United States District Court, W.D. Michigan, Southern Division
DAVID E. EICHAKER, Plaintiff,
VILLAGE OF VICKSBURG, Defendant
For David E. Eichaker, Plaintiff: William F. Piper, William F. Piper PLC, Portage, MI.
For Village of Vicksburg, Defendant: Michael S. Bogren, Susan Anne Finnegan, Plunkett Cooney (Kalamazoo), Kalamazoo, MI.
HON. ROBERT HOLMES BELL, UNITED STATES DISTRICT JUDGE.
This action alleging discrimination and retaliation because of military service is before the Court on Plaintiff David Eichaker's motion for partial summary judgment (ECF No. 67) and on Defendant Village of Vicksburg's motion for summary judgment. (ECF No. 69.) For the reasons that follow, Plaintiff's motion will be denied and Defendant's motion will be granted.
Plaintiff David E. Eichaker was hired by Defendant Village of Vicksburg (" the Village" ) as a part-time police officer in May 1999. In October 1999 he was hired as a full-time police officer. (Eichaker Dep. 11-12.) Plaintiff has an honorable discharge fro the United States Marine Corps and was in the Marine Corps Reserves when he began working for Defendant. ( Id. at 9, 17.) In February 2001 Plaintiff joined the Michigan Air National Guard. ( Id. at 14.) He continued in the Air National Guard during his employment with Defendant and would periodically take leaves from his position as a police officer to attend military training and to perform military service. ( Id. at 14-18.)
In May 2003 Plaintiff was promoted to the position of lieutenant, which was the second in command in the police department and a non-union position. After Plaintiff became lieutenant, Union Steward Eric West filed a grievance relating to him. According to Plaintiff, West was very pro-union. ( Id. at 97-98.) Plaintiff contends that West objected to union members filling in for a non-union position while Plaintiff was on military leave. ( Id. at 39-42.) West denies filing a grievance relating to Plaintiff's military leave. (West Dep. 39-43.) He contends that his grievance objected to Plaintiff, as a non-union employee, filling the union position of school resource officer. ( Id.)
On two occasions Plaintiff filled in for Chief Descheneau while he was on leave: in 2003, Plaintiff filled in for six to eight months when the Chief was on a leave of absence for heart surgery, and in 2005 Plaintiff filled in for the Chief for eight or nine months while the Chief was in Afghanistan to assist in training the Afghani police force. (Descheneau Dep. 18-19; Eichaker Dep. 44, 53-54.)
In the spring of 2010 when Plaintiff learned that Chief Descheneau was planning to retire, Plaintiff advised Village Manager Matt Crawford that he wanted to speak to him about the police chief opening. Crawford told him " later," but never got back to him. (Eichaker Dep. 50-51; Pl. Ex. 16.) Chief Descheneau and Crawford recommended that another officer on the force, Eric West, be appointed to be the next Chief of Police. The Village followed their recommendation and appointed West. (Def. Reply, Ex. B.)
West reorganized the police department, eliminating the lieutenant position and creating two sergeant positions. Because the lieutenant position was eliminated, Plaintiff was given the position of sergeant, which is a union position. In the course of advising Plaintiff about the restructuring of the department, West said, " You think you can go on military leave whenever you feel like it." (Eichaker Dep. 60.) Plaintiff did not know what West meant, but he surmised that West figured that by eliminating the lieutenant position, it would no longer be a problem when Plaintiff went on military leave because he could fill Plaintiff's union position with a union employee. (Eichaker Dep. 71-73.)
When Plaintiff became a sergeant his hourly pay rate remained the same but he was not able to earn the same level of income. As a union member, Plaintiff had to pay for health insurance and union dues, he was not entitled to a pay differential when he was on military duty, and he lost longevity bonuses. (Eichaker Dep. 64-65; Pl. Ex. 16; West Dep. 82, 86.) In addition, as a lieutenant, Plaintiff had worked Monday through Friday, and earned additional pay on his military weekends. (West Dep. 82.) As a union employee, Plaintiff was sometimes scheduled to work weekends, so when he had weekend military duty, he worked fewer hours for the Village. (West Dep. 83.)
Plaintiff was not happy with the restructuring of the police force because it negatively affected his income. (Pl. Ex. 16; West Dep. 64, 87.) He also felt that he was receiving the silent treatment from Crawford and West. (Eichaker Dep. 61, 87-88.) On July 19, 2010, Plaintiff blamed West for his financial losses, and told West he was considering contacting the Employer Support Guard and Reserve (" ESGR" ) about his loss of income. (Eichaker Dep. 74-76; West Dep. 87.) The ESGR mediates disputes between employers and citizen soldiers. (Eichaker Dep. 76.) From West's perspective, Plaintiff had been repeatedly attacking him from the time he learned of West's appointment as chief, and Plaintiff appeared to be set on keeping track of West's mistakes and broadcasting them in an effort to make West's life difficult. (West Dep. 87-99.) West lost his temper, yelled at Plaintiff, asked if he was threatening him, and stormed out. ( Id.) When West returned, he demanded that Plaintiff turn over the chief's office key and told him he did not trust him. ( Id. at 77.)
