USERRA – An Update
July 19, 2007
Leona McFarlane- Miami
The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted by Congress and signed into law by President Clinton on October 13, 1994. Congress amended the law in 1996, 1998 and 2000.
Until recently, the number of USERRA cases had been relatively low in comparison with other employment discrimination lawsuits. However, with the recent wars, military personnel returning from military service have begun exercising their rights in greater numbers. Three recent cases demonstrate the need to carefully follow USERRA’s requirements.
Vickers v. Memphis
USERRA specifically prohibits the denial of “any benefits of employment by an employer” to members of the uniformed services. According to a recent district court decision, Vickers v. Memphis, 368 F.Supp.2d 842 (W.D. Tenn. 2005), the term “benefits of employment” includes the right to be free from harassment and a hostile work environment.
Plaintiff Terry Vickers alleged that he was subjected to harassment, a hostile work environment and disparate treatment following his return from military service in Iraq. He claimed that he was called “derogatory ethnic names because of his military service” and was “repeatedly referred to as Habib.” The defendants, his employer and two individual defendants, moved to dismiss the harassment and hostile work environment claims, arguing that USERRA does not protect employees from harassment.
The court acknowledged that USERRA does not specifically guarantee returning service members the right to a harassment-free environment. It nonetheless ruled that USERRA allows an employee to recover for harassment due to prior military service if he or she can show that the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment, and that he or she was entitled to a harassment-free workplace by virtue of an employer policy. Because Vickers could show that his employer’s policies generally prohibited harassment, he was entitled to protection from harassment under USERRA, the court ruled.
It appears that other courts are likely to follow the Vickers decision and may go even further to rule that harassment because of military service violates USERRA regardless of the employer’s policies. Employees will still probably need to show that the harassment is sufficiently severe and pervasive to constitute a hostile environment and that the employer failed to take appropriate action to stop it. Thus, employers should assume that employees may sue under USERRA for harassment because of military service. Harassment because of military service should be added to the list of the types of harassment prohibited by employer anti-harassment policies. Rank and file employees and supervisors alike should be trained that harassment because of military service will not be tolerated, and employers should respond promptly and appropriately to stop any “military harassment” they learn about.
McLain v. City of Somerville.
In another recent case, McLain v. City of Somerville, 424 F.Supp. 2d 329 (D. Mass. 2006), the court broadly read USERRA to protect an employee who claimed he was not hired because his military service precluded him from starting work on the date the employer desired.
McLain had passed a Massachusetts civil service examination to become a police patrol officer. Before receiving a job offer, McLain enlisted in the U.S. Army in January 2000 for a term of service that would last until January 4, 2002. In August 2001, the city of Somerville informed McLain that he had been selected as a patrol officer, subject to attending the required policy academy training session beginning on October 1, 2001. McLain responded that he would still be on active duty on that date, but he believed he could get an early release that would make him available several weeks after the October 1, 2001 start date. In response, the city told McLain that it considered him an excellent candidate and would have hired him, but could not do so because he would not be released from the Army in time to attend the police academy.
McLain sued, arguing that the city violated USERRA when it failed to hire him because his military service prevented him from being available on the day the city wanted him to start work. The court agreed. It noted that USERRA expressly provides that an individual “shall not be denied” initial employment because he or she “has an obligation to perform service in a uniformed service.” The sole reason McLain was not available to start the police academy on October 1, 2001 was his “obligation to perform service.” Thus, the city violated USERRA by relying on McLain’s inability to attend the police academy to deny him employment, the court ruled.
The McLain decision demonstrates that USERRA applies to initial hiring decisions as well as reemployment decisions. If your sole reason for refusing to hire an individual is her current military service, think twice.
Patton v. Target Corp.
Employers are also cautioned that it is not easy to get a USERRA case dismissed before trial. Unlike most discrimination cases, to get a USERRA discipline or discharge case dismissed, the employer must show that it would have made the same decision even if the employee had not served in the military. Another recent district court opinion, Patton v. Target Corp., 2007 WL 894560 (D. Or. 2007), shows that even an employer that seems to treat military personnel well may not be able to get a USERRA case dismissed before trial.
