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February 19, 1993

JOHN R. TUKESBREY and DIANE TUKESBREY, his wife, Plaintiff,

The opinion of the court was delivered by: GUSTAVE DIAMOND


 Defendant, Midwest Transit, Inc., is a corporation which transports the United States Mail to and from various locations within the United States. The corporation's central administrative office is located in Mt. Carmel, Illinois, and its operations office and garage are located in Sumner, Illinois. Plaintiff John R. Tukesbrey is a Pennsylvania resident and an experienced professional truck driver. He was hired by Midwest as an interstate driver on or about January 23, 1989, to drive a route from Washington, Pennsylvania, to Detroit, Michigan. On January 12, 1990, plaintiff enlisted in the Pennsylvania Army National Guard ("Guard"). Shortly thereafter, on or about January 17, 1990, Midwest Transit suspended plaintiff for the stated reason that he did not hold a valid Pennsylvania commercial driver's license. Plaintiff claims he was discharged because of his enlistment in the Guard. The facts will be developed more fully within.

 Plaintiff instituted this action against his former employer for violation of the Veteran's Reemployment Rights Act ("VRRA"), 38 U.S.C. § 2021 et seq. In separate counts, plaintiff also asserts causes of action for violation of the Pennsylvania Military Affairs Act, 51 Pa.Cons.Stat.Ann. § 7309, wrongful discharge, and intentional infliction of emotional distress. Plaintiff's wife, Diane Tukesbrey, asserts in a separate count derivative causes of action for loss of consortium and intentional infliction of emotional distress. *fn1" Jurisdiction is founded upon 28 U.S.C. §§ 1331 and 1367. Before the court is defendant's motion for summary judgment.


 The Veteran's Reemployment Rights Act contains provisions which prohibit discrimination in employment because of membership in the Armed Forces Reserves. *fn2" Monroe v. Standard Oil Co., 452 U.S. 549, 557-59, 69 L. Ed. 2d 226, 101 S. Ct. 2510 (1981). Plaintiff asserts a cause of action under 38 U.S.C. § 2021(b)(3), which provides:

Any person who seeks or holds a position [in the employ of a private employer] shall not be denied hiring, retention in employment, or any other promotion or incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces.

 In addition, § 2024(d) of the Act requires an employer to grant leave upon request to reserve members for active duty or training or inactive duty training and guarantees reemployment at the same seniority, status, and pay. Person's injured by a violation of the foregoing provisions may bring a private action for equitable remedies such as reinstatement and backpay. See Britt v. Georgia Power Co., 677 F. Supp. 1169, 1174 (N.D.Ga. 1987).

 In order to recover under § 2021(b)(3), a reservist must show that an adverse employment decision was made based solely on his membership in the reserves. Id.; Clayton v. Blachowske Truck Lines, Inc., 640 F. Supp. 172, 174 (D.Minn. 1986), aff'd, 815 F.2d 1203 (8th Cir. 1987); Weber v. Logan County Home for the Aged, 623 F. Supp. 711, 714 (D.N.D. 1985), aff'd, 804 F.2d 1058 (8th Cir. 1986). Plaintiff argues that we should apply the less demanding substantial factor test used in Title VII employment discrimination cases. See, e.g., Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.), cert. dismissed, 483 U.S. 1052 (1987). The Supreme Court, however, stated in Monroe:

The legislative history . . . indicates that § 2021(b)(3) was enacted for the significant but limited purpose of protecting the employee-reservist against discriminations like discharge and demotion, motivated solely on reserve status.

 452 U.S. at 559 (emphasis added). Thus, § 2021(b)(3) was "designed to protect reservists or guardsmen from discharge other than for good cause unrelated to their membership." Fann v. Modlin, 687 F. Supp. 218, 220 (E.D.N.C. 1988). Accord Burkout v. Post-Browning, Inc., 859 F.2d 1245, 1247 (6th Cir. 1988). Congress' intent was to place reservists on equal footing with other employees. Monroe, 452 U.S. at 559-60. This purpose is served by ensuring that employers do not make employment decisions based solely on an employee's military reserve membership. *fn3" Clayton, 640 F. Supp. at 174 .

 Despite the differing standards, it is appropriate to apply the burden-shifting mechanism developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and its progeny for Title VII cases to VRRA cases. See, e.g., Sawyer, 836 F.2d at 1262; Britt, 687 F. Supp. at 1176; Weber, 623 F. Supp. at 714 ; Fann, 687 F. Supp. at 220 . The court recognizes that plaintiffs in both types of cases are confronted with the same problem: it is difficult to prove an employer's intent or motivation. See Chipollini, 814 F.2d at 897-98; see also Simmons v. Didario, 796 F. Supp. 166 (E.D.Pa. 1992) (applying burden-shifting mechanism in action brought under 38 U.S.C. § 2021(b)(1)(A)). Thus, the McDonnell Douglas device applies to cases of employment discrimination regardless of the statute providing the basis for recovery.

 Under McDonnell Douglas, an employment discrimination plaintiff bears the initial burden of establishing a prima facie case of employment discrimination. 411 U.S. at 802; Chipollini, 814 F.2d at 897. A plaintiff may use either direct evidence or circumstantial evidence to establish that the employer's decision was motivated by plaintiff's membership in a protected class. Chipollini, 814 F.2d at 897. Since the plaintiff has established a prima facie case, the burden shifts to the defendant to "articulate some legitimate, nondiscriminatory reason" for its employment decision. McDonnell Douglas, 411 U.S. at 862. The plaintiff then regains its ultimate burden of proving discrimination: he must prove by a preponderance of the evidence "that the legitimate reasons offered by the defendant were not its true reasons but were a pretext discrimination." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).


 The parties raise several matters which must be addressed before the court turns the substance of defendant's motion for summary judgment. The parties have filed several motions regarding the preclusive and evidentiary effect of an unemployment compensation referee's decision. In addition, defendant has moved to strike an affidavit submitted by plaintiff in opposition to its motion for summary judgment.


 After Midwest Transit suspended him, plaintiff applied for Pennsylvania unemployment compensation benefits. Defendant contests plaintiff's claim on the grounds that plaintiff was discharged for cause. A hearing was held before an unemployment compensation referee ("referee") who decided that plaintiff engaged in no wrongful misconduct *fn4" and awarded benefits. Defendant did not appeal the referee's decision. The parties have filed a series of related motions regarding the effect the unemployment compensation proceedings should have in the instant action. Defendant raised the issue first in a motion in limine to exclude evidence regarding the unemployment compensation proceeding. Plaintiff responded with a cross motion in limine to preclude defendant from relitigating issues decided by the referee. Finally, defendant filed a motion to strike plaintiff's cross motion in limine. *fn5" Because the doctrine of collateral estoppel guides the court's decision on both motions in limine, plaintiff's cross-motion must be addressed first.

 Plaintiff's cross motion in limine invokes the doctrine of collateral estoppel to preclude defendant from relitigating the referee's decision that plaintiff was not guilty of wrongful misconduct. Plaintiff now seeks to use that finding to preclude defendant from presenting in this court evidence to show that plaintiff was terminated for insubordination or for not holding a Pennsylvania license. Collateral estoppel, also known as issue preclusion, prevents a party from relitigating an essential factual issue finally decided in a previous action to which it was a party.

 Federal courts must give facts found in state administrative agency judicial proceedings the same preclusive effect that they would be accorded by the state's own courts. University of Tennessee v. Elliott, 478 U.S. 788, 799, 92 L. Ed. 2d 635, 106 S. Ct. 3220 (1986). See also Kelley v. TYK Refractories Co., 860 F.2d 1188, 1193 ...

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