United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3237
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Jordan To, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
US Bancorp, doing business as US *
Bank; U.S. Bank National Association, *
*
Appellees. *
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Submitted: June 14, 2011
Filed: August 25, 2011
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Before LOKEN, BEAM, and GRUENDER, Circuit Judges.
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BEAM, Circuit Judge.
Jordan To appeals the district court's1 grant of summary judgment in favor of
his former employer, appellee U.S. Bank, in this wrongful-termination suit brought
pursuant to the Uniformed Services Employment and Reemployment Rights Act
(USERRA). We affirm.
1
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
I. BACKGROUND
From March 2007 to August 2008, To worked for U.S. Bank as a Senior
Research Clerk. In October 2007, To enlisted in the Minnesota National Guard. In
early 2008, he received orders to attend training in Fort Benning, Georgia. The
training began on April 20, 2008, and was initially scheduled to end July 10, 2008.
While stationed at Fort Benning, To suffered a groin injury and later became ill and
severely fatigued. He missed a significant amount of training due to this illness.
Because he missed so much training, To's orders were amended, extending his
training period until August 1, 2008. The record is undisputed that To did not contact
anyone at U.S. Bank to inform them that he became ill during his military duty.
On July 29, To sent an email to Jill Friedges, who was To's direct supervisor
at the time he left for training. In the email, To said that he was still at training and
that he was not sure when he would return to Minnesota. He did not mention feeling
ill. Friedges, who had taken a new position within U.S. Bank, forwarded the email
to human resource officials. On Monday, August 4, To participated in a conference
call with his manager, Jeff O'Neill and O'Neill's boss, Kristen Cornelius. To stated
that he was back from military leave and wished to return to work at U.S. Bank, but
that he was not feeling well and needed time to recuperate. According to To, O'Neill
and Cornelius indicated To would need to provide a doctor's note if he was going to
miss work.
From August 5 to August 8, 2008, To called O'Neill each day and left a voice
mail stating that he was not feeling well and would not be reporting to work. On
August 6, To saw a doctor at Aspen Medical Group who tested To for pneumonia.
The test came back negative, but the doctor provided To with a return-to-work slip
saying he would be absent until August 11. At To's request, Aspen faxed a copy of
this return-to-work slip to Daniel Truong, who had replaced Friedges as To's
supervisor.
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To did not report to work on Monday, August 11. Truong testified that To
called in that morning, saying he was still ill and asking for a fax number where he
could send an updated return-to-work slip. On the afternoon of August 11, Aspen
faxed Truong a second return-to-work slip stating that To would be out of work until
August 18.
On August 14, O'Neill called To, checking on his health and plans to return to
work. To indicated that he still wasn't feeling back to normal, but that he was
"getting better, trying to get better" and that he wished to return to work the next
Monday, August 18. He said that U.S. Bank should not mail his paycheck, which
would be cut on August 15, because he would be at work to pick it up the next week.
To also said he would contact O'Neill if he was not better by the 18th.
To did not show up for work August 18, 19, or 20. He did not call any
supervisor or manager at U.S. Bank to notify them that he would not be coming to
work. To alleges that on August 15 he contacted Aspen and asked that a new return-
to-work slip be faxed to U.S. Bank, excusing him from work the following week.
U.S. Bank denies receiving a return-to-work slip covering the week of the 18th.
During discovery, To did produce a return-to-work slip dated August 15. The
document was addressed, in handwritten words, to "Daniel"–presumably Truong– and
listed a correct fax number for U.S. Bank. Karen Kreich, Clinic Supervisor at Aspen,
explained at her deposition that Aspen does not receive a confirmation when a fax
goes through, but rather only gets failure notifications if a fax does not successfully
transmit. Kreich said that certain markings on the August 15 return-to-work slip
indicated that someone at Aspen had faxed the document on August 15 and that no
failure notification had been received. However, Kreich had no personal knowledge
about whether the fax had been sent.
Absences at U.S. Bank are governed by two policies published in the company
handbook. The "Reporting Absences" policy states:
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You are expected to report all absences yourself . . . as soon as
practicable after you become aware of the need for the absence. You
must speak directly to your manager or supervisor and follow all
reporting procedures required by the department. You may not report
an absence by leaving a voice mail, sending email, or telling your co-
workers, unless your supervisor or manager specifically approves
reporting absences in one of these manners. . . . Please note that
contacting the U.S. Bank Employee Service Center or Human Resources
does not satisfy the requirement to contact your supervisor directly to
notify him or her that you will be absent, even if you are using or
applying for . . . Family Medical Leave Act (FMLA) time.
