Opinion
No. 1:01-cv-106
July 24, 2002
MEMORANDUM
Plaintiff Dr. Andrew Akhdary ("Akhdary") brings a claim of discrimination under the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4301-33 ("USERRA"), and its antecedent, the Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. § 2021-27 ("the Act"), against his former employer, the City of Chattanooga, and against his current employer, Hamilton County, for failure to promote, denial of retirement benefits and sick leave, and hostile work environment.
This matter is presently before the Court on motion for summary judgment by defendant Hamilton County ("County") [Court File No. 15] and motion for summary judgment by defendant City of Chattanooga ("City") [Court File No. 22]. The plaintiff opposes the motions. For the reasons expressed below, the motion by the City [Court File No. 22] will be GRANTED and the motion by the County [Court File No. 15] will be DENIED.
I. STANDARD OF REVIEW
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907.
II. FACTS
The record will suggest the following findings of fact if the allegations of the plaintiff's complaint are viewed in the light most favorable to Akhdary. The Court makes these findings of fact solely for the purposes of resolving the motion before it.
After Akhdary received his teacher certification in 1974, he was hired by the City to be a school teacher at Tyner Junior High School ("Tyner") in 1975. Since that time, Akhdary continued his education, receiving a master's degree in curriculum instruction in 1987, an additional certification in childhood counseling in 1988, and a doctorate in general administrative leadership in 1996. In general, Akhdary is a successful teacher, is well-liked by students and faculty, and has received several commendations.
Akhdary was employed by the City until July 1, 1997. On this date, the City school system essentially went out of business, and all employees and administrators of the City school system became the employees of the County department of education. All personnel records kept by the City were transferred to the County. Akhdary currently is employed by the County as a school teacher at the Chattanooga School for the Arts and Sciences ("CSAS"). He has been a teacher at CSAS since 1988.
Akhdary enlisted in the United States Navy Reserve in 1978. Since enlisting, he has risen from a status of E-5 to his current position of Deputy Officer in Charge at the Coalition Intelligence Center. The Navy values Akhdary for his Arabic linguistic ability and his analysis of events in the Mid-East. As a Navy reservist, he is required to perform a minimum of twelve days of Annual Training per year and monthly weekend drills. A reservist may volunteer for additional training. Aside from required schools and involuntary recall pursuant to a Presidential Select Reserve Call-up, the scheduling of training is somewhat flexible. Akhdary was called for active duty in the fall of 2001 and is currently based in Florida while on extended military leave and unpaid furlough from the County.
Akhdary complains of discrimination based on his reservist status by the City and the County. Akhdary characterizes the treatment he received from City administrators over the years as "abusive" and "harassment." Furthermore, he claims that the denial of promotions and benefits was motivated by his reservist status. The discrimination began as early as the 1985-1986 academic year.
Akhdary first applied for an assistant principalship at Tyner for the 1985-1986 academic year. He did not receive the promotion. Since that time, he has applied for numerous administrative positions. Although there is evidence that Akhdary is qualified for an administrative position, he never received a promotion.
Virgil Vandergriff was acting principal of Tyner during the 1986-1987 academic year. Akhdary claims to have been embarrassed by having been accused of "double-dipping" while on military leave by Vandergriff. Apparently, Vandergriff was referring to Akhdary receiving a paycheck from both the Navy and the City during military leave. At one point, the City required Akhdary to reimburse the school system for the money he received from the City while on military leave by deducting this amount from his paycheck. After filing a grievance, the City reimbursed Akhdary for the money illegally deducted from his paycheck.
Stuart Silberman ("Silberman") became principal at Tyner in 1987. Thereafter, Silberman and Akhdary developed a conflict at least in part due to Akhdary's military leave. Silberman did not want Akhdary to take his military leave. In one alleged conversation, Silberman stated to Akhdary, "Nobody crosses me and gets away with it," and "I will ruin you." Other administrators in the central office reportedly expressed a preference for Akhdary to reschedule his military leave. Although Silberman had written a letter of recommendation for Akhdary to attend a leadership training program — understood by Akhdary and others to be required for promotions to administrative positions in the school system — Silberman later rescinded the recommendation because Akhdary scheduled his military leave during the school year. Akhdary continued to apply for the leadership training program, but without a recommendation by his supervisor, he was never admitted into that program.
