United States District Court, E.D. Wisconsin
ROGER A. WESCHER, Plaintiff,
CHEM-TECH INTERNATIONAL, Defendant.
ORDER DENYING IN PART AND GRANTING IN PART
PLAINTIFF'S MOTION FOR EQUITABLE RELIEF (DKT. NO.
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
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.
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
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.
Reinstatement Is Not the Appropriate Remedy for
Chem-Tech's USERRA Violation.
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.
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)).
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. Id.at
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.
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.
Front Pay Is the Appropriate Remedy for Chem-Tech's
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 ...