### The Honorable Elmo B. Hunter, United States District Judg e 1 

### for the Western District of Missouri. ________________ Nos. 95-1407/2101

________________ James Frederick Newport, * * Appellant, * * v. * * Ford Motor Company, * * Appeals from the United States Appellee, * District Court for the * Western District of Missouri International Union, United * Automobile, Aerospace & * Agricultural Implement Workers * of America, Local 249, * * Defendant. *

___________ Submitted: June 6, 1996 Filed: August 6, 1996

___________ Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.

___________ McMILLIAN, Circuit Judge.
In this consolidated appeal, James Frederick Newport appeals fr om two final jud gments of the District Court for the Western District o f 1 Missouri, one granting former employer Ford Motor Company (Ford) summary judgment in Newport's action challenging his termination (No. 95-1407), an d another denying Newport's motion for contempt (No. 95-2101). For th e reasons discussed below, we affirm in both cases.

### The Honorable William R. Collinson, late a United State s 2 

### District Judge for the Western District of Missouri. In 1992, th e code sections of this Act were renumbered to 38 3 

### U.S.C. § § 4301-4307. See Veterans Benefits Act of 1992, Pub. L

. No. 102-568, tit. V, § 506(a), 1992 U.S.C.C.A.N. (106 Stat.) 4340.

-2- Contempt Motion (No. 95-2101)

In March 1979, Newport filed an action against Ford seekin g restor ation of lost seniority rights following his military leave o f absence. Ford agreed to accord Newport a seniority date of August 23 , 1976. The district court entered judgment accordingly. 2 In Septem

ber 1993, Newport sought an order holding Ford in contempt of the consent judgment, claiming Ford denied him his contractual rights by subjecting him to a battery and terminating him. Ford moved to dismiss

. The district court denied the motion for contempt, concluding that th e
consen t judgment expressly provided for a seniority date and implicitl y gua ranteed certain corollary benefits, but it did not ensure Newport " a lifetime position at Ford." Because we agree with the district court' s conclusion that Ford did not violate the consent judgment by firin g Newport, we affirm. See United States v. Knote , 29 F.3d 1297, 1299 (8th Cir. 1994) (contract rules apply to interpretation of consent decree).

Action Challenging Termination (No. 95-1407)

Newp ort filed an action claiming Ford violated the Veterans ' Reemployme nt Rights Act (VRRA), 38 U.S.C. § 2021(b)(3) (1991), when Ford 3 terminated him in October 1990 after he had an altercation with a coworker

. Newpor t made the following allegations. Newport contended that severa l employees resented hi m for obtaining increased seniority rights under the above-mentioned consent judgment and that Ford r einforced that resentment. In

### -3-

September 1990, Newport's military reserve unit asked him to confirm his availability for service. Newport asked his foreman for extra time to mak e the call; the foreman eventually granted him five minutes, but penalized him for taking longer . The foreman and a labor relations supervisor made negative comments to him about his reserve duty, which Newport alleged was eviden ce of Ford's antagonism towards reservists. His foreman the n reassigned Newport to a position he could not physically perform.

Newport alleged that, soon after his reassignment, he was attacke d with deadly force by a coworker because he volunteered for militar y service, exercised his restored seniority rights , and circulated petitions about veterans' benefits. Newport alleged that he did not provoke th e attack and that he used reasonable force in self -defense. Ford discharged Ne wport after a disciplinary hearing. In this action, he sough t reinstatement to his job.

Ford moved for summary judgment, arguing that Newport's claim tha t he was discriminated against because he was a re servist failed as a matter of law, because the statute provided protection only where such reserv e status was the sole motivation for the discharge. Supporting affidavits showed , inter alia, that an arbitrator had upheld Newport's discharge , concluding credible evidence suggested Newport was the aggressor and was not provoked into striking the coworker.

The district court stayed all discovery, with the proviso tha t Newport could move for specific discovery necessary for his response to th e summary judgment motion. Newport's subsequent r equests for discovery were denied.

In response to the summary judgment motion, Newport argued, inte r alia, there were sufficient disputed facts showing his termination wa s motivated by discriminatory animus against his

