# Appendix — Gagnon v. Sprint Corp., Dba Sprint > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0306%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2002 - **Citation:** 537 U.S. 1014 ## Text a y No. os -ULS In the SUPREME COURT OF THE UNITED STATES William E. Gagnon, Jr., Petitioner, V. Sprint Corporation d/b/a Sprint, Sprint Spectrum L.P. i and Sprint Spectrum Finance Corporation d/b/a Sprint PCS, Respondents. On Petition for Writ of Certioriari To The United States Court of Appeals For the Eighth Circuit APPENDIX TO PETITION FOR WRIT OF CERTIORARI VOLUME I Dennis E. Egan* Henry R. Cox The Popham Law Firm, P.C. Swanson Midgley, LLC. 323 W. 8" Street - Suite 200 2420 Pershing Rd. - Suite 400 Kansas City, Missouri 64105 Kansas City, Missouri 64108 (816) 221-2288 (816) 842-6100 Counsel for Petitioner *Counsel Admitted Before U.S. Supreme Court N 10. 11. 12. TABLE OF CONTENTS Volume I Page March 19, 2002 Memorandum Opinion of Eighth Circuit Court of Appeals, Case No. 01-2505 (Gagnon v. Sprint, 284 F.3d 839 (8" Cir. 2002)).......... 0001-023 May 22, 2002, Order Denying Petuion for Rehearing of Eighth Circuit Comtt ok Re SO FOO, GE 5500 55 os eo eo Wi eed 024 January 4, 2001 Order of District Court denying plaintiff's Motion for Summary Judgment and granting defendants’ Partial Motion for Summary Judgment, Case No. 99-0683-CV-W-1 ...... 0.0... eee eee eee ‘025-047 May 10, 2(01 Order of District Court granting defendants’ Motion to Dismiss ard entering Judgement as a Matter of Law, Case No. ce LS ae eee ara Mareen ny ace any enya ws 1 ren eae Sra werner ay 048-066 February 4, 2002 Order of District Court ordering Gagnon to pay Sprint its attorneys’ fees and costs, Case No. 99-0683-CV-W-1 ........ 0.0.0.0 0 05 067-070 July 15, 2002 Order of District Court vacating the Court’s prior award of attorneys’ fees and costs to Sprint, due to Eighth Circuit te SPR EP CRETE CTT Te ree ee eee ree 071 The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) Title 38 U.S.C. §§ 4301, 4303, 4311 and 4323 ......... 072-079 United States Sentate Report No. 103-158 (October 18, 1993) Se We ae TF ID Sino S096 n ba a 5G 5 or RRR NS aS ee ee eee 080-081 Combined House Report No. 103-65; Cong. Record Vol. 139 (1993) and Cong. Record. Vol. 140 (1994), excerpts ............ 0.0 ce eeeee 082-088 Volume II eee ek ee er ee re re rs 089-112 Excerpts from Trial Transcript of Proceeding ............-.. 5 cee eeee enue 113-144 Plaintiff's Trial Exhibits a ge ek ee rn a rer ee reer rem nr rer ae ep tr 145-147 PORE EOD 6 6: kkex here ceed GSEs vane eee RE Ss CER a eer e Eee 148 2 ee OE I 5 3's. bass 5 0 oad s bee eee ee a ee 149-150 Bort bees, cee cm Se OE PORE DETR OE OP SA Se BLIND ORE MIN fed 151 be noe ph de, TTT EE Te Re err ana me OE 152-163 cece oll Lee cecal gg MT Ee CLOT OP Peer Rey Poetry Oe oie en mT 164 PE EEE 5 ics od Ea ERR Rae hee eo eee eee EL eae ae 165 Pe EE isn eS oho eae sakes seek ess bhiv ee enaes 166-167 TE POE C0 OV ha kv hh oe wee e ee hs kis eh ee oe ee 168 13 Defendants’ Notice of Corporate Affiliations .................. cee eee eaee 169-174 United States Court of Appeals FOR THE EIGHTH CIRCUIT No. 01-2505 William E. Gagnon, Jr., ° * Appellant, * * V. * Appeal from the United States * District Court for the Western Sprint Corporation, doing business * District of Missouri. as Sprint Spectrum Finance ° Corporation, doing business as ° | Sprint PCS, ° o* Appellees. ° Submitted: December 13, 2001 Filed: March 19, 2002 Before MORRIS SHEPPARD ARNOLD, BEAM, RILEY, Circuit Judges. BEAM, Circuit Judge. William Gagnon brought this reverse race discrimination and retaliation case under Title VII, 42 U.S.C. § 2000e et seg., the Missouri Human Rights Act ("MHRA"), and the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). Gagnon appeals the district court's issuance of judgment as a matter of law ("JAML") at the close of plaintiff's case in favor of Sprint PCS on his discrimination and retaliation claims under Title VII and the MHRA. Gagnon also APPENDIX 1 001 ME appeals the district court's grant of summary judgment in favor of Sprint PCS on his USERRA discrimination and retaliation claims’. Upon a de novo review of the record, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. I. BACKGROUND On January 31, 1997, Gagnon retired from the United States Army as a Lieutenant Colonel after serving more than twenty-one years. Gagnon then worked at Cubic Applications, Inc. ("Cubic"), a defense contractor. He was in Cubic's employ for three months prior to becoming associated with Sprint PCS. Gagnon began working for Sprint PCS in March 1997. Sprint PCS hired Gagnon as a curriculum developer in it's training department ("TAPS") at a starting salary of $44,100 with a short-term incentive potential ("STI") of $3,000. Gagnon was directly supervised by Kathleen Wilder, the director of the department, from his initial starting date in March until his promotion. Gagnon was promoted in October 1997 to CBT-Manager, a new management position in the department. At the time of Gagnon's promotion, Wilder was out of the office on maternity leave and Jim Keenan, the department manager, and Lynn Meredith-Ball, another manager in Wilder's department, assumed Wilder's responsibilities as director of the training group. In Wilder's absence, Vice-President Jim Mendenhall was instrumental in promoting Gagnon to the manager position. 'We also note that there are two pending motions taken with the case. Appellant's Motion for Judicial Reassignment is denied. We do not question Judge Whipple's impartiality in this matter and find nothing in the record to otherwise suggest that he conducted the proceedings unfairly. Appellant's Motion for Waiver of Costs is granted pursuant to 38 U.S.C. § 4323(h). a APPENDIX 1 002 Because Gagnon's position was new at Sprint PCS, it did not have a dollar figure assigned for compensation. Therefore, Gagnon submitted a job description for the position, with the assistance of Meredith-Ball, to the Human Resources Department ("HR") so that a compensation amount could be assigned. The Sprint PCS compensation group within HR established a market reference point ("MRP") of $66,000 with a STI of $9,500. The MRP is not a guaranteed salary point, but rather a targeted reference point for a tenured employee in that position. As a matter of procedure at Sprint PCS, when a salary increase greater than ten | percent is sought, a Compensation Exception Request form stating the amount of the raise requested is completed, sent to HR for a recommendation, then forwarded to a vice president in charge of the department for a recommendation. Then, finally the appropriate chief officer or his designee reviews all recommendations and makes final ! decisions on salary increases. In conjunction with Gagnon's promotion, Meredith- | Ball prepared a Compensation Request Form to raise Gagnon's salary from $44,100 to $66,000, reflecting the full MRP established by the compensation group. HR did not support Meredith-Ball's proposed raise to the full $66,000 but instead proposed a salary at eighty-five percent of MRP, the equivalent of a twenty-five percent raise for Gagnon. Meredith-Ball and Julie Moylan, the HR Compensation Manager, signed the proposed compensation form on October 1, 1997. At that time, the form reflected Meredith-Ball's request for a base salary increase to $66,000 and Moylan's recommended twenty-five percent increase. Meredith-Ball submitted the request with both proposals to Vice-President Mendenhall for his approval. Mendenhall rejected both proposals on the compensation exception request form. Mendenhall's rejection of the initial compensation request is an important part of Gagnon's claim of discrimination. According to trial testimony, Mendenhall looked at the document with the attachments and threw it back across his desk at Meredith-Ball stating, "I'm not going to pay him that, he's a white guy, isn't he?" Mendenhall further allegedly stated, "If he were a woman or a minority, I would have ms APPENDIX 1 003 Ca eT TT to pay him, but I don't have to pay him." Meredith-Ball recalls Mendenhall refusing to discuss his stated position and clearly stating, "I'm not going to pay him. He's just a white guy." Mendenhall also stated, "That's absurd. Nobody gets more than ten percent." After failing to obtain approval of either the full $66,000 salary for Gagnon or the proposed twenty-five percent increase recommended by Moylan, Meredith-Ball revised the compensation form to request an eleven percent raise followed by an automatic ten percent raise in six months. HR approved the eleven percent raise but did not endorse the automatic ten percent raise in six months, suggesting that Gagnon seek a ten percent raise in six months, dependent on his performance. Meredith-Ball took the revised compensation request form to Mendenhall who approved Meredith- Ball's recommendation in its entirety, including the automatic raise in six months. The form was then presented to Al Kurtze, the chief operating officer. Kurtze had the final vote on this compensation decision. Kurtze agreed with HR's recommendation and approved only the immediate eleven percent raise, with the suggestion that the automatic increase in six months be processed with separate approval action. Gagnon filed a claim with the Equal Employment Opportunity Commission ("EEOC") in April 1998 because he was dissatisfied with his compensation increases. Gagnon claims his workplace environment deteriorated after he filed his EEOC claim and it became difficult for him to timely complete work tasks because Wilder stopped seeking his advice and stopped discussing department issues with him. In August 1998, Gagnon and Meredith-Ball organized a discussion with four other Sprint PCS employees outside the training department building. Gagnon and Meredith-Ball informed the group of employees, all of whom possessed prior military experience, of Sprint PCS's growth outside Wilder's department. During that discussion, various statements indicated (although all parties are not in agreement) that Gagnon and Meredith-Ball advised the four employees that Wilder was uncomfortable -4- APPENDIX 1 004 with the number of employees in her department with prior military experience and, therefore, would not promote anyone with such a background. However, the record also reflects that during a managers' meeting two months prior, Wilder stated there was a perception among some employees in the department that employees had to be retired military to advance. Gagnon responded at the managers' meeting that the perception was not true. Wilder also admitted at this managers’ meeting that she was uncomfortable that some of her employees thought they were being treated differently because they were not military. Wilder later told Gagnon she was uneasy with the number of military employees in the department. As a result of the alleged statements made during the meeting outside the training department regarding Wilder's comfort, or lack thereof, Gagnon and Meredith-Ball were placed on written reminder, a form of reprimand. This written reminder prohibited Gagnon and Meredith-Ball from seeking a promotion or transfer without a vice president's approval for a period of six months. Gagnon claims the written reminder, in addition to Wilder's failure to give him a promised ten percent raise in July, and the continued isolation of Gagnon in his department constituted retaliation. Gagnon subsequently filed this iawsuit charging Sprint PCS with violating USERRA for setting his initial salary $1,000 lower due to his lack of corporate experience and for disciplining him following the meeting outside the Sprint PCS training department building. Gagnon also charged Sprint PCS with violating Title VII and the MHRA for denying his salary raise upon receiving the promotion to CBT Manager. Il. DISCUSSION The grant of a judgment as a matter of law is reviewed de novo, applying the same standards used by the district court. Fogelbach v. Wal-Mart Stores, Inc., 270 pe | APPENDIX 1 005 F.3d 696, 700 (8th Cir. 2001). Pursuant to Rule 50, judgment as a matter of law should only be granted when a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. Fed. R. Civ. P. 50(a)(1). "In making this determination, the court must draw all reasonable inferences in favor of the nonmoving party without making credibility assessments or weighing the evidence." Phillips v. Collings, 256 F.3d 843, 847 (8th Cir. 2001). A. Discrimination Claim Plaintiffs like Gagnon pursuing claims of discrimination under Title VII have two models under which they may proceed. First, a plaintiff can proceed under the three-stage, burden-shifting standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this standard, Gagnon must first establish a prima facie case of discrimination. Once the prima facie case is established, the burden shifts to Sprint PCS to articulate a non-discriminatory reason for the adverse employment action. St. Mary's Honor Ctr, v, Hicks, 509 U.S. 502, 507 (1993). If Sprint PCS articulates such a reason, Gagnon must respond with sufficient evidence that the proffered reason was really a pretext for intentional discrimination. Jd, At all times under this model, the burden of persuasion remains on Gagnon, the plaintiff. Id, Alternatively, Gagnon can proceed under the mixed-motive standard set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), if he is able to produce "direct evidence that an illegitimate criterion . . . ‘played a motivating part in [the] employment decision." Cronquist v. City of Minneapolis, 237 F.3d 920, 924 (8th Cir. 2001) (alterations in original) (quoting Price Waterhouse, 490 U.S. at 258). Once Gagnon establishes such direct evidence, the burden shifts to Sprint PCS to demonstrate by a preponderance of the evidence that it would have reached the same employment decision absent any discrimination. Cronquist, 237 F.3d at 924. As modified by section 107 of the Civil Rights Act of 1991, 42 U.S.C. § 2000e-5(g)(2), 6- APPENDIX 1 the mixed-motive model allows for declaratory relief, injunctive relief, attorney's fees and costs once Gagnon meets his initial burden regarding direct evidence. 