From M-16s to the F.R.C.P. : The 11th Circuit’s USERRA Blunder

I: Introduction 

    On June 19, 1879, General William Sherman famously declared that war is hell. [1]. It is undeniable that war demands great sacrifices from those who serve. In 1994, Congress sought to mitigate the depth of such sacrifices through the enactment of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). The USERRA’s purpose is two fold: prevent employment discrimination against those who have served in the military and secure the reemployment of military servicepersons. [2]

    The 11th Circuit erred in its interpretation of the USERRA in deciding the matter of Coffman v. Chugach. [3]. The ultimate holding was correct in light of the recognition of the plaintiff’s failure to establish a prima facie case. Despite this, the court’s method of arriving at its conclusion failed to establish an acceptable standard for future courts to follow.

II: The USERRA

 The USERRA was born out of the ashes of World War I. As American soldiers returned from the Western Front, many found that the jobs they had left were not waiting for them when they returned. [4]. “Over 200,000 World War I veterans ended up jobless upon their return from service to their country.” [5].  In reaction to this plight, on the eve of America’s entry into World War II, Congress passed the Selective Training and Service Act of 1940 to statutorily assure the job security of those serving their country. [6].

    The Selective Training and Service Act evolved through the next half-century. In 1994, Congress enacted the USERRA, which, despite modification from the original 1940 act, sought to enforce the same goals. [7]. The USERRA prohibits employment discrimination based on an applicant’s military status, [8] establishes that those returning from military services are entitled to reemployment conditional on several requirements, [9] and addresses various details pertaining to issues of seniority, promotion, etc. [10].

III: Coffman v. Chugach Support Sys. Inc [11]

     Charles Coffman served as a civilian contractor at Tyndall Air Force Base in Panama City, Florida. [12]. An Air Force reservist, he was called into active duty. [13].While serving overseas, Coffman’s employer was replaced as the primary contractor at Tyndall. [14]. Coffman returned to Tyndall to find the new contractor unable/unwilling to reinstate him in his pre-deployment position. [15]. Coffman then filed suit under the USERRA, suing for reinstatement to his pre-activation position. [16].

 
IV: The Misinterpretation of Kicinksi

 When Charles Coffman left for his Air Force service, his employer, Del-Jen, was the primary contractor for base support at Tyndall. [17]. When Coffman returned, however, Del-Jen had been replaced by Chugach. [18]. It is this replacement that complicates the application of the USERRA.

    The USERRA anticipated such acquisitions/takeovers and specifically included the term “successor in interest” within the definitions of “employer” regarding who may be implicated by the USERRA. [19]. What Congress failed to do however, as Coffman succinctly notes, is define what “successor in interest” actually means. [20].

    The judiciary, in navigating around this omission, crafted in Leib a seven-prong test to determine if a successor-employer falls within governance of the USERRA. [21]. Despite acknowledging Leib as the standard test for these matters, the Coffman Court refused its implementation. [22]. Rather, the court cited Kicinski in holding that “such analysis is unnecessary and improper” without a merger/transfer of assets. [23], [24]. Coffman continues by citing several cases in which the merger/transfer of assets preceded a finding of successor-liability thus fallaciously concluding that the issue of asset transfer is a necessary element to the successor-liability equation. [25].

    The scope of this article precludes a full analysis of the clear factual distinctions between Coffmanand Kicinski. However, even a cursory juxtaposition of the two matters shows that any analogy between the two cases is improper for purposes of USERRA implementation. The conclusion the Coffman court arrived upon, that is, to not even bother applying the Leib test, is inherently flawed due to the faulty premise upon which it was based. The proper course would have been to give the Leib test its due merit and actually analyze the facts, not baldly assert conclusions.

 
V: The Dropped Ball

 The Coffman court stressed the transfer/merger of assets as a dispositive issue in their determination of successor liability. [26]. This conclusion is based upon the observation of other relevant cases also involving the transfer/merger of assets in their respective findings of successor liability. [27]. 

 Such fallacious reasoning is often classified under the Latin moniker of post hoc ergo propter hoc. [28]. This fallacy is found in arguments that allege that because X occurred before Y, X is the cause of Y. Consider an individual who picks a stray tennis ball off the ground and then notes that there are no polar bears openly prowling the area. If he were to conclude that the lack of polar bears was the result of his newly acquired tennis ball, he would be a victim of the “post hoc” fallacy. Unfortunately, theCoffman court is exactly this victim in arriving at their conclusion. Simply noting that previous cases that have found successor liability have also found the transfer/merger of assets is entirely inadequate as a line of reasoning. There appears to be no express indication outside of Coffman alleging the necessity of the asset issue.

 
VI: The Once and Future Test

 This author suggests that the proper course of action would be implication of the Leib test in all successor-privity matters. The test offers protection to successor businesses by placing the burden of proof on the plaintiff and only finding successor liability in situations, which conform to the scrutiny of the seven factors of Leib. The plaintiff’s interests are protected by not couching successor-liability issues in esoteric business concepts or denying justice because of the hollow transfer of paperwork.

    While war may be hell for our nation’s fighting men and women, their transition back into civilian life should not be as equally arduous. It runs contrary to notions of justice and common decency to have veterans, upon laying down their rifles, be forced to pick up the Federal Rules of Civil Procedure. The USERRA is a worthy attempt to improve the lives of our returning veterans; the enforcement of that law should be equally noble.

 

[1] Lloyd Lewis, Sherman: Fighting Prophet 637 (reprint ed., U. Neb. Press 1993) (“There is many a boy here today who looks on war as all glory, but, boys, it is all hell.”).

[2] 38 U.S.C. §§ 4311-4313 (1994).

[3] Coffman v. Chugach Support Sys. Inc., 411 F.3d 1231, 1232 (11th Cir. 2005).

[4] Leib v. Georgia-Pacific Corp., 925 F.2d 240, 242 (8th Cir. 1991).

[5]  Id. at n.3.

[6] Wrigglesworth v. Brumbaugh, 121 F. Supp. 2d 1126, 1130 (W.D. Mich. 2000)

[7] Id.

[8] 38 U.S.C. § 4311 (1994).

[9] 38 U.S.C. § 4312 (1994).

[10] 38 U.S.C. § 4313 (1994).

[11] Coffman, 411 F.3d 1231.

[11] Id.

[13] Id.

[14] Id.

[15] Id., at 1233.

[16] Id.

[17] Coffman, 411 F.3d at 1232.

[18] Id.

[19] 38 U.S.C. § 4303(4)(A)(iv) (1994).

[20] Coffman, 411 F.3d at 1237.

[21] Leib, 925 F.2d at 248 (1. Substantial continuity of same business operations, 2. Use of the same plant, 3. Continuity of work force, 4. Similarity of jobs and working conditions, 5. Similarity of supervisory personnel, 6. Similarity in machinery, equipment, and production methods, 7. Similarity of products or services).

[22] Coffman, 411 F.3d at 1238.

[23] Id.

[24] Id.

[25] Id.

[26] Id. at 1238.

[27] Id.

[28]  Black's Law Dictionary  1205 (Bryan A. Garner ed., 8th ed., West 2004)("After this, therefore because of this.")

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