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Hamblin v. City of Tulsa

United States District Court, N.D. Oklahoma

October 30, 2017

JIMMY L. HAMBLIN, Plaintiff,



         Now before the Court is defendants City of Tulsa (the City) and Tulsa Fire Chief Ray Driskell's (Chief Driskell) joint motion for summary judgment (Dkt. # 36).

         This is an employment discrimination case arising under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. § 4301 et seq. In short, the Tulsa Fire Department (TFD) transferred, demoted, and terminated plaintiff-who, at the time of these events, was a firefighter and a Marine-and the Court must decide whether a rational trier of fact could conclude that his military status was a substantial or motivating factor in any of these employment actions.


         The following facts are undisputed:[1] On March 2, 1998, TFD hired plaintiff as a firefighter, a job he maintained until TFD terminated him on April 29, 2013. Dkt. # 36-1, at 2; Dkt. # 36-24, at 9. Throughout this time period, plaintiff was also an officer in the Reserve Component of the United States Marine Corps (USMC). Dkt. # 36-29, at 2. In 2003, he changed his military status from inactive reservist to selective reservist, which meant that he was required to deploy for duty, should the USMC activate his unit. Id. at 2-3. As a result, between 2003 and his termination in 2013, plaintiff took at least twenty-four months of military leave from TFD. Dkt. # 36-2.[2]

         On December 1, 2011, the USMC activated plaintiff through September 30, 2012. Id. at 13. As of December 1, 2011, plaintiff was the captain for TFD's station 19, which was a “single- company” station. Dkt. # 36-9, at 7, 35. TFD's single-company stations have one captain, one driver, and two firefighters per shift, whereas its “two-company stations, ” including station 20, have two captains, two drivers, and four firefighters per shift. Id. at 35. Shortly after plaintiff's December 1, 2011 deployment, TFD-unbeknownst to him-transferred plaintiff from station 19 to station 20. Dkt. # 36-3, at 4. The transfer did not affect his salary, rank, or job duties. Dkt. # 36-29, at 15. According to the transfer order, TFD moved plaintiff from station 19 (a single-company station) to station 20 (a two-company station) in order to “maintain organizational efficiency.” Dkt. # 36-3, at 3. As TFD Assistant Fire Chief Kenny Myers testified, “[i]t . . . is very difficult to staff a team . . . if you have somebody gone for long periods of time at a single-company station in comparison to a two-company station where we have lots of personnel . . . .” Dkt. # 36-27, at 5. Prior to this transfer, TFD had transferred plaintiff twenty-two times throughout his career, for reasons related to organizational efficiency and his professional development. Dkt. # 36-3.

         On September 30, 2012, plaintiff returned from his December 1, 2011 deployment. Dkt. # 36-29, at 9. Initially, he requested and TFD agreed to an October 13, 2012 report for duty date. Dkt. # 36-10, at 3. On the morning of October 3, 2012, in preparing to resume his work as a firefighter, plaintiff visited District Chief Bryan Hickerson, who had been plaintiff's supervisor at station 19 prior to his December 1, 2011 deployment. Dkt. # 36-29, at 10. During this visit, Hickerson told plaintiff that TFD transferred him to station 20 and directed plaintiff to speak with Myers if he wanted an explanation. Dkt. # 36-5, at 2. In response, according to Hickerson, who emailed Myers after plaintiff's visit to report aspects of the interaction that concerned Myers, plaintiff “seemed to become upset” and said that the transfer was “not going to work for him.” Id.

         Later that day, after visiting with Hickerson, plaintiff called the TFD administrative office to discuss getting back on payroll. Dkt. # 36, at 9. According to TFD administrative assistant Shanna Banks, who answered plaintiff's call, she told him that he needed to bring a copy of his DD214 military discharge form and, forty-five minutes later, he showed up at her desk with the form “in an angry mood.” Id. Additionally, Banks stated,

[Plaintiff] proceeded to tell me to email him all communications between me and [a colleague] and to keep all things with his name on it because the administration was ‘out to get him' and that it was going to ‘F#$KING RAIN.' He also accused us of losing his military orders that he gave us; which isn't true.

Id. Jennifer Walter-Buehler, Banks's office-mate who overheard the incident, corroborates Banks's account; according to Walter-Buehler, [Plaintiff] was very angry and agitated and was using foul language while ranting. He said fuck at least a couple of times during his rant. I don't remember his exact words but I got the feeling that he felt someone was out to get him, as in a superior, is what I surmised.

Dkt. # 36-7.

