NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0508n.06 No. 11-1119 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT JEROME R. OSWALD, P laintif f-App ellant,

v. BAE INDUSTRIES , INC., Defendan t-Appellee. / ON AP P EAL F ROM THE UN ITED STATE S DISTRICT COURT F OR THE EASTE RN DISTRICT OF M ICHIGAN

BEFORE: NORRIS, CLAY, and GRIF F IN, Circ uit Jud ges. CLAY, Circuit Judge. P l ai n t i ff J erome R. Oswald appeals an order of t he dis trict court g ranting summary judgme nt to Def endant BA E I ndustries, I nc. on Plaintiff’s claim that Def endant violated the Unifo rm ed S ervic es Employ ment and Reemploy

ment Rights Act, 38 U.S.C. §§ 4301–4333. Plaintiff also appea ls the district court’s order denying his motion for rec onsideration. For the re asons that follow, we AF F IRM both orders. BACK GR OUND Plaintiff was a member of the United States Marine Corps Reserve s. He beg an working for Def endant on Aug ust 22, 2005 as a manufa cturing eng ineer

. On J uly 10, 2006, Plaintiff was deploy ed to serve in the Marine Corps in I raq. Acc ording to Plaintiff, “[u] pon rec eiving information reg arding the Plaintiff’s milit ary service commitments, [P laintiff’s manag er Mark Gleason] wouldNo. 11-1119

put his head down in disgust[] and indicate h i s d isapproval by his demea nor and non verba l conduct.” Def

endant ha d been a

war e of Plaintiff’s military status when it hired Plaintiff. One y ear later, on July

10, 2007, Plaintiff r eturne d from I raq and resumed his e mploy ment with Def endant. Plaintiff alleg es that immediately upon his return, Def endant drastica lly limit ed his employ ment duties and re s ponsibili ties compar ed to his pre- deploy ment work. For example, Plaintiff alleg es that he was no longe r g iven specific are a/produc tion line responsibility , he did not have budg et re sponsibili ties, he was not give n “tra in-up” time, his work wa s not reviewe d, and he

was not g iven a raise (eve n though other employ ees wer e g iven one). Fur thermore , Plaintiff was not g iven any tasks with deadlines or completion dates—indica tive that Def endant did not plan to reta in Plaintiff for long

. One month afte r re turning to work, P laintiff was transfe rre d to the BAE W arr en P lant and demoted from manufa cturing eng ineer to maintenanc e. His work in maintenanc e was alleg edly far below his wag e scale , signific antly unlike the eng ineer ing duties he had been hired to perf orm, and beneath his training , educa tion, skills, and experience

. Plaintiff notes that this ty pe of transfe r and demotion was “commonly reg arde d among BA E manag ement empl o y ees as the last step befor e being terminated.” Shortly afte r his transfer , on September 14, 2007, Plaintiff’s e mploy ment was ter

minated. Def endant alleg es that Plaintiff’s termination was due to a reduc tion in employ ees, which it deeme d

nece ssary under curr ent economic conditions. I t contends that the termination was wholly unrela ted to Plaintiff’s milit ary status and states that it was “hig hly supportive” of Plaintiff’s milit ary service , demonstrated by its hosting of a deploy ment send-of

f party , co l lecting money to help Plaintiff’s

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family durin g his absenc e, and sending car e packa g es to Plaintiff’s milit ary unit. Alleg edly , Mr. Gleason a lso fix ed a se ptic tank at Plaintiff’s house dur ing his a bsence

. I n Fe bruar

y 2008, Plaintiff filed a request with the United States Depa rtment of L abor, Veter an’s Employ

ment and Traini n g Service to investigate Plaintiff’s termination. Shortly there afte r, the De partment of L abor g ave notice that it declined to proc eed w ith an investigation. On J uly 5, 2010, Plaintiff filed a complaint ag ainst De fe n dant, alleg ing that Def endant violated the Uniformed Service s Employ ment and Reemploy

ment Rights Act of 1994 (USERRA), 38 U.S

. C

. § 4 3 0 1 , wh i ch provides a cause of action for members of the milit ary who have been discriminated ag ainst by their non-military employ ers on the basis of their milit ary service , and the Michig an Milit ary Act, Mich. Comp. L aw §§ 32.271, 32.273, which provides simil ar protec tions. I n lieu of filing an answe r, Def endant filed a motion for summary judgme nt, asser ting that Plaintiff’s complaint was time-barr ed by a provision in Plaintiff’s employ ment contra ct requ i ri n g ac tions ag ainst the employ er to be broug ht within 180 day s. Plaintiff had filed his complaint approximately two y ear s and ten months afte r his termination. Plaintiff filed a response to the motion, and Def endant filed a reply