After Akhdary transferred to CSAS in 1988, he applied for an assistant principal position at the school. During an interview with the principal of CSAS, Buz Nembirkow, there is evidence that Akhdary was asked, "Why does [Silberman] hate you so much?" Silberman had become the director of personnel in the central office and later became superintendent of personnel. Akhdary did not receive the promotion.
Akhdary experienced what he characterizes as abusive or humiliating encounters with other City administrators. When he presented his military orders to Steve Prighozy, principal of CSAS during 1988-1989, Akhdary was asked what he does in the military. After Akhdary responded that he worked in intelligence and therefore could not tell exactly what he does, it is alleged that Steve Prighozy stated, "You're just not going to go." The record contains evidence that Steve Prighozy also stated that he knew several people in the State Department and could call somebody to stop Akhdary from going on his military leave. Akhdary alleges that the assistant principal at that time, Joyce Hardaway, stated, "if you're such hot stuff, why don't you tell us what it is that you do."
William Kennedy ("Kennedy") was the principal at CSAS from 1989 until January 2002. In 1998, Kennedy wrote to Akhdary's commanding officer requesting adjustment in Akhdary's military leave to allow for Akhdary's presence during certain times of the academic year.
There is evidence that Wilhelmina Moore, an assistant principal at CSAS, made negative comments to Akhdary about his military service. During an interview for an administrative position, she asked, "Andy, what about the Navy?" Akhdary asked for clarification, and she asked, "If we hire you, are you going to be still gone like you are always gone?" She allegedly commented that Akhdary was not administrative material and that he needed to be at school more. The record does not clearly demonstrate whether this alleged conversation occurred before or after the City school system was abolished.
During Akhdary's tenure at CSAS, he experienced much conflict with another assistant principal, Cindy Dees, who, according to Akhdary, warned him that his recent military orders would cause his students to suffer. Akhdary asserts that Dees stated, "You're just going to have to choose between the Navy and being a teacher." When Akhdary expressed his commitment to both endeavors, she stated, "Well, you need to quit your job in here and go in the Navy full time." On another occasion, during a faculty meeting, Akhdary asked for clarification on an issue that was discussed while he was on military leave. Cindy Dees responded, "Well, you chose not to be here." When Akhdary protested, she stated, "You could've been here if you wanted to." Whether these statements were made is, of course, disputed. For purposes of summary judgment, however, the Court must consider that the statements were indeed made.
Cindy Dees engaged in other behavior that Akhdary deemed to be abusive and humiliating regarding his military commitment. Another problem Akhdary had with Cindy Dees involved her leave time from school. It is unclear from the record whether the problems with Cindy Dees occurred before or after the City school system was abolished.
As principal, William Kennedy appointed persons to fill vacancies at CSAS after receiving a recommendation from a committee, comprised of parents and faculty, responsible for interviewing applicants. While William Kennedy was principal, Akhdary applied at least two times for a position as assistant principal. William Kennedy asserts that Akhdary was not recommended by the committee and, consequently, was not appointed to the position. In February 2000, William Kennedy received a letter from Akhdary expressing his continued interest in an administrative position at CSAS.
When the City school system was abolished in 1997, the system for hiring administrators changed, taking away much of the discretion of each school's decision makers. Changing the hiring process is asserted to have been motivated by the County's desire to eliminate the "good ole boy" system. Akhdary was not aware of the changes in the hiring process. Richard Smith, an assistant superintendent of County schools responsible for making recommendations to the director of schools concerning administrative appointments, has described the standardized application process for vacancies occurring at the end of an academic year. First, the County advertises the position at the school, the central office, and the web site, and solicits applications from certified personnel. Once Richard Smith's office receives completed applications, including an application and writing sample, from a sufficient number of persons, the applications are forwarded to Lonita Davidson, the assistant superintendent for personnel services. That office verifies each applicant's qualifications. Richard Smith's office then arranges for interviews with each qualified applicant. The interviewers rank each applicant, and from these ranking, Richard Smith makes a recommendation to the superintendent, who then usually appoints that person to the position.
The process for filling administrative vacancies that occur during the academic year is slightly different. The vacancy is not advertised; rather, the superintendent appoints an individual to this interim position. Richard Smith's office recommends to the superintendent that he appoint the most qualified person who had applied unsuccessfully for previous administrative vacancies. The appointed person is not entitled to keep the position from year to year, and it will be filled permanently prior to the beginning of the next academic year, pursuant to the standardized application process described above. Richard Smith asserts that soliciting input from a school's principal on who should be appointed to a vacancy would violate the County's hiring protocol. Participation in the County's Leadership Fellows group is not required of assistant principal candidates.
