Suits In The WorkPlace

When Joanie Comes Marching Home Again

    The Uniformed Services Employment and Reemployment Rights Act (known by the cumbersome acronym USERRA, pronounced "you-sarah") is a relatively recent statute that has not been the subject of widespread litigation in the courts until the events following September 11, 2001.  Now the Fourth Circuit has provided some very clear guidance on how the rights established by this law apply. 

    The case involved a plaintiff who worked for Booz Allen and was also a petty officer in the Naval Reserve.  Following a 5-month active duty tour, the plaintiff alleged she was discriminated against and then discharged as a result of her military status and in retaliation for raising a claim of discrimination because of that status.  She lost on all counts at summary judgment and appealed.

    The 4th Circuit first noted the statutory USERRA design, section by applicable section.  USERRA provides for reemployment rights for reservists who are required to leave their civilian jobs.  The court found that this section of USERRA -- 38 U.S.C. 4312-- is limited in that it serves only to guarantee a right to reemployment without regard to the employer's intent.  Noting that other provisions of USERRA provided protection for the continuing reemployment relationship, the court held that 4312 only provides protection at the moment of reemployment.  It does not, for example, prevent the employer from terminating a returned service member the following day after returning to work, or even later in the same day.  Accordingly, a violation of this particular section of USERRA is only properly alleged with regard to a complete failure to reemploy a returning service member.

    The court found that Booz Allen had properly reemployed the plaintiff to her prior position and the the act she complained of occurred significantly after her return.  Accordingly, there was no violation of Section 4312.

    Plaintiff's claim for actions that occurred after she was reemployed fall under Section 4311 of the statute, which prohibits denial of employment "benefits" because of military status.  Although the court agreed that plaintiff's job changed following her return to work, the change was relatively slight and actually began before she was deployed, as a direct result of changes in the business of Booz Allen.  Under these circumstances, the court said there was no issue of material fact indicating a violation.  Plaintiff also alleged that Booz Allen changed her work schedule making it difficult for her to attend evening classes.  While the court noted that a favorable working schedule is a benefit of employment, it said that there was no indication that the 2-hour schedule change, which did not alter the total number of hours worked and which plaintiff had worked occasionally prior to deployment, was made considering her military service.

    The court also examined the protections under Section 4316 of the statute, which alters the at-will employment status for a returning veteran.  During the statutory period (which can extend for up to a year), an employer cannot discharge a returning veteran except for cause.  The burden is on the employer to establish that the discharge was reasonable, making summary judgment in these cases much more difficult for an employer.  However, where an employer has uncontroverted evidence of an employee's misconduct, the court found that it was "objectively reasonable" for Booz Allen to make the discharge decision that it did.

    Again, note that the standard under this section of USERRA is "objectively reasonable."  This is a higher standard than a typical employment discrimination test and is a strong deterrent against terminating returning veterans within the statutorily protected time frame.

    Plaintiff's retaliation claim under Section 4311 failed because she could not show that her complaints that her USERRA rights were being violated, which occurred shortly before her termination, were a motivating factor in the decision.  As with Title VII retaliation claims, the court noted that where gradual adverse job actions begin well before the plaintiff engages in protected activity, an inference of retaliation does not arise from the timing of the complaint vis a vis the adverse action.

    This is an extremely well-reasoned opinion that provides plenty of guidance for employers in dealing with problem employees who happen to be reserve force members.  In short, most, if not all of the same guidance relating to Title VII problems applies even more so to USERRA because of its increased burdens on the employer to justify adverse employment actions.