                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-28-2004

Gordon v. Wawa Inc
Precedential or Non-Precedential: Precedential

Docket No. 03-3089




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"Gordon v. Wawa Inc" (2004). 2004 Decisions. Paper 160.
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IN THE UNITED STATES COURT OF                      (Filed October 28, 2004)
            APPEALS
     FOR THE THIRD CIRCUIT                Philip L. Faccenda, Esq. (Argued)
          ____________                    176 Route 70, Suite 10
                                          Medford, New Jersey 08055
             No. 03-3089
            ____________                         Counsel for Appellant

WANDA GORDON, individually and as         Edward T. Ellis, Esq. (Argued)
Administratrix ad Prosequendum for the    Janice G. Dubler, Esq.
                 Estate                   457 Haddonfield Road Liberty View, 6th
of Willie James Gordon, Jr., Deceased,    Floor, Suite 600
                          Appellant       Montgomery, McCracken, Walker &
                                          Rhoads, LLP
                   v.                     Cherry Hill, New Jersey 08022

  WAWA, INC., aka WAWA FOOD                      Counsel for Appellee
             MARKETS;
       JOHN DOES I and X;                               ____________
JOHN DOE CORPORATIONS, I TO X,
             individually                        OPINION OF THE COURT
   jointly, severally, and/or in the                  ____________
              alternative.
                  aka
                                          ROSENN, Circuit Judge.
               WAWA
                  dba                             This appeal presents questions of
               WAWA                       first impression concerning the scope of
                                          rights under the Uniformed Services
            ____________                  Employment and Reemployment Rights
                                          Act of 1994, 38 U.S.C. §§ 4301–4333
 Appeal from the United States District   (“USERRA”), of persons in noncareer
                  Court                   military service. The case is of particular
    For the District of New Jersey        interest at this time because of the large
         D.C. No.: 02-cv-04498            number of reservists called up for military
  District Judge: Honorable Robert B.     duty as a result of the conflicts in Iraq and
                 Kugler                   Afghanistan.        The alleged events
             ____________                 underlying this action are tragic. Willie
                                          Gordon, an active member of the United
     Argued: September 21, 2004           States Army Reserve, also worked for the
                                          defendant, Wawa, Inc., in Vineland, New
Before: MCKEE, ROSENN, and WEIS,          Jersey. On Sunday, September 17, 2000,
          Circuit Judges.                 on his way home from weekend Reserve
duties in Virginia, Gordon stopped by the            Federal Rules of Civil Procedure. Plaintiff
Vineland store to pick up his paycheck and           timely appealed from the District Court’s
to obtain his work schedule for the                  order. We affirm.
upcoming week. At that time, Gordon’s
                                                                          I.
shift manager allegedly ordered him to
work that night’s late shift, and threatened                 Ac c e pting the       c omp laint’ s
to fire him if he refused. Willie Gordon             allegations as true, the District Court held
complied with the order, and on his drive            that USERRA provides no cause of action
home from work, lost consciousness at the            here.2 Specifically, the District Court held
wheel of his car. His car crashed, and he            that 38 U.S.C. § 4312(e) “merely requires
died as a result of his injuries.                    an employee returning from uniformed
                                                     duty to notify his or her employer of an
        Plaintiff is Willie Gordon’s mother
                                                     intent to return to work within a specified
and the administratrix of his estate. As the
                                                     time period,” and “imposes no affirmative
administratrix ad prosequendum for the
                                                     duty on an employer to prevent an
estate of her son, plaintiff filed a complaint
                                                     employee from reporting to work prior to
in the United States District Court for the
                                                     the expiration of an eight-hour period
District of New Jersey, alleging, inter alia,
                                                     following the employee’s return from
that defendant deprived the decedent of his
                                                     uniformed services.” Gordon v. Wawa,
right under USERRA to an eight-hour rest
                                                     Inc., No. 02-4498, slip op. at 7 (D.N.J.
period between returning home from
                                                     June 17, 2003) (emphasis in original).
military exercises and returning to work.1
                                                     Further, the District Court concluded that
The complaint further alleges that Wawa’s
                                                     the remedies available under USERRA
threat to fire Gordon constituted an
                                                     reflect a congressional purpose to prevent
adverse employment action under
                                                     employment discrimination based on
USERRA. The complaint seeks, inter alia,
                                                     military status of noncareer service
statutory remedies of lost wages and
                                                     members, and were thus inapplicable in
benefits, attorney fees, and costs. See 38
                                                     this case. Id. at 9. Accordingly, the
U.S.C. § 4323(d), (h). The District Court
                                                     District Court granted Wawa’s Rule
granted Wawa’s motion to dismiss the
                                                     12(b)(6) motion to dismiss, and pursuant
complaint pursuant to Rule 12(b)(6) of the
                                                     to 28 U.S.C. § 1367(c)(3), declined to
                                                     exercise supplemental jurisdiction over
  1                                                  plaintiff’s state law claims.
     Plaintiff, individually and as the
administratrix for the estate of Willie
Gordon, also asserts various tort claims
                                                       2
against Wawa under New Jersey                             The District Court exercised
statutory and common law. Those                      jurisdiction over plaintiff’s USERRA
claims, which plaintiff is now pursuing              claims under 38 U.S.C. § 4323(b) and 28
in state court, are not relevant to this             U.S.C. § 1331. This Court has
appeal.                                              jurisdiction under 28 U.S.C. § 1291.