         Three days later, on October 6, 2012, plaintiff met with Myers, seeking an explanation for his transfer from station 19 to station 20. Dkt. # 36-8. According to Myers, during their meeting plaintiff was “pretty aggressive” and expressed that “he'd had a rough year.” Dkt. # 36-27, at 7-10. In response, Myers asked plaintiff if he “had somebody to talk to” and advised him that TFD was not “pushing [him] to come back right now.” Id. As plaintiff testified, Myers also stated, “I can't have captains on my shift being gone for extended periods of time . . . I need leadership out there.” Dkt. # 36-29, at 12-13. Myers testified that he does not recall saying those “exact words, ” but that he did state, “I . . . need some leadership out there” and was referring to the difficulty of staffing a single-company station with “somebody gone for long periods of time.” Dkt. # 36-27, at 4-5. Additionally, according to Myers, in order to make plaintiff “feel better, ” he said, “[w]hen the military calls you, you're going to go, and that's awesome . . . . It's ludicrous to think that the fire department would ever be able to trump that.” Dkt. # 44-10, at 5.

         After meeting with Myers, plaintiff went to station 19 to retrieve his belongings. Dkt. # 36-9. Once there, he interacted with Captain Joseph Carollo, who later emailed Myers to report aspects of their interaction that troubled him; Carollo stated, .

. . [Plaintiff] accused me of moving his personal belongings out of the captain area locker room. [His] demeanor and body language was of the aggressive nature . . . and I felt [plaintiff] was looking for an [sic] confrontation. I could tell [he] was agitated and upset.


         On or about October 7, 2012, as plaintiff's October 13 report for duty date approached, TFD contacted him to request that he see Phillip Berry, D.O., Tulsa City medical director, for a “fit for duty” check. Dkt. # 36-29, at 17. According to Chief Driskell, TFD asked plaintiff to do so because “[he] was returning from an extended leave and was reportedly acting in an uncharacteristically aggressive manner.” Dkt. # 36-4, at 3. On October 9, 2012, plaintiff emailed Chief Driskell to inform him that he was going to rescind his initial report for duty date of October 13, 2012, and, instead, take the ninety days leave that he was authorized after an extended deployment, in order to “spend time with . . . family and catch up on the routine things that need attention after a lengthy activation.” Dkt. # 36-10, at 3. That same day, according to plaintiff, he encountered Captain Matthew Phippen while running on Riverside Drive in Tulsa, Oklahoma, and Phippen told him that “there was a rumor going around the fire department that when and if [he] returned to . . . the fire department, [the administration was] going to try to either terminate [him] or force [him] to resign.” Dkt. # 36-29, at 31-32.

         The next day, on October 10, 2012, plaintiff visited Dr. Berry for his fit for duty check. Dkt. # 36-11. In a memo to TDF, Dr. Berry described the visit. Dkt. # 36-11. He stated,

During my 45 minute evaluation of [plaintiff] he stated to me that ‘I screwed up, I did not handle my encounter with the department well and flew off the handle more than I should.' He agreed that he probably should have taken more time off before attempting a return to work. We went on to discuss that as a current military officer and fire department company officer certain behavior was expected and he had probably stepped over the line.


         Later that month, while on his authorized ninety day extended leave, plaintiff filed a complaint with the Veterans' Employment and Training Services (VETS) office of the Department of Labor. Dkt. # 36-12. In it, he alleged that, in transferring him from station 19 to station 20, TFD violated his rights under USERRA. Id. VETS found plaintiff's claim meritorious; in a letter to the City, VETS stated, “we have determined that the evidence supports [plaintiff's] . . . allegation [that] he was not properly reinstated when he return [sic] to work from deployment on October 3, 2012.” Id. at 2.[3] Accordingly, VETS concluded, under USERRA plaintiff was entitled to “reinstatement into the position that he would have attained with reasonable certainty if not for the absence due to uniformed service . . . .” Id. In a response letter to VETS, the City stated,

The City believes it complied with USERRA when it agreed to return [plaintiff] back to work on October 13, 2012, as a Captain in the Fire Department at Station 20. Because firefighters are routinely transferred for a variety of reasons daily, it was highly likely that [plaintiff] would have been transferred to another station regardless of his military leave and there was no legal obligation to place him at station 19. Nevertheless, the department agreed to transfer Mr. Hamblin back to station 19 as he requested to resolve this issue . . . .

Dkt. # 36-13, at 4 (emphasis added).

         On December 28, 2012, as his authorized ninety day extended leave (which began on September 30, 2012) neared its end, plaintiff emailed TFD Administrative Chief Chuck French to request a report for duty date of January 1, 2013. Dkt. # 36-14, at 4. In response, French told plaintiff that his platoon at station 19 would not be active until January 4, 2013. Id. at 5. French also informed plaintiff that on January 4, 2013, he was required to ...

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