The handbook also contains a "Job Abandonment" policy, which provides:
If you remain absent from work for two (2) consecutive work days and
fail to report the absence directly to your manager or supervisor, absent
extenuating circumstances, you may be assumed to have voluntarily
abandoned your job. Contacting the U.S. Bank Employee Service
Center or your Human Resources representative does not satisfy the
requirement to contact your manager directly to notify him or her that
you will be absent, even if you are using or applying for . . . FMLA
time.
To received a copy of the handbook containing these policies at the time he was hired.
The policies were also available on the company intranet, which To had access to
while employed at U.S. Bank.
On August 20, U.S. Bank human resource officials determined that To had
abandoned his job. The next day, U.S. Bank mailed a termination letter, which To
received on August 22. After receiving the letter, To called to talk to Truong, who
said he was not aware of To's termination. Truong recommended that To call O'Neill
or Cornelius. To did not do so.
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Later that week, To called human resources official Karen Dahlstrom to talk
about his termination. Dahlstrom reiterated that To was terminated because he did not
comply with U.S. Bank policies for reporting asbences. During the conversation, To
referenced the August 15 return-to-work slip that he claimed had been sent to U.S.
Bank. At her deposition, Dahlstrom gave uncontroverted2 testimony that, during this
phone call, she provided To with her fax number and said that, if he would send a copy
of the August 15 return-to-work slip, U.S. Bank would "reevaluate his situation."
Dahlstrom did not receive a copy of the August 15 return-to-work slip. However, on
August 26, Aspen faxed over another return-to-work slip, saying that To would not be
able to return to work until mid-September. U.S. Bank did not reevaluate To's
situation in light of this note because it was dated after his termination date.
On November 13, 2008, To filed a suit in federal district court, bringing claims
under the FMLA and USERRA. U.S. Bank moved for summary judgment. On
September 7, 2010, the district court issued an order granting summary judgment. To
appeals only the dismissal of his USERRA claim.
II. DISCUSSION
We review the district court's grant of summary judgment de novo. Peterson v.
Scott Cnty., 406 F.3d 515, 520 (8th Cir. 2005). Summary judgment is appropriate
only if there is no genuine issue of material fact and the moving party has proved it is
entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986). For this purpose, a fact is "material" if it must inevitably be resolved
and its resolution will determine the outcome of the case, and a factual issue is
2
To testified only that he did not recall whether Dahlstrom made this request,
and that if she had he would have sent it. An assertion that a party does not recall an
event does not itself create a question of material fact about whether the event did,
in fact, occur. See Elnashar v. Speedway SuperAmerica, LLC, 484 F.3d 1046, 1057
(8th Cir. 2007).
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"genuine" if evidence is such that a reasonable jury could return a verdict for the
nonmoving party. Id.
USERRA temporarily changes the at-will employment status of returning
veterans depending on length of service. If, like To, an employee's military service
was longer than thirty days but less than 181 days, the employee cannot be discharged
except for "cause" within the first 180 days after reemployment. 38 U.S.C. §
4316(c)(2). USERRA does not define the term "cause," but it grants the Secretary of
Labor authority to prescribe regulations implementing the statute, id. § 4331, which
the Secretary has used to define cause. 20 C.F.R. § 1002.248(a). In order to prove the
"cause" needed to discharge an employee covered by USERRA based on that
employee's conduct, an employer must show: (1) that the employer's decision was
reasonable, and (2) that the employee had notice that such conduct would be a ground
for discharge. Id. § 1002.248(a); Hillman v. Arkansas Highway & Transp. Dep't, 39
F.3d 197, 200 (8th Cir. 1994). To has not raised a genuine factual dispute on either
question.
A. Reasonableness
Although summary judgment is rare in USERRA termination cases because the
burden of proving cause is on the defendant, it is appropriately granted when an
employer's decision to terminate an employee is reasonable as a matter of law. See
Rademacher v. HBE Corp., No. 10-1816, 2011 WL 2718147, at *6 (8th Cir. July 14,
2011); Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 308-09 (4th Cir. 2006).
A "reasonable" termination decision does not always need to be grounded in legal
cause rising to the level of misconduct, and subjective bad faith on the part of the
employee is not required. Hillman, 39 F.3d at 200 ("[A] greater element of subjective
culpability appears to be required for a finding of 'misconduct' than that needed to find
'just cause' under the Act. We are inclined to agree with the district court that while
misconduct would always constitute just cause, the converse is not necessarily true.").
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Rather, a firing for "cause" need only be based on conduct such that it is "fair to
discharge the veteran because of his conduct." Rademacher, 2011 WL 2718147, at *6
(quotation omitted). U.S. Bank's decision to fire To was reasonable as a matter of law
because To violated a clear written company policy by failing to properly report his
absences. U.S. Bank's Job Abandonment policy expressly states that an employee
forfeits his job if he neither appears for work nor properly reports his absences for two
days in row. U.S. Bank acted reasonably in enforcing these policies.
