Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wescher v. Chem-Tech International

United States District Court, E.D. Wisconsin

December 27, 2016

ROGER A. WESCHER, Plaintiff,



         I. BACKGROUND

         Plaintiff Roger Wescher has filed a motion seeking post-trial equitable relief. Dkt. No. 126. The plaintiff has traveled a long route to get to this point. Judge Goodstein memorialized most of the journey in his summary judgment order; the court will not repeat that history. See Dkt. No. 72. After a three-day trial, the jury found (1) that the plaintiff's service in the Air Force Reserves was a motivating factor in defendant Chem-Tech's decision to terminate him, in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §4323, and (2) that Chem-Tech did not show, under a preponderance standard, that it would have terminated the plaintiff otherwise. Dkt. Nos. 121, 122, 123, 124. As compensation, the jury awarded the plaintiff $90, 000 in back pay. Dkt. No. 121.

         After the verdict, the plaintiff filed this motion for equitable relief. Dkt. No. 126. The court held a hearing on the motion. Dkt. No. 144. After reviewing the pleadings and the arguments at the hearing, the court finds that the plaintiff is entitled to front pay, pre-judgment interest, and a tax offset.


         “USERRA encourages military service by granting service members rights with respect to civilian employment that are not available to similarly situated, nonmilitary employees.” Crews v. City of Mt. Vernon, 567 F.3d 860, 867 (7th Cir. 2009). The court “shall use, in any case in which the court determines it is appropriate, its full equity powers . . . to vindicate fully the rights or benefits of persons under this chapter.” 38 U.S.C. §4323(e). In other words, if an employer violates USERRA, the court may use the necessary equitable remedies to make the plaintiff whole. The plaintiff asks the court to award the following relief: reinstatement, front pay, pre-judgment interest and a tax offset. Dkt. No. 126 at 1.

         A. Reinstatement Is Not the Appropriate Remedy for Chem-Tech's USERRA Violation.

         Pretrial, the parties entered into a stipulation that “if [the plaintiff] prevails, the Court could require that Chem-Tech reinstate him and in that event they agree that instead the Court should exercise its equitable powers and decide whether and how much to award as front pay.” Dkt. No. 107 at 5. Despite this agreement, the plaintiff now asks the court for the equitable remedy of reinstatement. Dkt. No. 126 at 3. Chem-Tech “vehemently opposes reinstatement.” Dkt. No. 132 at 1.

         Reinstatement generally is favored over front pay. Hance v. Norfolk S. Ry. Co., 2007 WL 7044986, * 5 (E.D. Tenn. March 23, 2007); see also Hutchison v. Amateur Elec. Supply, Inc., 42 F.3d 1037, 1045 (7th Cir. 1994). “The decision is consigned to the sound discretion of the district court, id. at 1369, which should not grant reinstatement ‘where the result would be undue friction and controversy.'” Hutchison, 42 F.3d at 1045-46 (quoting McKnight v. General Motors Corp., 908 F.2d 104, 115 (7th Cir.1990)). Reinstatement is less appropriate than front pay where “the plaintiff has found other work; where reinstatement would require displacement of a nonculpable employee; where the hostility between the parties precludes the possibility of a satisfactory employment relationship; or where an employer is genuinely dissatisfied with an employee's job performance.” Hance, 2007 WL 7044986 at *5 (citing Hudson v. Reno, 130 F.3d 1193, 1202 (6th Cir. 1997)).[1]

         The plaintiff “now believes that the parties can work together despite the adverse positions that they took in the case.” Dkt. No. 126 at 3. He argues that evidence presented at trial demonstrated that his “overall work performance was at least satisfactory, with no evidence of customer complaints or prior discipline.” Id. at 5. He has not been able to gain similar employment since Chem-Tech terminated him, and Chem-Tech did not require him to work the hours required by other jobs. Id. He says that “whatever hostility may exist on the part of Chem-Tech owners Mr. and Mrs. Larsen is insufficient to render reinstatement infeasible.” Id. While he concedes that “some awkwardness at the beginning may be unavoidable, ” his sales representative position wouldn't require him to interact with the Larsens daily. Id. at 6. He wants the court to reinstate him in the same territory he'd been covering when he was terminated in 2011, at the same rate of pay that Matt Blodgett-who worked the territory afterward-was receiving. He also wants full benefits dating back to when he started. 4.

         The court disagrees with the plaintiff that reinstatement is appropriate. Chem-Tech has asserted that it “believes that its relationship with the plaintiff is irreparable” and that the plaintiff's work performance was genuinely unsatisfactory. Dkt. No. 132 at 2. Chem-Tech is a small company, with a full staff of service representatives. Id. at 3. While the plaintiff questioned this prior to the hearing on the motion, it appears clear that if Chem-Tech were to reinstate the plaintiff, it would have to terminate another non-culpable service representative. Id. at 3. The evidence at trial indicated that there were multiple issues between the parties. While the jury found that Chem-Tech terminated the plaintiff because of his military leave, the Larsens testified that the plaintiff also used the company car for personal reasons and missed work for reasons other than his military service. The litigation has dragged on since March of 2013; it began when the plaintiff filed his complaint pro se, and the court ended up reopening discovery (further delaying proceedings) after he obtained counsel. These kinds of circumstances would create a working environment pervaded with hostility.

         Although the court understands that reinstatement is generally favored over front pay, in this small company with the level of hostility displayed at trial and in the pleadings, equity weighs against reinstatement, and the court will not order the defendant to reinstate the plaintiff.

         B. Front Pay Is the Appropriate Remedy for Chem-Tech's Unlawful Termination.

         Alternatively, the plaintiff asks for five years of front pay. Dkt. No. 126 at 9. Chem-Tech responds that the court should not award front pay, because the plaintiff did not mitigate his damages and find comparable employment. Dkt. No. 132 at 6. In the event that the court does award front ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.