Sixth Circuit Enters Judgment for Employee’s Reinstatement Claim Because USERRA Trumps Employer’s Regular Return-to-Work Procedures.

Today, the Sixth Circuit issued an important decision applying USERRA, reversed summary judgment in favor of the employer and entered summary judgment in favor of the plaintiff employee whose re-employment rights had been violated. Petty v. Metropolitan Government of Nashville-Davison County, No. 07-5649 (8/18/08). In that case, the Sixth Circuit faulted the employer for delaying the employee’s reinstatement to his former position beyond two weeks pending completion of the employer’s regular return-to-work process and pending completion of investigations about the plaintiff’s honesty in explaining the reasons for the termination of his military service.

While the plaintiff was serving in Kuwait, he was brought up on charges for violating the Code of Military Justice for conduct unbecoming an officer in having bootleg alcohol in his quarters and sharing the alcohol with an enlisted female soldier. He was eventually permitted to resign from the military in lieu of court martial, returned home on February 1 and sought reinstatement to his former job as a police sergeant on February 28, 2005. His discharge was identified by the military as “under honorable conditions.” Before the police department would reinstate him, however, they required him to undergo its standard return-to-work process to ensure that he was mentally, temperamentally and physically fit to serve as a police officer. This included “a personal history update questionnaire, a medical examination, a computer voice stress analysis, a drug screening, and a debriefing with a Police Department psychologist. In addition, the Police Department requests that returning officers execute a medical records authorization, and for individuals returning from military duty, an authorization to obtain military records.” After the plaintiff was required to explain in writing about any disciplinary charges during his military service, investigations arose as to whether he should be disqualified from police service because of the recommended court martial and because of concerns that the plaintiff had not honestly explained the situation during the return-to-work process.

Although the plaintiff was not rehired until March 21, 2005 – almost a month after he sought reinstatement – he was not reinstated into his former position as a sergeant. Rather, he was given a desk job accepting civilian complaints pending completion of the investigations into his former military service and his honesty during the return-to-work process. Ultimately, the employer determined that the military disciplinary action would not preclude his reinstatement, but it remained concerned about his honesty in disclosing the subject. Thereupon, it was discovered that plaintiff had not submitted a complete copy of his DD-214 form memorializing his honorable discharge. Rather, the copy he had submitted had been so enlarged that the last three sections of the form – one of which indicated that he had resigned in lieu of court martial – had been deleted from the form. As this situation continued, plaintiff requested authorization to resume his off-duty security work, but was denied in light of the investigations into his honesty.

Plaintiff then filed suit alleging that his USERRA rights had been violated. The district court granted summary judgment to the City on the grounds that Plaintiff had been treated the same as other police officers who took leaves of absence and could not prove any unlawful discrimination. The Sixth Circuit reversed and entered judgment in favor of the plaintiff employee:

“For the purposes of this case, USERRA performs four key functions. First, it guarantees returning veterans a right of reemployment after military service. 38 U.S.C. § 4312. Second, it prescribes the position to which such veterans are entitled upon their return. 38 U.S.C. § 4313. Third, it prevents employers from discriminating against returning veterans on account of their military service. 38 U.S.C. § 4311. Fourth, it prevents employers from firing without cause any returning veterans within one year of reemployment. 38 U.S.C. § 4316.”

The Court found that “upon his return, he was required to request reemployment from Metro within the time frame outlined in § 4312(e) and with the documentation specified by § 4312(f). [In addition], his separation from service must have been under “honorable conditions.” 38 U.S.C. § 4304(2).

The documents which satisfy the documentation requirements of 38 U.S.C. § 4312 are identified in 20 C.F.R. § 1002.123. Among those listed is a form DD-214, which the employee provided when he sought reinstatement. But the employer argued that the employee’s DD-214 was not sufficient under USERRA, because the copy which he submitted admittedly did not include three fields at the bottom of the form — most notably one including the statement “Narrative Reason for Separation: In lieu of trial by courtmartial.” The employer also argued that the DD-214 was “void” because the failure to include all fields constituted an alteration voiding the form.

The Court held that “it would be inconsistent with the goals of USERRA to prevent [the employee] from exercising his right to reemployment because he failed to provide forthrightly information that is statutorily unnecessary to his establishing the right in the first place. First, 20 C.F.R. § 1002.123(a)(2) expressly recognizes that the types of documentation necessary to establish eligibility for reemployment may vary from case to case. The focus of USERRA is on securing rights to returning veterans, not on ensuring that any particular documentation is produced. Second, in compliance with [the employer’s] return-to-work process, [the employee] signed an authorization granting [the employer] unfettered access to all of his medical and military records, including a complete DD-214. Accordingly, we find that [the plaintiff] satisfied USERRA’s documentation requirement, and, inasmuch as [the employer] does not dispute his having satisfied the other statutory prerequisites, it is apparent that he established his right to reemployment as guaranteed by §§ 4312 and 4313. [The employer], therefore, was not permitted to delay or otherwise limit [the plaintiff’s] reemployment rights in any way; in particular, [the employer] was not permitted to limit or delay [the employee’s] reemployment by requiring him to comply with its return-to-work process. Section 4302(b) expressly states that USERRA “supersedes any . . . contract, agreement, policy, plan, practice, or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter, including the establishment of additional prerequisites to the exercise of any such right or the receipt of any such benefit.” By applying its return-to-work process to [the plaintiff], [the employer] not only delayed his reemployment, but as we shall explain, it also limited and withheld benefits to which [the employee] was entitled under USERRA.”