At the beginning of the 2000-2001 academic year, William Kennedy took a leave of absence from his principalship. The superintendent appointed Wilhelmina Moore, one of the assistant principals at CSAS, to serve as interim principal. This appointment caused CSAS to have an interim vacancy for an assistant principalship. The superintendent appointed Jim Boles, a teacher at CSAS and participant in the leadership program, to be assistant principal trainee. Unlike Akhdary, Jim Boles did not have a doctorate degree. Richard Smith asserts that this appointment conformed to the County's hiring protocol.
Although the County utilizes a standardized protocol for hiring administrative personnel, evidence in the record shows that administrators in a particular school do have some input in the hiring process. Wilhelmina Moore asserts that CSAS administrators made the decision that Jim Boles should be appointed to the assistant principalship, not Richard Smith's office. William Kennedy asserts that the superintendent's office solicited his opinion on who should be appointed to the assistant principalship. According to William Kennedy, he did not recommend Akhdary because he lacked people skills and the ability to bring parties together of different mind and to negotiate resolutions.
Richard Smith asserts that although the City transferred all personnel documentation to the County, his office cannot locate any documents supporting or refuting Akhdary's claims against the City. He asserts that his office has no record of administrative vacancies, Akhdary's applications, or interview notes prior to 1997.
Akhdary's principal claim is that the City and County failed to promote him. He also claims that the County failed to accurately report his retirement benefit credits to the Tennessee Consolidated Retirement System and the County denied the accrual of Akhdary's sick leave while on active military duty.
Akhdary filed suit on April 13, 2001. He asserts that he delayed filing because of his fear of retaliation by his employers in light of threats he received from Stuart Silberman; he could not afford to hire an attorney; and he wanted to give the defendants the opportunity to right the wrong. The County asserts that should Akhdary prevail, it would be subjected to liability for the City's actions because the City school system no longer exists. The City asserts that it has transferred all of its personnel records to the County and cannot defend the claim. Furthermore, the County is unable to locate any documentation that support or refute Akhdary's claims against the City.
III. ANALYSIS
At the outset, the Court must first address the defendants' argument that Akhdary's claims are barred by the statute of limitations. Both the VRRA and the USERRA expressly disallow the use of a State statute of limitations. See 38 U.S.C. § 2022 (1988); 38 U.S.C. § 4323(i); see also Stevens v. Tennessee Valley Authority, 712 F.2d 1047, 1054-55 (6th Cir. 1983). In Stevens, the court concluded that state statutes of limitations should not be applied to veterans' reemployment actions. The legislative history to the USERRA shows that Congress specifically endorsed the Stevens conclusion. See H.R. REP. NO. 103-65(I), at 39 (1993), reprinted in 1994 U.S.C.C.A.N. 2449, 2472.
The defendants assert that a federal statute of limitations is applicable to Akhdary's claims. The statute provides that "[e]xcept as otherwise provided bylaw, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues." 28 U.S.C. § 1658. Because this statute was enacted in 1990 and it applies only to claims created by after-enacted statutes, it clearly does not apply to Akhdary's claims under the VRRA.
Section 1658 also does not apply to Akhdary's claims under the USERRA. Section 1658 applies "only when Congress establishes a new cause of action without reference to preexisting law." Zubi v. ATT Corp., 219 F.3d 220, 225 (3d Cir. 2000); see also Madison v. IBP, Inc., 257 F.3d 780, 798 (8th Cir. 2001); Campbell v. National R.R. Passenger Corp., 163 F. Supp.2d 19, 25 (D.C. Cir. 2001); Coleman v. Shoney's Inc., 145 F. Supp.2d 934, 935-38 (W.D. Tenn. 2001). The USERRA does not establish a new cause of action; instead, it amends the preexisting law of the VRRA. Thus, there is no statute of limitations that applies to Akhdary's claims in this case.
The defendants also claim that Akhdary's inexcusable delay has caused them prejudice in defending this case and, therefore, laches should bar his claims. The doctrine of laches is the only doctrine used to prevent stale claims under the VRRA and the USERRA. See Stevens, 712 F.2d at 1055. However, Congress advised that laches should be used sparingly. See H.R. REP. NO. 103-65(I), at 39 (1993), reprinted in 1994 U.S.C.C.A.N. 2449, 2472.