Background
On July 7, 2003, James Patton returned to his job at Target Corporation after a month-long military leave. Within a few hours after his return, Target told Patton that he was being demoted. The company claimed that it had decided to demote Patton before his military leave, based on unsatisfactory performance reviews in March and April 2003, but had deferred telling Patton so as not to interfere with his military training.
On July 9, Patton sent a general email to employees in similar positions nationwide, telling them about his demotion. Target claimed that Patton’s mass email misstated the reasons for his demotion and caused serious disruption. On July 10, an organization called Employer Support for the Guard and Reserves (ESGR) contacted Target and asked that Patton’s demotion be reversed, and on July 11, a Department of Labor representative contacted Target concerning Patton’s demotion. On July 14, Target disabled Patton’s email and fired him, stating that his emails had a detrimental effect and had undermined Target’s confidence in him.
Patton sued, claiming that both his demotion and his termination violated USERRA. Over Target’s objection, the court ruled that Patton was entitled to a jury trial. It stated that under USERRA, a plaintiff need only initially demonstrate by a preponderance of evidence that his military service was one “motivating factor” in the challenged employment decision. The burden then shifts to the employer to prove that it would have taken the same adverse action regardless of the employee’s military status.
Patton’s evidence raised a jury question about whether his military status was a motivating factor in Target’s demotion decision, the court ruled. Not only did the demotion occur right after Patton returned from leave, but there was evidence that Target managers involved in the decision had “an animus” against the military, including statements that Target should recruit less from the military in order to reduce the company’s exposure to personnel vacancies and comments deriding National Guard members as “weekend warriors.” The court also found inconsistencies in Target’s rationale for the demotion, and stated that “[Patton’s] performance reviews were not so overwhelming that they negate any question about the motivation for [Patton’s] demotion.”
The court also rejected Target’s affirmative defense that it had decided to demote Patton before his military leave and would have done so regardless of his military status. Despite evidence that Target had been recognized by the United States Department of Defense as a Five-Star Employer of members of the National Guard and Reserves, had an official policy that prohibited discrimination based on military status, had frequently recruited current and former military personnel for management positions, and had recently promoted at least eight current or former military employees, the court found that “Target has not established as a matter of undisputed fact that it would have taken the same action in the absence of [Patton’s] military status.”
Patton was also entitled to a jury trial on his discrimination claim, the court decided. Although Target said the sole reason for firing Patton was his company-wide email on July 9 in defiance of management orders, the court ruled that the “temporal sequence of events” beginning with Patton’s demotion and ending with his discharge suggested military status discrimination and retaliation. Specifically, Target decided to fire Patton on July 14, after representatives from ESGR and the Labor Department had contacted the company on Patton’s behalf, the court pointed out.
Again rejecting Target’s affirmative defense, the court found that “[Target] has not established as a matter of undisputed fact that it would have terminated [Patton] for sending his disruptive e-mail in the absence of his military service or his diligent efforts to protect his rights under USERRA.”
Significance
The burden-shifting standard applicable in USERRA cases is different from the standard used in other discrimination cases. Under USERRA, if the plaintiff meets his initial burden of showing that the employee’s military service was “a motivating factor” in the adverse employment action, the employer then has to prove that it would have taken the adverse action anyway, for a valid reason. As the Patton decision illustrates, this standard is often difficult to meet in the summary judgment stage of litigation, even for an employer that can show it usually treats service people well. Employers who are making employment decisions involving current or former military personnel should take extra precautions to ensure that the timing of the decision is not in close proximity to the employee’s military service, and be able to prove the non-discriminatory reasons for their decisions. Additionally, comments which may be indicative of military animus should not be made in the workplace.
These cases demonstrate that USERRA presents many risks for employers, and that plaintiffs filing claims based on USERRA violations have a lighter burden than in other employment discrimination claims. Furthermore, employers can expect USERRA claims to increase as service people return to the work force. Employers must avoid making any decisions regarding employment based on military service and must pay careful attention to military leave and reemployment rights.
For more information, email Leona N. Dudley at leona.dudley@hklaw.com or call toll free, 1-888-688-8500.