A Refresher on USERRA with Recent Developments

38 U.S.C. Section 4312

Perhaps the best understood and easily enforced of USERRA's provisions are those found in 38 U.S.C.
' 4312, which provide for a right to reemployment. Section 4312 provides that a service member is entitled to reemployment as long as he/she satisfies five requirements:

1. The service member must have left his or her job for the purpose of performing voluntary or involuntary service in the uniformed services;
2. The service member must have given the employer oral or written notice;
3. The period of service (the most recent plus any prior periods with the same employer) must not have exceeded five years (however, all involuntary service and even some voluntary service does not count toward this limit);
4. The service member must have been released from the period of service without having received a punitive discharge (by court martial) or an other than honorable discharge; and
5. The service member must timely report back to work or apply for reemployment. (Following service more than 180 days, he or she must apply for reemployment within 90 days, with shorter deadlines for shorter service.)

Provided the service member satisfies all five requirements, he/she is entitled to prompt reinstatement (generally within days, not weeks), accrued seniority as if continually employed, training or retraining, and a special protection against discharge, except for cause. (For service of 181 days or more, the protection against discharge is for one year.) If the absence is for less than 91 days, the service member is entitled to the same job or the job he/she would have attained absent the military service, provided the member is, or could become, qualified for the position. For absences of 91 days or more, the employer may reemploy the returning service member as described above, or in a similar position of seniority, status and pay.

Litigation

Although there have been numerous cases litigating ' 4312 issues ' whether service members have satisfied the five requirements and whether employers have restored service members to pre-military duty status ' in large part, ' 4312 reemployment rights cases are fairly straightforward, and violations easy to recognize. Certainly, the returning veteran knows whether he or she has been reemployed, and in what status and seniority.

38 U.S.C. Section 4311

The more difficult USERRA provisions to recognize and enforce are the anti-discrimination provisions located in 43 U.S.C. ' 4311. Section 4311 provides that “a person who is a member of ' a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by any employer on the basis of that membership.” Section 4311(c) provides that “an employer shall be considered to have engaged in actions prohibited ' (1) under subsection (a) if the person's membership, application for membership, service, application for service, or obligation for service in the uniformed services is 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 membership, application for membership, service, application for service, or obligation for service.”

This anti-discrimination provision in USERRA is much broader than the protection provided by its predecessor, VRRA. The VRRA had been interpreted by the Supreme Court in Monroe v. Standard Oil Company, 452 U.S. 549 (1981) to prohibit only those acts of discrimination that were solely motivated by an employee's military status. Similarly, in Sawyer v. Swift & Co., 836 F.2d 1257 (10th Cir. 1988), the Tenth Circuit required that a Navy Reservist prove that his reserve obligation constituted the sole reason for his firing. In USERRA, Congress sought to correct the Supreme Court's ruling in Monroe as well as the Tenth Circuit holding in Sawyer by broadening the law's anti-discrimination provisions to provide protection where the employee's military status is a “motivating factor” in the decision, even if the military status is not the sole factor in an employment action. The Sixth Circuit described this USERRA enactment as Congress' intent to lessen, but not eliminate, a veteran's obligation to show that the employer's adverse decision was related to his or her service in the armed forces. See Curby v. Archon, 216 F.3d 549, 557 (6th Cir. 2000) (criticized on other grounds).

Assuming that a service member can prove that his or her military service was a motivating factor in a prohibited employment action, the burden of proof shifts to the employer to prove by a preponderance of the evidence that it would have taken the same adverse action for legitimate reasons, standing alone. See Sheehan v. Department of the Navy, 240 F. 3d 1009 (Fed. Cir. 2001).
Employment practitioners should note that the procedural framework and evidentiary burden set out in USERRA ' 4311 are different from those applied in discrimination cases under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ' 2000e-2(a)(1), as described in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In USERRA cases, after the plaintiff makes a prima facie case, the burden of proof shifts to the employer, while in Title VII discrimination cases, only the burden of production of evidence ' and not the burden of persuasion ' shifts to the employer after the employee makes a prima facie showing of discrimination. See NLRB v. Transportation Management Corporation, 462 U.S. 393 (1983).

The Sheehan court reaffirmed that USERRA ' 4311 cases can be proven by either direct or circumstantial evidence, and explained that discriminatory motivation may be reasonably inferred from a variety of factors, including proximity in time between the employee's military activity and the adverse employment action, inconsistencies between the proffered reason and other actions of the employer, an employer's expressed hostility toward members protected by the statute, together with knowledge of the employee's military activity, and disparate treatment of certain employees compared to other employees with similar work records or offenses.

