Submitted September 24, 2013.
Appeal from United States District Court for the Eastern District of Arkansas - Batesville.
For Jonathan Dorris, Plaintiff - Appellant: Lucien Ramseur Gillham, SUTTER & GILLHAM, Benton, AR.
For TXD Services, LP, Defendant - Appellee: Alexander Cale Block, Thomas Kent Smith, BARBER & MCCASKILL, Little Rock, AR.
Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
LOKEN, Circuit Judge.
Jonathan Dorris, a member of the Arkansas Army National Guard, appeals the district court's grant of summary judgment dismissing his claim that TXD Services (" TXD" ) violated the Uniformed Services Employment and Reemployment Rights Act (" USERRA" ), 38 U.S.C. § § 4301 et seq., when it terminated Dorris while he was deployed on active duty in Iraq. The legal basis of the claim changed during the summary judgment process. After careful review, we conclude the modified claim turns on one or more essential facts that the summary judgment record simply does not address. Accordingly, we reverse the grant of summary judgment and remand.
A. Background Facts.
We recite the record facts in the light most favorable to Dorris, the party opposing summary judgment. Dorris began working for TXD as a floor hand at rigs near Morrilton, Arkansas in early 2007. In April, Dorris received Warning Orders that he would be
mobilized within six months in connection with Operation Iraqi Freedom. He notified his direct supervisors and TXD's human resources department. After receiving definite orders in early September, Dorris spoke with TXD managing partner Joe Poe, inquiring whether TXD would make up the difference in Dorris's salary while he was deployed. Poe declined, commenting that " if you're not working for me, I can't be paying you." Dorris worked for TXD until September 11, 2007, and reported for training at Fort Chaffee on October 1. He served on active duty in Iraq for approximately 12 months beginning in January 2008.
In October 2007, Dorris received a letter from TXD's benefits administrator advising that he was eligible for Continuation Coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (" COBRA" ) and identifying the triggering event as " Termination of Employment." His wife called and told Dorris he had been fired. Understandably alarmed, Dorris called the TXD human resources department at its Morrilton and Dallas-Forth Worth offices. He was told in both calls that he had been " terminated for not showing up to work." Dorris requested that Poe contact him, but Poe never did. TXD did not ...