United States District Court, D. Massachusetts
MICHAEL W. BONBON, Plaintiff,
ELITE GUARDIAN SOLUTIONS, LLC, Defendant.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE
Michael W. Bonbon alleges that his former employer, Defendant
Elite Guardian Solutions, LLC (“Elite”) denied
him reemployment following his return from service in the
U.S. Army in violation of the Uniformed Services Employment
and Reemployment Rights Act (“USERRA”), 38 U.S.C.
§§ 4312-13. [ECF No. 1 (“Complaint” or
“Compl.”) ¶ 1]. Mr. Bonbon initiated this
suit on February 21, 2017, fact discovery closed on September
7, 2018, and Elite filed its motion for summary judgment on
November 15, 2018. [ECF Nos. 1, 27, 30]. On December 6, 2018,
Mr. Bonbon opposed summary judgment. [ECF No. 32].
briefings submitted by the parties do not comport with Local
Rule 56.1. Elite's briefing lacks a “concise
statement of the material facts of record as to which [it]
contends there is no genuine issue to be tried, with page
references to affidavits, depositions, and other
documentation.” LR, D. Mass. 56.1; see [ECF
No. 31]. While Elite's briefing contains a section
entitled “FACTS” in which it fairly recounts the
allegations of the Complaint and the deposition testimony of
Mr. Bonbon and Chris Johnson, Mr. Bonbon's supervisor, it
does not purport to recount uncontroverted facts.
See [ECF No. 31 at 1-7]. This alone is grounds for
denial of the motion. LR, D. Mass. 56.1 (“Failure to
include such a statement [of undisputed facts] constitutes
grounds for denial of the motion.”). For its part, Mr.
Bonbon's opposition brief succeeds in incorporating a
section entitled “Genuine Issues of Material Fact,
” but the majority of the statements listed therein
lack the required “page references to affidavits,
depositions and other documentation.” See id.;
[ECF No. 32 at 5-8]. Accordingly, the Court is unable to
adjudicate summary judgment on the documents presented by the
parties and, therefore, denies Elite's motion for summary
light of the parties' disagreement concerning the
applicable law, the Court takes this opportunity to briefly
clarify the relevant legal framework and the questions of
fact that remain to be adjudicated at trial. This action is
brought pursuant to § 4312 of USERRA, which
“provides veterans returning from military service the
right to be rehired . . . .” Kane v. Town of
Sandwich, 123 F.Supp.3d 147, 161 (D. Mass. 2015);
see 38 U.S.C. § 4312 (stating that “any
person whose absence from a position of employment is
necessitated by reason of service in the uniformed services
shall be entitled to the reemployment rights and benefits and
other employment benefits of this chapter” if the
conditions of the chapter are met); [Compl. at 3; ECF No. 32
at 8]. To be entitled to reemployment, an individual must (i)
give advance notice of his service to his employer; (ii) have
a cumulative length of absence less than five years; and,
(iii) report to or submit an application for reemployment to
his employer within the time required by the statute.
See § 4312(a)(1)-(3).
4313 of USERRA provides that “a person entitled to
reemployment under section 4312, upon completion of a period
of service in the uniformed services, shall be promptly
reemployed in a position of employment in accordance”
with the terms of the statute. 38 U.S.C. § 4313(a). For
individuals whose period of service was less than 91 days,
statute requires reemployment in a position “in which
the person would have been employed if the continuous
employment of such person with the employer had not been
interrupted by such service” or, if the person is not
qualified to perform that position, in a position “in
which the person was employed on the date of the commencement
of the service in the uniformed services.” Id.
also contains an anti-discrimination provision, which Mr.
Bonbon expressly disclaims proceeding under in his briefing
despite ambiguity in the Complaint. [ECF No. 32 at 8];
see 38 U.S.C. § 4311; see generally
[Compl.]. Whereas “Section 4312 protects service
members at the instant of seeking reemployment, entitling the
service member to reemployment, ” Section 4311, by
contrast “applies after reemployment has occurred and
‘prohibits discrimination with respect to any benefit
of employment against persons who serve in the armed services
after they return from a deployment and are
reemployed.'” Petty v. Metro. Gov't of
Nashville-Davidson Cty., 538 F.3d 431, 439-40 (6th Cir.
2008) (quoting Clegg v. Ark. Dep't of Corr., 496
F.3d 922, 930 (8th Cir. 2007)); see also Francis v. Booz,
Allen & Hamilton, Inc., 452 F.3d 299, 304
(4th Cir. 2006) (contrasting § 4312 with § 4311 and
other provisions of USERRA). Were Mr. Bonbon bringing a claim
under § 4311, he would need to demonstrate “that
[his] military status was ‘at least a motivating or
substantial factor' in the adverse employment
action.” Angiuoni v. Town of Billerica, 838
F.3d 34, 39 (1st Cir. 2016) (quoting
Velázquez-García v. Horizon Lines of
P.R., 473 F.3d 11, 17 (1st Cir. 2007)). Sections 4312
and 4313, however, do not require any similar showing.
See Petty, 538 F.3d at 442-43; Francis, 452
F.3d at 303 (“[T]he procedural requirements of the two
provisions differ. An employee proceeding under § 4311
has the burden of proving that the employer discriminated
against him or her based on a status or activity protected by
USERRA. Section 4312 imposes no such burden.”
this framework, to succeed on his reemployment claim, Mr.
Bonbon must demonstrate that he was entitled to reemployment
and that the position into which he was rehired was not the
position in which he would have been employed but-for his
service. Elite will have an opportunity to present evidence
supporting any affirmative defenses pled and permitted by
USERRA, such as impossibility or undue hardship. See,
e.g., [ECF No. 10 at 3]. At trial, the jury will be
asked to resolve the factual questions of whether Mr. Bonbon
was entitled to reemployment under USERRA and whether the
position into which he was reemployed comported with the
terms of § 4313, along with any factual questions
necessitated by affirmative defenses Elite may
 To the extent that Mr. Bonbon's
submission is styled a “Cross-Motion for Summary
Judgment, ” the motion is denied for the same reason.
See [ECF No. 32 at 12].
 The implementing regulations
additionally require the person seeking reemployment to have
an honorable discharge from service. 20 C.F.R. §
 Mr. Bonbon testified that he left for
service on June 20, 2015 and was discharged on August 12,
2015. See [ECF No. 31-1 at 24, 26].
 Even on the incomplete submissions
presented, it is clear to the Court that there is a genuine
factual dispute as to whether the position into which Mr.
Bonbon was rehired met the obligations, if any, Elite had
under USERRA. See, e.g., [ECF No. 31 at 9; ECF No.
32 at 2-4, 12]. Had the Court been given the opportunity to
review briefings that complied with the relevant ...