42 U.S.C. § 2000e-5(g)(2)(B)(i). Thus, Sprint PCS is liable for discrimination under this model upon direct evidence that it acted on the basis of a discriminatory motive. Breeding vy. Gallagher and Co,, 164 F.3d 1151, 1156 (8th Cir. 1999). Whether or not Sprint PCS satisfies its burden to show by a preponderance that it would have reached the same employment decision absent any discrimination is only relevant to determine whether the court may award full relief including damages, court ordered admissions, reinstatement, hiring, promotion or other such relief. Id.; 42 U.S.C. § 2000e- 5(g)(2)(A) & (B)(ii). We apply this analysis to Gagnon's MHRA discrimination claim as well as his Title VII claim. Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 836 (8th Cir. 2002). Because this is acclaim of reverse race discrimination, Gagnon additionally must show "that background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority." Duffy v. Wolle, 123 F. 3d 1026, 1036 (8th Cir. 1997) (quoting Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985)). However, if Gagnon fails to make this showing, he may still proceed by adducing sufficient evidence of intentional discrimination against him, in order to proceed beyond the prima facie case stage of litigation. Id, In other words, he is clearly able to proceed in a reverse discrimination claim if there is direct evidence of discrimination. Gagnon first argues that judgment as a matter of law was improper because Mendenhall's statement "I'm not going to pay him. He's just a white guy," is direct evidence of unlawful reverse discrimination. See Price Waterhouse, 490 U.S. at 270- 73. The district court held that JAML was appropriate because Kurtze was the decision-maker, not Mendenhall, and there was no evidence that Kurtze knew of Mendenhall's comment or acted on it. APPENDIX 1 007 Direct evidence is evidence cf conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude in such a way that the fact finder could infer that the attitude was more likely than not a motivating factor in the employer's decision. Walton v. McDonnell Douglas Corp., 167 F.3d 423, 426 (8th Cir. 1999). However, Not all comments that may reflect a discriminatory attitude are sufficiently related to the adverse employment action in question to support such an inference. For example, stray remarks in the workplace, Statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself will not suffice. Id. (internal quotations omitted). Courts look beyond the moment a decision was made in order to determine whether statements or comments made by other managerial employees played a role in the ultimate decisionmaking process. "An employer cannot escape responsibility for willful discrimination by multiple layers of paper review, when the facts on which the reviewers rely have been filtered by a manager determined to purge the labor force of [protected] workers." Gusman v. Unisys Corp., 986 F.2d 1146, 1147 (7th Cir. 1993). While Kurtze's decision may have ultimately been free of any discriminatory animus, we cannot sterilize a seemingly objective decision when earlier discriminatory decisions lead to the adverse employment action. See Webb vy. St. Louis Post- Dispatch, 51 F.3d 147, 149 (8th Cir. 1995) (finding that the employer's failure to accommodate the plaintiff's nervous condition possibly constituted discriminatory treatment even though Post's ultimate decision to terminate Webb was based upon his unexcused absenteeism); Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316, 1318, 1324-25 (8th Cir. 1994) (finding a supervisor's comment that "women . .. were the worst thing" that had happened to the company to be direct evidence of -8- APPENDIX 1 008 discrimination supporting an inference that an illegitimate criterion was a motivating factor in an employment decision, even though the division manager made the ultimate decision to terminate the plaintiff); Kientzy v. McDonnell Douglas Corp., 990 F. 2d 1051, 1057-58 (8th Cir. 1993) (looking beyond the moment the decision to fire the plaintiff was made, which was free from discrimination, because the plaintiff's supervisor had treated her differently than her male counterparts). The district court stated that the evidence introduced at trial revealed that Kurtze, not Mendenhall, was the decisionmaker for Gagnon's October 1997 raise and potential fifty percent increase. We fail to find any evidence of this in the record. According to the trial testimony, Meredith-Ball submitted the proposal for the full base salary increase to $66,000 to Mendenhall and he rejected the proposal because Gagnon was "only a white guy." After this rejection, the proposal was amended to reflect an eleven percent increase followed by an automatic ten percent increase in six months. This second proposal was the only compensation increase put before Kurtze. Gagnon alleges discrimination based upon the fact that Mendenhall rejected the initial base increase proposal submitted by Meredith-Ball. That initial proposal was never before Kurtze because of Mendenhall's blanket rejection and alleged discriminatory comments. Thus, Mendenhall was the final decisionmaker as to the initial decision to deny Gagnon a base increase from $44,100 to $66,000 in October 1997. Without judging the credibility of these witnesses, we believe there is sufficient evidence to place before a jury Sprint PCS's reasons for rejecting Gagnon's initial salary increase in October 1997. Since there exists direct evidence of discrimination, Sprint PCS bears the burden of showing that it would have reached the same employment decision absent any discrimination. Price Waterhouse, 490 U.S. at 258. In other words, Sprint PCS must show the proffered raise from $44,100 to $66,000 would have been reduced to an eleven percent increase absent Mendenhall's discriminatory remarks. This determination must be made by the finder of fact, and therefore judgrnent as a matter of law was inappropriate. -9- APPENDIX 1 009 B. Retaliation Claim Gagnon claims Sprint PCS unlawfully retaliated against him after his EEOC claim in April 1998 by issuing a reprimand in the form of a written reminder and by failing to approve additional compensation increases as Wilder had allegedly promised. Gagnon claims this constituted a hostile work environment and affected Gagnon's future career prospects at Sprint PCS. "Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3, makes it unlawful for an employer to discriminate against an employee, for among other things, ‘because [s]he has opposed any practice made an unlawful employment practice by this subchapter." Buettner v. Ar ] Co., 216 F.3d 707, 713 (8th Cir. 2000) (alteration in original) (quoting 42 U.S.C. § 2000e-3). Absent direct evidence of discrimination invoking the mixed-motive analysis of Price Waterhouse, the burden-shifting analysis of McDonnell Douglas applies to claims of retaliation. Buettner, 216 F.3d at 713. To establish a prima facie case of retaliatory discrimination, a plaintiff must show: (1) [he] engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) a causal connection existed between participation in the protected activity and the adverse employment action. Id, at 713-14 (citations omitted). Effectively, the same standards apply to Gagnon's MHRA retaliation claims.” Id, at 714. >We recognize that Missouri Revised Statute § 21 3.070(2) prohibits retaliation "in any manner against any person" and that this language is broader than that found under Title VII, section 2000e-3. Mo. Rev. Stat. § 213.070(2) (emphasis added). See Keeney v. Hereford Concrete Prods., Inc., 911 S.W.2d 622, 625-26 (Mo. 1995). However, we do not reach the outer boundaries of section 213.070 in this matter as Gagnon is a person who falls within both provisions, as does the alleged manner of retaliation. Thus, we reach the same conclusion under both Title VII and the MHRA in this case. -10- APPENDIX 1 010 ——~ Gagnon introduced evidence at trial regarding his account of the poor treatment he received from Wilder and others in his department after he filed a charge with the EEOC. He also received a written reminder on August 27, 1998, which Gagnon claims further evidences the hostile environment because it was issued one month after Sprint PCS filed its response to his EEOC claim. The district court held that Gagnon failed to establish that either of these actions rose to the level of actionable retaliation under controlling Eighth Circuit authority. "An adverse employment action is a tangible change in working conditions that produces a material employment disadvantage." Spears v. Missouri Dep't of Corr. and Human Res., 210 F.3d 850, 853 (8th Cir. 2000) (citation omitted). "Termination, reduction in pay or benefits, and changes in employment that significantly affect an employee's future career prospects meet this standard. . .." Id. (citation omitted). TEE REND NE Me It is well-settled in this circuit that ostracism and rudeness by supervisors and co-workers do not rise to the level of an adverse employment action. Scusa v. Nestle | U.S.A. Co., 181 F.3d 958, 969 (8th Cir. 1999) (finding general allegations of co- worker ostracism are not sufficient to rise to the level of an adverse employment action); Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 693 (8th Cir. 1997) (holding that disrespect and ostracism did not rise to the level of actionable adverse employment action because there was no tangible change in duties or working conditions). Gagnon failed to establish that the alleged ostracism by Wilder and co- workers rose to the level of actionable retaliation. Gagnon's testimony reflects that Wilder ignored him and that it became difficult for him to function as a member of her team, but provides no evidence that this behavior had any impact on his job title, | salary, benefits, or any other material aspect of his employment. See Spears, 210 F.3d | at 854 (finding the plaintiff's transfer to a new location merely an inconvenience and not actionable under Title VII because there was no evidence that her transfer had any -|]- APPENDIX1 014 impact on her job title, salary, benefits, or any other material aspect of her employment).? Gagnon further alleges the August 1998 written reminder significantly affected his future career prospects because it limited his ability to seek promotions or transfers. In fact, Gagnon alleges that as a result of the written reminder, his future career prospects were eliminated altogether. We question whether the effect of the written reminder constitutes an adverse employment action but note that even unfavorable evaluations might be actionable if the employer subsequently uses them as a basis to detrimentally alter the terms or conditions of employment. Id, "Papering" an employee's file with negative reports and reprimands may sufficiently support a claim of retaliation if they adversely affect or undermine an employee's position. Kim v. Nash Finch Co., 123 F.3d 1046, 1060 (8th Cir. 1997). In granting JAML to Sprint PCS on this issue, the district court relied on our decision in Flannery v. Trans World Airlines, Inc., 160 F.3d 425 (8th Cir. 1998). The district court cited Flannery for the proposition that "an admonishment to an employee is not actionable retaliation." Our holding in Flannery was not so broad. We determined in Flannery that admonishment and removal of complimentary letters from an employee's personnel file did not constitute an adverse employment action in that case because the employee failed to allege that these actions resulted in reduced salary, benefits, seniority, or responsibilities, or any other materially significant disadvantage. Id. at 428. Gagnon, on the other hand, alleges that the written reminder resulted in the *We again note that Gagnon failed to establish that the alleged ostracism by Wilder and co-workers rose to the level of actionable retaliation under the MHRA because he failed to provide sufficient evidence as a matter of law that "as a direct result [of protected activity], he . . . suffer[ed] any damages due to [this] act of reprisal." Keeney, 911 S.W.2d at 625; Buettner, 216 F.3d at 715 n.8; Cross v. Cleaver, 142 F.3d 1059, 1076 (8th Cir. 1998). cm APPENDIX 1 012 outright closing of job openings to him and the loss of opportunity to compete for any position, which, if true, might support a claim of retaliation. Our final inquiry on Gagnon's claim of retaliation is whether he has raised sufficient evidence as a matter of law connecting the adverse employment action to his EEOC claim. The written reminder was issued after Sprint PCS investigated the circumstances surrounding the meeting outside of the department held by Gagnon and Meredith-Ball. On its face, the written reminder clearly sets forth the reasons for its issuance—because Gagnon, as a member of the management team, created a false perception of discrimination and Sprint PCS was concerned with his level of professionalism, personal effectiveness and team conduct. Gagnon places great emphasis on the fact that the written reminder was issued one month after Sprint PCS filed its response to his EEOC claim. But, "[g]enerally, more than a temporal connection . . . is required to present a genuine factual issue on retaliation." Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999). Thus we look to Gagnon's remaining evidence to determine whether he has satisfied his burden as a matter of law. We find as a matter of law that Gagnon fails to prove any causal connection between his EEOC claim of discrimination and the issuance of the written reminder. Even though Gagnon did not violate a company policy when he gathered with his fellow employees outside of the building, Sprint PCS certainly had the authority to issue a reminder regarding the effect of that meeting, given the fact that Gagnon was in a management position. Sprint PCS clearly set forth its reason for the issuance of the reminder and identified several personal traits of Gagnon needing improvement. Contrary to Gagnon's argument, the fact that Wilder made a comment regarding her level of comfort with military employees in her department is not dispositive, as it was made to colleagues at a managers’ meeting, and furthermore does not connect the issuance of the written reminder with the filing of Gagnon's EEOC claim. a4 APPENDIX 1 013 yew EP Ener recneeeee Gagnon further claims Wilder had no factual basis for stating in the written reminder that Gagnon created the false perception of discrimination. But Gagnon himself testified that he had a discussion with Wilder and Kim Klosak during their investigation of the matter which suggests that Wilder did make factual findings regarding the meeting held by Gagnon and Meredith-Ball. Finally, Gagnon claims that Wilder's failure to secure a promised raise for Gagnon evidences her retaliatory motive. Again, the evidence doesn't create such an inference. Gagnon testified that Wilder did attempt to increase his compensation in January 1998, he received a small merit increase in April 1998, and he was aware that there were "no guarantees" in Wilder's efforts to secure a raise. Although Gagnon did not receive his allegedly promised July increase, the only connection he makes supporting an inference of retaliation at that point is the timing in connection with his EEOC claim, and that is not enough as a matter of law. We find the record empty of any evidence connecting Gagnon's EEOC claim filed in April 1998 and the issuance of the written reminder in August 1998. Thus, JAML was appropriate and the opinion of the district court is affirmed on this point. See Kipp v. Missouri Highway Transp. Comm'n, Nos. 01-1814/1922, slip op. (8th Cir. Feb. 20, 2002) (granting JAML because the plaintiff failed to establish the causal link necessary to make out a prima facie case of retaliation). C. USERRA Discrimination Claim In reviewing a grant of summary judgment, we review the decision of the district court de novo. Buettner, 216 F.3d at 713. The question before us on appeal is whether the record, when viewed in the light most favorable to the non-moving party, shows there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Id. até. APPENDIX 1 014 The USERRA, enacted in 1994 to improve the Veterans' Reemployment Rights Act ("VRRA"), prohibits employment discrimination on the basis of military service. Hill v. Michelin N. Am., Inc., 252 F.3d 307, 311 (4th Cir. 2001); 38 U.S.C. § 4311 et. : seg. Section 4311(a) provides: A person who is a member of . . . [or] has performed . . . in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership .. .. Fe ao AMER aah ape ae The USERRA replaced the "sole cause" standard of the VRRA, which "protect[ed] the employee-reservist against discriminations like discharge and demotion, motivated solely by reserve status." Knowles v. Citicorp Mortgage, Inc., 142 F.3d 1082, 1085 n.3 (8th Cir. 1998) (emphasis in original) (citation omitted); Newport v. Ford Motor Co., 91 F.3d 1164, 1167 (8th Cir. 1996). Under the USERRA, an employer violates the act when a person's membership in the uniformed services is a motivating factor in the employer's action, "unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service." 38 U.S.C. § 4311(c)(1). In Gagnon's claim of discrimination under the USERRA, he asserts that because of his military background, he received a lower starting salary. The district court held that because Sprint PCS provided evidence of a factor other than Gagnon's military service to explain the disparity in his initial pay, Sprint PCS's motion for summary judgment was warranted. However, our inquiry does not carry us that far into the analysis. We find Gagnon fails to state a claim of discrimination under the USERRA. Gagnon has not been denied "initial employment, reemployment, retention in employment [or] promotion," as covered under section 4311(a). Thus, his only basis -]5- APPENDIX1 015 ee for a claim of discrimination under section 431 1(a) is that Sprint PCS denied him a benefit of employment due to his prior service membership. Gagnon claims he was paid $1,000 less than his peers at Sprint PCS. The term "benefit," as defined by the USERRA, specifically excludes wages or salary for work performed. 38 U.S.C. § 4303(2). Thus, Gagnon has no basis for maintaining his claim of discrimination under the USERRA. D. USERRA Retaliation Claim Gagnon also alleged retaliation under the USERRA based upon Sprint PCS's actions following Gagnon's internal complaints of activity he perceived as illegal USERRA discrimination. The district court held that the USERRA only applies to a retaliation claim if the employee has taken a formal enforcement action as provided in section 4323. Thus, the court held that Gagnon was unable to maintain a cause of action for retaliation under the USERRA because he did not file a complaint with the secretary of labor nor commence a civil action against Sprint PCS. We disagree with this initial conclusion. Under a plain reading of the statute, we hold that Gagnon's internal complaints suffice as protected activity under the USERRA. The USERRA standard for retaliation claims is set forth in 38 U.S.C. §§ 4311(b) and 431 1(c)(2): (b) An employer may not discriminate in employment against or take any adverse employment action against any person because such person (1) has taken an action to enforce a protection afforded any person under this chapter, ... (c) An employer shall be considered to have engaged in actions prohibited(2) under subsection (b), if the person's (A) action to enforce a protection afforded any person under this chapter, . . . or (D) exercise of a right provided for in this chapter, is a motivating factor in the Ge APPENDIX 1 016 employer's action, unless the employer can prove that the action would have been taken in the absence of such person's enforcement action, ... or exercise of a right. Gagnon correctly asserts on appeal that the appropriate standard of proof in a discrimination or retaliation claim under the USERRA is the so-called "but for" test and that the burden of proof is on the employer, once the employee's case is established. Sheehan v. Dep't of Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). The legislative history and treatment by other circuits support this evidentiary scheme, set forth below, for USERRA cases. See NLRB. v. Transportation Mgmt. Corp., 462 U.S. 393, 401 (1983) (modified by Director, Office of Workers' Compensati v. Greenwich Collieries, 512 U.S. 267 (1994)). We apply this precedent: The procedures established by precedent require an employee making a USERRA claim of discrimination to bear the initial burden of showing by a preponderance of the evidence that the employee's military service was "a substantial or motivating factor" in the adverse employment action. If this requirement is met, the employer then has the opportunity to come forward with evidence to show, by a preponderance of the evidence, that the employer would have taken the adverse action anyway, for a valid reason. Sheehan, 240 F.3d at 1013 (citations omitted). Unlike the McDonnell Douglas framework adopted by the district court in this matter, the procedural framework and evidentiary burdens set out in section 4311 shift the burden of persuasion, as well as production, to the employer. "Thus in USERRA actions there must be an initial showing by the employee that military status was at least a motivating or substantial factor in the [employer's] action, upon which the [employer] must prove, by a preponderance of evidence, that the action would have been taken despite the protected status." Sheehan, 240 F.3d at 1014. 3% APPENDIX 1 017 One question before us is whether Gagnon's internal complaints constitute an "action to enforce a protection afforded any person" under the USERRA. Under both USERRA and Title VII, a plaintiff must first assert that she engaged in some form of protected activity in order to determine whether the employer retaliated against the employee. However, the district court mistakenly held that the first Title VII inquiry is whether a charge of harassment was filed. The court then went on to hold that although Title VII also protects actions in opposition to perceived conduct prohibited by Title VII, the USERRA protects only formal enforcement of rights in its prohibition of retaliatory conduct. It is clear, though, that like Title VII, many actions may form the basis of protected activities giving rise to a claim of retaliation under the USERRA. Under section 4322(a)(2)(A), the USERRA anticipates that people may take alternate steps or "actions" to seek enforcement of the USERRA, prior to filing a formal complaint with the secretary of labor or filing a civil action.’ Various ‘The elements of a claim of retaliation in violation of Title VII are the following: (1) the plaintiff filed a charge of harassment or engaged in other protected activity; (2) the plaintiffs employer subsequently took adverse employment action against the plaintiff; and (3) the adverse action was causally linked to the plaintiff's protected activity. Scusa, 181 F.3d at 968; Cross v. Cleaver II, 142 F.3d 1059, 1071 (8th Cir. 1998). "Protected activities" under Title VII include much more than merely filing a formal charge of harassment. Fierros v. Texas Dep't of Health, 274 F.3d 187, 194 (5th Cir. 2001) (recognizing that internal discrimination complaints and use of employer's internal administrative processes are clearly protected activities for purposes of a Title VII retaliation claim); Raniola v. Bratton, 243 F.3d 610, 624 (2d Cir. 2001) (finding internal complaint to be a qualified activity protected from retaliation by Title VII and citing authority noting that "Congress sought to protect a wide range of activity in addition to the filing of a formal complaint") (citation omitted); O'Neal v. Ferguson Constr, Co., 237 F.3d 1248, 1255 (10th Cir. 2001) (finding informal complaints to superiors constitute protected activity under Title Vil). "A person who claims that such person is entitled under this chapter to employment or reemployment rights or benefits with respect to employment by an employer; and such employer has failed or refused, or is about to fail or refuse, to -18- APPENDIX 1 018 informal activities could occur in order for an employee to determine that their employer has not complied with or will not comply with the USERRA. The formal procedures of enforcement are merely another alternative under the USERRA once an employee makes this determination. We find further support for the proposition that en "action to enforce a protection afforded any person" under the USERRA subsumes more than just formal complaints filed with the secretary of labor or civil actions 1n Brandsasse v. City of Suffolk, Virginia, 72 F. Supp. 2d 608, 619 (E.D. Va. 19¢9). 'r Brandsasse, the plaintiff was a city police officer who was refused consideration for a promotion allegedly because of discrimination he incurred as a result of his Army Reserve obligations. Id, at 611-12. The court concluded that sufficient allegations were made by the plaintiff to support a cause of action for retaliation. Id, at 619. The basis of the plaintiff's claim in Brandsasse was that he took steps to enforce his rights under the statute by speaking with the director of personnel, and hired counsel to pursue his claims under the USERRA. The defendants subsequently began a retaliatory investigation. Id, at 612,619. The district court in Brandsasse did not dismiss the claim because the plaintiff had not formally filed a claim with the secretary of labor nor filed a civil action against the defendants. In fact, the court concluded that raising internal complaints and seeking the advice of outside counsel "seems to be exactly the sort of adverse employment action which the statute contemplates." Id. at 620. We agree with the assessment in Brandsasse and find that Gagnon, too, engaged in just the sort of conduct which the statute contemplates. We also previously comply with the provisions of this chapter, . . . may file a complaint with the Secretary in accordance with subsection (b), and the Secretary shall investigate such complaint." 38 U.S.C. § 4322(a)(1) & (2)(A). -19- APPENDIX 1 019 ee established that a written reminder may constitute an adverse employment action. Thus, Gagnon's final burden was to establish that his military status was at least a motivating or substantial factor in Sprint PCS's issuance of the written reminder. Sheehan, 240 F.3d at 1014. This is where Gagnon falls short. Gagnon does not refer us to any causal evidence supporting his claim of retaliation under the USERRA. Our review of the record suggests that there is no evidence connecting Gagnon's internal complaints of discrimination and the issuance of the written reminder following the meeting held outside of the department by Gagnon and Meredith-Ball. Because Gagnon is unable to meet his burden as a matter of law to establish a prima facie case of retaliation under the USERRA, the district court grant of summary judgment is affirmed. E. Evidentiary & Discovery Issues Gagnon finally urges us to instruct the district court to vacate its ruling denying admission into evidence Plaintiff's Exhibit 306 containing salary information of Sprint PCS employee Frank Gardi. Gagnon also requests that the district court on remand (1) vacate its rulings on Gagnon's motion to compel regarding the attorney-client and work-product privileges asserted by Sprint PCS due to the involvement of its in-house counsel Martin; (2) vacate the protective order entered over the deposition of Paul Bass; (3) vacate its ruling denying admission into evidence of Plaintiff's Trial Exhibits 37, 38, 39, 252, and 294 involving communications with Martin. A district court's refusal to compel discovery is reversed upon a showing of gross abuse of discretion. Wilson v. Int'l Bus. Machs. Corp., 62 F.3d 237, 240 (8th Cir. 1995). We find no abuse of the court's discretion concerning the motion to compel the documents protected by the work-product privileges asserted by Sprint PCS. The district court conducted an in camera review of specific documents and -20- APPENDIX 1 020 twice entertained substantial briefing by both parties. Even though Gagnon argues that these documents are not subject to the work-product privilege because they were created in the ordinary course of Sprint PCS's business, the district court found they were prepared in anticipation of litigation and therefore protected from discovery. The district court's holding, based upon a careful review of the documents, as well as both parties’ briefing on the matter, is not a gross abuse of discretion, and we therefore n> ns affirm. Gagnon also challenges the protective order issued by the district court concerning the deposition of Paul Bass. Paul Bass was one of the individuals involved in the internal investigation of Gagnon's claim of retaliation. The district court granted Sprint PCS's protective order, holding that the investigation by Bass, at the direction of Martin, was in anticipation of litigation and is covered by the attorney work-product privilege. Gagnon, citing Upjohn Co. v. United States, 449 U.S. 383, 