United States District Court, N.D. Oklahoma
JIMMY L. HAMBLIN, Plaintiff,
CITY OF TULSA, and RAY DRISKELL, Defendants.
OPINION AND ORDER
V, EAGAN, UNITED STATES DISTRICT JUDGE.
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).
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
following facts are undisputed: 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.
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.
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.
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
Dkt. # 36-7.
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.
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
. . [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.
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.
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.
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
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).
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 ...