarone and

refused to obey Maccarone’s orders that he restrain

himself. (Gummo contends but Maccarone does not

admit that Maccarone during this meeting called him a

“liar, an “ignorant fuck,’’ a “disgrace to the uniform”

and a ‘‘sneak.”) Gummo walked out of the meeting

without being dismissed and said, while leaving and in

the presence of others of the Department’s employees,

that ‘somebody should choke that man.” See Deposition

of William M. Gummo, at 186, attached as Exh. A to

Affidavit of Nicholas J. Sargent, Esq. (sworn to October

1, 1993).

Pursuant to Section 75 of New York’s Civil Service

Law (“CSL’’), Gummo was charged with misconduct

(e.g., conduct unbecoming a police officer, disobedience of

an order and insubordination) and made the subject of a

disciplinary hearing held February 13th and 15th by the

Village of Depew’s Board of Trustees. He was found

guilty of seven of the rine charges and received a 30-day

suspension without pay. Such sentence was not appealed.

Gummo notified Brennan May 3rd that his annual

tour had been rescheduled to June 9th through June

24th and submitted orders to substantiate such. On June

7th Gummo requested, by placing a ‘‘Request for a Day

Off’ form under Brennan’s door, that he have military

leave for the work shifts for June 8th and 9th (11:00 pm

until 7:00 am). Maccarone, to whom the request was

referred, refused such request because it was not

accompanied by militery orders. Gummo personally

asked Maccarone on t.. morning of June 8th for

permission not to work that night but Maccarone replied

that he could have off only if he produced the military

A36

orders or switched shifts with another police officer.

Later that afternoon Gummo told Maccarone either that

his military orders or that a letter from his military unit

was in the mail (Gummo claims he said letter, Maccarone

that he said military orders), and Maccarone thereupon

granted the request. Gummo contends that while at work

later that night he notified ‘‘the defendant’’—he does not

specify an individual—that he would be working the shift

because he had learned that the letter he had requested

was not forthcoming. The defendant denies that it was

ever notified. Without explanation or notice to his shift

supervisor, Brennan or Maccarone, Gummo reported for

work the night of June 8th, signing off duty after he had

completed half (four hours) of the shift.

Maccarone never received official orders or any

document from the United States Air Force re Gummo’s

need to have the June 8th shift off; he met with Gummo

to discuss such June 27th, after Gummo had returned

from the annual tour. With Gummo’s knowledge, this

meeting was taped. (A transcript [‘Tr.’’] of such is

attached as Exhibit B to the Defendant’s Notice of

Motion for Summary Judgment.) It was at this meeting

that Gummo told Maccarone that he had promised a

letter—not military orders— but Gummo acknowledged

that neither had been sent. He further stated that he had

reported to work on the 8th because he had learned from

a “party” at his military unit that the letter might not

be coming. Tr. at 5. When Maccarone inquired as to the

identity of such party, Gummo refused to give the name

and stated that he did not want to answer any more

questions. Maccarone then ordered Gummo to identify

the person but Gummo again refused, stating that he

would not answer any more questions unless either his

attorney or a union representative was present. Such

order and refusal were repeated several times.

A37

As a result of Gummo’s conduct at this meeting, he

was, on June 8th, charged with misconduct and

insubordination. The Board of Trustees, pursuant to CSL

$75, appointed a hearing officer who, after conducting a

two-day hearing, found Gummo guilty of misconduct and

recommended that he be discharged. Gummo did not

appeal this determination. By resolution adopted

January 31, 1990 the Board of Trustees accepted this

recommendation and terminated Gummo.

Summary judgment is appropriate when there is no

genuine issue as to any material fact and the moving

party is entitled to a judgment as a matter of law. See

FRCvP 56(c). In making such determination, a court

must view the facts in the light most favorable to the

non-movant and any doubts as to the existence of a

genuine issue for trial should be resolved against the

moving party. Brady v. Town of Colchester, 863 F.2d

205, 210 (2d Cir. 1988). The moving party bears the

initial burden of establishing that no genuine issue exists

as to material fact. Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). If, as here, the non-movant bears the

burden of proof at trial, the moving party may satisfy its

burden by demonstrating an absence of evidence to

support an essential element of the non-movant’s claim.

