10-1008-cv
Hart v. Family Dental Group et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________________________
August Term, 2011
(Argued: May 18, 2011 Decided: May 31, 2011)
Docket No. 10-1008-cv
_______________________________
EVAN HART,
Plaintiff-Appellant,
—v.—
FAMILY DENTAL GROUP, PC, KENNETH EPSTEIN,
Defendants-Appellees.
____________________________________
Before: MINER, CABRANES, and STRAUB, Circuit Judges.
____________________________________
Plaintiff-Appellant Dr. Evan Hart appeals from a judgment entered on February 11, 2010,
in the United States District Court for the District of Connecticut (Holly B. Fitzsimmons,
Magistrate Judge), following the District Court’s grant of a February 9, 2010 oral motion of
Defendants-Appellees Family Dental Group, PC, and its president, Kenneth Epstein, for
judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50 with respect to
Hart’s claims arising under § 4312(a) of the Uniformed Services Employment and
Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301 et seq. We hold that there was no
reasonable basis to find a violation of § 4312(a) where Hart was rehired with the same title,
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salary, and other conditions of employment after his return from military service. Therefore, we
AFFIRM the order and judgment of the District Court as to Hart’s claims arising under § 4312
of USERRA.
_________________________________
RICCARDO LUCIANO PATE, Westport, Connecticut, for Plaintiff-Appellant.
STUART M. KATZ, Cohen and Wolf, P.C., Bridgeport, Connecticut, for
Defendants-Appellees.
_________________________________
Per Curiam:
Plaintiff-Appellant Dr. Evan Hart appeals from a judgment entered on February 11, 2010,
in the United States District Court for the District of Connecticut (Holly B. Fitzsimmons,
Magistrate Judge), following the District Court’s grant of a February 9, 2010 oral motion of
Defendants-Appellees Family Dental Group, PC (“FDG”) and its president, Kenneth Epstein,
for judgment as a matter of law pursuant Federal Rule of Civil Procedure 50 with respect to
Hart’s claims arising under § 4312(a) of the Uniformed Services Employment and
Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301 et seq. For the following reasons,
we hold, as the District Court did, that there was no reasonable basis to find a violation of
§ 4312(a) where Hart was rehired with the same title, salary, and other conditions of employment
after his return from military service.
BACKGROUND
Epstein hired Hart in 2001 to work as a dentist at FDG. Prior to joining the practice, Hart
enlisted in the United States Army Reserves. Hart’s employment with FDG was governed by a
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signed employment agreement. This document provided that Hart could be terminated without
cause so long as he was given 30-days notice.
While still employed by FDG, Hart was called to active duty by the Army on two
occasions. Hart was first deployed to Fort Bragg in North Carolina and later to Fort Sam
Houston in Texas from March 2003 until September 2003. When Hart returned from active duty
in September 2003, he was reemployed by FDG. In July 2004, Hart was again called upon to
serve, and this time he was deployed to Iraq in September 2004. He was stationed in Iraq until
December 2004.
In December 2004, Hart contacted Epstein to inform him of his plan to return to FDG
upon the completion of his Army service. He began working at FDG again on January 17, 2005.
Hart was afforded the same salary, benefits, and other conditions of employment that he received
before he left for Iraq. On January 20, however, Epstein presented Hart with a letter stating that
his employment would be terminated in 60 days.
After Hart questioned Epstein about the legality of his termination, Epstein reduced the
amount of notice given to Hart from 60 to 30 days, in accordance with the employment
agreement. Hart then filed a USERRA complaint against both FDG and Epstein with the United
States Department of Labor’s Office of Veterans’ Employment and Training. He claimed that
Epstein and FDG discriminated against him on account of his military service. The Department
of Labor informed Epstein that he was required under § 4316(c)(2) of USERRA to employ Hart
for 180 days following his return from active duty. Epstein and FDG complied with the
Department of Labor’s directive and employed Hart until July 20, 2005. Because FDG and
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Epstein employed Hart for 180 days following his return from active duty, the Department of
Labor closed Hart’s USERRA case.
After his termination, Hart reopened his Department of Labor case and exhausted his
administrative remedies there. Hart then filed suit against FDG and Epstein in the District of
Connecticut in an eight-count amended complaint, with four claims against FDG and four claims
against Epstein, all arising under various sections of USERRA.
A jury trial was held on Hart’s claims in February 2010. After Hart rested his case, the
District Court granted judgment as a matter of law in favor of FDG and Epstein on Hart’s claims
under USERRA § 4311(b) (counts two and six of the amended complaint), § 4312(a) (counts
three and seven), and § 4316(a) and (c) (counts four and eight). Hart’s claims pursuant to
§ 4311(a) (counts one and five) were submitted to the jury, which found in favor of FDG and
Epstein.