The following day West and Plaintiff met to discuss what happened the day before. (Eichaker Dep. 78; West Dep. 95-96.) West told Plaintiff he could go on military leave whenever he felt like it. (Eichaker Dep. 78.) As a result of their discussion, West decided to discipline Plaintiff with a counseling memo rather than demoting him to the rank of patrolman. (Pl. Ex. 12.) On July 21, 2010, West issued Plaintiff a counseling memo for his " unsubstantiated allegations and attacks on my personal reputation, and professional integrity," and indicated that Plaintiff's " threats and attempts to discredit me were conduct unbecoming and insubordination." (Pl. Ex. 12; West Dep. 96.)
Following their July 20, 2010, discussion, West agreed with Plaintiff that he should receive longevity pay for the past six months when he was still the lieutenant. (Eichaker Dep. 90; West Dep. 180-81.) On July 23, 2010, West recommended to Village Manager Crawford that Plaintiff be paid 1/2 of 3% of his base salary and receive the normal longevity as scheduled with the union. (Def. Ex. F.)
On December 14, 2010, West issued Plaintiff a counseling memo for leaving his duty post before his shift ended and before he was properly relieved of duty by another officer. (Def. Ex. J.)
After the July 2010 counseling memo West learned from other officers that Plaintiff was continuing to attack him and that Plaintiff was keeping track whenever West broke his own rules. (West Dep. 109-113.) When West called Plaintiff in, Plaintiff said West was on a witch hunt, that he did not follow his own rules, and that he was a bad chief. (West Dep. 110.) On January 24, 2011, West demoted Plaintiff from sergeant to patrolman for his continued attempts to discredit West as the Chief of Police. (Pl. Ex. 13; Def. Ex. K, L.) The following day, Plaintiff filed a grievance against West for the disciplinary actions he took against Plaintiff on January 24, 2011. (Pl. Ex. 20.) West denied the grievance. (Pl. Ex. 21.) Plaintiff filed a revised grievance on January 30, 2011. (Pl. Ex. 22.) Chief West denied the grievances on February 7, 2011. (Pl. Ex. 23.)
As of July 1, 2011, Plaintiff's seniority date was listed as October 1, 1999. Based on this seniority date, Plaintiff was able to out-bid Officer Petersen for a particular work shift. Four officers filed a grievance contending that, pursuant to the collective bargaining agreement, seniority is based on " last hiring date; " Plaintiff's last hiring date was July 1, 2010, when he was re-hired into the bargaining unit, not October 1, 1999, when he was initially hired by the Village; and Plaintiff could not accrue seniority when he was a lieutenant and was not a member of the union. (Def. Exs. G, H.) On September 4, 2012, the arbitrator determined that Plaintiff's seniority terminated when he quit his union position in 2003 to accept a supervisory position outside the bargaining unit. (Def. Ex. I.) The arbitrator accordingly granted the grievance and held that Plaintiff's seniority date must be adjusted to July 1, 2010.
In October 2011, Plaintiff filed a harassment claim against Village Manage Crawford and Police Chief West. (Pl. Ex. 16.)
In October 2011 West did not ask Plaintiff to participate in a funeral procession for a soldier killed in Afghanistan. Plaintiff was offended by this slight because he was an active member of the military. West explained that it was a privilege for the village to honor this fallen military veteran, and he did not want a disgruntled employee to do anything to disrupt that service, such as failing to obey one of his orders. (West Dep. 122-23.)
In late October 2011 Plaintiff was called to active duty in Afghanistan. Chief West required Plaintiff to turn in his weapon, his police I.D. card, and his badges. (Eichaker Dep. 138.) Previously, Plaintiff had never been required to turn in his I.D. card when he was on leave of absence for military service. (Eichaker Dep. 138-39.)
Plaintiff was on military leave from November 1, 2011, to November 16, 2012. Defendant continued Plaintiff's health insurance, union dues, and disability insurance while he was on military leave without Plaintiff's consent. (Eichaker Dep 144-52; Eichaker Aff.) Although Defendant initially took some of the payment for the benefits from Plaintiff's paid time off (" PTO" ) account, Defendant returned those funds and billed Plaintiff for the payments. (Pl. Ex. 1; Pl. Ex. 2; Kiel Dep. 27-32, 41-42.) In May 2012, while Plaintiff was on military leave, Plaintiff received a bill for unpaid health insurance premiums, union dues, disability insurance premiums, and other dues that had been continued without Plaintiff's permission.
On October 19, 2012, Plaintiff requested a leave of absence for an unspecified time period beginning November 1, 2012, because of his unresolved disputes with the police department and the Village. (Pl. Ex. 18.) Plaintiff subsequently clarified his request for a six-month leave of absence. (Pl. Ex. 19.) On November 9, 2012, Village Manager Crawford denied Plaintiff's request for a leave of absence and directed him to return to work or he would be deemed to have resigned. (Pl. Ex. 19.) When Plaintiff did not return to work, the village accepted his voluntary resignation.
In February 2012, Plaintiff filed a formal complaint of USERRA violations with the ESGR and in March 2012 he filed a complaint with the Department of Labor.
The Federal Rules of Civil Procedure require the Court to grant summary judgment " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In evaluating a motion for summary judgment the Court must look beyond the pleadings and assess the proof to determine whether there is a genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If the movant carries its burden of showing there is an absence of evidence to support a claim, the non-moving party must demonstrate by affidavits, depositions, answers to interrogatories, ...