### -4-

reserv e status to defeat summary judgment. Newport attached affidavit s attesti ng to Ford employees' negative attitudes regarding Newport an d reservists generally.
Newport moved to amend his complaint , seeking to add new plaintiffs, defenda nts, and claims, and requesting damages of $10.2 billion. Th e district court, noting the prejudice to defendants, denied the motion.
In granting Ford's summary judgment motion, the district court stated that a VRRA claimant must show not only that he was discriminated against becaus e of reserve status, but "that the alleged discrimination wa s motiva ted solely by Reserve status," citing Clayton v. Blachowske Truc k Lines, Inc. , 640 F. Supp. 172, 174 (D. Minn. 1986), aff'd , 815 F.2d 1203 (8th Cir. 1987) ( Clayton ). The district court c oncluded that the evidence Newport submitted showed that several of his coworkers did not like him an d were annoyed by his campaigning for veterans' de pendent benefits, that his foreman did not like him, that a labor relations supervisor said he would fire N ewport, that some union representatives did not believe Newpor t deserved special rights because of his reserve s tatus, and that Ford fired Newpor t; but concluded the evidence did not show Newport's militar y obligations were even a motivating factor, much less the sole reason, for his ter mination. Thus, the district court concluded the evidence wa s insufficient to allow a reasonable jury to find Ford discriminated against Newport even partially because of his reserve status. Newport moved for reconsideration, which the district court denied.

The h eart of Newport's appeal is his contention that the distric t
cou rt erred in applying the "sole motivation" standard, rather than th e "but fo r" or "motivating factor" test. The relevant law at the time o f Newport's termination provided: "Any person who [is employed by a private employer] shall not b e denied retention in employment or any promotion or other incident or

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adva ntage of employment because of any obligation as a member of th e Reserve component of the Armed Forces." 38 U.S.C. § 2021(b)(3).

Ne wport argues that the Uniformed Services Employment an d Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. § 4311(b)(Supp. 1995)-

- which replaced the "sole cause" standard with a "motivating factor " standard--should be applied retroactively. The Supreme Court, interpretin g the existing law in 1981, held that the VRRA "was enacted for th e si gnificant but limited purpose of protecting the employee-reservis t against discriminations like discharge and demotion, motivated solely by
reserve status." Monroe v. Standard Oil Co. , 452 U.S. 549, 559 (1981 ) ( Monroe ); see also Clayton , 815 F.2d at 1204-05 (affirming summary judgmen t for employer in VRRA action where employee's termination not solely becaus e of his reserve status). Regardless of selected portions of the legislativ e debates to the contra ry, the Supreme Court's interpretation would control until overridden by legislative amendment. See Plaut v. Spendthrift Farm, Inc. , 1 F.3d 1487, 14 99 (6th Cir. 1993) (Congress must amend statute when it disagrees with Cou rt's interpretation), aff'd , 115 S. Ct. 1447 (1995).

Congress amended the statute and provided that a violation occur s when a person's membership in the uniformed services is a motivating facto r in the employer's action. See 38 U.S.C. § 4311(b ) (Supp. 1995). Congress, however, expressly determined that these amendme nts were prospective. See Pub. L. No. 103-353, § 8(b), 1994 U.S.C.C.A.N. (108 Stat.) 3149, 3175-76 (discrimination provisions of USERRA effective on day of enactment (Octobe r 13, 1994)). But see Gummo v. Village of Depew , 75 F.3d 98, 105-06 (2 d Cir.) ( holding amended standard applies to pre-existing cases), cert
. denied , 116 S. Ct. 1678 (1996). Thus, the distr ict court properly applied the "sole cause" test articulated in Monroe to Newport's 1990 claims.

### -6- We also conclude the district court properly granted summary ju dgment
on the evi dence. There was no dispute as to the material facts tha t Newport was terminate d after striking a coworker and that his termination
was u pheld by an arbitrator (who determined the penalty was within th e range of reasonableness). Any facts showing that Ford discriminate d against Newport on account of his reserve status were therefore immaterial because Newport could not (and did not) show such discrimination was the sole cause of his termination. We reject as mer itless Newport's arguments that the district court improperly shifted the b urden to him, erred in its fact-finding and weighing of the evidence, and disregarded evidence.

Newport bore the burden of showing that additional discovery woul d allow hi m to rebut Ford's showing of the absence of a genuine issue o f fact. See Humphreys v. Roche Biomedical Laboratories, Inc. , 990 F.2d 1078 , 1081 (8th Cir. 1993). Because the evidence Newp ort sought would not rebut Ford's evidence that his discharge was not solely because of his reserve status, the district court did not abuse its wide discretion in discovery matters by denying additional discovery. See id. (standard of review).

The distr ict court also did not abuse its discretion in denyin g Newport leave to file an amended complaint. See Wishon v. Gammon , 978 F.2 d 446, 448 (8th Cir. 19 92) (standard of review); Brown v. Wallace , 957 F.2d 564, 565-66 (8th Cir. 1992) (factors to consider in granting motion t o amend under Fed. R. Civ. P. 15(a)). Finally, we deny Newport's motions to expand the record on appeal , to reverse another of his district court cases, and to require Ford t o identify documents. We also deny Ford's motion to strike Newport' s exhibits.
Accordingly, we affirm the judgments of the district court.

### -7- A true copy.
Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.