395 (1981), argues that the attorney-client privilege only protects disclosure from communications, not disclosures of the underlying facts by those who communicated with the attorney. Gagnon claims Bass is a fact witness and not Sprint PCS's corporate representative, thus he is outside the scope of the attorney-client privilege. The district court, however, did not abuse its discretion ‘) making a contrary finding, noting that the investigation conducted by Bass was an integral part of in-house counsel Martin's RS RL TAS A REPRESS AB ATI aR ————————— investigation. We affirm. Finally, Gagnon challenges several evidentiary rulings made by the district court at trial. We review a trial court's evidentiary rulings under the abuse of discretion standard, according the district court substantial deference. Shelton v. Consumer Prods. Safety Comm'n, 277 F.3d 998, 1009 (8th Cir. 2002). i APPENDIX1 924 At trial, Gagnon sought to introduce five documents reflecting e-mails and letters between Sprint PCS's in-house counsel, Gagnon and Meredith-Ball concerning Gagnon's complaint of retaliation. Gagnon mistakenly argues on appeal that the district court excluded these documents based upon the fact that they were communications with in-house counsel and were thus privileged. The transcript reveals that prior to trial, the district court sustained the motion in limine because the judge failed to see the relevancy of these documents. We also fail to see how these documents are relevant to Gagnon's "totality of the circumstances" argument that he raises on appeal . Gagnon is not making a claim concerning the internal investigation conducted by Sprint PCS regarding Gagnon's claim of discrimination or retaliation. We hold that the district court did not abuse its discretion in excluding Exhibits 37, 38, 39, 252, and 294 in its pre-trial ruling. Gagnon's last evidentiary challenge is the district court's exclusion of evidence regarding a salary increase given to another Sprint PCS employee after the dates relevant to Gagnon's employment at Sprint PCS. Gagnon sought to introduce this evidence to prove that Sprint PCS does in fact entertain raises above fifty percent, contrary to proffered trial testimony. However, we find the district court did not abuse its discretion when it found that any evidence of Sprint PCS's policies regarding compensation in 1999 or 2000 are irrelevant in the instant case as to compensation policies in 1997 and 1998. We affirm the ruling of the district court. Ill. CONCLUSION We reverse the district court's grant of Sprint PCS's motion for JAML on Gagnon's claim of discrimination under Title VII and the MHRA. The district court's grant of JAML on Gagnon's claim of retaliation under Title VII and the MHRA, its summary judgment on Gagnon's claims of discrimination and retaliation under the x,» APPENDIX1 = 99 USERRA, as well as its rulings regarding pre-trial discovery and trial evidentiary matters stand affirmed. We remand for further proceedings consistent with this opinion. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -23- APPENDIX 1 023 EEE OL OO eee & | UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 01-2505 William E. Gagnon, Jr., - Appellant, e * Order Denying Petition for V. * Rehearing and for Rehearing * En Banc Sprint Corporation, etc., et al., * Appellees. " The petition for rehearing en banc is denied. The petitions for rehearing by the panel is also denied. (5128-010199) May 22, 2002 Order Entered at the Direction of the Court: Clerk, U.S. Court of Appeals, Eighth Circuit VIA TRANSMISSION United States Court of — for the Eighth Circuit Circuit Clerks Office Voice: 314-244-2400 Fax..: 314-244-2780 Confidential: This Fax/E-mail and any files transmitted with it are the property of the U.S. Courts, are confidential, and are intended solely for the use of the individual or entity to whom this Fax/E-mail is addressed. If you are not one of the named recipient(s) or otherwise have a reason to believe that you have received this message in error, please notify the sender at 314-244-2400 and delete/destroy this message immediately. Any other use, retention, dissemination, forwarding, printing, or copying of this Fax/E-mail is strictly prohibited ; APPENDIX 2 024 IN THE UNITED STATES COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION WILLIAM E. GAGNON, JR., ) Plaintiff, V. No. 99-0683-CV-W-1 SPRINT CORP., et al., Defendants. ORDER Pending before the Court are motions for summary judgment for Defendants, Sprint Corp., et al. (“Sprint PCS”), and Plaintiff, William E. Gagnon, Jr. (“Gagnon”). In Counts I and II of his Complaint, Gagnon charges Sprint PCS with violating the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) by paying him a lower starting salary due to his military experience and for retaliatory discipline. Gagnon alleges in Counts III and IV that Sprint PCS violated Title VI] and the Missouri Human Rights Act’s (“MHRA”) prohibition of discrimination based on race or gender when it denied him a higher salary upon Gagnon’s promotion. Sprint PCS moves for summary judgment as to Counts I and II, arguing that it based its starting salary decision on a legitimate non-discriminatory reason and that Gagnon did not participate in a protected activity in order to receive protection against retaliatory discipline. Gagnon also moves for summary judgment as to Count I and argues in support that direct evidence shows that Sprint PCS’ decision regarding his starting salary pay was motivated by Gagnon’s prior military experience. Gagnon, in turn, moves for summary judgment for charges set forth in Counts III and IV. Gagnon contends that evidence shows that Sprint PCS committed reverse discrimination when it denied him ( APPENDIX 3 025 nner # iz”) we UU obs wil oy % a a near-fifty percent raise upon receipt of a management promotion. In addition, Gagnon moves to strike affidavits submitted by Sprint PCS in opposition to Gagnon’s summary judgment motion. For the following reasons, the Court grants Sprint PCS’ partial summary judgment motion, denies Gagnon’s motion for summary judgment, and denies the motions to strike affidavits submitted by Sprint PCS. I. BACKGROUND Gagnon applied for a position with Sprint PCS’ professional skills team under the direction of Larry Snyder (“Snyder”) in January 1997. Shortly after his initial application, Snyder recommended Gagnon apply for a different Sprint PCS job, a curriculum specialists. Thereafter, Gagnon submitted a new application on January 21, 1997, and interviewed with Snyder and Jim J Keenan (“Keenan”), both of whom were managers in the training department, and Kathleen Wilder (“Wilder”), the director of the department.' Keenan subsequently hired Gagnon as a curriculum specialists with the approval of Wilder and Jim Mendenhall (“Mendenhall”), a vice-president. Before applying to Sprint PCS, Gagnon served in the United States Army until his retirement as a Lieutenant Colonel on January 31, 1997. While serving in the Army, Gagnon worked for six years in charge ofa team that researched, developed, and published training and wartime doctrine for Army division level organizations. Gagnon also worked for two years as the operations officer at a battle simulation center in Korea. Gagnon began working for Cubic Applications, Inc, (“Cubic”) developing combat simulation for the Army following his active service with the Army and continuing The uncontroverted record indicates that one or two other individuals interviewed Gagnon. These individuals are not identified by Plaintiff or Defendant, are not the basis of Plaintiffs claims, and, so, will be ignored for purposes of this motion. APPENDIX 3 026 & ’ until his employment with Sprint PCS. Gagnon’s salary while working at Cubic was $42,000. Sprint PCS hired Gagnon ata starting salary of $44,100 with a short-term incentive potential (“SPI”) of $3,000, over twelve percent above Gagnon’s Cubic salary. Gagnon worked under Keenan from his initial start date, March 11, 1997, until his promotion. On October 10, 1997, Gagnon was promoted to Manager, Multimedia/CBT Training, a promotion that Wilder previously advised Gagnon he would receive when it was created.” However, during October 1997, Wilder was out of the office on maternity leave and Keenan and Lynn Meredith-Ball (“Meredith-Ball”), another manager in Wilder’s department, assumed Wilder’s responsibilities as director of the training group. In Wilder’s absence, Mendenhall directed’ that Gagnon be promoted to the manager position. Manager, Multimedia/CBT Training (“CBT Manager”), was a new position and did not have : a dollar amount assigned by Sprint PCS for compensation. Therefore, Gagnon submitted, with the assistance of Meredith-Ball, a job description for the position to Sprint PCS so that a compensation amount could be assigned to the position. The Sprint PCS compensation group established a target, or MRP, salary of $66,000 with a SPI of $9,500. Thereafter, Meredith-Ball and Gagnon prepared a form to submit in order to raise Gagnon’s salary from $44,100 to $66,000, an increase of over forty-nine percent. The Sprint PCS compensation group within the Human Resources Department at Sprint PCS did not support Gagnon’s proposed forty-nine percent salary raise but instead proposed : Defendant used the term "funded" and the record indicates that Plaintiff used the word "created", "created" will be used for purposes of this Order. 4 Plaintiff and Defendant can not agree whether Mendenhall "directed" or "approved" Plaintiff's promotion. Mendenhall said to Meredith-Ball, in reference to Plaintiff and the management promotion, "He [Gagnon] is here, hire him now." Meredith-Ball deposition, p. 71:15-21. The Court will use the term "directed" when referring to this action. 3 APPENDIX 3 027 Deceit biti elec enamel oee mie nena | & ‘ ' 7 ee a raise of twenty-five percent. Mendenhall, who was responsible for approving all raises over ten percent, rejected Gagnon’s forty-nine percent raise. Meredith-Ball revised the compensation form to request an eleven percent initial raise followed by an automatic ten percent raise in six months. The initial pay raise received the approval of Julie Moylan (“Moylan”), an employee in the Human Resources Department, but the second automatic pay raise was not supported. Moylan suggested the second raise should be processed with “separate approval action.” Mendenhall approved Meredith-Ball’s revised form of an initial raise and an automatic raise in six months, however, Al ' Kurtze (“Kurtze”), the Chief Operating Officer, agreed with Moylan’s recommendation about the second automatic raise.’ With the approval of the eleven percent raise, Gagnon began work as a CBT Manager with a base salary of $50,100 and a SPI of $9,500. On January 29, 1998, Wilder submitted a a compensation request form to increase Gagnon’s salary to $57,616, an amount within fifteen percent of the CBT Manager’s MPR salary of $66,000. Moylan concurred on the compensation request and it was subsequently approved by John Garcia (“Garcia”) and Alex Battey (“Battey”), Market Development vice-president. Gagnon again received an increase in his salary on April 4, 1998, with the approval of a “merit” increase of $1,119.17. The merit increase brought Gagnon’s salary to $58,735.44. On March 27, 1999, Gagnon received another merit increase of $2,349, raising his salary to $61,084.44. Gagnon received a final upward “adjustment” of $3,157.06 to his pay on April 11, 1999, as a result of his position’s reclassification into the Sprint compensation system. After the final April adjustment, Gagnon’s CBT Management salary was $64,241.50. : The record, and uncontroverted facts, tend to show that Mendenhall’s actions required the approval of Kurtze, and, therefore, the second automatic raise was not approved and the Court will treat such as uncontroverted. APPENDIX 3 028 LL a In August 1998, Gagnon and Meredith-Ball organized a discussion with four other Sprint PCS employees® outside the Sprint PCS training department building. Gagnon and Meredith-Ball informed the group of employees, all of whom possessed prior military experience, of Sprint PCS’ growth outside the training department directed by Wilder and the possibility of “upward mobility.” During that discussion, various statements report that Gagnon and Meredith-Ball advised the four employees that Wilder was uncomfortable with the number of employees in her department with prior military experience and, therefore, would not promote anyone with such a background.® As a result of the statements regarding Wilder’s comfort with employees with prior military experience, Gagnon and Meredith-Ball were placed on written reminder (reprimand).’ The written reminder prohibited Gagnon and Meredith-Ball from seeking a promotion or transfer without a vice president’s approval for a period of six months. LOL 2 POG NE SE TO Oe eS . Gagnon subsequently filed the present lawsuit, charging Sprint PCS with violating USERRA for setting his initial salary $1,000 lower due to his lack of corporate experience and for disciplining en enerreerresorenanser him following the meeting outside the Sprint PCS building, and with violating Title VII and the ~ MHRA for denying his salary raise upon receiving the promotion to CBT Manager. : The four employees were Bill Pearce, Cory Aylor, Steve Hammack, and Brian Schlaak. Gagnon deposition p. 297: 1-2. ° Gagnon deposition p. 296:8 - p.297:21. e Id. p. 296:19-25. : Pearce deposition p. 33:2-17; Schlaak deposition p. 24:5-11; Aylor deposition p. 41:4-12. . Gagnon deposition p. 385:20 - p. 836:8; Wilder deposition p. 112:6-8. 4 APPENDIX 3 029 € II. SUMMARY JUDGMENT “Summary judgment is proper where the evidence, when viewed in the light most favorable to the nonmoving party, indicates that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.” Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 919 (8" Cir. 2000) (citing Allen v. Interior Constr. Services Ltd., 214 F.3d 978, 981 (8th Cir.2000) and Fed.R.Civ.P. 56(c)). In moving fer summary judgment against the non-movant, a movant will bear the ultimate burden of proof at trial and may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986). “[A] party opposing a motion for summary judgment may not rest upon the mere allegations or denials of the pleadings, but by affidavits or as otherwise provided in Rule 56 must set forth specific facts showing that there is a genuine issue for trial.” Dancy v. Hyster Co., 127 F.3d 649, 653 (8" Cir. 1997) (internal alterations and quotation marks omitted). When reviewing a motion for summary judgment and viewing the evidence in the light most favorable to the non-movant, a court must draw all inferences in the non-movant’s favor. See Exeter Bancorporation, Inc. v. Kemper Sec. Group, Inc., 58 F.3d 1306, 1310 (8" Cir. 1995) (citing AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8™ Cir. 1987)); Oldham v. West, 47 F.3d 985, 988 (8" Cir. 1995) (cautioning that summary judgment should not be granted unless the evidence could not support any reasonable inference for the non-movant) (citing Crawford v. Runyon, 37 F.3d 1338, 1341 (8™ Cir. 1994)); see also St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (“In assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought”). APPENDIX 3 030 III. DISCUSSION Gagnon sets forth facts for two claims of discrimination violations under USERRA. In Count I, Gagnon claims Sprint PCS discriminated against him in violation of USERRA by paying him a lower starting wage due to his prior military experience. Gagnon alleges in Count II that Sprint PCS retaliated against him in violation of § 4311(b) by placing him on written reminder for the August discussion regarding Wilder’s comfort with employees who possessed prior military experience. Gagnon also proffers facts for two claims of discrimination in violation of Title VII and the Missouri Human Rights Act for a comment made regarding Gagnon’s race and gender. The Court will first review Sprint PCS’ motion regarding Counts I and II before reviewing Gagnon’s motion for Counts III and IV. A. USERRA Discrimination Claim Gagnon began working at Sprint PCS at a salary of $44,100 and a SPI of $3,000. Suggestions in Support(“Def’s Suggestions.”), § 15. The total amount of compensation, $47,100, was over a twelve percent increase from his salary at Cubic. Id. at J] 5, 15. The compensation levels at Sprint PCS are established by the Human Resources Department and supervised by Moylan. Id. 4 10. The compensation group of the Human Resources Department at Sprint PCS utilized a Market Reference Point (MRP) to assist in the valuation of a position in regard to the marketplace. Id. ¥ 12. A PCS salary is generally expected to be within fifteen percent, “plus or minus, of the MRP.” Id. One of the guidelines used to assist in administering Sprint PCS’ compensation program is APPENDIX 3 031 s the 1997 Salary Management Guide'® (“SMG”). Def’s Suggestions, 4 13. One of the guidelines provided in the SMG is an objective to increase a base salary up to twenty percent when a new salary is at or below the MRP. Id. § 14. Some of the factors used to determine the amount of increase include (1) whether the individual holds a similar job or the job change is a promotion, (2) the market pressure, (3) required relocation, (4) the proximity of the current salary to the MRP, (5) if the individual is at an entry level of the position’s requirements, and (6) whether the amount of the total compensation increase is significant. Id. As mentioned earlier, Gagnon’s salary was over twelve percent above his previous salary at Cubic and $2,100 above the MRP for Curriculum Specialist. Def.’s Suggestions, J 15. In an attempt to controvert these facts, Gagnon in his opposition to Sprint PCS’ motion for summary judgment argues that Sprint PCS failed to recognize his pay while employed in the Army, advised him to not * include his military compensation when filling out the application, that Snyder advised him that he was disadvantaged because he was coming from the military, and Wilder paid Gagnon $1,000 less because he gained his previous experience in the military. Plaintiff's Opposition (“Pff's Opposition”), {4 5-9. Gagnon also argues in his motion for summary judgment that two pieces of direct evidence of discrimination exist. The first involves a statement made by Wilder in which she stated that “[h]e [Gagnon] was brought in about $1,000 less than his peers, based upon the lack of business experience. Most of his experience was in the military, and his counterparts had extensive training within corporations.” Id. p. 24 (citing uncontroverted fact { 38). The second piece of direct evidence involves an e-mail from Barbara Glover that requested the recipients consider the military background a The guide is dated May 1997, after Gagnon’s initial employment but before his first promotion in October 1997. APPENDIX 3 032 ee ar_—_-«=)hMhl( eee F ot oe ; ‘ e : of two interviewees, which was similar to Gagnon’s, and the need for diversity at Sprint PCS."! Gagnon is unable to correctly controvert the fact that Sprint PCS set his starting salary within the guidelines later established by its SMG. Instead, Gagnon directs the Court to find discriminatory treatment in Sprint PCS’ consideration of his background in establishing a starting salary within its guidelines. The record: reflects that Gagnon’s employment record lacked extensive corporate experience. And, the record clearly shows that Sprint PCS personnel considered Gagnon’s lack of corporate experience in establishing his salary. Gagnon, however, finds discrimination in Sprint PCS’ action because his lack of corporate experience is due to his military career. The Uniform Services Employment and Reemployment Rights Act of 1994, USERRA, prohibits employment discrimination on the basis of military services and provides a private right of action to enforce those rights. See Robinson v. Morris Moore Chevrolet-Buick, Inc., 974 F.Supp. a 571, 575 (E.D. Tx. 1997); 38 U.S.C. §§ 4311 & 4323 (Supp. I 1997)." | Section 4311(a) of USERRA provides that " Barbara Glover wrote: "I provided my notes regarding the two candidates I interviewed yesterday in a previous e-mail. The following is a list of things to think about: - Both candidates are career military. - Both have worked or currently work for the same company, Logicon, so have very similar backgrounds as far as type of experience since leaving the military. I believe that Bill Gagnon has also worked for the same organization. That would make three people with the same basic background in the training organization. - Diversity is critical for an organization to grow and thrive. - Different skill sets, different backgrounds and experiences are essential in a well-rounded training organization. - the organization should reflect the environment in which it is providing training. Hope this helps! Thanks! Pff’'s Suggestions, Exh. O (e-mail from Barbara Glover to Jim Keenan, Lynn Meredith-Ball, "cc" to Jim Mendenhall, AJ Francis; Subject: Training Interviews; October 15, 1997). . All references of "USERRA" or 38 U.S.C. § 4311, ef. seq., are to the 1997 Supplement. 4 APPENDIX 3 033 [a] person who is a member of, . . . has performed, . . . in a uniformed service shall a not be denied initial employment, reemployment, retention, in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation. 38 U.S.C. § 4311(a). According to § 4311(c), an employer shall be considered to have acted in violation of § 4311(a) “if the person’s membership, . . . service . . . in the uniformed service 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] service... .” Id. at § 4311(c)(1). Based upon the right set forth in subsection (a), § 4311(b) prohibits an employer from discriminat[ing] inemployment against or take any adverse employment action against any person because such person (1) has taken an action to enforce a protection afforded any person under this chapter, (2) has testified or otherwise made a statement in or in connection with any proceeding under this chapter, (3) has assisted or otherwise participated in an investigation under this chapter, or (4) has exercised a right provided for in this chapter. i Id. at § 4311(b). An employer shall also be considered to have acted in violation of § 4311(b) if the person’s acts that are enumerated in § 4311(b) are “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 person’s enforcement action, testimony, statement, assistance, participation, or exercise of a right. Id. at § 4311(c)(2). The Eighth Circuit has published few decisions substantively addressing claims arising under USERRA. See Newport v. Ford Motor Co., 91 F.3d 1164 (8" Cir. 1996) (holding in a case brought under the Veterans Reemployment Rights Act that USERRA’s “motivating factor” standard was not to be applied retroactively); Knowles v. Citicorp Mortg., Inc., 142 F.3d 1082 (8" Cir. 1998) (discussing the Newport precedent of denying retroactive application of the “motivating factor” . 0 APPENDIX3 034 @ a standard). Thus, the Court will look to cases from within and outside the Eighth Circuit for assistance with principles and analysis. See Robinson, 974 F.Supp. at 575 (deciding to look to other circuits and district courts because the Fifth Circuit and Supreme Court had not addressed claims under USERRA). Because Gagnon’s claims he was denied an employment benefit (an unequal starting salary) due to Sprint PCS’ discrimination in violation of USERRA, the Court will use the Title VII and Equal Pay Act (“EPA”) standard that applies to claims involving “unequal pay for equal work.” See Hutchins v. International Brotherhood of Teamsters, 177 F.3d 1076, 1080 (8" Cir. 1999) (citing Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8" Cir. 1999)). Similar to § 4311(c), in order to establish a prima facie case of pay discrimination using the Title VII and EPA standard, a plaintiff must prove that the employer paid non-military employees higher salaries than it paid the a plaintiff for “jobs ‘requiring equal skill, effort and responsibility, and which are performed under similar working conditions.”” Id. (citing EEOC v. Delight Wholesale Co., 973 F.2d 664, 669 (8" Cir. 1992) and 29 U.S.C. § 206(d)(1)). Upon establishing a prima facie case, the Title VII and EPA unequal pay standard again closely follows § 4311(c) by shifting the burden to the employer to prove that the alleged disparities “were based on either (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality; or (4) a factor other than sex.” Id. (ruling on an unequal pay for equal work claim alleging discrimination based on the plaintiff's sex) (citing 29 U.S.C. § 206(d)(1) and McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 513 (8" Cir. 1995); see 38 U.S.C. § 4311(C). An individual’s education and experience are recognized by the Title VII and EPA unequal pay standard as “factors other than” (the fourth possible reason stated in the Hutchins decision), a 1] APPENDIX3 | 035 @ & which permit unequal pay. See Id. at 1081 (citations omitted). As Gagnon pointed out, Wilder considered Gagnon’s “lack of business experience” when making her decision on his starting pay. There is nota bright line distinction between “den{ing] . . .any benefit of employment. . .on the basis of that membership, application for membership, performance of service, application for service, or obligation [in the uniformed service],” 38 U.S.C. § 4311(a), and denying a benefit because a person lacked a quality due to military service. But, an employer’s conduct is not in violation of USERRA, according to § 4311(c)(1), if “the employer can prove that the action would have been taken in the absence of” the employee’s military service. 38 U.S.C. § 4311 (c)(1). And, the Title VII and EPA unequal pay standard permits an employer to consider the past experience of an individual in order to establish a pay rate that is different than those who work at the same position. Clearly a hospital would not violate § 4311 of USERRA if it refused to hire as a surgeon a = former military serviceman who is not a doctor. There would not be a case of discrimination for the former military serviceman even though his lack of education and experience was a result of his service in the military. The hypothetical analysis, and possible outcome, begin to change if those facts are varied and the former military serviceman is in fact a medical doctor. While not dispositive, greater scrutiny would be required in order to determine the former serviceman’s type of medical practice and experience. For, even though the former military doctor might be qualified as a surgeon, it is not beyond the realm of possibilities that his surgical practice varied from that sought by the hospital. The hospital could lawfully pay the former military surgeon a lower starting salary because it does not place as high a value on his experience compared to other surgeons. The hospital could also pay a higher salary because it views the military doctor’s experience more valuable than other surgeons. A violation of USERRA occurs in the hypothetical fact pattern when the hospital views $ 2 APPENDIX3 036 SSS: Sak a the military doctor’s experience equal to other doctors but pays a lower salary because it holds a discriminatory animus against the military, its members, and, specifically, the military doctor. In the present case, Gagnon possessed experience, education, and other qualities that Sprint PCS viewed as valuable to its business operation. Thus, Sprint PCS hired Gagnon to work because of his experience, education, and other qualities. Sprint PCS, however, did not value Gagnon’s lack of corporate experience as high as other possible new employees. The fact that Gagnon’s lack of corporate experience occurred because he worked in the military or in a religious mission is not relevant or distinguishable. Sprint PCS established Gagnon’s salary within the Salary Management Guide’s fifteen percent target but $1,000 lower to reflect the lower value it placed on a lack of corporate experience. Gagnon does not present evidence of another Sprint PCS employee who was paid the extra $1,000 yet also lacked corporate experience. See Hutchinson, 177 F.3d at 1080-81 e (finding that sex-based pay discrimination did not exist because the higher paid male employees possessed more education and experience and male employees who had like education and experience were paid the same as the plaintiff). Sprint PCS established that its decision to not pay Gagnon a higher starting salary is based on a factor other than Gagnon’s military experience. Gagnon’s second piece of direct evidence does not aid his argument. Glover’s e-mail that request its recipients consider the diversity in the training department of Sprint PCS did not discriminate against Gagnon in violation of USERRA. The e-mail does not ask the reader to deny an employment benefit, fire, or demote Gagnon. The statement, read in the most discriminatory light and with every inference in favor of Gagnon, is requesting that Sprint PCS deny two applicants employment due to their military experience because Sprint PCS already employed individuals with military experience. Gagnon is the only plaintiff before the Court in this lawsuit and, therefore, unable - 13 APPENDIX 3 037 ree . . 