                                                 2
                     II.                            returns home from military exercises and
                                                    when the employee must report to the
        Our review of the District Court’s
                                                    employer.      As with all questions of
dismissal of plaintiff’s USERRA claims is
                                                    statutory interpretation, we first turn to the
plenary. Oshiver v. Levin, Fishbein,
                                                    statutory language “to determine whether
Sedran & Berman, 38 F.3d 1380, 1384 (3d
                                                    the language at issue has a plain and
Cir. 1994). Dismissal under Rule 12(b)(6)
                                                    unambiguous meaning with regard to the
is inappropriate “unless it appears beyond
                                                    particular dispute in the case.” Marshak v.
doubt that the plaintiff can prove no set of
                                                    Treadwell, 240 F.3d 184, 192 (3d Cir.
facts in support of his claim which would
                                                    2001) (citations and internal quotation
entitle him to relief.” Conley v. Gibson,
                                                    marks omitted).        We discern “[t]he
355 U.S. 41, 45-46 (1957). In making this
                                                    plainness or ambiguity of statutory
decision, “the court must consider only
                                                    language . . . by reference to the language
those facts alleged in the complaint and
                                                    itself, the specific context in which that
accept all of the allegations as true.”
                                                    language is used, and the broader context
ALA, Inc. v. CCAIR, Inc., 29 F.3d 855,
                                                    of the statute as a whole.” Id. (citations
859 (3d Cir. 1994). All inferences are
                                                    and internal quotation marks omitted).
drawn in favor of the plaintiff. Oshiver,
                                                    Where “the statutory meaning is clear, our
38 F.3d at 1384.
                                                    inquiry is at an end.” Ki Se Lee v.
        Further, we construe USERRA’s               Ashcroft, 368 F.3d 218, 222 (3d Cir.
provisions liberally, in favor of the service       2004); Marshak, 240 F.3d at 192.
member. Coffy v. Republic Steel Corp.,
                                                          Section 4312(e) provides that a
447 U.S. 191, 196 (1980) (interpreting
                                                    person whose military service caused an
USERRA predecessor Vietnam Era
                                                    absence from work
Veterans’ Readjustment Assistance Act of
1974); Fishgold v. Sullivan Drydock &                      shall, upon completion of a
Repair Corp., 328 U.S. 275, 285 (1946)                     period of service in the
(construing Selective Training and Service                 uniformed services, notify
Act of 1940); Hill v. Michelin N.A., Inc.,                 the employer . . . of the
252 F.3d 307, 312-13 (4th Cir. 2001)                       person’s intent to return to a
(“Because USERRA was enacted to                            position of employment
protect the rights of veterans and members                 with such employer as
of the uniformed services, it must be                      follows:
broadly construed in favor of its military
                                                           (A) In the case of a person
beneficiaries.”).
                                                           whose period of service in
                     A.                                    the uniformed services was
                                                           less than 31 days, by
        Plaintiff contends that 38 U.S.C. §
                                                           reporting to the employer —
4312(e) confers a “right to eight-hours
rest” between the time when the employee                   (i)   not   later   than   the

