United States District Court, N.D. Georgia, Atlanta Division
RICHARD W. STORY, District Judge.
This case comes before the Court on Defendant's Partial Motion to Dismiss, or in the Alternative, for More Definite Statement . After reviewing the record, the Court enters the following Order.
This case arises out of Plaintiff U.S. Army Sergeant First Class Travis Towler's termination by his former employer, Defendant Electrical Reliability Services, Inc. Plaintiff alleges that Defendant improperly discriminated against him based on his military service in violation of 38 U.S.C. § 4311. (Compl., Dkt.  ¶¶ 26-29.)
Plaintiff has been an active member of the U.S. Army and National Guard for the past fifteen years. (Id. ¶ 9.) He serves as a medic attached to the HHC 2-121 IN. (Id.) In February 2008, Plaintiff began working for Defendant as a Shop Technician. (Id. ¶¶ 6, 10.) Plaintiff alleges he was the lowest paid technician at the Defendant's Atlanta facility, even though he had more experience than some of his higher earning co-workers. (Id. ¶ 12.) From 2009 to April 2010, Plaintiff left his position as Shop Technician to serve in Afghanistan. (Id. ¶ 11.) Upon his return from Afghanistan, Plaintiff was not granted promotions or pay raises that were granted to similarly situated employees and that were due to him during his service abroad. (Id.) In a formal evaluation dated August 2012, Defendant wrote that Plaintiff's military service was "holding him back." (Id. ¶ 12.)
Early in January 2014, Plaintiff notified Ken Evans, Sr. Engineer and his onsite Atlanta supervisor, that he would take unpaid leave on Thursday, January 9, 2014 and Friday, January 10, 2014 to attend a three day drilling unit training exercise for the Georgia National Guard. (Id. ¶ 14.) Mr. Evans granted Plaintiff time off to attend the training. (Id.)
During the first day of training on January 10, 2014, Plaintiff learned that he would be deployed to a U.S. Army training mission in Guatemala "from until April 6, 2014." (Id. ¶ 17.) On Sunday, January 12, 2014, Plaintiff informed his formal supervisor, Gustavo Gonzales, of his upcoming U.S. Army deployment via email. (Id. ¶ 18.)
The next day Defendant terminated Plaintiff's employment, alleging that Plaintiff violated company policy by being absent for three or more scheduled work days without reporting an acceptable explanation for the absence to his or her supervisor. (Id. ¶ 19.) Defendant considered Thursday, January 9, 2014, Friday, January 10, 2014, and Monday, January 13, 2014, as unapproved absent days. (Id. ¶ 20.)
Plaintiff contends that he was illegally terminated because he informed his supervisors of his leave and because his military absence is protected by law. (Id. ¶ 19.) Plaintiff further alleges that his termination and Defendant's refusal to provide Plaintiff with promotions, raises, and bonuses during the course of his employment was based upon his absences due to military deployment all in violation of the Uniformed Services Employment and Reemployment Rights Act ("USERRA, " 38 U.S.C. §§ 4301 et seq. ). (Id. ¶¶ 28-29.)
Moreover, Plaintiff asserts that Defendant's actions are in contradiction to the Defendant's Employee Handbook, which requires the company to pay the difference between the individual's base pay and military compensation up to ten working days per year for temporary military leave and a maximum of six months per year for active duty. (Id. ¶ 23-24.) Plaintiff alleges Defendant failed to pay Plaintiff the promised difference between his base pay and military compensation from April 2010 to January 2014. (Id. ¶ 25.)
Based on the foregoing allegations, Plaintiff brings claims for violation of 38 U.S.C. § 4311 and seeks reasonable attorneys' fees, costs, expert witness fees, and other litigation expenses pursuant to 38 U.S.C. § 4313(h)(2).
Defendant moves for a Partial Motion to Dismiss, or in the Alternative, for More Definite Statement. ("Def.'s Mot. to Dismiss", Dkt. .) The Court first considers Defendant's Motion to Dismiss, then turns to its alternative Motion for a More Definite Statement.
I. Motion to ...