4 ® to utilize a possible discriminatory statement made in reference to third parties to establish a prima facie case of discrimination claim under the Title VII and EPA equal pay standard. Because Sprint PCS provided evidence of a factor other than Gagnon’s military service to explain the disparity in pay, Gagnon’s motion for summary judgment for his claim of discrimination based upon a lower starting salary, Count I, is denied and Sprint PCS’ motion for summary judgment on the same claim is granted. B. USERRA Retaliation Claim Sprint PCS also moves for summary judgment on Gagnon’s USERRA retaliation claim, Count II, because Gagnon did not engage in a protected activity and did not suffer an actionable adverse employment action. Gagnon counters that internal complaints of discrimination area USERRA * protected activity and adverse employment action includes a written reprimand. USERRA protects any person who “has taken an action to enforce a protection afforded . . . under [USERRA], (2) has testified or otherwise made a statement in or in connection with any proceeding under [USERRA], (3) has assisted or otherwise participated in an investigation under [USERRA], or (4) has exercised a right provided for in [USERRA]” from discrimination or adverse employment action. 38 U.S.C. § 4311(b). Ifthe exercise of rights protected under subsection (b) is amotivating factor in an employer’s action, then the employer will “be considered to have” violated subsection (b). Id. § 4311(c). The employer’s action, however, is not in violation of USERRA if the employer can prove that it would have acted in the absence of the exercise of rights protected under subsection (b). Id. The Court finds persuasive a decision by a district court in South Dakota that utilized the & . APPENDIX 3 038 OO eoOow.|]!TlhCLC . . burden shifting framework set forth in McDonnell Douglas Corp. v. Green for analysis ofa USERRA retaliatory discrimination claim. See Novak v. MacKintosh, 1996 WL 677104 *1 (D. S.D. 1996) (referring to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668(1973)). Under the McDonnell Douglas framework, Gagnon must initially establish a prima facie case of discrimination “by showing participation in a protected activity, a subsequent adverse action by the employer, and some evidence and some causal connection between the protected activity and the subsequent adverse action.” Novak, 1996 WL 677104 *2; see Roark v. City of Hazen, Ark., 189 F.3d 758, 761 (8" Cir. 1999). Following the establishment of a prima facie case by the plaintiff, the burden then shifts to the employer to articulate an appropriate nondiscriminatory reason for the alleged adverse employment action. Id. If an employer establishes an appropriate nondiscriminatory reason, the burden returns to the plaintiff to demonstrate that the employer’s proffered reason is pretextual. Id. (citing Reich v. Hoy Shoe Co., Inc., 32 F.3d 361, 365 (8" Cir.1994) and Schweiss v. Chrysler Motors Corp., 987 F.2d 548, 549 (8™ Cir.1993)). Both USERRA and Title VII rely on the assertion of a protected right as the beginning event in order to determine whether the employer retaliated against the employee. Title VII looks to see if a charge of harassment was filed’? while USERRA evaluates whether the person took action, testified in any proceeding, participated in an investigation, or exercised a USERRA right. Thus, USERRA uses the beginning of a person’s formal enforcement of the rights protected by USERRA in order to find retaliatory conduct. ” In the context of a Title VII claim of retaliation, a plaintiff must show that “(1) he filed a charge of harassment; (2) subsequent adverse action by the employer; and (3) the adverse action was causally linked to the protected activity.” Ross v. Douglas County, Neb., 2000 WL 1804354 *2 (8™ Cir. 2000) (citing Scusa v. Nestle U.S.A. Co., Inc., 181 F.3d 958, 968 (8" Cir.1999)). 15 APPENDIX3 039 . - + « a Congress set forth two possible ways to formally enforce the rights protected by USERRA. The first method of enforcement occurs by filing a complaint with the Secretary of Labor that summarizes the basis for the alleged military discrimination. 38 U.S.C. § 4322(b). Subsequently, the Secretary shall investigate the allegations in the complaint and attempt to resolve the complaint by ensuring compliance with USERRA. Id. § 4322(d). If the Secretary fails to resolve the complaint, then the Secretary is directed to notify the person who submitted the complaint “of the Secretary’s investigation; and (2) . . . entitlement to proceed under the enforcement of rights provision provided under section 4323... .” Id. § 4322(e). After réceiving notification from the Secretary of an unsuccessful effort to resolve the complaint, a person may request the Secretary to refer the complaint to the Attorney General to commence an action for relief. 38 U.S.C. § 4323(a). The second enforcement method allows a person to commence an action for relief if he or she 4 chose not to apply to the Secretary for assistance pursuant to § 4322(a), not request that the Secretary refer the complaint to the Attorney General, or if the Attorney General refuses to represent the person. Id, § 4323(b). | The Court’s conclusion that USERRA requires formal enforcement for a retaliation violation is supported by a comparison of USERRA and Title VII. Under Title VII, a retaliation violation can occur upon an individual either filing a formal complaint (what is referred to as the “participation clause”) or taking action in opposition to perceived conduct prohibited by Title VII (the “opposition clause”). See Reginelli v. Motion Indus.,Inc., 987 F.Supp. 1137, 1139 (E.D. Ark. 1997) (explaining that the purpose for Title VII’s informal “opposition activity” clause is to provide an alternate method to formal litigation to resolve a dispute); Pfister v. Bryan Mem’! Hosp., 874 F.Supp. 993, 995-96 (D. Neb. 1995) (discussing Title VII’s two retaliation clauses, the “opposition” and “participation” 4 6 APPENDIX3 040 _ . - } clause); Hargens v. U.S. Dept. of Agric., 865 F.Supp. 1314, 1328 (N.D. la. 1994) (same). In comparison to Title VII, in response to a Supreme Court decision, Congress amended the Veterans’ Reemployment Rights Actin 1994 with USERRA to require that claimants only show that military status was a motivating factor for the employer’s action. See Newport, 91 F.3d at 1167 (explaining that Congress amended the Veterans’ Reemployment Rights Act due to the Supreme Court decision in Monroe v. Standard Oil Co., 452 U.S. 549, 559, 101 S. Ct. 2510, 2516, 69 L. Ed. 2d 226 (1981), which required claimants to show that military status was the sole factor for the employer’s action). In amending the Veterans’ Reemployment Rights Act, Congress chose not to provide a retaliation violation for informally opposing employment action that a claimant perceived to be discrimination (based on military status) even though it had done so in Title VII. The Court’s decision is also supported by principals of statutory construction. The starting j point for interpreting a statute is the statute’s plain language and such should be conclusive absent contrary legislative intent. See Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 835,110 S. Ct. 1570, 1575, 108 L. Ed. 2d 842 (1990) (quoting Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S. Ct. 2051, 2056, 64 L. Ed. 2d 766 (1980)). If Congress intended to create a USERRA retaliation cause of action for a person’s opposition then it would have done so instead of relying on federal courts to “draft” such an important piece of legislation. See Schooler v. U.S., 231 F.2d 560, 565 (8 Cir. 1956) (“If Congress desired to extend the statute beyond bank loan transactions, which was all that the original statute encompassed, we must conclude they would have said so and not left it to the courts to legislate by broadening the terms of the statute.”); De Moss v. U.S., 218 F.2d 119, 127 (8 Cir. 1955) (“It is not the province of the court to legislate.”), rev'd, 349 U.S. 918, 75 S. Ct. 659, 99 L. Ed. 1251 (1955). This Court also will not 17 APPENDIX 3 041 j oF e ; 2 read into legislation, USERRA, that which Congress left out. Therefore, taking action to enforce protection afforded under USERRA relates only to a formal enforcement action as provided in § 4323. The record does not show that Gagnon experienced retaliation for formally taking an action to enforce a protection of USERRA pursuant to § 4323. Gagnon did not file a complaint with the Secretary of Labor nor commence a civil action against Sprint PCS. Because Gagnon can not maintain a cause of action for retaliation under USERRA, the issue of whether the written reminder amounts to an adverse employment action is not decided. Sprint PCS’ motion for summary judgment on Count II is granted. C. Title VII and MHRA Discrimination Claim Gagnon moves for summary judgment on Counts III and IV based on a statement made by a Mendenhall while reviewing Gagnon’s request for a near-fifty percent raise in pay. Sprint PCS counters that summary judgment is improper (1) because a jury must decide the credibility and truthfulness of the statement and (2) because Sprint PCS has a legitimate non-discriminatory basis for denying Gagnon’s raise. A claimant in a reverse discrimination case, in order to present a prima facie case, must show that background circumstances exist that support the suspicion that the defendant is that unusual employer who discriminates against the majority. See Duffy v. Wolle,123 F.3d 1026, 1036 (8" Cir. 1997) (citing Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6 Cir.1985)). However, even if a plaintiff is unable to show background circumstances to “trigger” the McDonnell Douglas presumption that does not necessarily mean he wasn’t intentionally discriminated against. Id. (citing Notari v. Denver Water Dep’t, 971 F.2d 585, 590 (10" Cir.1992)). If the plaintiff can present direct er 18 APPENDIX 3 042 TN NT . * s evidence of intentional discrimination then he “should be permitted to proceed beyond the prima facie case stage of litigation.” Id. Under the burden-shifting test for direct evidence, once a plaintiff establishes direct evidence of discrimination, “the burden then shifts to the employer to show, by a preponderance of the evidence, ‘that it would have made the same decision even if it had not taken the plaintiff s [race] into account.” Ross, 2000 WL 1804354 *2 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S. Ct. 1775, 1795, 104 L. Ed. 2d 268 (1989)). The basis for Gagnon’s Title VII] and MHRA“ reverse race and sex discrimination claims is a statement reported by Meredith-Ball, a plaintiffalso in a Title VII discrimination case against Sprint PCS in the United States District Court for the Western District of Missouri. Meredith-Ball attended a meeting in Mendenhall’s office to discuss the justification for Gagnon’s new salary for the CBT Manager position. Pff's Suggestions, Exh. H: Meredith-Ball deposition. p. 76:10 - p. 77:22. During that meeting, Meredith-Ball reports, Mendenhall stated “I don’t like your recommendation [regarding a fifty percent raise in pay for Gagnon]. I don’t like compensation’s recommendation. This is a white guy, isn’t it?... Well, I don’t have to pay him. I would only have to pay him this ifhe were a woman ora minority.” Id. p. 82:17-25. Mendenhall then slid the recommendation back to Meredith-Ball and stated “He’s just a white guy.” Id. p. 83:1-6. Sprint PCS argues in its opposition for summary judgment that “ample bias / impeachment evidence” exists, which will require a jury to decide the truthfulness of Merdith-Ball’s statement ” It is well established that “[c]ourts may look to Title VII prnciples for guidance when addressing statutory issues under [MHRA].” Vankempen v. McDonrell Douglas Corp., 923 F. Supp. 146, 149 (Mo. Ct. App. 1996); see Tart v. Hill Behan LumberCo., 31 F.3d 668, 671 (8" Cir. 1994). 