Wanda Gordon, individually v. WAWA, INC., aka WAWA FOOD MARKETS

IN THE UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
____________
No. 03-3089
____________
WANDA GORDON, individually and as
Administratrix ad Prosequendum for the
Estate
of Willie James Gordon, Jr., Deceased,
Appellant
v.
WAWA, INC., aka WAWA FOOD
MARKETS;
JOHN DOES I and X;
JOHN DOE CORPORATIONS, I TO X,
individually
jointly, severally, and/or in the
alternative.
aka
WAWA
dba
WAWA
____________
Appeal from the United States District
Court
For the District of New Jersey
D.C. No.: 02-cv-04498
District Judge: Honorable Robert B.
Kugler
____________
Argued: September 21, 2004
Before: MCKEE, ROSENN, and WEIS,
Circuit Judges.
(Filed October 28, 2004)
Philip L. Faccenda, Esq. (Argued)
176 Route 70, Suite 10
Medford, New Jersey 08055
Counsel for Appellant
Edward T. Ellis, Esq. (Argued)
Janice G. Dubler, Esq.
457 Haddonfield Road Liberty View, 6th
Floor, Suite 600
Montgomery, McCracken, Walker &
Rhoads, LLP
Cherry Hill, New Jersey 08022
Counsel for Appellee
____________
OPINION OF THE COURT
____________
ROSENN, Circuit Judge.
This appeal presents questions of
first impression concerning the scope of
rights under the Uniformed Services
Employment and Reemployment Rights
Act of 1994, 38 U.S.C. §§ 4301–4333
(“USERRA”), of persons in noncareer
military service. The case is of particular
interest at this time because of the large
number of reservists called up for military
duty as a result of the conflicts in Iraq and
Afghanistan. The alleged events
underlying this action are tragic. Willie
Gordon, an active member of the United
States Army Reserve, also worked for the
defendant, Wawa, Inc., in Vineland, New
Jersey. On Sunday, September 17, 2000,
on his way home from weekend Reserve

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duties in Virginia, Gordon stopped by the
Vineland store to pick up his paycheck and
to obtain his work schedule for the
upcoming week. At that time, Gordon’s
shift manager allegedly ordered him to
work that night’s late shift, and threatened
to fire him if he refused. Willie Gordon
complied with the order, and on his drive
home from work, lost consciousness at the
wheel of his car. His car crashed, and he
died as a result of his injuries.
Plaintiff is Willie Gordon’s mother
and the administratrix of his estate. As the
administratrix ad prosequendum for the
estate of her son, plaintiff filed a complaint
in the United States District Court for the
District of New Jersey, alleging, inter alia,
that defendant deprived the decedent of his
right under USERRA to an eight-hour rest
period between returning home from
military exercises and returning to work.1
The complaint further alleges that Wawa’s
threat to fire Gordon constituted an
adverse employment action under
USERRA. The complaint seeks, inter alia,
statutory remedies of lost wages and
benefits, attorney fees, and costs. See 38
U.S.C. § 4323(d), (h). The District Court
granted Wawa’s motion to dismiss the
complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Plaintiff
timely appealed from the District Court’s
order. We affirm.
I.
Accepting the comp laint’ s
allegations as true, the District Court held
that USERRA provides no cause of action
here.2 Specifically, the District Court held
that 38 U.S.C. § 4312(e) “merely requires
an employee returning from uniformed
duty to notify his or her employer of an
intent to return to work within a specified
time period,” and “imposes no affirmative
duty on an employer to prevent an
employee from reporting to work prior to
the expiration of an eight-hour period
following the employee’s return from
uniformed services.” Gordon v. Wawa,
Inc., No. 02-4498, slip op. at 7 (D.N.J.
June 17, 2003) (emphasis in original).
Further, the District Court concluded that
the remedies available under USERRA
reflect a congressional purpose to prevent
employment discrimination based on
military status of noncareer service
members, and were thus inapplicable in
this case. Id. at 9. Accordingly, the
District Court granted Wawa’s Rule
12(b)(6) motion to dismiss, and pursuant
to 28 U.S.C. § 1367(c)(3), declined to
exercise supplemental jurisdiction over
plaintiff’s state law claims. 1 Plaintiff, individually and as the
administratrix for the estate of Willie
Gordon, also asserts various tort claims
against Wawa under New Jersey
statutory and common law. Those
claims, which plaintiff is now pursuing
in state court, are not relevant to this
appeal.
2 The District Court exercised
jurisdiction over plaintiff’s USERRA
claims under 38 U.S.C. § 4323(b) and 28
U.S.C. § 1331. This Court has
jurisdiction under 28 U.S.C. § 1291.

