The Honorable Elmo B. Hunter, United States District Judge

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 from two

final judgments of the District Court for the Western District of

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Missouri, one granting former employer Ford Motor Company (Ford) summary

judgment in Newport's action challenging his termination (No. 95-1407), and

another denying Newport's motion for contempt (No. 95-2101). For the

reasons discussed below, we affirm in both cases.
 The Honorable William R. Collinson, late a United States

2

District Judge for the Western District of Missouri.

 In 1992, the 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.

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Contempt Motion (No. 95-2101)

In March 1979, Newport filed an action against Ford seeking

restoration of lost seniority rights following his military leave of

absence. Ford agreed to accord Newport a seniority date of August 23,

1976. The district court entered judgment accordingly. 2

In September 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 the

consent judgment expressly provided for a seniority date and implicitly

guaranteed 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 firing

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)

Newport filed an action claiming Ford violated the Veterans'

Reemployment 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.

Newport made the following allegations. Newport contended that several

employees resented him for obtaining increased seniority rights under the

above-mentioned consent judgment and that Ford reinforced that resentment.

In
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September 1990, Newport's military reserve unit asked him to confirm his

availability for service. Newport asked his foreman for extra time to make

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

evidence of Ford's antagonism towards reservists. His foreman then

reassigned Newport to a position he could not physically perform. 

Newport alleged that, soon after his reassignment, he was attacked

with deadly force by a coworker because he volunteered for military

service, exercised his restored seniority rights, and circulated petitions

about veterans' benefits. Newport alleged that he did not provoke the

attack and that he used reasonable force in self-defense. Ford discharged

Newport after a disciplinary hearing. In this action, he sought

reinstatement to his job.

Ford moved for summary judgment, arguing that Newport's claim that

he was discriminated against because he was a reservist failed as a matter

of law, because the statute provided protection only where such reserve

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 that

Newport could move for specific discovery necessary for his response to the

summary judgment motion. Newport's subsequent requests for discovery were

denied. 

In response to the summary judgment motion, Newport argued, inter

alia, there were sufficient disputed facts showing his termination was

motivated by discriminatory animus against his
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reserve status to defeat summary judgment. Newport attached affidavits

attesting to Ford employees' negative attitudes regarding Newport and

reservists generally. 

Newport moved to amend his complaint, seeking to add new plaintiffs,

defendants, and claims, and requesting damages of $10.2 billion. The

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

because of reserve status, but "that the alleged discrimination was

motivated solely by Reserve status," citing Clayton v. Blachowske Truck

Lines, Inc., 640 F. Supp. 172, 174 (D. Minn. 1986), aff'd, 815 F.2d 1203

(8th Cir. 1987) (Clayton). The district court concluded that the evidence

Newport submitted showed that several of his coworkers did not like him and

were annoyed by his campaigning for veterans' dependent benefits, that his

foreman did not like him, that a labor relations supervisor said he would

fire Newport, that some union representatives did not believe Newport

deserved special rights because of his reserve status, and that Ford fired

Newport; but concluded the evidence did not show Newport's military

obligations were even a motivating factor, much less the sole reason, for

his termination. Thus, the district court concluded the evidence was

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 heart of Newport's appeal is his contention that the district

court erred in applying the "sole motivation" standard, rather than the

"but for" or "motivating factor" test. The relevant law at the time of

Newport's termination provided: "Any person who [is employed by a private

employer] shall not be denied retention in employment or any promotion or

other incident or
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advantage of employment because of any obligation as a member of the

Reserve component of the Armed Forces." 38 U.S.C. § 2021(b)(3).

Newport argues that the Uniformed Services Employment and

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, interpreting

the existing law in 1981, held that the VRRA "was enacted for the

significant but limited purpose of protecting the employee-reservist

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 judgment

for employer in VRRA action where employee's termination not solely because

of his reserve status). Regardless of selected portions of the legislative

debates to the contrary, the Supreme Court's interpretation would control

until overridden by legislative amendment. See Plaut v. Spendthrift Farm,

Inc., 1 F.3d 1487, 1499 (6th Cir. 1993) (Congress must amend statute when

it disagrees with Court's interpretation), aff'd, 115 S. Ct. 1447 (1995).

Congress amended the statute and provided that a violation occurs

when a person's membership in the uniformed services is a motivating factor

in the employer's action. See 38 U.S.C. § 4311(b) (Supp. 1995). Congress,

however, expressly determined that these amendments 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 (October

13, 1994)). But see Gummo v. Village of Depew, 75 F.3d 98, 105-06 (2d

Cir.) (holding amended standard applies to pre-existing cases), cert.

denied, 116 S. Ct. 1678 (1996). Thus, the district court properly applied

the "sole cause" test articulated in Monroe to Newport's 1990 claims.
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We also conclude the district court properly granted summary judgment

on the evidence. There was no dispute as to the material facts that

Newport was terminated after striking a coworker and that his termination

was upheld by an arbitrator (who determined the penalty was within the

range of reasonableness). Any facts showing that Ford discriminated

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 meritless Newport's arguments

that the district court improperly shifted the burden to him, erred in its

fact-finding and weighing of the evidence, and disregarded evidence.

 

Newport bore the burden of showing that additional discovery would

allow him to rebut Ford's showing of the absence of a genuine issue of

fact. See Humphreys v. Roche Biomedical Laboratories, Inc., 990 F.2d 1078,

1081 (8th Cir. 1993). Because the evidence Newport 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 district court also did not abuse its discretion in denying

Newport leave to file an amended complaint. See Wishon v. Gammon, 978 F.2d

446, 448 (8th Cir. 1992) (standard of review); Brown v. Wallace, 957 F.2d

564, 565-66 (8th Cir. 1992) (factors to consider in granting motion to

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 to

identify documents. We also deny Ford's motion to strike Newport's

exhibits.

Accordingly, we affirm the judgments of the district court.
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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.