                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0508n.06

                                           No. 11-1119
                                                                                           FILED
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                  May 16, 2012
                                                                                LEONARD GREEN, Clerk
JEROME R. OSWALD,

       Plaintiff-Appellant,

v.                                                    ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR THE
BAE INDUSTRIES, INC.,                                 EASTERN DISTRICT OF MICHIGAN

       Defendant-Appellee.

                                               /




BEFORE:        NORRIS, CLAY, and GRIFFIN, Circuit Judges.

       CLAY, Circuit Judge. Plaintiff Jerome R. Oswald appeals an order of the district court

granting summary judgment to Defendant BAE Industries, Inc. on Plaintiff’s claim that Defendant

violated the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. §§

4301–4333. Plaintiff also appeals the district court’s order denying his motion for reconsideration.

For the reasons that follow, we AFFIRM both orders.

                                        BACKGROUND

       Plaintiff was a member of the United States Marine Corps Reserves. He began working for

Defendant on August 22, 2005 as a manufacturing engineer. On July 10, 2006, Plaintiff was

deployed to serve in the Marine Corps in Iraq. According to Plaintiff, “[u]pon receiving information

regarding the Plaintiff’s military service commitments, [Plaintiff’s manager Mark Gleason] would
                                             No. 11-1119
put his head down in disgust[] and indicate his disapproval by his demeanor and non verbal

conduct.” Defendant had been aware of Plaintiff’s military status when it hired Plaintiff.

        One year later, on July 10, 2007, Plaintiff returned from Iraq and resumed his employment

with Defendant. Plaintiff alleges that immediately upon his return, Defendant drastically limited his

employment duties and responsibilities compared to his pre-deployment work. For example,

Plaintiff alleges that he was no longer given specific area/production line responsibility, he did not

have budget responsibilities, he was not given “train-up” time, his work was not reviewed, and he

was not given a raise (even though other employees were given one). Furthermore, Plaintiff was not

given any tasks with deadlines or completion dates—indicative that Defendant did not plan to retain

Plaintiff for long.

        One month after returning to work, Plaintiff was transferred to the BAE Warren Plant and

demoted from manufacturing engineer to maintenance. His work in maintenance was allegedly far

below his wage scale, significantly unlike the engineering duties he had been hired to perform, and

beneath his training, education, skills, and experience. Plaintiff notes that this type of transfer and

demotion was “commonly regarded among BAE management employees as the last step before

being terminated.”

        Shortly after his transfer, on September 14, 2007, Plaintiff’s employment was terminated.

Defendant alleges that Plaintiff’s termination was due to a reduction in employees, which it deemed

necessary under current economic conditions. It contends that the termination was wholly unrelated

to Plaintiff’s military status and states that it was “highly supportive” of Plaintiff’s military service,

demonstrated by its hosting of a deployment send-off party, collecting money to help Plaintiff’s


                                                    2
                                            No. 11-1119
family during his absence, and sending care packages to Plaintiff’s military unit. Allegedly, Mr.

Gleason also fixed a septic tank at Plaintiff’s house during his absence.

       In February 2008, Plaintiff filed a request with the United States Department of Labor,

Veteran’s Employment and Training Service to investigate Plaintiff’s termination.             Shortly

thereafter, the Department of Labor gave notice that it declined to proceed with an investigation.

       On July 5, 2010, Plaintiff filed a complaint against Defendant, alleging that Defendant

violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA),

38 U.S.C. § 4301, which provides a cause of action for members of the military who have been

discriminated against by their non-military employers on the basis of their military service, and the

Michigan Military Act, Mich. Comp. Law §§ 32.271, 32.273, which provides similar protections.

In lieu of filing an answer, Defendant filed a motion for summary judgment, asserting that Plaintiff’s

complaint was time-barred by a provision in Plaintiff’s employment contract requiring actions

against the employer to be brought within 180 days. Plaintiff had filed his complaint approximately

two years and ten months after his termination. Plaintiff filed a response to the motion, and

Defendant filed a reply. Shortly thereafter, Plaintiff filed a supplemental brief, purportedly under

Federal Rule of Civil Procedure 12(d), raising new arguments related to the summary judgment

motion. The district court granted summary judgment to Defendant on Plaintiff’s federal and state

law claims.    In granting summary judgment, the district court did not mention Plaintiff’s

supplemental brief nor address the arguments raised therein.