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II.
Our review of the District Court’s
dismissal of plaintiff’s USERRA claims is
plenary. Oshiver v. Levin, Fishbein,
Sedran & Berman, 38 F.3d 1380, 1384 (3d
Cir. 1994). Dismissal under Rule 12(b)(6)
is inappropriate “unless it appears beyond
doubt that the plaintiff can prove no set of
facts in support of his claim which would
entitle him to relief.” Conley v. Gibson,
355 U.S. 41, 45-46 (1957). In making this
decision, “the court must consider only
those facts alleged in the complaint and
accept all of the allegations as true.”
ALA, Inc. v. CCAIR, Inc., 29 F.3d 855,
859 (3d Cir. 1994). All inferences are
drawn in favor of the plaintiff. Oshiver,
38 F.3d at 1384.
Further, we construe USERRA’s
provisions liberally, in favor of the service
member. Coffy v. Republic Steel Corp.,
447 U.S. 191, 196 (1980) (interpreting
USERRA predecessor Vietnam Era
Veterans’ Readjustment Assistance Act of
1974); Fishgold v. Sullivan Drydock &
Repair Corp., 328 U.S. 275, 285 (1946)
(construing Selective Training and Service
Act of 1940); Hill v. Michelin N.A., Inc.,
252 F.3d 307, 312-13 (4th Cir. 2001)
(“Because USERRA was enacted to
protect the rights of veterans and members
of the uniformed services, it must be
broadly construed in favor of its military
beneficiaries.”).
A.
Plaintiff contends that 38 U.S.C. §
4312(e) confers a “right to eight-hours
rest” between the time when the employee
returns home from military exercises and
when the employee must report to the
employer. As with all questions of
statutory interpretation, we first turn to the
statutory language “to determine whether
the language at issue has a plain and
unambiguous meaning with regard to the
particular dispute in the case.” Marshak v.
Treadwell, 240 F.3d 184, 192 (3d Cir.
2001) (citations and internal quotation
marks omitted). We discern “[t]he
plainness or ambiguity of statutory
language . . . by reference to the language
itself, the specific context in which that
language is used, and the broader context
of the statute as a whole.” Id. (citations
and internal quotation marks omitted).
Where “the statutory meaning is clear, our
inquiry is at an end.” Ki Se Lee v.
Ashcroft, 368 F.3d 218, 222 (3d Cir.
2004); Marshak, 240 F.3d at 192.
Section 4312(e) provides that a
person whose military service caused an
absence from work
shall, upon completion of a
period of service in the
uniformed services, notify
the employer . . . of the
person’s intent to return to a
position of employment
with such employer as
follows:
(A) In the case of a person
whose period of service in
the uniformed services was
less than 31 days, by
reporting to the employer —
(i) not later than the