. Shortly thereaf t er, Pl aintiff filed a suppl emental brief, purportedly under Fe dera l Rule of Civil Procedur e 12(d), raising new argum en t s re l ated to the summary judgme nt motion. The district court g rante d summary judgme nt to Def endant on Plaintiff’s fede ral and state law claims. I n g ranting summary judgme nt, the district court did n o t m en tion Plaintiff’s supplemental brief

nor addr ess the ar g uments raised the rein. Plaintiff then filed a motion under Easter n District of Michig an L ocal Rule 7.1(h) reque sting th at t h e d istrict court reconsider its g rant of summary judgme nt. Plaintiff’s motion rea sserted the

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arg uments that it had made i n i t s supplemental brief at t he sum mary judgme nt stag e. The dist rict court denied Plain t i ff ’s m o t i o n on the basis that Plaintiff failed to raise a palpable defe ct in the orig inal order and should have raised its arg uments ear lier in its response to the motion for summary judgme nt. Plainti ff timely appea led both order s with respec t to its USERRA claim only

.

DISCUSSIO N The thrust of Plaintiff’s substantive arg ument on appea l is that a provision of USERRA, 38 U.S.C. § 4302(b), preve nts the contra ctual re duction of rig hts under USERRA. Plaintiff c ontends that beca use his employ

ment contra ct wit h Def

endant shortens the time period for bring ing a USERRA claim aga inst his employ er to 180 day s, rathe r t han the otherwise- applicab l e fo u r y ear s under 28 U.S.C. § 1658(a) , Plaintiff’s employ ment contra ct reduc es his rig hts under USERRA and thus is invalidated by the statute. Def endant counter s that Plaintiff did not ra i se this § 4302(b) arg ument at the summary judgme nt stag e, so the arg ument was not prese rved befor e the district court and is not prese rved for appea l. Def endant als o s u gges t s that Plaintiff’s attempt to raise the § 4302(b) a rg ument in his mot ion for re consideration does not meet Plaintiff’s burden of showing a palpable defe ct i n the di strict co u rt’s order gra nting summ ary judgme nt. Be cause we believe that Plaintiff’s § 4302(b) arg ument fails on the merits reg ardle ss of whether it was prese rved, we do not direc tly addre ss Def

endant’ s prese rvation arg uments and instead turn to the substantive analy sis of Plaintiff’s claim. 1

We ag ree that Plaintiff did not raise the § 4302(b) arg ument in its response to the motion for 1 summary judgm en t , b u t we believe that it did raise the arg ument in its supplemental brief at that stag e. Howeve r, we cannot discern wh et h er the district court acc epted but ignor ed this filing or whether it rejec ted the filing as impermissible. 4No. 11-1119

We revie w a motion for summary judgme nt de novo . Holloway v. Brush , 220 F.3d 767, 772 (6th Cir. 2000) (en banc)

. Summary judgme nt is appropr iate wher e “ther e is no g enuine dispute as to any materia l fac t and the movant is entitled to judgme nt as a matter o f l aw . ” Fe d

. R

. C iv. Pro. 56(a)

. We view the fac ts and rea sonable infere nces in the light most favor able to the nonmoving party