“It is of no consequence here that [the employer] believes it is obligated to “ensure that each and every individual entrusted with the responsibility of being a Metropolitan Police Officer is still physically, emotionally, and temperamentally qualified to be a police officer after having been absent from the Department.” In USERRA, Congress clearly expressed its view that a returning veteran’s reemployment rights take precedence over such concerns. [The employer] does not question [the employee’s] physical qualifications; instead, it questions only whether his conduct during his military service would disqualify him from returning to service in the police department. But [the plaintiff’s] separation from military service is classified as “under honorable conditions,” which Congress has made clear suffices to qualify him for USERRA benefits, 38 U.S.C. § 4304(2). To the extent that his military service may have in fact left [the employee] unfit to carry out his duties as a police officer but is not reflected in the classification of his separation from service, USERRA would allow, after his reemployment, a “for cause” termination of that employment. 38 U.S.C. § 4316. Furthermore, Congress recognized USERRA would limit the ability of employers to rescreen returning veterans, but still chose to make this the general rule under USERRA. This is evident because, in certain circumstances, Congress altered this general rule to allow vetting of returning veterans before full rehiring. Section 4315 allows the heads of agencies listed under 5 U.S.C. § 2302(a)(2)(C)(ii) – e.g., FBI, CIA, NSA – to “prescribe procedures for ensuring that the rights under [USERRA] apply to employees of such agency.” 38 U.S.C. § 4315(a). Congress did not grant similar discretion to local police departments; therefore, [the employer’s] return-to-work process as applied to [the plaintiff] was in violation of USERRA’s reemployment provisions.” (emphasis added).

The Court also found that the lower court had erred in endorsing the City’s return-to-work process because they did not discriminate against veterans under USERRA. “First, § 4302(b) does not limit its superseding effect only to “additional prerequisites.” It supersedes any “policy, plan, [or] practice” that “reduces, limits, or eliminates in any manner any right or benefit” provided by USERRA, “including,” but not necessarily limited to, “the establishment of additional prerequisites.” Second, [the employer’s] return-to-work procedures do constitute “additional prerequisites” for returning veterans, because the procedures are in addition to the requirements Congress specified for the exercise of USERRA’s reemployment rights. The district court apparently viewed the term “additional prerequisites” as meaning “additional to the employer’s existing prerequisites,” and concluded that [the employer’s] procedures are not discriminatory because they apply to all individuals returning to the department. But this analysis is not appropriate for a claim brought under § 4312, and the superseding effect of § 4302(b) is not so limited; [the employer’s] return-to-work procedures are indeed superseded by USERRA’s reemployment provisions.

It is important to note that [the plaintiff] was not required to make any showing of discrimination in order to sustain either of his reemployment claims. The district court incorrectly characterized part of [the plaintiff’s] reemployment claim — that part dealing with the position to which he was reinstated — as being part of his discrimination claims and therefore held that it required a showing of discrimination. . . . the Department of Labor specified that “[t]he employee is not required to prove that the employer discriminated against him or her because of the employee’s uniformed service in order to be eligible for reemployment.” 20 C.F.R. § 1002.33 . . . , the imposition of § 4311’s discrimination requirement on a reemployment claim is not consistent with the plain language of §§ 4312 and 4313. Section 4313 states that any “person entitled to reemployment under section 4312” — which we have found [the employee] to be — “shall be promptly reemployed in a position of employment in accordance with the” order of priority outlined in § 4313(a)(2). Thus, the express terms of § 4313 make its application contingent only on the prerequisites of § 4312, none of which include a showing of discrimination.”

“At the point at which [the employee] was entitled to reemployment under §§ 4312 and 4313, [the employer] had no basis on which to question his qualifications. [the employee] had satisfied the only prerequisites to § 4313 — those specified in § 4312 — and [the employer’s] attempt to impose additional prerequisites through its return-to-work process was, as we have already explained, wholly impermissible.” The employer’s return-to-work process (and the questions about the plaintiff’s honesty which arose during that process) “cannot serve as a basis for delaying or otherwise limiting [the employee’s] right to reemployment.”

The Court found that not only did the employer fail to properly rehire the plaintiff, but it also failed to reinstate him to his former position: “Because of its return-to-work process, [the employer] took three weeks to “rehire” [the employee], and even then it did not place [the employee] in the correct position as outlined in § 4313.” The employer “cannot defeat the “prompt reemployment” guarantee of § 4313 by engaging in never-ending investigations into [the employee’s] qualifications. Indeed, courts have recognized that: It is presumed under the law that a veteran, who was qualified for his employment status upon its termination by his entry into the active military service of the United States, remains qualified to claim reemployment upon his discharge from such active military service. . . . An employer who refuses to reemploy a discharged veteran who has timely applied for reemployment has the burden of proving the veteran's disqualification for reemployment.” Because the employer failed to meet that burden, the Court ordered the trial court to enter judgment in favor of the employee on his claims that the City failed to properly reinstate him to his former position as a police sergeant within two weeks of his seeking reinstatement.

Finally, the Court held that the plaintiff’s complaint about not being authorized for off-duty security work could not be brought as a reinstatement claim, but rather should be analyzed as a discrimination claim. At that point, the court analyzed whether the plaintiff’s military service was a motivating factor for the denial of his request to perform off-duty security work. Because the trial court failed to conduct the proper analysis, the Court remanded that claim to the court for reconsideration.

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0302p-06.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.