       Plaintiff then filed a motion under Eastern District of Michigan Local Rule 7.1(h) requesting

that the district court reconsider its grant of summary judgment. Plaintiff’s motion reasserted the


                                                  3
                                            No. 11-1119
arguments that it had made in its supplemental brief at the summary judgment stage. The district

court denied Plaintiff’s motion on the basis that Plaintiff failed to raise a palpable defect in the

original order and should have raised its arguments earlier in its response to the motion for summary

judgment. Plaintiff timely appealed both orders with respect to its USERRA claim only.

                                          DISCUSSION

        The thrust of Plaintiff’s substantive argument on appeal is that a provision of USERRA, 38

U.S.C. § 4302(b), prevents the contractual reduction of rights under USERRA. Plaintiff contends

that because his employment contract with Defendant shortens the time period for bringing a

USERRA claim against his employer to 180 days, rather than the otherwise-applicable four years

under 28 U.S.C. § 1658(a), Plaintiff’s employment contract reduces his rights under USERRA and

thus is invalidated by the statute. Defendant counters that Plaintiff did not raise this § 4302(b)

argument at the summary judgment stage, so the argument was not preserved before the district court

and is not preserved for appeal. Defendant also suggests that Plaintiff’s attempt to raise the §

4302(b) argument in his motion for reconsideration does not meet Plaintiff’s burden of showing a

palpable defect in the district court’s order granting summary judgment. Because we believe that

Plaintiff’s § 4302(b) argument fails on the merits regardless of whether it was preserved, we do not

directly address Defendant’s preservation arguments and instead turn to the substantive analysis of

Plaintiff’s claim.1



        1
        We agree that Plaintiff did not raise the § 4302(b) argument in its response to the motion for
summary judgment, but we believe that it did raise the argument in its supplemental brief at that
stage. However, we cannot discern whether the district court accepted but ignored this filing or
whether it rejected the filing as impermissible.

                                                  4
                                            No. 11-1119
       We review a motion for summary judgment de novo. Holloway v. Brush, 220 F.3d 767, 772

(6th Cir. 2000) (en banc). Summary judgment is appropriate where “there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro.

56(a). We view the facts and reasonable inferences in the light most favorable to the nonmoving

party. Sagan v. United States, 342 F.3d 493, 497 (6th Cir. 2003). We review de novo a motion

under Eastern District of Michigan Local Rule 7.1(h) seeking reconsideration of a grant of summary

judgment. Gage Prods. Co. v. Henkel Corp., 393 F.3d 629, 637 (6th Cir. 2004) (discussing Rule 59

motions); Indah v. U.S. Sec. & Exch. Comm’n, 661 F.3d 914, 924 (6th Cir. 2011) (applying Rule

59 motion standard to motions for reconsideration under Local Rule 7.1); Intercontinental Elecs.,

S.P.A. v. Roosen, 210 F. App’x 491, 494–95 (6th Cir. 2006) (same).

       A.      Applicable Limitations Periods

               1.      Statutory Limitations Period

       At the time Plaintiff filed his complaint, USERRA did not provide a separate statute of

limitations relevant to Plaintiff’s claim, so claims brought under USERRA were subject to the four-

year general statute of limitations set forth in 28 U.S.C. § 1658(a).2 The parties agree that the four-

year limitations period applies to Plaintiff’s USERRA claim, absent the competing contractual

limitations period.

       However, we note that USERRA was amended in 2008 by the Veterans’ Benefits

Improvement Act (VBIA), which provides:


       2
        Section 1658 provides: “Except as otherwise provided by law, a civil action arising under
an Act of Congress . . . may not be commenced later than 4 years after the cause of action accrues.”
28 U.S.C. § 1658(a).

                                                  5
                                            No. 11-1119
       Inapplicability of statutes of limitations. If any person seeks to file a complaint or
       claim with the Secretary, the Merit Systems Protection Board, or a Federal or State
       court under this chapter [38 USCS §§ 4301 et seq.] alleging a violation of this
       chapter [38 USCS §§ 4301 et seq.], there shall be no limit on the period for filing the
       complaint or claim.

38 U.S.C. § 4327(b). Plaintiff admits that the amendment does not apply retroactively to his claim,3

and nothing in the text of the statute indicates that Congress intended it to apply retroactively. See

Middleton v. City of Chi., 578 F.3d 655, 662–65 (7th Cir. 2009) (declining to retroactively apply the

unlimited filing period in VBIA to a USERRA claim that was untimely under the original § 1658(a)

four-year period). We thus apply the pre-VBIA version of USERRA to Plaintiff’s claim.