. Sagan v. United States , 342 F.3d 493, 497 (6th Cir. 2003). We review de n o vo a m otion under Easter

n District of Michig an L ocal Rule 7.1(h) seeking rec onsideration of a g rant of summary judgme nt. Gage Prods. Co. v. Henk el Corp ., 393 F.3d 629, 637 (6th Cir. 2004) (discussing Rule 59 motions); Indah v. U.S. Sec. & Exc h. Comm’n , 661 F.3d 914, 924 (6th Cir. 2011) (apply ing Rule 59 motion standa

rd to motions for rec onsideration under L ocal Rule 7.1); Intercontinental Elecs., S.P.A. v. Roose n , 210 F. App’ x 491, 494–95 (6th Cir. 2006) (same ). A. Appli cable Lim itations Pe riods 1. Statutory Lim itations Pe riod At the time Plaintiff filed his complaint, USERRA d id not provide a separ ate statute of limit ations rele vant to Plaintiff’s claim, so claims broug ht under USERRA wer e subject to the foury ear g ener al statute of limit ations set forth in 28 U.S.C. § 1658(a)

. The parties ag ree that the four- 2 y ea r l i mitations period applies to Plaintiff’s USERRA claim, absent the competing contra ctual limit ations period. Howeve r, we note t h at US E R R A was amende d in 2008 by the Veter ans’ Be nefits I mprovement Ac t (VB I A), whic h provides:

Section 1658 provides: “Except as otherw ise provided by law, a c ivil action arising under 2 an Act of Congr ess . . . may not be commence d later than 4 y ear s afte r the cause of action acc rues.” 28 U.S.C. § 1658(a). 5No. 11-1119

I nap p l i ca b i l i t y of st atutes of limit ations. I f any person seeks t o file a complaint or claim with the Secre tary , the Merit Sy stems Prote ction Boa rd, or a Fe dera l or State court under this chapte r [38 USCS §§ 4301 et seq.] alleg ing a violation of this chapte r [38 USCS §§ 4301 et seq.], there shall be no limit on the period for filing the complaint or cla im. 38 U.S.C. § 4327(b). Plaintiff admits that the amendment does not apply retroa ctively to his claim, 3 and nothing in the text of the statute indicates that Congr ess intended it to apply retroa ctively

. See Middleton v. City of Chi ., 578 F.3d 655, 662–65 (7th Cir. 2009) (dec lining to retroa ctively apply the unlimit ed filing period in VB I A to a USERRA claim that was untimely under the orig inal § 1658(a) four- y ear period). We thus apply

the pre -VB I A ver sion of USERRA to P laintiff’s cla im. 2. Contrac tual Limitat ions Per iod When Plainti ff be g an his employ ment with Defe ndant, he sig ned an employ ment contra ct, which provide d: I

. . . ag ree that any action, claim or suit ag ainst [Defenda n t ] arising out of my application for employ

ment, employ

ment, or termination including, but not limit ed to, claims arising under State or Fe dera l civil rig hts statutes must be broug ht within one hundred and eig hty (180) day s of the event g iving rise to the claim or be fore ver barr ed. I waive a ny and all limitation periods to the contrar y . Under the plain lang uag e of the ag ree ment, the contra ctual period of limit ations is 180 day s for any employ ment-re lated cl ai m ag ainst Def endant. We have held that “ther e is nothing inhere ntly

unrea so n ab le about a six -month limit ations period contained in an employ ment ag ree ment,” Thurman v. DaimlerChrysler , 397 F.3d 352, 357 (6th Cir. 2004) (citing Mye rs v. W .-S. Life Ins. Co. , 849 F.2d 259, 262 ( 6th Cir. 1988)), and the pa rties do not dispute this matter.

Acc ording to Def

endant, althoug h the amendment took eff ect prior to the filing of Plaintiff’s 3 complaint, the complaint was alre ady untimely at that point under the applicable 180-day contra ctual limit ations period. Plaintiff appa rently ag ree s with this poi nt. 6No. 11-1119

B. Gove rning Pe riod of Limit ations The a ction g iving rise to Plaintiff’s USERRA claim was his termination on September 14, 2007. Plaintiff filed hi s complaint on J uly 5, 2010, approximately two y ear s and ten months afte r the action acc rued. This two-y ear , ten-month period i s far beyond the 180 day cut-off in the employ ment contra ct clause , but it is within the four- y ear statute of limit ations of § 1658(a)

. Thus, if the contra ctual limit ations period applies, Plaintiff’s complaint would be untimely