Laches is the negligent and unintentional failure to protect one's rights. Herman Miller, Inc. v. Palazzetti Imports and Exports, Inc., 270 F.3d 298, 320 (6th Cir. 2001). As an affirmative defense, the burden of proof lies with the defendants. A defendant must prove, by a preponderance of the evidence, "(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting it." Id. There is a strong presumption that a plaintiff's delay in bringing suit is not unreasonable where the statute of limitations has not lapsed. Id. at 321; see Stevens, 712 F.2d at 1056. However, this rule cannot be strictly adhered to here in light of the clear intent of Congress for courts to eschew statutes of limitations in these types of claims. See Stevens, 712 F.2d at 1056. As such, no presumption of laches will be applied to Akhdary's case; therefore the defendants shall bear the burden of proving laches.
The Court examines the equitable circumstances affecting this case, including "the length of the delay, the reasons therefor, how the delay affected the defendant, and the overall fairness of permitting the assertion of the claim." See id. (quoting Goodman v. McDonnell Douglas Corp., 606 F.2d 800, 804-06 (8th Cir. 1979)).
The defendants claim that Akhdary's delay in bringing this action is inexcusable. Akhdary's first claim of discrimination accrued in 1985. He filed suit in 2001. In explaining his delay, Akhdary asserts that he could not afford an attorney, he feared reprisal, and he wanted to give his employers the opportunity to right their wrong. Inability to pay counsel cannot excuse a delay of this length especially considering the provisions in the statutes allowing for assistance by the Attorney General and a waiver of fees and costs. See, e.g., Leggett v. Standard Oil Co., 149 U.S. 287, 294 (1893) (upholding laches bar to patent infringement suit where plaintiff's excuse for the delay was his poverty); Jeffries v. Chicago Transit Authority, 770 F.2d 676, 680 (7th Cir. 1985) (finding delay by Title VII plaintiff where excuse is inability to pay attorney). Furthermore, allowing the defendants an opportunity to right the wrong is not a legitimate excuse for Akhdary's delay.
Although the fear of retaliation could excuse a plaintiff's delay, Akhdary's claims are unreasonable. Prior to Stuart Silberman's threat, Akhdary had successfully challenged the City regarding his lost wages. He had no indication that his discrimination claim would not be addressed by the City. Moreover, each school's principal had hiring discretion. Even though he later became responsible for personnel matters in the central office, there is no proof that Stuart Silberman could have influenced the principals that denied promotions to Akhdary. Akhdary's claims against the City were ripe at the time the school systems merged. He would have had no legitimate fear of reprisal after the abolition of the City school system.
The defendants have also shown that Akhdary's delay caused prejudice to the defense. The City is prejudiced in that the City school system no longer exists, and all personnel documentation has been forwarded to the County. The County is prejudiced by Akhdary's delay because not only would it be liable for any damages caused by the City, see T.C.A. § 49-5-203, but it also does not have any documentation on the promotions that Akhdary claims to have been denied. Both defendants would be prejudiced by lost evidence, faded memory, and the passage of time — up to 16 years have passed.
Although keenly aware of Congress' admonition that laches be used sparingly, the Court concludes that laches is a successful defense here. For the reasons expressed and in the interest of fairness, the City's motion [Court File No. 22] will be GRANTED. All claims against the City are barred by laches and will be DISMISSED. However, Akhdary's claims against the County accruing after July 1, 1997, are not barred by laches.
The County further challenges the allocation of the burden of proof and the standard by which Akhardy's discrimination claims should be adjudged. Because the claims against the City will be dismissed, the arguments arising out of the VRRA are moot.
Since 1994, the USERRA has protected reservists from discrimination by public and private employers based on their reservist status:
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.38 U.S.C. § 4311(a). An employer is liable:
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.38 U.S.C. § 4311(c) (emphasis added).
The Court applies the burden-of-proof allocations utilized by most courts in discrimination claims under the USERRA, see NLRB v. Transportation Mgmt. Corp., 462 U.S. 393, 401 (1983) (modified by Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U.S. 267 (1994)), rather than the McDonnell Douglas framework applied in other discrimination claims. See Gagnon v. Sprint Corp., 284 F.3d 839, 853 (8th Cir. 2002); Sheehan v. Dept. of Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001); Gummo v. Village of Depew, NY, 75 F.3d 98, 106 (2d Cir. 1996).