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beginning of the first full
regularly scheduled work
period on the first full
calendar day following the
completion of the period of
service and the expiration
of eight hours after a period
allowing for the safe
transportation of the person
from the place of that
service to the person’s
residence; or
(ii) as soon as possible
after the expiration of the
eight-hour period referred
to in clause (i), if reporting
within the period referred
to in such clause is
impossible or unreasonable
through no fault of the
person.
38 U.S.C. § 43 12(e)(1)(A )(i)-(ii)
(emphasis added).
Unsurprisingly, plaintiff has
focused little attention on the statutory
language. By its plain terms, § 4312(e)
sets forth the requirements of an employee
to notify the employer of the employee’s
intention to return to work. The eight-hour
period referred to in § 4312(e)(A)(i) marks
the outer limit of the time by which the
employee must report to the employer
upon returning home from military service.
As the District Court concluded, § 4312(e)
is written entirely in terms of an
employee’s duties, as opposed to an
employer’s obligations. There is no way
to construe this statutory language as
conferring a substantive right to eight
hours of rest for the returning employee.
Reading § 4312(e) in its broader
context confirms this view, because the
remainder of the section sets forth the
other requirements for an employee to
s e cure U S E R R A ’ s r e e m p l o ym e n t
guarantee, or the exceptions thereto.
Section 4312(a) requires the employee to
give the employer advance notice of leave,
requires that the employee’s cumulative
leave be no longer than five years, and
requires the employee to report to the
employer in compliance with § 4312(e).
Section 4312(b) contains an exception to
the advan ce notice re quirement.
Subsection (c) contains exceptions to the
five-year absence limit, and subsection (d)
sets forth the conditions under which an
employer need not re-engage an employee.
The remaining subsections impose other
duties on the employees, and the section
concludes with the guarantee of USERRA
rights to employees who satisfy § 4312’s
requirements, including “the notification
requirements established in subsection (e)
. . . .” 38 U.S.C. § 4312(h) (emphasis
added).
The limited case law on § 4312
supports this view. See, e.g., Jordan v. Air
Prods. & Chems., Inc., 225 F. Supp. 2d
1206, 1208 (C.D. Cal. 2002) (Section
“4312 creates an unqualified right to
reemployment to those who satisfy the
service duration and notice requirements.
. . . Section 4312 places service people and
employers on notice that, upon returning
from service, veterans are entitled to their
previous positions of employment.”)

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(emphasis added); McGuire v. United
Parcel Service, Inc., No. 97 C 0232, 1997
WL 543059, at *3 (N.D. Ill. Aug. 28,
1997) (employee’s eligibility for re-
employment after active duty in U.S.
Military Reserve “hinges on” § 4312’s
“requisites” of, inter alia, providing notice
of intent to return to work), aff’d, 152 F.3d
673, 678 (7th Cir. 1998) (employee failed
to give employer “reasonable notice that
he wanted his job back”).
Plaintiff’s reliance on Boelter v.
City of Coon Rapids, 67 F. Supp. 2d 1040
(D. Minn. 1999), is futile. In the context
of interpreting a state law that grants
reservists the right to take paid military
leave (a benefit that USERRA does not
guarantee), the Boelter court remarked in
dictum that 38 U.S.C. § 4312 “guarantees,
at a minimum, time for the safe
transportation home plus an eight-hour rest
period before an employee on military
leave can be required to return to work.”
Id. at 1046. In holding that the city’s
interpretation of the statutory term “day”
was incorrect under state legal precedents,
the judge observed that the city’s
interpretation of the state law also “creates
an inherent conflict with USERRA,” by
accelerating the time limit established by §
4312(e) for reporting to work. Id. (The
judge mistakenly viewed § 4312 in terms
of reporting to work, as opposed to giving
notice of an intention to return to work.)
However, he did not hold that USERRA
confers the right to eight hours of rest.
We acknowledge that some aspects
of the legislative history favor plaintiff’s
position that § 4312(e) provides a right to
rest. However, our reading of the
legislative history does not compel a
contrary reading of § 4312(e)’s plain
terms. See Malloy v. Eichler, 860 F.2d
1179, 1183 (3d Cir. 1988) (“Where the
language of the statute is clear, only ‘the
most extraordinary showing of contrary
intentions’ justify altering the plain
meaning of a statute.”) (quoting Garcia v.
United States, 469 U.S. 70, 75 (1984)).
The Reports of the Senate and House
Committees on V eteran s’ Af fairs
expressed concern for service members’
physical well-being, and conveyed the
Committees’ intent that service members
“repo rting back to their civilian
employment be allowed sufficient time to
return to their residence and be rested
before they are to perform their work.” S.
Rep. No. 103-158, at 50 (1993), 1993 WL
432576; see also H.R. Rep. No. 103-65, at
2 9 ( 199 3), r e p r i n t e d i n , 1 9 94
U.S.C.C.A.N. 2449, 2462 (“An employee
. . . must be allowed a reasonable time to
arrive back at his or her residence, a
reasonable time to rest, and a reasonable
time to travel to the place of
employment.”).3 Indeed, both the Senate
3 At points, the Senate and House
Reports discuss § 4312(e)’s requirements
in terms of reporting to begin work, as
opposed to what the statute requires,
reporting “the person’s intent to return”
to work. 38 U.S.C. § 4312(e)(1). See,
e.g., S. Rep. No. 103-158, at 50 (“Under
new section 4312(e), the time periods
during which an individual must return to
work or make an application for