                                                3
       beginning of the first full                conferring a substantive right to eight
       regularly scheduled work                   hours of rest for the returning employee.
       period on the first full
                                                          Reading § 4312(e) in its broader
       calendar day following the
                                                  context confirms this view, because the
       completion of the period of
                                                  remainder of the section sets forth the
       service and the expiration
                                                  other requirements for an employee to
       of eight hours after a period
                                                  s e cure U S E R R A ’ s r e e m p l o ym e n t
       allowing for the safe
                                                  guarantee, or the exceptions thereto.
       transportation of the person
                                                  Section 4312(a) requires the employee to
       from the place of that
                                                  give the employer advance notice of leave,
       service to the person’s
                                                  requires that the employee’s cumulative
       residence; or
                                                  leave be no longer than five years, and
       (ii) as soon as possible                   requires the employee to report to the
       after the expiration of the                employer in compliance with § 4312(e).
       eight-hour period referred                 Section 4312(b) contains an exception to
       to in clause (i), if reporting             the advan ce notice re quir e m e n t.
       within the period referred                 Subsection (c) contains exceptions to the
       to in such clause is                       five-year absence limit, and subsection (d)
       impossible or unreasonable                 sets forth the conditions under which an
       through no fault of the                    employer need not re-engage an employee.
       person.                                    The remaining subsections impose other
                                                  duties on the employees, and the section
38 U.S.C. § 43 12(e)(1)(A )(i)-(ii)
                                                  concludes with the guarantee of USERRA
(emphasis added).
                                                  rights to employees who satisfy § 4312’s
         Unsurprisingly, plaintiff has            requirements, including “the notification
focused little attention on the statutory         requirements established in subsection (e)
language. By its plain terms, § 4312(e)           . . . .” 38 U.S.C. § 4312(h) (emphasis
sets forth the requirements of an employee        added).
to notify the employer of the employee’s
                                                           The limited case law on § 4312
intention to return to work. The eight-hour
                                                  supports this view. See, e.g., Jordan v. Air
period referred to in § 4312(e)(A)(i) marks
                                                  Prods. & Chems., Inc., 225 F. Supp. 2d
the outer limit of the time by which the
                                                  1206, 1208 (C.D. Cal. 2002) (Section
employee must report to the employer
                                                  “4312 creates an unqualified right to
upon returning home from military service.
                                                  reemployment to those who satisfy the
As the District Court concluded, § 4312(e)
                                                  service duration and notice requirements.
is written entirely in terms of an
                                                  . . . Section 4312 places service people and
employee’s duties, as opposed to an
                                                  employers on notice that, upon returning
employer’s obligations. There is no way
                                                  from service, veterans are entitled to their
to construe this statutory language as
                                                  previous positions of employment.”)

                                              4
(emphasis added); McGuire v. United                 rest.    However, our reading of the
Parcel Service, Inc., No. 97 C 0232, 1997           legislative history does not compel a
WL 543059, at *3 (N.D. Ill. Aug. 28,                contrary reading of § 4312(e)’s plain
1997) (employee’s eligibility for re-               terms. See Malloy v. Eichler, 860 F.2d
employment after active duty in U.S.                1179, 1183 (3d Cir. 1988) (“Where the
Military Reserve “hinges on” § 4312’s               language of the statute is clear, only ‘the
“requisites” of, inter alia, providing notice       most extraordinary showing of contrary
of intent to return to work), aff’d, 152 F.3d       intentions’ justify altering the plain
673, 678 (7th Cir. 1998) (employee failed           meaning of a statute.”) (quoting Garcia v.
to give employer “reasonable notice that            United States, 469 U.S. 70, 75 (1984)).
he wanted his job back”).                           The Reports of the Senate and House
                                                    Committees on V eteran s’ Af fairs
        Plaintiff’s reliance on Boelter v.
                                                    expressed concern for service members’
City of Coon Rapids, 67 F. Supp. 2d 1040
                                                    physical well-being, and conveyed the
(D. Minn. 1999), is futile. In the context
                                                    Committees’ intent that service members
of interpreting a state law that grants
                                                    “repo rting back to their civilian
reservists the right to take paid military
                                                    employment be allowed sufficient time to
leave (a benefit that USERRA does not
                                                    return to their residence and be rested
guarantee), the Boelter court remarked in
                                                    before they are to perform their work.” S.
dictum that 38 U.S.C. § 4312 “guarantees,
                                                    Rep. No. 103-158, at 50 (1993), 1993 WL
at a minimum, time for the safe
                                                    432576; see also H.R. Rep. No. 103-65, at
transportation home plus an eight-hour rest
                                                    2 9 ( 199 3) , r e p r i n t e d i n , 1 9 94
period before an employee on military
                                                    U.S.C.C.A.N. 2449, 2462 (“An employee
leave can be required to return to work.”
                                                    . . . must be allowed a reasonable time to
Id. at 1046. In holding that the city’s
                                                    arrive back at his or her residence, a
interpretation of the statutory term “day”
                                                    reasonable time to rest, and a reasonable
was incorrect under state legal precedents,
                                                    time to travel to the place of
the judge observed that the city’s
                                                    employment.”).3 Indeed, both the Senate
interpretation of the state law also “creates
an inherent conflict with USERRA,” by
accelerating the time limit established by §
                                                      3
4312(e) for reporting to work. Id. (The                 At points, the Senate and House
judge mistakenly viewed § 4312 in terms             Reports discuss § 4312(e)’s requirements
of reporting to work, as opposed to giving          in terms of reporting to begin work, as
notice of an intention to return to work.)          opposed to what the statute requires,
However, he did not hold that USERRA                reporting “the person’s intent to return”
confers the right to eight hours of rest.           to work. 38 U.S.C. § 4312(e)(1). See,
                                                    e.g., S. Rep. No. 103-158, at 50 (“Under
        We acknowledge that some aspects
                                                    new section 4312(e), the time periods
of the legislative history favor plaintiff’s
                                                    during which an individual must return to
position that § 4312(e) provides a right to
                                                    work or make an application for