To argues that the district court erred by concluding To did not raise a genuine
fact dispute about whether Aspen did fax a return-to-work slip to U.S. Bank on August
15, 2008. We do not need to determine whether To created a genuine fact dispute on
this issue, because we conclude that–even if disputed–this question is not material to
whether U.S. Bank acted reasonably by terminating To. Even assuming Aspen did fax
a note to U.S. Bank on August 15, U.S. Bank still had just cause to fire To. U.S. Bank
has consistently maintained that, regardless of whether To had a fax sent on August
15, he still did not comply with company policy, which required him to personally
report his absence to a manager or supervisor.
In response, To argues that whether he sent the fax is material because U.S.
Bank had effectively modified its written policies for To by previously accepting his
faxed doctor's notes as an adequate way of reporting his absence. However, the record
does not support this argument. U.S. Bank has presented uncontested evidence that,
in addition to faxing doctor's notes, To called in to report absences for the weeks of
August 4 and August 11. Although To argues there is a genuine dispute of fact about
whether he called in to report his absence the week of August 11, we conclude there
is not. U.S. Bank presented testimony from Truong that To called in on August 11 to
report that he was not returning to work and to let Truong know he would be faxing
a return-to-work slip. There is no testimony from To denying that this conversation
took place. Rather, there is only a statement that he did not recall the conversation.
To's lack of memory does not create a genuine factual dispute. See Elnashar, 484 F.3d
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at 1057. Further, To presented no evidence that any official at U.S. Bank told To that
faxing in a doctor's note was an adequate means of reporting an absence in his
situation. His claim that O'Neill asked him to provide a doctor's note at the August 4
meeting does not suggest that O'Neill indicated that To only needed to provide a
doctor's note. To's argument to the contrary is undermined by the fact that he did
continue to call O'Neill to report his absences in the days after that conference call.
To also argues that whether the fax was sent must be material because, after To
was terminated, U.S. Bank said it might be willing to reconsider its termination
decision if To produced a copy of the return-to-work slip excusing To for the week of
August 18. However, we find this argument unpersuasive. Under To's logic, U.S.
Bank would forfeit its right to rely on written policies by being willing to occasionally
forgive violation of those policies in the face of extenuating circumstances and
equitable concerns. We decline to establish a rule that would penalize an
employer–motivated by a sense of fairness or perhaps even mercy–for providing a
contextual reevaluation of a termination decision that was, regardless of that context,
clearly authorized by company policies. While an employer's decision to disregard a
policy before an employee is terminated might–in some circumstances–cause that
policy to be modified for that employee because of reasonable reliance on an
employer's actions, an employer's willingness to reconsider a policy after an employee
has been terminated has no similar effect. Nothing in the notion of "cause" requires
such a rule. Rather, the fact that U.S. Bank gave To an additional opportunity to
comply is further evidence that U.S. Bank acted reasonably. To apparently did not
take advantage of this opportunity because he did not send in a copy of the correct
return-to-work slip when Dahlstrom gave him that chance for reconsideration. The
fact that Dahlstrom asked for the fax after To was terminated does not make whether
the fax was sent on August 15 a material question.
Finally, the record contains no indication that U.S. Bank's decision to terminate
To because of his violations of company policy was pretextual. To correctly points
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out that establishing wrongful termination under USERRA does not require an
employee to establish that he was fired for a discriminatory reason. Nonetheless, as
the district court recognized, evidence of pretext may raise a question about whether
an employer's proffered cause for firing an employee was reasonable. Hillman, 39
F.3d at 200. Here, there was no such evidence and we conclude that To has not raised
a question of material fact about whether U.S. Bank's decision to fire him was
reasonable.
B. Notice
Similarly, To has failed to raise a question of material fact about whether he had
notice that he was likely to be fired for his conduct. For USERRA purposes, notice
can be either express or fairly implied. Id. U.S. Bank's decision to terminate To was
based on two policies spelled out in advance and published in the company handbook.
To received a copy of the U.S. Bank employee handbook, which was also available
to him via the U.S. Bank intranet. The policies specifically state that the consequence
for two consecutive, unreported absences is termination. To's knowledge of policies
clearly outlined in the handbook is fairly implied. This is especially true where, for
the first two weeks of his absence, To did directly report his absence to his supervisor.
To argues that he did not have adequate notice because U.S. Bank did not
"forewarn" him that failure to report his absence directly to his supervisor the week
of the 18th would result in his termination. However, "forewarning" is not required
under USERRA, where the Secretary of Labor has made clear that notice to an
employee may be adequate if it is "fairly implied." 20 C.F.R. § 1002.248(a).
III. CONCLUSION
We affirm.
Judge Loken dissents.
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