19 APPENDIX 3 043 ; & ‘ - > (regarding Mendenhall’s alleged “white guy” comments”). The “ample bias / impeachment” evidence includes Meredith-Ball’s personal relationship with Gagnon, her own pending lawsuit against Sprint PCS, the lack of corroboration of Mendenhall’s statement, the use of her name and Sprint PCS telephone number as a primary contact person for the EEOC (in the event that the EEOC could not contact Gagnon), threats that Meredith-Ball made against Wilder,'* and Meredith-Ball’s failure to address the “white guy” comment with the Human Resources department at Sprint PCS despite her previous practice. Sprint PCS argues that the bias and impeachment facts permit a jury to discredit Meredith-Ball’s report of Mendenhall’s statement and not find that direct evidence of discrimination exists. The facts presented by Sprint PCS show that a genuine issue exists for trial regarding Meredith-Ball’s report of the Mendenhall statement. See Exeter, 58 F.3d at 1310 (“[the non-movant] must ‘set forth specific facts showing that there is a genuine issue for trial.’”) (quoting Anderson v. - Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986)); Dealer's Transport Co. v. Werner Transp. Co., 203 F.2d 549, 552 (8 Cir. 1953) (“inferences to be drawn from uncontroverted as well as controverted facts, are questions for the jury”) (quoting Ellis v. Union Pacific R. Co., 329 U.S. 649, 653, 67 S. Ct. 598, 600, 91 L. Ed. 572). In addition, Sprint PCS contends that it would not approve a fifty percent pay raise, under the same circumstances, regardless of the statement made by Mendenhall or Gagnon’s race and sex. In order to show that it would have made the same decision had it not taken Gagnon’s race and gender into account, Sprint PCS points to its company policy that raises should not exceed five percent of 3 Wilder states that Meredith-Ball threatened "if [Wilder] did not change the discipline to a verbal reminder that [Meredith-Ball] would sue [Wilder], and that [Meredith-Ball] would dig up a lot of mud on [Wilder], and that the sheriff would come and get [Wilder] and take [Wilder] away." Defs’ Opposition, Exh. 9: Wilder deposition p. 292:7-12. fe 20 APPENDIX 3 044 ————————————— > A a 4 bd e the employee’s previous salary. And, a higher raise (more than five percent), up to twenty percent, can be awarded in “extraordinary circumstances.” Def’s Suggestions, Exh. B: Salary Management Guide p. 6. In addition, as shown by the affidavits of Moylan and Kurtze, every Sprint PCS employee charged with reviewing increases in pay, with the exception of Meredith-Ball, failed to approve or recommend the near-fifty percent raise. Moylan Affidavit § 8; Kurtze Affidavit § 6. Sprint has established by that it would not have made the same decision regarding Gagnon’s raise in pay had it not taken his race and gender into account. Gagnon’s motion for summary judgment on Counts III and IV is denied. D. Motions to Strike Gagnon also moves to strike the affidavits of Wilder, Moylan, Keenan, and Kurtze that Sprint 3 PCS submitted with its opposition to Gagnon’s summary judgment motion. Gagnon argues that deposition and interrogatory evidence shows that the affidavits in at issue are not based upon personal knowledge, are inadmissable opinion testimony, and, or, are false (“sham”). Sprint PCS einen that the affidavits are based upon personal knowledge, are not improper opinion testimony, and clarify or explain prior ambiguous testimony and responses, or less-than-clear testimony and responses, or explain any inconsistency. A party is prohibited from creating genuine issues of material fact by submitting affidavits in support or opposition of summary judgment that contradict prior testimony or statements. See Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364 (8 Cir. 1983) (comparing the holdings in Radobenko v. Automated Equipment Corp., 520 F.2d 540 (9" Cir. 1975) and Perma Research & Development Co. v. The Singer Co., 410 F.2d 572, 578 (2d Cir. 1969) with the decision P a APPENDIX 3 045 a & in Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893 (5" Cir. 1980)). In Camfield, the Eighth Circuit ruled that absent an explanation of prior testimony or confusion in prior testimony that required an explanation, inconsistent affidavits are not permitted to create genuine issues of fact. Id. at 1364-65. The Court does not find the affidavits submitted by Sprint PCS to be inherently inconsistent with prior testimony or statements. Unlike the facts in Camfield and the decisions discussed by the Eighth Circuit, the affidavits and prior testimony (and statements) brought to issue by Gagnon in his four motions do not raise new issues or theories of defense and do not contradict prior testimony by offering new facts to create a genuine issue(s) of material fact. The Court does not read Rule 56(e) to require an affidavit to follow prior lengthy deposition testimony verbatim. The affidavits closely follow prior testimony (and statements) and, or, explain incomplete or confusing testimony (and eS statements). Therefore, the Court denies Gagnon’s motions to strike the affidavits of Kathleen Wilder, Julie Moylan, Arthur Kurtze, and Jim Keenan. IV. CONCLUSION Based on the foregoing, the Court hereby GRANTS Plaintiff's Motion to Amend Motion for Summary Judgment and Suggestions in Support. The Court further GRANTS Defendants’ an extension up to, and including, October 16, 2000, to file its opposition to Plaintiff's summary judgment motion. All remaining motions regarding the time to file motions for or against summary judgment are dismissed as moot. The Court further DENIES Plaintiff's motion to strike the affidavits of Wilder, Moylan, Keenan, and Kurtze. ¢ " APPENDIX3 046 Se a te a er aaa e The Court further GRANTS Defendants’ Motion for Partial Summary Judgment on Counts I and II. The Court further DENIES Plaintiff's Motion for Summary Judgment on Count I. The Court further DENIES Plaintiff's Motion for Summary Judgment on Counts III and IV. IT IS SO ORDERED. lho Dean Whippte~ United States District Judge Date / ~ 4-0/ APPENDIX3 047 | lia manent cities hee | IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI WESTERN DIVISION WILLIAM E. GAGNON, Plaintiff, No. 99-0683-CV-W-1 Vv. SPRINT CORP., et al., Defendants. ORDER Plaintiff William E. Gagnon (“Gagnon”) filed this lawsuit against Defendant Sprint Corporation, d/b/a Sprint Spectrum L.P. (“Sprint Corporation”) and Sprint Spectrum Finance > Corporation d/b/a Sprint PCS (“Sprint PCS”) (collectively, “Sprint”) on July 20, 1999. Gagnon alleged five basic claims against Sprint involving: (1) discrimination under the Uniform Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. §§ 4301-33; (2) retaliation under USERRA; (3) race and gender discrimination under Title VII and the Missouri Human Rights Act (“MHRA”) (alleging that he was discriminated when denied an approximate fifty percent raise); and (4) retaliation under Title VII and the MHRA. On January 4, 2001, the Court granted Sprint’s motion for partial summary judgment on Gagnon’s USERRA claims, leaving the Title VII and the MHRA discrimination and retaliation claims for trial. Trial on the remaining claims commenced on January 22, 2001, and on January 25, Gagnon concluded his evidence and rested his case. At that time, Sprint moved for the Court to enter judgment as a matter of law (“JAML”) against Gagnon pursuant to Rule 50(a)(1). In moving for JAML, Sprint argued that Gagnon had not established a APPENDIX 4 048 VW ? ; legally sufficient evidentiary basis for a reasonable jury to find for him on the following: (1) his race and gender discrimination claim under Title VII and the MHRA; (2) his retaliation claim under Title VII and the MHRA; (3) his claim for compensatory / emotional distress damages; and (4) his claim for punitive damages. After hearing arguments from counsel for Gagnon and Sprint, the Court granted Sprint's motion for JAML on Gagnon’s Title VII and MHRA claims of race and gender discrimination and retaliation and follows with this Order.' I. BACKGROUND The following is not intend to be a complete recitation of all of the evidence at trial but is a synopsis for purposes of the present Order. Sprint hired Gagnon, a white male, in March of 1997 to work as a curriculum developer in . Sprint’s training department (also known as the Training and Professional Studies department, or “TAPS”). Sprint paid Gagnon an annual salary of $44,100 with a short term incentive (“STI”) of $3,000. The decision to hire Gagnon was made by Jim Keenan (“Keenan”), a manager in the TAPS department, (2) Kathleen Wilder (“Wilder”), the director of the TAPS department, and (3) Jim Mendenhall (“Mendenhall”), a vice president over the TAPS department. Prior to working for Sprint, Gagnon worked for a defense contractor, CUBIC Applications (“CUBIC”), following his retirement from the United States Army. The evidence presented at trial showed that Gagnon earned $42,000 a year at CUBIC. Counsel for Sprint, John J. Yates and Joseph H. Knittig, submitted a proposed order to which counsel for Gagnon, Henry R. Cox, Don R. Lolli and Benjamin K. Byrd, were allowed to object. The Court, after considering the proposed order and objections, issues the present Order. APPENDIX4 049 After he began working at Sprint in March 1997, Sprint created a new management position in the TAPS department known as CBT-Manager. Before the position was formally created, Wilder unofficially selected Gagnon to work as the CBT-Manager, which was scheduled to be financed, created, and filled in early 1998. In September and October of 1997, Wilder did not work at Sprint because of maternity leave. During the time of Wilder’s maternity leave, another manager of the TAPS department, Lynn Meredith-Ball (“Meredith-Ball”), assisted in handling Wilder’s director duties.? The evidence also showed that during the same time period, and extending to the end of 1997, Sprint PCS was ina hiring freeze. Despite the hiring freeze and Wi!der’s absence, Mendenhall accelerated the creation of the CBT-Manager position and directed that Gagnon be promoted into the position in October of 1997. Upon the creation of the CBT-Manager position, Sprint Human Resource Department (“HR”) z set a “market reference point” (“MRP”) for the position. The MRP is a targeted reference point, or guide, for a tenured employee in that position. The MRP is not a guaranteed salary point. The MRP for the curriculum developer position was $42,000, with an STI of $3,000. The MRP for the CBT- Manager position was $66,000, with an STI of $9,500. Accordingly, at the time of his promotion, Gagnon was moving from a position with a base salary MRP of $42,000 to a job with a base salary MRP of $66,000. The evidence introduced at trial also showed that a Sprint policy governed the raise an employee was eligible to receive upon a promotion (the “Promotion Policy”). However, both 4 In his objections to the proposed order, Gagnon argues that in Wilder’s absence Meredith-Ball was named co-director of the TAPS department and was charged with authority concerning compensation issues. The Court is not concerned with the title that Meredith-Ball held but recognizes her duties included temporarily assisting with the position left vacant while Wilder took maternity leave. 3 : APPENDIX 4 050 Matter of Law for Defendants. Plaintiff's claims were frivolous and groundless, and the Court declares that Defendants are the “prevailing party,” and are entitled to attorneys’ fees. Defendants seek reimbursement for time spent defending this case, both at Bryan Cave and Husch & Eppenberger. While the case was handled at Bryan Cave, Plaintiff had four claims pending: reverse discrimination under Title VII and the MHRA; retaliation under Title VII and the MHRA: military discrimination under USERRA; and retaliation under USERRA. Defendants recognize that attorneys’ fees are not recoverable on Plaintiff's USERRA claims, which were two of four claims. Thus, Defendants seek reimbursement for only half of the time spent while the case was handled at Bryan Cave, which amounts to $46,229.12 in fees. Mr. Yates moved from Bryan Cave to Husch & Eppenberger on August 25, 2000, and after this time fees were incurred at this firm. From August 25, 2000 until January 4, 2001, Plaintiff still S had four claims pending. Because attorneys’ fees are not recoverable in two of the claims, the Defendants seek reimbursement for half of the time spent on this matter between these dates, which amounts to $50,539.75. On January 4, 2001, the Court granted Defendants’ motion for partial summary judgment, eliminating the USERRA claims. From that point through trial and preparation of the proposed JMOL order. Defendants seek reimbursement for all of the time spent on this case, which totals $63,928.50. Thus, the total amount sought by Defendants is $160,697.37. However, because Defendants understand that Plaintiff does not have unlimited resources, Defendants request only $75,000 in attorneys’ fees. Plaintiff disputes that Defendants are entitled to attorneys’ fees and requested that this Court order Defendants to produce billing records supporting Defendants’ supplement to the application for fees. (Plaintiff's surreply, Doc. No. 175). The Court issued such an order on November 27, 2001, and Defendants submitted their billing records. APPENDIX 5 069 OOOO io After a review of the pleadings and billing records, and after taking into account the complexity of this case and skill of the attorneys’, the Court finds that Defendants’ request for $75,000 in attorneys’ fees is reasonable. CONCLUSION Based on the foregoing, the Court hereby GRANTS Defendants’ application for attorneys’ fees. The Court AWARDS Defendants $75,000 in attorneys’ fees. IT IS SO ORDERED. Dean Whipple United States District Judge a Date 4 is 4-02 APPENDIX5 070 ors eee re WESTERN DISTRICT OF MISSOURI WESTERN DIVISION WILLIAM E. GAGNON, Plaintff, No. 99-0683-CV-W-1 PRINT CORPORATION, et al., Defendants. — 2 eo i ee ee ORDER Pending before this court is a joint relief from judgment signed by all parties, fiied July 1, 2002. In an order dated February 4, 2002, this Court awarded fees and expenses to the Defendant as the prevailing party in the underlying case. On March 19, 2002, the Court of Appeals issued its opinion in Gagnon v. Sprint Corporation, Case No. 01-2505, which reversed the District Court's order granting judgment as a matter of law on Plaintiff's claim of “reverse discrimination” and remanded the case to the District Court for further proceedings. The parties state and agree that, given the present procedural posture of this case, the order of this Court entered February 4, 2002 should be vacated. Pursuant to Federal Rule of Civil Procedure 60(b), the District Court’s order entered February 4, 2002 is vacated and Plaintiff is granted relief from such judgment. IT IS SO ORDERED. / / Dean Whip United States District Judge ics uty 15 2002 APPENDIX6 071 cress g tt Volcceal 38 § 4301. Purposes; sense of Congress (a) The purposes of this chapter are- (1) to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service; (2) to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemployment of such persons upon their completion of such service; and (3) to prohibit discrimination against persons because of their service in the uniformed services. (b) Itis the sense of Congress that the Federal Government should be a model employer in carrying out the provisions of this chapter. APPENDIX 7 072 EO 38 § 4303. Definitions For the purposes of this chapter- (1) The term "Attorney General" means the Attorney General of the United States or any person designated by the Attorney General to carry out a responsibility of the Attorney General under this chapter. (2) The term "benefit", "benefit of employment", or "rights and benefits" means any advantage. profit. privilege, gain. status, account, or interest (other than wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan. or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan. insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits. vacations, and the opportunity to select work hours or location of employment. (3) The term "employee" means any person employed by an employer. Such term includes any person who is a citizen, national, or permanent resident alien of the United States employed in a workplace ina foreign country by an employer that is an entity incorporated or otherwise organized in the United States or that 1s controlled by an entity organized in the United States, within the meaning of section 