. I f the statutory period a pplies, Plainti ff’ s claim would survive. “[I ]n the absenc e of a controlling statute to the contra ry , a provision in a contra ct may validly limit , betwee n the parties, the time for bring ing an action on such contra ct to a period less than that presc ri b ed i n t h e gener al statute of limit ations, provided that the shorter period itself shall be a

rea sonable period.” Order of United Commercial Travelers of Am. v. W olfe , 331 U.S. 586, 608 (1947); Rice v. Jefferson Pilot Fin. Ins. Co. , 578 F.3d 450, 454 (6th Cir. 2009). Thus, the narrow question befor e us is whether the pre- VB I A ver s ion of USERRA prohibits the contra ctual shortening of the statute of

limit ations. On e provision in USERRA is rele vant to this inquiry

. Section 4302(b) of the statu t e provides: This chapte r [38 USCS §§ 4301 et s eq . ] s uperse des any State law (including any local law or ordinance) , contra ct, agr eeme nt, policy , plan, practi ce , or ot her matter that reduc es, limit s, or eliminates in any manner any rig ht or benef it provided by this chapte r [38 USCS §§ 4301 et seq.], including the establishmen t o f additional prer equisites to the exercise of any such rig ht or the re ceipt of a ny such bene fit.

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38 U.S.C. § 4302(b). Sect i o n 4 302(b) there by prohibits contra ctual provisions which limit 4 USERRA “rig ht[ s] or benef it[ s]” or contra ctual provisions that require “additional prer equisites” in order for a plaintiff to exercise those r ights or be nefits. Section 4303 offe rs a de finition of “rig hts or benef its” under USERRA: The term “bene fit”, “bene fit of employ ment”, or “rig hts an d benef its” means the terms, conditions, or privileg es of employ men t , including any advanta g e, profit, privileg e, g ain, status, acc ount, or interest (including wag es or salary for work perf ormed) that acc rues by rea son of an em p loy ment contra ct or ag ree ment or an employ er policy , plan, or prac tice and inclu des rights and benefits under a pension plan, a health plan, an employ ee stock owner ship plan, insurance cover ag e and awa rd s , bonuses, sever ance pay , supplemental unemploy ment benef

its, vacations, and the oppor

tunity to select wor

k hours or location of employ ment. 38 U.S.C. § 4303(2). Our Circuit has interpre ted this definition to mean that USERRA preve nts that limit ation of veter ans’ substantive rig hts, but not the ir proce dural rig hts. See W ysock i v

. Int’l Bus. Mach. Corp. , 607 F.3d 1102, 1106–07 (6th Cir. 2010); Landis v. Pinnacle Eye Care, LLC , 537 F.3d 559, 562 (6th Cir. 2008) (citing Garrett v. Circuit City Stores, Inc. , 449 F.3d 672, 677–78 (5th Cir. 2006)). “ [T] here fore , § 4302(b) doe s not pr event veter ans from waiving their proc edura l rig hts . .

. .” W ysock i , 607 F.3d at 1107. Howeve r, this Court has also deter mined that USERRA superc edes contra cts that provide for the wholesale contra ctual elimination o f a ll p r o c edura l rig hts, beca use such

a waiver would result in the de facto elimination of the veter an’s substantive rig hts. Id. (consider ing

Plainti f f a ls o a r g u e s th a t § 4 3 0 2 ( a ) p r e v e n ts th e c ontrac tual shortening of limit ations periods. 4 Howeve r, subsection (a) provides that nothing in USERRA shall limit contra ctually -obtained rig hts that are more benef

icial to the plaintiff than those in the statute. 38 U.S.C. § 4302(a)

. Be cause Plaintiff’s situation is the oppos ite of t hat conceived in su b s ec t ion (a) , it is subsection (b) and not (a) that applies. 8No. 11-1119

a wa iver that “ purports to prec lude [the plaintiff] from advancing a USERRA claim in any forum,

ever ”). This Circuit g ener ally define s a period of limit ations as a proce dural matter. See, e.g. , Cole