Staub v. Proctor Hospital

Even with the burden shifting provisions of USERRA ' 4311, however, it can remain difficult to identify and prove unlawful discrimination based on military status. This difficulty is well demonstrated in the USERRA case of Staub v. Proctor Hospital, for which the Supreme Court granted certiorari in April 2010, and heard oral argument on Nov. 2, 2010.

In Staub, the Supreme Court considered the discrimination claims of Army Reserve Sergeant Vincent Staub, alleging that he was terminated from a hospital in Illinois where he worked as an angiography technologist, in violation of ' 4311, in part because of his military reserve obligation.

Sergeant Staub sued the hospital in U.S. District Court in the Central District of Illinois, where the court admitted evidence of multiple anti-military statements by Staub's first-line supervisors and co-workers. For example, one first-line supervisor characterized Staub's drill weekends as “Army Reserve BS,” and “a bunch of smoking and joking and a waste of the taxpayers' money.” Another supervisor and co-workers complained about the drag that Staub's military duty and related absences from work caused their department. However, the hospital contended that the anti-military statements of Staub's first-line supervisors and co-workers were irrelevant in as much as the ultimate decision-maker in Staub's termination was a Vice President for Human Relations about whom there was no evidence of anti-military animus. The jury found for Sergeant Staub on his claim of discriminatory termination and awarded damages to him.

On appeal, the Seventh Circuit reversed, finding that the hospital Vice President who terminated Staub had not impermissibly relied upon the reports about Staub from his supervisors and co-workers who sought to have him fired because of his military status, as evidenced by the fact that the Vice President had conducted her own, albeit meager, fact investigation. The Seventh Circuit rejected Staub's argument that evidence of anti-military animus on the part of the first-line supervisors should be admitted because the Vice President relied upon tainted information provided by the first-line supervisors and coworkers. In its holding, the Seventh Circuit found that the lower court erred in admitting evidence of non'decision-maker anti-military animosity, since there was insufficient evidence that the ultimate decision-maker placed blind reliance upon other improperly motivated individuals, or that the decisionmaker was the dupe or “cat's paw” of the employees with the discriminatory motive.

Petition for the Writ of Certiorari

In the petition for writ of certiorari to the Supreme Court, Staub's counsel identified the conflict between the courts of appeals regarding when an employer may be held liable for the unlawful motives and actions of an official other than the formal decision-maker. Staub argued that in the Seventh and Fourth Circuits, the motives of an official other than the formal decision-maker, cannot subject an employer to liability unless the official so dominated the decision-making process as to be the functional decision-maker, while the remaining circuits had a far less stringent standard. In the Sixth, Ninth, Tenth and Eleventh Circuits, Staub argued, unlawfully motivated actions by persons other than the ultimate decision-maker provide a basis for employer liability if those actions caused the decision by the formal decision-maker. According to Staub, the standard in the remaining circuits is that proof that an unlawfully motivated official influenced or played a role in the decision-making process is sufficient to impose liability on the employer. The employer argued that federal discrimination laws (including USERRA and Title VII) hold the employer liable only for the actions of the employee or supervisor who made the ultimate employment decision, unless, applying the cat's paw doctrine, that decision-maker was so dominated or controlled by another employee who possessed discriminatory animus.

Conclusion

It remains to be seen how the Supreme Court will rule on its first USERRA case. Some of the amici briefs, including the brief of the Reserve Officers Association in support of the Petitioner, argue that the Seventh Circuit decision conflicts with Congress' intent in USERRA, since ' 4311 contains no requirement that a servicemember show that the supervisor with the anti-military animus had “singular influence” over the actual decision-maker; and that the history of USERRA and the predecessor VRRA support a liberal construction of the statute for the benefit of those who serve our nation in uniform. A decision is expected in Staub this Spring.

For further discussion regarding USERRA issues, please check the Reserve Officers Association Web site, www.roa.org, which contains over 750 well-indexed and searchable articles on USERRA, located within the site's Service Members Law Center.

Eileen Carr Riley is Of Counsel in the Baltimore office of Jackson Lewis LLP. Gil Abramson, a member of this newsletter's Board of Editors, is a partner in the same office.

As the U.S. begins its tenth year in support of Operation Enduring Freedom (the war in Afghanistan) and continues to maintain its all-volunteer military in countries throughout the world, it is an appropriate time to revisit some of the important protections afforded to service members by the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) 38 U.S.C. '4301 et seq. This review is particularly timely as USERRA celebrates its 16th anniversary, and while the Supreme Court considers its first USERRA case, Staub v. Proctor Hospital, Writ of certiorari granted, 130 S. Ct. 2089, 176 L. Ed. 2d 720, 2010 U.S. LEXIS 3333, 78 U.S.L.W. 3610 (U.S. 2010).