Proper analysis, in the context of summary judgment, requires an initial determination of whether there is sufficient evidence from which a rational jury could infer that Akhdary's status or conduct as a reservist was a substantial or motivating factor in his denials for promotion. Akhdary bears this burden by a preponderance of the evidence. If this evidence exists, then the Court must next determine whether it could be said as a matter of law that the County would have denied Akhdary promotions even if he had not been a reservist. The County bears this burden by a preponderance of the evidence. See Gagnon, 284 F.3d at 853-54; Sheehan, 240 F.3d at 1013; Gummo, 75 F.3d at 106; Transportation Mgmt., 462 U.S. at 400-01.
"The term `motivating factor' means that if the employer was asked at the moment of the decision what its reasons were and if it gave a truthful response, one of those reasons would be the employee's military position or related obligations." Robinson v. Morris Moore Chevrolet-Buick, Inc., 974 F. Supp. 571, 576 (E.G. Tex. 1997) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (addressing Title VII gender discrimination claim and related affirmative defense)). If the County "relied upon, took into account, considered, or conditioned its decision" on Akhdary's reservist status, then the reservist status is a motivating factor. Id.
Discriminatory motive may be proven by either direct or circumstantial evidence. See Sheehan, 240 F.3d at 1014. Because direct evidence rarely exists, discriminatory motivation may be reasonably inferred from a variety of factors. These factors include:
proximity in time between the employee's military activity and the adverse employment action, inconsistencies between the proffered reason and other actions of the employer, an employer's expressed hostility towards members protected by the statute together with knowledge of the employee's military activity, and disparate treatment of certain employees compared to other employees with similar work records or offenses.Id.
Akhdary has presented sufficient evidence from which a reasonable jury could infer a discriminatory motivation on behalf of the County. He has presented evidence from which it could be concluded that not only did County administrators consider his reservist status and consequent obligations in its decisions to deny promotions, but also that County administrators expressed hostility for his commitment to the Navy Reserves. There is evidence that Akhdary was chastised for missing in-service training, yet assistant principal Cindy Dees was permitted to vacation while school was in session. William Kennedy claims that Akhdary would not be considered for promotion because of his lack of people skills; however, Akhdary received many commendations from students and faculty over the years and had quite a successful career in the Navy Reserves.
Taking the evidence in the light most favorable to Akhdary, the County has not carried its burden of establishing that it would have denied Akhdary promotions notwithstanding his reservist status. The County argues that Akhdary did not apply for a promotion and, therefore, it is entitled to summary judgment. There is evidence that Akhdary had the certifications and qualifications to become an assistant principal. Despite the County's assertions that the application process changed after the City school system was abolished and that Akhdary did not comply with this process, the Court concludes that there is a general issue of material fact as to whether the hiring process was standardized. Because of the factual disputes, summary judgment will not be granted on the basis that Akhdary did not submit an actual application for an administrative position. Evidence that Akhdary expressed his general interest in an administrative position to William Kennedy as late as February 2000, coupled with his assertion that he was unaware of the changes in the hiring process after the County became his employer, is sufficient for Akhdary's claims to survive summary judgment.
This is not to say that Akhdary will prevail at trial on all of his claims. Whether the County was motivated by Akhdary's reservist status and whether the County can prove that its actions would have been taken in the absence of Akhdary's military status are questions for a jury to decide.
The County also has not established that there is no genuine issue of material fact surrounding the denial of Akhdary's benefits. The record offers no proof on this issue other than Akhdary's statements that the County failed to report accurately his retirement benefit credits to the retirement system and miscalculated his sick leave while on active military duty and the County's denial of his assertions.
IV. CONCLUSION
For the foregoing reasons, the City's motion for summary judgment [Court File No. 22] will be GRANTED. The County's motion for summary judgment [Court File No. 15] will be DENIED. An order will enter.
ORDER
This matter is before the Court on the defendant City's motion for summary judgment [Court File No. 22] and the defendant County's motion for summary judgment [Court File No. 15]. The City's motion is GRANTED. All claims against the City are DISMISSED and the City is dismissed as a party. The County's motion is DENIED. The plaintiff's remaining claims under USERRA include discrimination for failure to promote, denial of retirement benefits and sick leave, and "hostile work environment," accruing after July 1, 1997, against the County. The parties shall prepare for trial.
SO ORDERED.