4319(c) of this title. (4)(A) Except as provided in subparagraphs (B) and (C), the term "employer" means any person, institution, organization, or other entity that pays salary or wages for work performed or that has control over employment opportunities, including— (1) a person, institution, organization, or other entity to whom the employer has delegated the performance of employment-related responsibilities; (i1) the Federal Government; (ili) a State; (iv) any successor in interest to a person, institution, organization, or other entity referred to in this subparagraph: and (v) a person, institution, organization, or other entity that has denied initial employment in violation of section 4311. (B) In the case of a National Guard technician employed under section 709 of title 32, the term "employer" means the adjutant general of the State in which the technician is employed. (C) Except as an actual employer of employees, an employee pension benefit plan described in section 3(2) of the Employee Retirement Income Security Act of 1974 (> 29 U.S.C. 1002(2)) shall APPENDIX 7 073 A be deemed to be an employer only with respect to the obligation to provide benefits described in section 4318. (5) The term "Federal executive agency" includes the United States Postal Service, the Postal Rate Commission, any nonappropriated fund instrumentality of the United States, any Executive agency (as that term is defined in section 105 of title 5) other than an agency referred to in section 2302(a)(2)(C (11) of title 5, and any military department (as that term is defined in section 102 of title 5) with respect to the civilian employees of that department (6) The term "Federal Government" includes any Federal executive agency, the legislative branch of the United States, and the judicial branch of the United States (7) The term "health plan” means an insurance policy or contract, medical or hospital service agreement, membership or subscription contract, or other arrangement under which health services for individuals are provided or the expenses of such services are paid (8) The term "notice" means (with respect to subchapter I]) any written or verbal notification of an obligation or intention to perform service in the uniformed services provided to an employer by the employee who will perform such service or by the uniformed service in which such service is to be performed. (9) The term "qualified", with respect to an employment position, means having the ability to perform the essential tasks of the position. (10) The term "reasonable efforts", in the case of actions required of an employer under this chapter, means actions, including training provided by an employer, that do not place an undue hardship on the employer. (11) Notwithstanding section 101, the term "Secretary" means the Secretary of Labor or any person designated by such Secretary to carry out an activity under this chapter. (12) The term "seniority" means longevity in employment together with any benefits of employment which accrue with, or are determined by, longevity in employment. (13) The term "service in the uniformed services" means the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, a period for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to perform any such duty, and a period for which a person is absent from employment for the purpose of performing funeral honors duty as authorized by section 12503 of title 10 or section 115 of title 32. (14) The term "State" means each of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, and other territories of the United States (including the agencies and political subdivisions thereof). APPENDIX7 074 (1S) The term “undue hardship", in the case of actions taken by an employer. means actions ) requiring significant difficulty or expense, when considered in light of (A) the nature and cost of the action needed under this chapter; (B) the overall financial resources of the facility or facilities involved in the provision of the action: the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the (C) the overall financial resources of the employer: the overall size of the business of an emplover with respect to the number of its employees: the number, type, and location of its facilites: and (D) the type of operation or operations of the employer, including the composition, structure, and functions of the work force of such employer: the geographic separateness, administrative, or fiscal relanionship of the facility or facilities in question to the employer. 16) The term “uniformed services” means the Armed Forces, the Army National Guard and the Air National Guard when engaged in active duty for training. inactive duty training. or full-time National Guard duty, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or national emergency APPENDIX 7 075 38 § 4311. Discrimination against persons who serve in the uniformed services and acts of reprisal prohibited (a) A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation. (b) An employer may not discriminate in employment against or take any adverse employment action against any person because such person (1) has taken an action to enforce a protection afforded any person under this chapter, (2) has testified or otherwise made a statement in or in connection with any proceeding under this chapter, (3) has assisted or otherwise participated in an investigation under this chapter, or (4) has exercised a right provided for in this chapter. The prohibition in this subsection shall apply with respect to a person regardless of whether that person has performed service in the uniformed services. (c) An employer shall be considered to have engaged in actions prohibited- (1) under subsection (a), if the person's membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service; or (2) under subsection (b), if the person's (A) action to enforce a protection afforded any person under this chapter, (B) testimony or making of a statement in or in connection with any proceeding under this chapter, (C) assistance or other participation in an investigation under this chapter, or (D) exercise of a right provided for in this chapter, 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 person's enforcement action, testimony, statement, assistance, participation, or exercise of a right. (d) The prohibitions in subsections (a) and (b) shall apply to any position of employment, including a position that is described in section 4312(d)(1)(C) of this title. APPENDIX 7 076 38 § 4323. Enforcement of rights with respect to a State or private employer (a) Action for relief.--( 1) A person who receives from the Secretary a notification pursuant to section 4322(e) of this utle of an unsuccessful effort to resolve a complaint relating to a State (as an employer) or a private emplover may request that the Secretary refer the complaint to the ttorney General. If the Attorney General is reasonably satisfied that the person on whose behalf the complaint ts referred 1s entitled to the nghts or benefits sought, the Attorney General may appear on behalf of. and act as attomey for. the person on whose behalf the complaint is submitted and commence an action for relief under this chapter for such person. In the case of such an action against a State (as an emplover). the action shall be brought in the name of the United States as the plaintiff in the action (2) A person may commence an action for relief with respect to a complaint against a State (as an employer) or a private emplover if the person- (A) has chosen not to apply to the Secretary for assistance under section 4322(a) of this ttle: (B) has chosen not to request that the Secretary refer the complaint to the Attorney General under paragraph (1): or (C) has been refused representation by the Attorney General with respect to the complaint under such paragraph (b) Jurisdiction.-—(1) In the case of an action against a State (as an employer) or a private emplover commenced by the United States, the district courts of the United States shall have jurisdiction over the action (2) In the case of an action against a State (as an employer) by a person, the action may be brought in a State court of competent jurisdiction in accordance with the laws of the State. (3) In the case of an action against a private employer by a person, the district courts of the United States shall have junsdiction of the action. (c) Venue.--(] ) In the case of an action by the United States against a State (as an employer), the action may proceed in the United States district court for any district in which the State exercises any authority or carries out any function (2) In the case of an action against a private employer, the action may proceed in the United States district court for any district in which the private employer of the person maintains a place of business. (d) Remedies.--( 1) In any action under this section, the court may award relief as follows: APPENDIX 7 077 (A) The court may require the employer to comply with the provisions of this chapter. (B) The court may require the employer to compensate the person for any loss of wages or benefits suffered by reason of such employer's failure to comply with the provisions of this chapter. (C) The court may require the employer to pay the person an amount equal to the amount referred to in subparagraph (B) as liquidated damages, if the court determines that the employer's failure to comply with the provisions of this chapter was willful. (2A) Any compensation awarded under subparagraph (B) or (C) of paragraph (1) shall be in addition to, and shall not diminish, any of the other rights and benefits provided for under this chapter (B) In the case of an action commenced in the name of the United States for which the relief includes compensation awarded under subparagraph (B) or (C) of paragraph (1), such compensation shall be held in a special deposit account and shall be paid, on order of the Attorney General, directly to the person. If the compensation is not paid to the person because of inability to do so within a period of 3 years, the compensation shall be covered into the Treasury of the United States as miscellaneous receipts. (3) A State shall be subject to the same remedies, including prejudgment interest, as may be imposed upon any private employer under this section. (e) Equity powers.--The court may use its full equity powers, including temporary or permanent injunctions, temporary restraining orders, and contempt orders, to vindicate fully the rights or benefits of persons under this chapter. (f) Standing.--An action under this chapter may be initiated only by a person claiming rights or benefits under this chapter under subsection (a) or by the United States under subsection (a)(1). (g) Respondent.-In any action under this chapter, only an employer or a potential employer, as the case may be, shall be a necessary party respondent. (h) Fees, court costs.--(1) No fees or court costs may be charged or taxed against any person claiming rights under this chapter. (2) In any action or proceeding to enforce a provision of this chapter by a person under subsection (a)(2) who obtained private counsel for such action or proceeding, the court may award any such person who prevails in such action or proceeding reasonable attorney fees, expert witness fees, and other litigation expenses. (i) Inapplicability of State statute of limitations.--No State statute of limitations shall apply to any proceeding under this chapter. APPENDIX 7 078 (j) Definition.--In this section, the term "private employer" includes a political subdivision of a State. APPENDIX 7 079 Citation Search Result Rank 8 of 13 Database S. REP. 103-158 LH S. Rep. No. 158, 103RD Cong., 1ST Sess. 1993, 1993 WL 432576 (Leg.Hist.) Page 2 P.L. 103-353, UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1993 DATES OF CONSIDERATION AND PASSAGE House: May 4, 1993; September 13, 1994 Senate: November 2, 1993; September 28, 1994 Cong. Record Vol. 139 (1993) Cong. Record Vol. 140 (1994) House Report (Veterans' Affairs Committee) No. 103-65, Apr. 28, 1993 (To accompany H.R. 995) Senate Report (Veterans' Affairs Committee) No. 103-158, Oct. 18, 1993 (To accompany S. 843) SENATE REPORT NO. 103-158 October 18, 1993 [To accompany S. 843] The Committee on Veterans' Affairs, to which was referred the bill (S. 843) to amend title 38, United States Code, to improve reemployment rights and benefits of veterans and other benefits of employment of certain members of the uniformed services, having considered the same, reports favorably thereon with an amendment in the nature of a committee substitute, and recommends that the bill, as amended, do pass. CONTENTS Page ee Pere ee eT ee ee eee Te eT ee ee Tee ee ee ee Te Ore re! 1 ee ee ee ee ee ee ree ere Pee er ee ee ee ee ee en ee aa oe ee ee re ee ee ee a ne an a2 Discussion: POTASEGN GE GUEPEOS €F OE SECO FO koe. 6.4 6k heehee ee nkcadvee nev ees 39 Subchapter I-General: Section 4301. Purposes; sense of CongreSS .........cccccces 40 Section 4302. Relation to other law; construction ......... 41 BOCCLOR. S202. DRE SOUSEOS fie ded a Fibre kb O00 8s s eek eee 41 BOCtiON 42704. CHEROGEOS GE SOFVEEE: 6c ccc Scar siccceveccnete SS Subchapter II-Employment and reemployment rights and limitations; prohibitions: Section 4311. Discrimination against persons who serve in the uniformed services and SctUs OF COMPCISAL HEOGRADICEG «2 ccvcccevverse’ 45 Section 4312. Reemployment rights of persons who serve AR GO UNLECEMOE SOFVACOES 6s sc ecvesceeess -- 46 Section 4313. Reemployment a a fer ee ee ee re 52 Section 4314. Reemployment by the Federal Government ee ee 54 Section 4315. Reemployment by certain Federal Copr. © West 2000 No Claim to Orig. U.S. Govt. Works APPENDIX8 080 ey bol Page 38 REP. 103-158 itle 38 that nothing in chapter 43 overrides any other law, or any plan, ontract, policy or practice that provides a greater benefit than chapter 43 rovides for someone serving in the uniformed services. Thus, chapter 43 is ntended to be a floor and not a ceiling on reemployment rights. New section 4302(b) would clarify that chapter 43 preempts any State law or ny plan, contract, policy or practice that would limit chapter 43 rights or enefits or that impose any additional prerequisites on the exercise of those ights or the receipt of those benefits. The rights under chapt [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0306%3A2. Public record. Not legal advice.