Some History

Although USERRA was signed into law by President Clinton on Oct. 13, 1994, it is misleading to think of it as post-Desert Storm legislation. In fact, USERRA was largely a recodification of the Veterans' Reemployment Rights Act (“VRRA”), which dates from the 1940s, but had undergone numerous amendments over the years. The legislative history of USERRA makes clear that it was not a new law, but intended as an improvement upon the law that provided members of the uniformed services with employment, reemployment rights, and protection against employment-related discrimination. Unlike many other federal employment statutes, USERRA applies to employers of any size, and applies equally to private and governmental employers.

38 U.S.C. Section 4312

Perhaps the best understood and easily enforced of USERRA's provisions are those found in 38 U.S.C.
' 4312, which provide for a right to reemployment. Section 4312 provides that a service member is entitled to reemployment as long as he/she satisfies five requirements:

1. The service member must have left his or her job for the purpose of performing voluntary or involuntary service in the uniformed services;
2. The service member must have given the employer oral or written notice;
3. The period of service (the most recent plus any prior periods with the same employer) must not have exceeded five years (however, all involuntary service and even some voluntary service does not count toward this limit);
4. The service member must have been released from the period of service without having received a punitive discharge (by court martial) or an other than honorable discharge; and
5. The service member must timely report back to work or apply for reemployment. (Following service more than 180 days, he or she must apply for reemployment within 90 days, with shorter deadlines for shorter service.)

Provided the service member satisfies all five requirements, he/she is entitled to prompt reinstatement (generally within days, not weeks), accrued seniority as if continually employed, training or retraining, and a special protection against discharge, except for cause. (For service of 181 days or more, the protection against discharge is for one year.) If the absence is for less than 91 days, the service member is entitled to the same job or the job he/she would have attained absent the military service, provided the member is, or could become, qualified for the position. For absences of 91 days or more, the employer may reemploy the returning service member as described above, or in a similar position of seniority, status and pay.

Litigation

Although there have been numerous cases litigating ' 4312 issues ' whether service members have satisfied the five requirements and whether employers have restored service members to pre-military duty status ' in large part, ' 4312 reemployment rights cases are fairly straightforward, and violations easy to recognize. Certainly, the returning veteran knows whether he or she has been reemployed, and in what status and seniority.

38 U.S.C. Section 4311

The more difficult USERRA provisions to recognize and enforce are the anti-discrimination provisions located in 43 U.S.C. ' 4311. Section 4311 provides that “a person who is a member of ' a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by any employer on the basis of that membership.” Section 4311(c) provides that “an employer shall be considered to have engaged in actions prohibited ' (1) under subsection (a) if the person's membership, application for membership, service, application for service, or obligation for service in the uniformed services is 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 membership, application for membership, service, application for service, or obligation for service.”

This anti-discrimination provision in USERRA is much broader than the protection provided by its predecessor, VRRA. The VRRA had been interpreted by the Supreme Court in Monroe v. Standard Oil Company , 452 U.S. 549 (1981) to prohibit only those acts of discrimination that were solely motivated by an employee's military status. Similarly, in Sawyer v. Swift & Co. , 836 F.2d 1257 (10th Cir. 1988), the Tenth Circuit required that a Navy Reservist prove that his reserve obligation constituted the sole reason for his firing. In USERRA, Congress sought to correct the Supreme Court's ruling in Monroe as well as the Tenth Circuit holding in Sawyer by broadening the law's anti-discrimination provisions to provide protection where the employee's military status is a “motivating factor” in the decision, even if the military status is not the sole factor in an employment action. The Sixth Circuit described this USERRA enactment as Congress' intent to lessen, but not eliminate, a veteran's obligation to show that the employer's adverse decision was related to his or her service in the armed forces. See Curby v. Archon , 216 F.3d 549, 557 (6th Cir. 2000) (criticized on other grounds).

Assuming that a service member can prove that his or her military service was a motivating factor in a prohibited employment action, the burden of proof shifts to the employer to prove by a preponderance of the evidence that it would have taken the same adverse action for legitimate reasons, standing alone. See Sheehan v. Department of the Navy , 240 F. 3d 1009 (Fed. Cir. 2001).
Employment practitioners should note that the procedural framework and evidentiary burden set out in USERRA ' 4311 are different from those applied in discrimination cases under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ' 2000e-2(a)(1), as described in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). In USERRA cases, after the plaintiff makes a prima facie case, the burden of proof shifts to the employer, while in Title VII discrimination cases, only the burden of production of evidence ' and not the burden of persuasion ' shifts to the employer after the employee makes a prima facie showing of discrimination. See NLRB v. Transportation Management Corporation , 462 U.S. 393 (1983).

