Submitted: April 10, 2018
from United States District Court for the Eastern District of
Arkansas - Little Rock
COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
SHEPHERD, Circuit Judge.
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.
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.
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.
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.
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.
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.
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.
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 ...