The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
Presently before the Court for disposition is the MOTION FOR SUMMARY JUDGMENT (Document No. 22) filed by Defendant Crescent Township. Plaintiff has filed a response and brief in opposition and Defendant has filed a reply brief. The motion is ripe for disposition.
On March 17, 2006, Plaintiff, Samuel K. Tranter ("Tranter"), filed a two-count Complaint in this Court against Defendant, Crescent Township ( the "Township") in which he alleges that as a military veteran and national guardsman, he was subjected to anti-veteran discrimination. Tranter has been employed by the Township since 1979 as a laborer in the road department, performing road and equipment maintenance and snow removal, and is still employed in that capacity. Tranter claims that when his immediate supervisor retired he was next in line for the Road Foreman position, but instead of promoting him, the Township abolished that position. Shortly thereafter, the Township created a new position of Leadman which had essentially the same duties as Road Foreman. Another candidate was hired for the Leadman position, who Tranter claims was less qualified and needed help in performing the Leadman duties. Tranter asserted that the Township eliminated the Road Foreman position and hired a less qualified candidate for the Leadman position due to its anti-veteran animus directed toward him, in violation of the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301 et seq. ("USERRA") and the Pennsylvania Veterans' Preference Act, 51 Pa. C.S.A. § 7101 et seq. ("VPA"). By Memorandum Opinion and Order dated July 3, 2006, the Court granted Defendant's motion to dismiss the VPA claim but denied the motion to dismiss as to the USERRA claim, noting that discovery was necessary to determine whether or not Tranter had suffered discrimination and what remedies, if any, are appropriate. Discovery is now complete and Defendant's motion for summary judgment on the USERRA claim is ripe.
Rule 56(c) of the Federal Rules of Civil Procedure reads, in pertinent part, as follows: [Summary Judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
In interpreting Rule 56(c), the United States Supreme Court has stated:
The plain language . . . mandates entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to material fact," since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.
An issue of material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must view the facts in a light most favorable to the non-moving party, and the burden of establishing that no genuine issue of material fact exists rests with the movant. Celotex, 477 U.S. at 323. The "existence of disputed issues of material fact should be ascertained by resolving all inferences, doubts and issues of credibility against the moving party." Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978) (quoting Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir. 1972)). Final credibility determinations on material issues cannot be made in the context of a motion for summary judgment, nor can the district court weigh the evidence. Josey v. John R. Hollingsworth Corp., 996 F.2d 632 (3d Cir. 1993); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224 (3d Cir. 1993).
When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by 'showing' -- that is, pointing out to the District Court -- that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. If the moving party has carried this burden, the burden shifts to the non-moving party, who cannot rest on the allegations of the pleadings and must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Petruzzi's IGA Supermarkets, 998 F.2d at 1230. When the non-moving party's evidence in opposition to a properly supported motion for summary judgment is "merely colorable" or "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-250.
One of the stated goals of the USERRA is "to prohibit discrimination against persons because of their service in the uniformed services." 38 U.S.C. § 4301(a)(3). The USERRA provides in part:
[a] person who is a member of, performs, has performed, applies to perform or has an obligation to perform service in a uniformed service shall not be denied.promotion, or any benefit of employment by an employer on the basis of that membership, application for ...