               2.      Contractual Limitations Period

       When Plaintiff began his employment with Defendant, he signed an employment contract,

which provided:

       I . . . agree that any action, claim or suit against [Defendant] arising out of my
       application for employment, employment, or termination including, but not limited
       to, claims arising under State or Federal civil rights statutes must be brought within
       one hundred and eighty (180) days of the event giving rise to the claim or be forever
       barred. I waive any and all limitation periods to the contrary.

Under the plain language of the agreement, the contractual period of limitations is 180 days for any

employment-related claim against Defendant. We have held that “there is nothing inherently

unreasonable about a six-month limitations period contained in an employment agreement,”

Thurman v. DaimlerChrysler, 397 F.3d 352, 357 (6th Cir. 2004) (citing Myers v. W.-S. Life Ins. Co.,

849 F.2d 259, 262 (6th Cir. 1988)), and the parties do not dispute this matter.


       3
         According to Defendant, although the amendment took effect prior to the filing of Plaintiff’s
complaint, the complaint was already untimely at that point under the applicable 180-day contractual
limitations period. Plaintiff apparently agrees with this point.

                                                  6
                                             No. 11-1119
        B.      Governing Period of Limitations

        The action giving rise to Plaintiff’s USERRA claim was his termination on September 14,

2007. Plaintiff filed his complaint on July 5, 2010, approximately two years and ten months after

the action accrued. This two-year, ten-month period is far beyond the 180 day cut-off in the

employment contract clause, but it is within the four-year statute of limitations of § 1658(a). Thus,

if the contractual limitations period applies, Plaintiff’s complaint would be untimely. If the statutory

period applies, Plaintiff’s claim would survive.

        “[I]n the absence of a controlling statute to the contrary, a provision in a contract may validly

limit, between the parties, the time for bringing an action on such contract to a period less than that

prescribed in the general statute of limitations, provided that the shorter period itself shall be a

reasonable period.” Order of United Commercial Travelers of Am. v. Wolfe, 331 U.S. 586, 608

(1947); Rice v. Jefferson Pilot Fin. Ins. Co., 578 F.3d 450, 454 (6th Cir. 2009). Thus, the narrow

question before us is whether the pre-VBIA version of USERRA prohibits the contractual shortening

of the statute of limitations.

        One provision in USERRA is relevant to this inquiry. Section 4302(b) of the statute

provides:

        This chapter [38 USCS §§ 4301 et seq.] supersedes any State law (including any
        local law or ordinance), contract, agreement, policy, plan, practice, or other matter
        that reduces, limits, or eliminates in any manner any right or benefit provided by this
        chapter [38 USCS §§ 4301 et seq.], including the establishment of additional
        prerequisites to the exercise of any such right or the receipt of any such benefit.




                                                   7
                                             No. 11-1119
38 U.S.C. § 4302(b).4 Section 4302(b) thereby prohibits contractual provisions which limit

USERRA “right[s] or benefit[s]” or contractual provisions that require “additional prerequisites” in

order for a plaintiff to exercise those rights or benefits.

        Section 4303 offers a definition of “rights or benefits” under USERRA:

        The term “benefit”, “benefit of employment”, or “rights and benefits” means the
        terms, conditions, or privileges of employment, including any advantage, profit,
        privilege, gain, status, account, or interest (including 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.

38 U.S.C. § 4303(2). Our Circuit has interpreted this definition to mean that USERRA prevents that

limitation of veterans’ substantive rights, but not their procedural rights. See Wysocki v. Int’l Bus.

Mach. Corp., 607 F.3d 1102, 1106–07 (6th Cir. 2010); Landis v. Pinnacle Eye Care, LLC, 537 F.3d

559, 562 (6th Cir. 2008) (citing Garrett v. Circuit City Stores, Inc., 449 F.3d 672, 677–78 (5th Cir.

2006)). “[T]herefore, § 4302(b) does not prevent veterans from waiving their procedural rights . .

. .” Wysocki, 607 F.3d at 1107. However, this Court has also determined that USERRA supercedes

contracts that provide for the wholesale contractual elimination of all procedural rights, because such

a waiver would result in the de facto elimination of the veteran’s substantive rights. Id. (considering




        4
         Plaintiff also argues that § 4302(a) prevents the contractual shortening of limitations periods.
However, subsection (a) provides that nothing in USERRA shall limit contractually-obtained rights
that are more beneficial to the plaintiff than those in the statute. 38 U.S.C. § 4302(a). Because
Plaintiff’s situation is the opposite of that conceived in subsection (a), it is subsection (b) and not
(a) that applies.