Hart now challenges the District Court’s grant of judgment as a matter of law in favor of
FDG and Epstein on his USERRA § 4312(a) claims (counts three and seven of the amended
complaint); he does not challenge the jury verdict or the District Court’s grant of judgment as a
matter of law on his other claims.
DISCUSSION
We review the District Court's grant of a motion for judgment as a matter of law de novo.
Parrot v. Guardian Life Ins. Co. of Am., 338 F.3d 140, 142 (2d Cir. 2003). The portion of
USERRA at issue in this appeal, 38 U.S.C. § 4312(a) provides, in relevant part:
any person whose absence from a position of employment is necessitated by
reason of service in the uniformed services shall be entitled to the reemployment
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rights and benefits and other employment benefits of this chapter if–
(1) the person . . . has given advance written or verbal notice of such service to
such person’s employer;
(2) the cumulative length of the absence and of all previous absences from a
position of employment with that employer by reason of service in the uniformed
services does not exceed five years; and
(3) . . . the person reports to, or submits an application for reemployment to, such
employer.
Under 38 U.S.C. § 4313(a)(2)(A), an eligible returning serviceperson should be promptly
reemployed “in the position of employment in which the person would have been employed if
the continuous employment of such person with the employer had not been interrupted by such
service, or a position of like seniority, status and pay, the duties of which the person is qualified
to perform.”
There is no dispute that Hart was covered by USERRA; that both FDG and Epstein were
his employers; and that he provided proper notice of his desire to return to FDG. Morever, it is
undisputed that Hart returned to work in the same position he had before leaving for his Army
service—as a dentist employed pursuant to the terms of a written employment agreement. The
only question before us is whether Epstein’s January 20 letter providing Hart with 60-days notice
(later amended to 30-days and thereafter amended again to 180-days) and Hart’s subsequent
termination in accordance with the terms of that letter violated 38 U.S.C. § 4312(a). It did not.
“USERRA provides a comprehensive remedial scheme to ensure the employment and
reemployment rights of those called upon to serve in the armed forces of the United States.”
Morris-Hayes v. Bd. of Educ. of Chester Union Free Sch. Dist., 423 F.3d 153, 160 (2d Cir.
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2005). Section 4311 and § 4312 provide separate rights for returning service members: § 4311
protects against discrimination, and § 4312 creates an entitlement to reemployment. See Francis
v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 304 (4th Cir. 2006). Section 4312 “only entitles
a service person to immediate reemployment and does not prevent the employer from
terminating him the next day or even later the same day,” id. (internal quotation marks omitted),
while “§§ 4311 and 4316 operate to protect the employee as soon as [he] is reemployed,” id.;
accord Petty v. Metro. Gov’t of Nashville-Davidson Cnty., 538 F.3d 431, 445 (6th Cir. 2008);
Clegg v. Ark. Dep’t of Corr., 496 F.3d 922, 930 (8th Cir. 2007). For example, relevant to Hart’s
case, 38 U.S.C. § 4316(c)(2) requires that a person reemployed under USERRA not be
terminated, except for cause, “within 180 days after the date of such reemployment, if the
person’s period of service before the reemployment was more than 30 days but less than 181
days.” Moreover, § 4311(a) prohibits employers from discriminating against returning
employees on the basis on their military service. Therefore, while § 4312 only provided Hart
with the right of reemployment, he was provided additional protections by other sections of
USERRA. Hart did not appeal his claims arising under § 4311 and § 4316 and we express no
opinion on their merit.*
*
Section 4311 states, in relevant part
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.
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As the District Court explained in its order granting judgment as a matter of law, “the
evidence is clear that Dr. Hart was re-employed on his return from his leave for 180 days, with
the same seniority and other rights and benefits or lack of benefits that he had . . . before he left
on his tour.” That is all § 4312 requires. With these facts not in dispute, there was no reasonable
basis for the District Court to find a violation of § 4312(a), and it properly granted judgment as a
matter of law in favor of FDG and Epstein.
CONCLUSION
Accordingly, for the foregoing reasons, we AFFIRM the order and judgment of the
District Court as to Hart’s claims arising under § 4312 of USERRA.
38 U.S.C. § 4311(a). Section 4316 states, in relevant part:
A person who is reemployed under this chapter is entitled to the
seniority and other rights and benefits determined by seniority that
the person had on the date of the commencement of service in the
uniformed services plus the additional seniority and rights and
benefits that such person would have attained if the person had
remained continuously employed.
38 U.S.C. § 4316(a).
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