Id. at 325. Once the moving party has established its

initial burden, the non-movant must set forth specific

facts showing that there is a genuine and material issue

of fact for trial. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250 (1986). Such a showing must consist of

more than a “‘scintilla of evidence;’’ the non-movant

must show that there is evidence on the basis of which a

reasonable juror could return a verdict in his favor. Id. at

252. Thus, if the non-movant fails to make such a

showing re any essential element of a claim, summary

A38

judgment on that claim is appropriate. Given the instant

cross-motions for summary judgment, each will be

evaluated under the foregoing standards.

Section 4301(b\(3) of the Act provides that “any

person who [is employed by a political subdivision of a

state] shall not be denied hiring, retention in

employment, or any promotion or other incident or

advantage of employment because of any obligation as a

member of a Reserve component of the Armed Forces.”

(Emphasis added). The purpose of this section is to

prohibit employment discrimination against Reservists

“motivated solely by reserve status.” Monroe v.

Standard Oil Co., 452 U.S. 549, 559 (1981). Thus, if a

Reservist’s employment is terminated for reasons other

than his status, the section is inapplicable. Kitsakos v.

Brown, 848 F.Supp. 459, 462 (S.D.N.Y. 1994).

The record is replete with evidence of Gummo’s

refusal to obey orders, insubordination and failure to

comply with the Department’s policies. He does not

controvert most of this evidence but disputes the

characterization of such as “misconduct.’’ Regardless of

how these uncontroverted facts are characterized, it was

found during the CSL §75 proceeding that Gummo was

guilty of misconduct and insubordination such as to

constitute good cause for discharge. Because Gummo

does not controvert the identity of the factual issues

involved in the instant case and in the section 75

proceeding, or that he had a full and fair opportunity to

contest them in such proceeding, he is collaterally

estopped under New York law from disputing the

findings of fact made therein—see Town of Huntington

v. New York State Division of Human Rights, 181

A.D.2d 827, 581 N.Y.S.2d 381 (2d Dept. 1992)—and thus

also under federal law. Romano v. Thunder Projects, Inc.,

A39

696 F.Supp. 831, 833 (N.D.N.Y. 1988). As a matter of

law then, Gummo’s Reserve status was not the sole

reason for his discharge and the defendant is entitled to

summary judgment.

Assuming arguendo that Gummo was not

collaterally estopped from contesting these issues,

summary judgment would still be warranted because

Gummo has offered no affirmative proof that even hints

that he was discriminated because of his Reserve status.

For example, no proof is offered suggesting any possible

motive for the defendant’s alleged discrimination.

Instead, Gummo’s entire argument rests on his

allegation that the defendant’s requirement that written

orders be submitted prior to being granted military leave

is “‘unlawful.”” Gummo then reasons that his misconduct

resulted from this allegedly unlawful requirement, which

in turn led to his discharge because he was “provoked’’

by this unlawful conduct. In other words, Gummo seems

to be arguing that but for the defendant’s policy, he

would never have gotten into the arguments with

Maccarone that resulted in his discharge. Beyond the

fact that Gummo cites no authority that the defendant’s

policy was unlawful, this argument—in the absence of

any allegation that the policy was designed to hinder

Reservists from participating in their military duties—is

not probative of and has no logical connection to whether

the defendant discriminated against him because of his

Reserve status. It therefore is unavailing.

Accordingly, it is hereby ORDERED that the

plaintiff's motion for summary judgment is denied, that

the defendant’s motion for summary judgment is

granted and that this case is dismissed with prejudice.

DATED: Buffalo, N.Y.

_— /s) JOHN T. ELFVIN

U.S.D.J.

A40

APPENDIX C

Judgment of the United States District Court

for the Western District of New York,

Dated May 2, 1995.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

93-cv-0221-E(M)

WILLIAM M. GUMMO,

Plaintiff,

Vv.

VILLAGE OF DEPEW, NEW YORK,

Defendant.

JUDGMENT IN A CIVIL CASE

[ ] Jury Verdict. This action came before the Court for

a trial by jury. The issues have been tried and the jury

has rendered its verdict.

[x] Decision by Court. This action came +e—trial or

hearing before the Court. The issues have been +ried—or

heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that plaintiff's

motion for summary judgment is denied, defendant's

motion for summary judgment is granted and the case is

dismissed with prejudice.

May 2, 1995 RODNEY C. EARLY

Date Clerk

FILED

95 MAY—2 AM 9:49 /s) JANE M. DENNIS

U.S. DISTRICT COURT (By) Deputy Clerk

W.D.N.Y.—BUFFALO

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.