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Scudder v. Dolgencorp, LLC

United States Court of Appeals, Eighth Circuit

August 17, 2018

Samuel Scudder Plaintiff- Appellant
v.
Dolgencorp, LLC, doing business as Dollar General Store Defendant-Appellee

          Submitted: April 10, 2018

          Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.

          SHEPHERD, Circuit Judge.

         After returning from military service in Afghanistan, Samuel Scudder brought suit against Dolgencorp, LLC, doing business as Dollar General Stores ("Dollar General"), alleging the company denied him reemployment as required under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. §§ 4301-4335. Scudder appeals the district court's order granting summary judgment to Dollar General. We reverse.

         I. Background

         In June 2013, Scudder, a sergeant in the Arkansas National Guard, was hired and later promoted to store manager at Dollar General's Benton Parkway store in Benton, Arkansas ("Benton store"). When Scudder was deployed to Afghanistan in April 2014, he coordinated his military leave through Dollar General's third-party leave coordinator: Matrix Absence Management ("Matrix"). Scudder was wounded in action in Afghanistan and assigned to a unit at Fort Leonard Wood, Missouri from December 2014 to February 2016 for medical transition out of the military. While there, Scudder provided notice to Matrix of his continuing military leave and was approved for leave through April 1, 2016.

         On March 31, 2016, Scudder spoke with Matrix claims examiner Jessica Morentin. Scudder testified: "So I explained my deal to her again and said, in a sense, they won't return my calls for me to be able to find out if I need to return to work, to find out if I need to put in my two weeks because I can't return to work." Morentin understood Scudder to be resigning and emailed notice of his resignation to Dollar General on April 4, 2016. Dollar General requested confirmation, and Morentin confirmed Scudder "would not be going back to Dollar General." Concluding Scudder had resigned, Dollar General processed the separation of his employment, effective April 5, 2016, and sent him an exit survey. Scudder responded to that email, saying "I'm emailing you to see if maybe you car[e] [because] apparently the rest of the company does not. I'm a store manager for you in region 59[.] [W]ell I guess getting this[, ] I use[d] to be." He went on to say that he was called to active duty in support of Operation Enduring Freedom in Afghanistan, was injured while overseas, and had been able to reach only one person at Dollar General while also trying to contact the human resources department and the current district manager. He concluded, "I really enjoyed working for [D]ollar [G]eneral and would've loved to continue to work for [D]ollar [G]eneral." Scudder received no response.

         On April 24, 2016, Scudder applied online for a store manager position at a Dollar General store in Bryant, Arkansas ("Bryant store"). In his application, he indicated that he previously worked for Dollar General but was "let go . . . after returning from Afghanistan injured and no one from the corporation would ever contact [him] back." He stated he was formerly a store manager at Dollar General's Benton store and listed the National Guard as one of his previous employers. Dollar General did not hire Scudder for the position.

         While Scudder was on military leave in December 2015, he applied for Social Security Disability ("SSD") benefits with the Social Security Administration ("SSA"). The SSA determined he was not eligible for benefits. In May 2016, Scudder requested the SSA reconsider his application, which was again denied. Nevertheless, Scudder persisted, and, in December 2016, a SSA law judge ("ALJ") approved his application for benefits, finding Scudder had become totally disabled on December 10, 2014. Scudder was awarded SSD benefits, which he continues to receive.

         In May 2016, Scudder filed suit against Dollar General, asserting his right to reemployment under USERRA. The district court granted summary judgment to Dollar General, finding Scudder did not apply for reemployment as required by USERRA because he never communicated a request for reemployment to either Matrix or Dollar General. Although Scudder applied for the store manager position at the Bryant store, the district court found the application was not a demand for reemployment in his prior position and Dollar General reasonably expected Scudder to seek reemployment through Matrix. In addition, the district court found Scudder waived his right to reemployment when he resigned. Scudder appeals.

         II. Discussion

         Scudder contends he did not waive his right to reemployment under USERRA because he never resigned from Dollar General. He further argues that his application for the store manager position at the Bryant store constituted an application for reemployment as defined by USERRA. Thus, he claims, the district court erred in granting Dollar General summary judgment on his USERRA claim.

         "We review de novo the district court's grant of summary judgment, viewing all evidence and drawing all reasonable inferences in favor of [Scudder]." Odom v. Kaizer, 864 F.3d 920, 921 (8th Cir. 2017) (internal quotation marks omitted). "Summary judgment is proper when there is no genuine dispute of material fact and the prevailing party is ...


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