                                                   8
                                              No. 11-1119
a waiver that “purports to preclude [the plaintiff] from advancing a USERRA claim in any forum,

ever”).

          This Circuit generally defines a period of limitations as a procedural matter. See, e.g., Cole

v. Mileti, 133 F.3d 433, 437 (6th Cir. 1998) (discussing the issue in the choice of law context);

Phelps v. McClellan, 30 F.3d 658, 661–62 (6th Cir. 1994) (comparing choice of law and Erie

contexts); Allgood v. Elyria United Methodist Home, 904 F.2d 373, 376–77 (6th Cir. 1990) (finding

that a limitations period for the Labor-Management and Relations Act and Labor-Management

Reporting and Disclosure Act is a procedural matter); Ott v. Midland-Ross Corp., 523 F.2d 1367,

1370 (6th Cir. 1975) (finding that a limitations period in the Age in Employment Discrimination Act

is a procedural matter); Mahalsky v. Salem Tool Co., 461 F.2d 581, 586 (6th Cir. 1972); see also Aull

v. McKeon-Grano Assocs., Inc., No. 06-2752, 2007 U.S. Dist. LEXIS 13008, at *18–20 (D.N.J. Feb.

26, 2007) (determining that the pre-VBIA version of USERRA does not prevent a contractual

shortening of the time period for filing a USERRA claim, because a limitations period is a

procedural matter). Furthermore, Plaintiff’s employment contract does not eliminate all procedural

rights in that it only shortens the time frame that Plaintiff can raise a USERRA claim. Because the

contractual period of limitations diminished a right under USERRA that was merely procedural, §

4302(b) does not override the contractual limitations period on that basis.

          In addition to overriding contracts that limit “rights or benefits,” USERRA also supercedes

contractual provisions that impose “additional prerequisites to the exercise of any such right or the

receipt of any such benefit.” Although the statute does not define the phrase, our Court has

previously considered what constitutes an “additional prerequisite” under USERRA. See Petty v.


                                                    9
                                            No. 11-1119
Metro. Gov’t of Nashville-Davidson Cnty., 538 F.3d 431, 442 (6th Cir. 2008). In Petty, we found

that an employer’s imposition of a return-to-work process, which required its veteran employees to

complete new physical and psychological testing, was an impermissible “additional prerequisite”

under USERRA. Id. We noted that the employer’s “procedures [we]re in addition to the

requirements Congress specified for the exercise of USERRA’s reemployment rights.” Id. We also

noted that the only statutory prerequisites are listed in § 4312 and require 1) advance notification of

military deployment to employer, 2) military service for less than five years, 3) timely request for

re-employment with specified documentation, and 4) separation under honorable conditions. Id. at

440–41. Thus, under Petty, the definition of “additional prerequisite” involves matters including but

not limited to affirmative requirements related to the rehiring process, proof needed to qualify for

a USERRA claim, or imposing procedures that plaintiffs must comply with prior to filing a claim

in court. See Landis, 537 F.3d at 564–65 (Cole, J., concurring) (“By ‘additional prerequisites,’

Congress clearly meant to stop employers from requiring ‘additional resort to mechanisms such as

grievance procedures or arbitration or similar administrative appeals.’” (citing H.R. Rep. No. 103-65,

at 20 (1993))). Consent to a shorter time frame for filing a claim in court does not fall within this

definition.

       In sum, § 4302(b) does not operate to forbid the contractual imposition of a diminished time

period for bringing USERRA claims. Because Plaintiff’s complaint was untimely under the 180-day

period in the contract, the district court did not err in granting summary judgment to Defendant and

in denying Plaintiff’s motion for reconsideration. Although we are sympathetic to Plaintiff’s

situation, especially in light of the VBIA amendment that no limitations period whatsoever is to


                                                  10
                                          No. 11-1119
apply to USERRA claims, we are bound to apply the pre-VBIA version of USERRA in deciding that

the shortened filing period in Plaintiff’s employment contract was permissible.

                                        CONCLUSION

       For the reasons discussed above, we AFFIRM the district court’s order granting summary

judgment to Defendant and AFFIRM the district court’s order denying Plaintiff’s motion for

reconsideration.




                                               11