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and House Committees contemplated that
the eight-hour rest period in § 4312(e)
would prevent a scenario similar to the one
alleged here, where an employer requires
an employee to report to work within a few
hours of returning from military exercises.
See S. Rep. No. 103-158, at 50 (“The
eight-hour minimum period imposed
between the time of return and the time for
reporting to work would provide for
needed rest. An example would be that of
an individual arriving at his or her
residence at 11:00 p.m., two hours before
the next regular work period scheduled to
begin at 1:00 a.m. Under the Committee
bill, that individual could not be required
to report to work any earlier than 7:00
a.m.”); H.R. Rep. No. 103-65, at 29,
reprinted in, 1994 U.S.C.C.A.N. at 2462
(“For example, an employer could not
require a reservist who returns home from
weekend duty at 10:00 p.m. to report to
work at 12:30 a.m. that night, even if it is
the beginning of the next regularly
scheduled working period the next day.
The Committee believes that an employee
must be in a position to arrive at work
rested in order to perform safely at
work.”).
However, that Congress took into
account a service member’s need for rest
in shaping the reporting requirements does
not mean that Congress intended to create
a independent right to rest. On the whole,
the thrust of the Senate and House
Reports’ focus on § 4312 is in terms of the
employees’ reporting requirements, as
opposed to a statement of employees’
rights. For example, both Reports explain
that returning employees would be
guaranteed USERRA rights “if the notice
requirement of [4312] (a)(1) is met, the
cumulative length of military service
found in subsection (a)(2) is not exceeded
and the reporting or ap plicatio n
requirement of subsection (e) is complied
with.” H.R. Rep. No. 103-65, at 24,
reprinted in, 1994 U.S.C.C.A.N. at 2457;
see also S. Rep. No. 103-158, at 46 (“New
section 4312(a) would generally provide
that an individual who is absent from any
position of employment for service in the
uniformed services is entitled to
reemployment and benefits . . . if the
person satisfies the various requirements
set forth in this new section.”). In short, in
§ 4312(e) Congress sets forth a returning
employee’s requirement for providing
notice of intent to return to work in order
reemployment would be based on the
length of his or her period of service . . .
.”) (emphasis added); H.R. Rep. No. 103-
65, at 29, reprinted in, 1994
U.S.C.C.A.N. at 2462 (“Under proposed
section 4312(e), the time limits for
applying for reemployment would
depend strictly on the length or duration
of the military service from which the
serviceperson is being discharged or
released. . . . With regard to military
service of less than 31 days,
servicemembers would ordinarily be
required to report for work at the
beginning of the first regularly scheduled
working period on the next working day
after release from service.”) (emphasis
added).