The Sheehan court reaffirmed that USERRA ' 4311 cases can be proven by either direct or circumstantial evidence, and explained that discriminatory motivation may be reasonably inferred from a variety of factors, including proximity in time between the employee's military activity and the adverse employment action, inconsistencies between the proffered reason and other actions of the employer, an employer's expressed hostility toward members protected by the statute, together with knowledge of the employee's military activity, and disparate treatment of certain employees compared to other employees with similar work records or offenses.

Staub v. Proctor Hospital

Even with the burden shifting provisions of USERRA ' 4311, however, it can remain difficult to identify and prove unlawful discrimination based on military status. This difficulty is well demonstrated in the USERRA case of Staub v. Proctor Hospital, for which the Supreme Court granted certiorari in April 2010, and heard oral argument on Nov. 2, 2010.

In Staub, the Supreme Court considered the discrimination claims of Army Reserve Sergeant Vincent Staub, alleging that he was terminated from a hospital in Illinois where he worked as an angiography technologist, in violation of ' 4311, in part because of his military reserve obligation.

Sergeant Staub sued the hospital in U.S. District Court in the Central District of Illinois, where the court admitted evidence of multiple anti-military statements by Staub's first-line supervisors and co-workers. For example, one first-line supervisor characterized Staub's drill weekends as “Army Reserve BS,” and “a bunch of smoking and joking and a waste of the taxpayers' money.” Another supervisor and co-workers complained about the drag that Staub's military duty and related absences from work caused their department. However, the hospital contended that the anti-military statements of Staub's first-line supervisors and co-workers were irrelevant in as much as the ultimate decision-maker in Staub's termination was a Vice President for Human Relations about whom there was no evidence of anti-military animus. The jury found for Sergeant Staub on his claim of discriminatory termination and awarded damages to him.

On appeal, the Seventh Circuit reversed, finding that the hospital Vice President who terminated Staub had not impermissibly relied upon the reports about Staub from his supervisors and co-workers who sought to have him fired because of his military status, as evidenced by the fact that the Vice President had conducted her own, albeit meager, fact investigation. The Seventh Circuit rejected Staub's argument that evidence of anti-military animus on the part of the first-line supervisors should be admitted because the Vice President relied upon tainted information provided by the first-line supervisors and coworkers. In its holding, the Seventh Circuit found that the lower court erred in admitting evidence of non'decision-maker anti-military animosity, since there was insufficient evidence that the ultimate decision-maker placed blind reliance upon other improperly motivated individuals, or that the decisionmaker was the dupe or “cat's paw” of the employees with the discriminatory motive.

Petition for the Writ of Certiorari

In the petition for writ of certiorari to the Supreme Court, Staub's counsel identified the conflict between the courts of appeals regarding when an employer may be held liable for the unlawful motives and actions of an official other than the formal decision-maker. Staub argued that in the Seventh and Fourth Circuits, the motives of an official other than the formal decision-maker, cannot subject an employer to liability unless the official so dominated the decision-making process as to be the functional decision-maker, while the remaining circuits had a far less stringent standard. In the Sixth, Ninth, Tenth and Eleventh Circuits, Staub argued, unlawfully motivated actions by persons other than the ultimate decision-maker provide a basis for employer liability if those actions caused the decision by the formal decision-maker. According to Staub, the standard in the remaining circuits is that proof that an unlawfully motivated official influenced or played a role in the decision-making process is sufficient to impose liability on the employer. The employer argued that federal discrimination laws (including USERRA and Title VII) hold the employer liable only for the actions of the employee or supervisor who made the ultimate employment decision, unless, applying the cat's paw doctrine, that decision-maker was so dominated or controlled by another employee who possessed discriminatory animus.

Conclusion

It remains to be seen how the Supreme Court will rule on its first USERRA case. Some of the amici briefs, including the brief of the Reserve Officers Association in support of the Petitioner, argue that the Seventh Circuit decision conflicts with Congress' intent in USERRA, since ' 4311 contains no requirement that a servicemember show that the supervisor with the anti-military animus had “singular influence” over the actual decision-maker; and that the history of USERRA and the predecessor VRRA support a liberal construction of the statute for the benefit of those who serve our nation in uniform. A decision is expected in Staub this Spring.

For further discussion regarding USERRA issues, please check the Reserve Officers Association Web site, www.roa.org, which contains over 750 well-indexed and searchable articles on USERRA, located within the site's Service Members Law Center.

Eileen Carr Riley is Of Counsel in the Baltimore office of Jackson Lewis LLP. Gil Abramson, a member of this newsletter's Board of Editors, is a partner in the same office.