                                                5
and House Committees contemplated that             require a reservist who returns home from
the eight-hour rest period in § 4312(e)            weekend duty at 10:00 p.m. to report to
would prevent a scenario similar to the one        work at 12:30 a.m. that night, even if it is
alleged here, where an employer requires           the beginning of the next regularly
an employee to report to work within a few         scheduled working period the next day.
hours of returning from military exercises.        The Committee believes that an employee
See S. Rep. No. 103-158, at 50 (“The               must be in a position to arrive at work
eight-hour minimum period imposed                  rested in order to perform safely at
between the time of return and the time for        work.”).
reporting to work would provide for
                                                           However, that Congress took into
needed rest. An example would be that of
                                                   account a service member’s need for rest
an individual arriving at his or her
                                                   in shaping the reporting requirements does
residence at 11:00 p.m., two hours before
                                                   not mean that Congress intended to create
the next regular work period scheduled to
                                                   a independent right to rest. On the whole,
begin at 1:00 a.m. Under the Committee
                                                   the thrust of the Senate and House
bill, that individual could not be required
                                                   Reports’ focus on § 4312 is in terms of the
to report to work any earlier than 7:00
                                                   employees’ reporting requirements, as
a.m.”); H.R. Rep. No. 103-65, at 29,
                                                   opposed to a statement of employees’
reprinted in, 1994 U.S.C.C.A.N. at 2462
                                                   rights. For example, both Reports explain
(“For example, an employer could not
                                                   that returning employees would be
                                                   guaranteed USERRA rights “if the notice
                                                   requirement of [4312] (a)(1) is met, the
reemployment would be based on the                 cumulative length of military service
length of his or her period of service . . .       found in subsection (a)(2) is not exceeded
.”) (emphasis added); H.R. Rep. No. 103-           and the reporting or ap plicatio n
65, at 29, reprinted in, 1994                      requirement of subsection (e) is complied
U.S.C.C.A.N. at 2462 (“Under proposed              with.” H.R. Rep. No. 103-65, at 24,
section 4312(e), the time limits for               reprinted in, 1994 U.S.C.C.A.N. at 2457;
applying for reemployment would                    see also S. Rep. No. 103-158, at 46 (“New
depend strictly on the length or duration          section 4312(a) would generally provide
of the military service from which the             that an individual who is absent from any
serviceperson is being discharged or               position of employment for service in the
released. . . . With regard to military            uniformed services is entitled to
service of less than 31 days,                      reemployment and benefits . . . if the
servicemembers would ordinarily be                 person satisfies the various requirements
required to report for work at the                 set forth in this new section.”). In short, in
beginning of the first regularly scheduled         § 4312(e) Congress sets forth a returning
working period on the next working day             employee’s requirement for providing
after release from service.”) (emphasis            notice of intent to return to work in order
added).