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to reclaim his or her former job, and
contains no rights-creating language.
Nothing in the legislative materials clearly
evinces Congress’s intent that § 4312(e)
confer a right to rest.
For the foregoing reasons, plaintiff
cannot state a cause of action under §
4132(e) for Wawa’s alleged failure to
allow Willie Gordon eight hours of rest
between his return home from military
exercises and commencing work.
B.
Plaintiff argues that the Wawa
store manager’s alleged threat to fire
Willie Gordon was an “adv erse
employment action” in violation of
USERRA § 4311(b).
Section 4311 provides, in relevant
part:
(b) An employer may not
discriminate in employment against or take
any adverse employment action against
any person because such person . . . has
exercised a right provided for in this
chapter . . . .
(c) An employer shall be
considered to have engaged in actions
prohibited –
* * *
(2) under subsection (b), if
the person’s . . . exercise
of a right provided for in
t h i s c h a p t e r [ ] i s a
motivating factor in the
employer’s action, unless
the employer can prove
that the action would have
been taken in the absence
of such person’s . . .
exercise of a right.
38 U.S.C. § 4311(b), (c)(2).
Plaintiff has not alleged that Willie
Gordon attempted to exercise a right
provided by USERRA, as required by §
4311(b), because, as we have held above,
USERRA does not confer a right to rest.
Moreover, plaintiff has failed to
assert a claim under § 4311(b). The
complaint does not allege that Willie
Gordon indeed attempted to assert any
such right. The complaint alleges that
Willie Gordon was tired and unrested
(Compl. ¶ 13), and that the store manager
ordered him to work within hours of his
arriving home (Compl. ¶ 14), but fails to
allege that he made the store manager
aware that he had just finished his military
exercises, that he was tired, and that he
desired not to work the night shift.
Plaintiff has alleged these facts for the first
time on appeal, but in reviewing the
District Court’s Rule 12(b)(6) dismissal of
her claims, this Court may only look to the
factual allegations asserted in the
complaint. ALA, Inc., 29 F.3d at 859.
Likewise, the complaint fails to
allege that the store manager’s alleged
threat to terminate Willie Gordon’s
employment was motivated, in part, by
Gordon’s attempt to exercise a USERRA
right, as required under § 4311(c). See,
e.g., Gagnon v. Sprint Corp., 284 F.3d
839, 852 (8th Cir. 2002) (Under § 4311,
“an employer violates the act when a

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person’s membership in the uniformed
services is a motivating factor in the
employer’s action. . . .’”) (emphasis in
original); Leisek v. Brightwood Corp., 278
F.3d 895, 898 (9th Cir. 2002) (same);
Gummo v. Village of Depew, 75 F.3d 98,
106 (2d Cir.) (same), cert. denied, 517
U.S. 1190 (1996).
For these reasons, plaintiff has
failed to assert the basic factual
underpinnings of a § 4311 claim.
C.
Plaintiff alleges that the acts of a
store manager ultimately led to Willie
Gordon’s death, by causing him to work
when he was too tired and causing him to
drive home exhausted. This complaint
essentially sounds in tort. USERRA,
however, is not designed to protect
employees from the tortious acts of
employers or to remedy work-related
harms. Rather, its provisions are tailored
to effectuate its underlying purposes of:
(1) encouraging “noncareer service in the
uniformed services by eliminating or
minimizing the disadvantages to civilian
careers and employment which can result
from such service;” (2) minimizing “the
disruption to the lives of persons
performing service in the uniformed
services as well as to their employers” by
providing for the prompt reemployment of
service members upon their completion of
service; and (3) prohibiting discrimination
against them because of their uniformed
services. 38 U.S.C. § 4301(a)(1)-(3). In
line with these purposes, USERRA’s
remedial provisions are designed to
prevent, and to compensate a service
member for, employment discrimination
based on military status. See 38 U.S.C. §
4323(d)-(e), (h). Plaintiff’s case is not
about employment discrimination or the
deprivation of an employment benefit
based on military status. Accordingly,
USERRA is an inappropriate vehicle for
plaintiff’s tort claims.
III.
In sum, we hold that 38 U.S.C. §
4312(e) does not confer a right to rest, and
thus, that plaintiff has failed to state a
cause of action under USERRA.
Essentially, USERRA protects a service
mem ber’s employment rights, and
plaintiff’s allegations do not implicate
Willie Gordon’s employment rights.
Accordingly, the order of the District
Court will be affirmed. Each side to bear
its own costs.

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