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Dubiak v. South Abington Township

United States District Court, M.D. Pennsylvania

April 16, 2014



ROBERT D. MARIANI, District Judge.

I. Introduction

The above-captioned matter arises under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301, et seq. Plaintiff brought this action after being denied reemployment at the South Abington Police Department following active duty with the United States Marine Corps. Defendant subsequently filed a Motion to Dismiss for failure to state a claim under 38 U.S.C. § 4311. For the reasons discussed below, the Court will deny the Motion.

II. Factual Allegations

Plaintiff's Amended Complaint alleges the following well-pleaded facts.

On June 24, 2004, the Plaintiff, William Dubiak, enlisted with the United States Marine Corps on reserve duty. (Am. Compl., Doc. 22, at ¶ 13.) On July 3, 2008, he began employment for the South Abington Police Department as a police officer. ( Id. at ¶ 14.) However, in May of 2009 he was called to active duty with the Marines, beginning on May 15, 2009. ( Id. at ¶¶ 15-16.) At this time, his tour of duty was scheduled to continue until June 18, 2010. ( Id. at ¶ 15.) After commencing active duty, Dubiak was deployed to Iraq. ( Id. at ¶ 16.)

Dubiak returned from Iraq to his home state of Pennsylvania on December 18, 2009, at which point he was informed that he could be released early from active duty and return to civilian employment. ( Id. at ¶¶ 17-18.) Thus, Dubiak prepared a letter to the South Abington Police Chief shortly thereafter, requesting to be reinstated to his former job with the Department. ( Id. at ¶ 19, 21.) But after filing the request, Plaintiff alleges that he was subjected to a series of obstacles meant to frustrate his ability to return to work, including being required to take unnecessary training, ( id. at ¶¶ 22-24); having his phone calls ignored after he completed the training, ( id. at ¶¶ 25-26); being explicitly threatened with "a full investigation that would ruin [his] future" if he returned to work, ( id. at ¶ 30); and, finally, being forced to take part in a coercive and harassing "employment interview" which lasted for hours, without access to counsel, and in which he was escorted to his car by police officers in order to make a phone call, ( id. at ¶¶ 33-34). Later, a representative of the police department allegedly entered the property of the Marine Corps Reserve Unit to which Dubiak was assigned and demanded official documents pertaining to Dubiak's case in a belligerent manner, necessitating his removal from the property. ( Id. at ¶¶ 36-37.)

Ultimately, Dubiak was terminated from the South Abington Police Department on May 10, 2010, while still on active duty. ( Id. at ¶¶ 38-39.) The termination occurred even though a full-time position was available, which was later filled by another applicant. ( Id. at ¶¶ 41-42.)

Being unable to return to civilian employment, Dubiak did not terminate his active duty early, but rather was honorably discharged from the Marine Corps on June 18, 2010, as initially planned. ( Id. at ¶¶ 40, 44, 61.) Despite a belief that doing so would be futile, he sent another application for reinstatement to the South Abington Police on June 22. ( Id. at ¶ 45.) Though Dubiak does not inform the Court how the Department responded to his second application, the posture of the litigation indicates that it was unsuccessful.

III. Procedural History

Plaintiff filed his first Complaint on December 31, 2012. ( See generally Compl., Doc. 1.) The Complaint contained only one Count, entitled "Violation of Employment &Re-Employment Rights of Members of the Uniformed Services (USERRA) 38 U.S.C. 4301, et seq." ( See id. at 9.) It did not specify on which sections of USERRA it relied.

Defendant then flied a Motion to Dismiss, which claimed that the Complaint failed under sections 4311 and 4312 of the Act. ( See Def.'s Mot. to Dismiss, Doc. 6, at 5.) Plaintiff, in turn, filed an Amended Complaint, alleging the same single claim as above. (See Am. Compl., Doc. 22.) Upon notice that the Court considered the Amended Complaint to render the first Motion to Dismiss moot, ( see Order of Nov. 4, 2013, Doc. 25, at 1), Defendant renewed its Motion to Dismiss "but solely as to its argument that Mr. Dubiak fails to state a claim under 38 U.S.C. § 4311, " which the Defendant noted was discussed in paragraphs 20-26 of its Motion and pages 17-19 of its supporting brief, (Letter of Nov. 12, 2013, Doc. 26, at 1).[1]

IV. Standard of Review

A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6), if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). The plaintiff must aver "factual content that allows the court to draw the reasonable inference that the defendant is liable for the ...

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