v. Mileti , 133 F.3d 433, 437 (6th Cir. 1998) (discussing t h e i ssue in the choice of law context); P h el ps v. McClellan , 30 F.3d 658, 661–62 (6th Cir. 1994) (compa ring choice of law and E r i e contexts); Allgood v. Elyria United Methodist Home , 904 F.2d 373, 376–77 (6th Cir. 1990) (finding that a limit ations period for the L abor- Manag ement and Relations Act and L abor- Manag ement Reporting and Disclosure Act is a procedura l matter); Ott v. Midland-Ross Corp. , 523 F.2d 1367, 1370 (6th Cir. 1975) (finding that a limit ations period in the Ag e in Employ ment Discrimination Act is a proce dural matter); Mahalsky v. Salem Tool Co. , 461 F.2d 581, 586 (6th Cir. 1972); see also Aull

v. McKeon- Grano Assocs., Inc. , No. 06-2752, 2007 U.S. Dist. L EXI S 13008, at *18–20 (D.N.J. Fe b. 26, 2007) (dete rmining that the pre- VB I A version of USERRA does not preven t a contra ctual

s h o rtening of the time period for filing a USERRA claim, beca use a limit ations period i s a proce dural matter). Fur

thermore , Plaintiff’s employ ment contra ct does not eliminate all proce dural rig hts in that it only shortens the time frame that Plaintiff can raise a USERRA claim. Be cause the contra ctual period of limit ations diminis hed a rig ht unde r USERRA that was mere ly proce dural, § 4302(b) doe s not override the contra ctual limitations period on that basis. I n addition to overr iding contra cts that limit “rig hts or benef its,” USERRA also superc edes contra ctual provisions that impose “additional prer equisites to the exercise of any such rig ht or the

rec eipt of any s u ch b en ef i t

. ” Although the statute does not define the phrase , our Court has previously considere d what co nstitut es an “additional prerequisite” under USERR A. See Petty v.

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Metro. Gov ’t of Nashville-Davidson Cnty. , 538 F.3d 431, 442 ( 6th Cir. 2008). I n Petty , we f ound that an employ er’ s imposit ion of a return- to-work proce ss, which require d its veter an employ ees to complete new phy sical and psy cholog ical testing, was an i m p ermiss ible “additional prer equisite” under USERRA. Id. We noted that the emp l o y er ’s “p rocedures [we]re in addition to the require ments Congr ess specifie d for the exercise of USERRA’s ree mploy ment rig hts.” Id

. We also noted that the only statutory prer equisites are listed in § 4312 and require 1) advanc e notification of

m i l i tary deploy

ment to employ er, 2) milit ary service for less than five y ear s, 3) t imely reque st fo r

re- employ

ment with specifie d documentation, and 4) separ ation under honorable conditions. Id. at 440–41. Thus, under Petty , the definition of “additional prer equisite” involves matters including but not limit ed to aff

irmative requirements related to the rehiring proce ss, proof needed to qualify for a USERRA claim, or imposing procedure s that plaintiffs must comply with prior to filing a claim in court. See Landis , 537 F.3d at 564–65 (Cole, J ., concur ring ) (“B y ‘additional prer equisites,’ Congr ess clea

rly meant to stop employ ers from requiring ‘additional resor t to mecha

nisms such as g rieva nce proce dures or arbitra tion or simil ar administrative a p p e a ls

. ’ ” ( c it in g H

. R. Re p . N o. 103-65, at 20 (1993)) ). Consent to a shorter time frame for filing a claim in court doe s not fall within this definition. I n sum, § 4302(b) does not operate to forbid the contra ctual imposit ion of a diminis hed time period for bring ing USERRA claims. Be cause Plaintiff’s complaint was untimely under the 180-day period in the contra ct, the district court did not err in g ranting summary judgme nt to Def endant and in denying Plaintiff’s motion for rec onsideration. Although we are sy mpathetic to Plaintiff’s situation, espec ially in light of the VB I A amendment that n o l i m i tations period whatsoeve r is to

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apply to USERRA claims, we are bound to apply the pre- VB I A version of USERRA in deciding that the shortene d filing pe riod in Plainti ff’ s employ ment contra ct was pe rmissible. CONCLUSION For the re asons discussed a

bove, we AF F IRM the district c ourt’s order g ranting summary ju d gm ent to Def

endant and AF F IRM the district court’s order denying Plaintiff’s motion for

rec onsideration.

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