                                               6
to reclaim his or her former job, and                     that the action would have
contains no rights-creating language.                     been taken in the absence
Nothing in the legislative materials clearly              of such person’s . . .
evinces Congress’s intent that § 4312(e)                  exercise of a right.
confer a right to rest.
                                                   38 U.S.C. § 4311(b), (c)(2).
       For the foregoing reasons, plaintiff
                                                         Plaintiff has not alleged that Willie
cannot state a cause of action under §
                                                   Gordon attempted to exercise a right
4132(e) for Wawa’s alleged failure to
                                                   provided by USERRA, as required by §
allow Willie Gordon eight hours of rest
                                                   4311(b), because, as we have held above,
between his return home from military
                                                   USERRA does not confer a right to rest.
exercises and commencing work.
                                                           Moreover, plaintiff has failed to
                    B.
                                                   assert a claim under § 4311(b). The
       Plaintiff argues that the Wawa              complaint does not allege that Willie
store manager’s alleged threat to fire             Gordon indeed attempted to assert any
Willie G ordon was an “adv erse                    such right. The complaint alleges that
employment action” in violation of                 Willie Gordon was tired and unrested
USERRA § 4311(b).                                  (Compl. ¶ 13), and that the store manager
                                                   ordered him to work within hours of his
        Section 4311 provides, in relevant
                                                   arriving home (Compl. ¶ 14), but fails to
part:
                                                   allege that he made the store manager
        (b) An employer may not                    aware that he had just finished his military
discriminate in employment against or take         exercises, that he was tired, and that he
any adverse employment action against              desired not to work the night shift.
any person because such person . . . has           Plaintiff has alleged these facts for the first
exercised a right provided for in this             time on appeal, but in reviewing the
chapter . . . .                                    District Court’s Rule 12(b)(6) dismissal of
                                                   her claims, this Court may only look to the
        (c) An employer shall be
                                                   factual allegations asserted in the
considered to have engaged in actions
                                                   complaint. ALA, Inc., 29 F.3d at 859.
prohibited –
                                                           Likewise, the complaint fails to
                   ***
                                                   allege that the store manager’s alleged
        (2) under subsection (b), if               threat to terminate Willie Gordon’s
        the person’s . . . exercise                employment was motivated, in part, by
        of a right provided for in                 Gordon’s attempt to exercise a USERRA
        this chapter[] is a                        right, as required under § 4311(c). See,
        motivating factor in the                   e.g., Gagnon v. Sprint Corp., 284 F.3d
        employer’s action, unless                  839, 852 (8th Cir. 2002) (Under § 4311,
        the employer can prove                     “an employer violates the act when a

                                               7
person’s membership in the uniformed               prevent, and to compensate a service
services is a motivating factor in the             member for, employment discrimination
employer’s action. . . .’”) (emphasis in           based on military status. See 38 U.S.C. §
original); Leisek v. Brightwood Corp., 278         4323(d)-(e), (h). Plaintiff’s case is not
F.3d 895, 898 (9th Cir. 2002) (same);              about employment discrimination or the
Gummo v. Village of Depew, 75 F.3d 98,             deprivation of an employment benefit
106 (2d Cir.) (same), cert. denied, 517            based on military status. Accordingly,
U.S. 1190 (1996).                                  USERRA is an inappropriate vehicle for
                                                   plaintiff’s tort claims.
       For these reasons, plaintiff has
failed to assert the basic factual                                     III.
underpinnings of a § 4311 claim.
                                                           In sum, we hold that 38 U.S.C. §
                    C.                             4312(e) does not confer a right to rest, and
                                                   thus, that plaintiff has failed to state a
        Plaintiff alleges that the acts of a
                                                   cause of action under USERRA.
store manager ultimately led to Willie
                                                   Essentially, USERRA protects a service
Gordon’s death, by causing him to work
                                                   mem ber’s employment rights, and
when he was too tired and causing him to
                                                   plaintiff’s allegations do not implicate
drive home exhausted. This complaint
                                                   Willie Gordon’s employment rights.
essentially sounds in tort. USERRA,
                                                   Accordingly, the order of the District
however, is not designed to protect
                                                   Court will be affirmed. Each side to bear
employees from the tortious acts of
                                                   its own costs.
employers or to remedy work-related
harms. Rather, its provisions are tailored
to effectuate its underlying purposes of:
(1) encouraging “noncareer service in the
uniformed services by eliminating or
minimizing the disadvantages to civilian
careers and employment which can result
from such service;” (2) minimizing “the
disruption to the lives of persons
performing service in the uniformed
services as well as to their employers” by
providing for the prompt reemployment of
service members upon their completion of
service; and (3) prohibiting discrimination
against them because of their uniformed
services. 38 U.S.C. § 4301(a)(1)-(3). In
line with these purposes, USERRA’s
remedial provisions are designed to


                                               8
