According to the Court’s majority opinion, the hospital had
been attempting to hire an orthopedic surgeon since 2010. In the interim, it relied on temporary surgeons
to fill its needs. It hired the
plaintiff on 30-day contracts, which were renewed several times beginning in
July 2010. The plaintiff lived out of
state and could not initially persuade his wife to relocate. The hospital
offered the plaintiff a permanent job as its orthopedic surgeon, but he
declined the position. Instead, he
accepted a one-year contract commencing in January 2011. The contract provided that it could be
terminated on 90-days’ notice or immediately upon paying the plaintiff for 90
days in lieu of notice. It did not
contain a provision for automatic renewal or extension. The hospital continued to search for a
permanent surgeon and in April was contacted by the candidate that it
eventually hired. Like the plaintiff,
he was also a military reservist. The
following month, the plaintiff received his deployment notice and was
subsequently informed that the hospital was considering a candidate. The hospital offered the candidate a
three-year contract later that month and the plaintiff was deployed to Kuwait
in early June. The following month, the
plaintiff received notice that his contract would be terminated in 90 days
(October 26) because the hospital had hired the candidate to begin on October 1.
The plaintiff’s deployment ended and he returned to work at the hospital until
his employment was terminated on October 26.
He later brought suit under USERRA on the grounds that he was denied
re-employment and was discriminated against on account of his military service.
In granting (and affirming) summary judgment, the courts
found that the plaintiff was not entitled to re-employment rights under 38
U.S.C. §4312(d)(1)(C), which provides in relevant part that:
(d)(1)
An employer is not required to reemploy a person under this chapter if—
. . .
(C) the employment from which the person
leaves to serve in the uniformed services is for a brief, nonrecurrent period
and there is no reasonable expectation that such employment will continue
indefinitely or for a significant period.
The employer bears the burden of proving its entitlement to
this exception. The majority found that
that this burden was satisfied in this case:
As far as [the plaintiff, the CEO and the Hospital] would
have been concerned, the employment from which [the plaintiff] left to serve in
the uniformed services was for at most a year; the parties were bound by an
at-will one-year contract that did not provide for any renewal or extension. Moreover,
[the Hospital and its CEO] were actively seeking to hire a permanent orthopedic
surgeon at the time [the plaintiff] notified his employer of his impending
deployment. [The plaintiff] was aware that [the Hospital] was interested in
finding a permanent orthopedic surgeon because it offered the position to him
and he declined it.
That [the plaintiff’s] contract was for one year and did not
provide for renewal or extension plainly means that his employment was for a
“nonrecurrent period” and that he could not have had a “reasonable expectation”
that his employment would “continue indefinitely.” Thus, whether the §
4312(d)(1)(C) exception applied to [his] employment turns on whether it was “brief”
and whether [he] had a “reasonable expectation” that it would continue “for a significant
period.”
[The plaintiff] cannot be said to have had a reasonable
expectation that his employment would continue “for a significant period.” [He]
was aware that [the Hospital] was interested in finding a permanent orthopedic
surgeon because it offered the position to him and he declined it, and he would
have understood that his at-will contract (including a clause allowing [it] to terminate
the agreement with no notice in exchange for 90 days’ pay) allowed [it] to promptly
dismiss him upon finding a permanent replacement. Therefore, the relevant
question is not whether the remainder of [his] one-year contract was “a
significant period,” because in these circumstances [he] could not have
reasonably expected to finish the one-year term. Rather, the relevant question
is: How long did [he] reasonably expect his employment to continue, and was
that amount of time a “significant period”? Given [his] situation, he could
have reasonably expected his employment to continue for significantly less than
a year, potentially ending in a matter of weeks or months if [it] could secure
a permanent orthopedic surgeon. The Act does not define “significant period” as
used in § 4312, see 38 U.S.C. § 4303, but any remaining employment term likely
measured in weeks or months falls outside the bounds of a “significant period.”
In the context of employment duration, a significant period is one that would
provide an employee with some semblance of security or offer the ability to
engage in long-term planning. [He] did not find himself in that position. Practically
speaking, he had a temporary job ending as soon as a suitable replacement could
be secured. [He] could not have reasonably expected his employment with [the
Hospital] to continue for a significant period.
Finally, then, is the question of whether the employment from
which [the plaintiff] left to serve in the uniformed services was for a “brief”
period. The Act does not provide a definition of “brief” as used in § 4312, see 38 U.S.C. § 4303,
but comments to the final rules governing the Act state that a three-month
position would be considered “brief,” 70 Fed. Reg. 75246-01, 75249-50 (Dec. 19,
2005). At the other end of the spectrum,
one federal court has persuasively held that a four-year employment term is not
“brief.” . . .
. . . we do not decide
whether a one-year employment term is necessarily
brief. Rather, we hold that [the plaintiff’s] employment term was
brief because both parties would have contemplated that it would last up to one
year but most likely less. Once more, it bears emphasizing that [the Hospital]
was seeking a permanent orthopedic surgeon, and was capable of terminating [his]
contract at any time because of the at-will clauses it contained. An employment
term of this particular nature — a one-year at-will contract likely to be terminated
early — is brief.
Recognizing the impact of its decision if it were to imply
that prevalent at-will contracts were presumptively “brief,” the Court was
careful to restrict the implication of its decision:
We are careful to note, however, that the at-will nature of a
contract should not always weigh so heavily in determining whether an
employment term is “brief” for purposes of § 4312. . . . if at-will clauses are afforded too much
weight the § 4312(d)(1)(C) exception could swallow the general reemployment
rule of § 4312(a). But in this case, [his] at-will contract is properly given
substantial weight because all parties would have contemplated that [the
Hospital] actually intended to invoke the at-will clause as soon as it
practically could in order to facilitate hiring a permanent orthopedic surgeon.
The Court’s majority also found that the discrimination
claim under §4311 was properly dismissed, albeit on different grounds than the
trial court (which had found discrimination claims could only be maintained if
the plaintiff also had a right to reinstatement under §4312):
the district court’s understanding that § 4311 discrimination
protections apply only upon reemployment that
complies with the Act’s other requirements is dubious because it
would reward employers for failing to compliantly reemploy returning military
members by shielding those employers from § 4311 discrimination claims. It is
highly doubtful that the drafters of the Act intended noncompliance with some of
its provisions to trigger immunity from other provisions. More likely, if reemployment
is a prerequisite to a § 4311 claim, it would either be mandatory reemployment
under § 4312, or reemployment in the sense that the employee has returned to
work even though § 4312 did not guarantee him or her reemployment.
The Court noted that prior precedent had not addressed
contrary regulations and that many circuits had found §4311 discrimination
claims to be wholly independent of §4312.
In any event, like the trial court had noted in passing, the
plaintiff failed to make his prima facie case of showing that his military
service was a substantial or motivating factor in his termination or to
disprove the employer’s affirmative defense that it would have taken the same
action in the absence of the plaintiff’s protected military service.
Plaintiff has failed to set forth any evidence of a
discriminatory motive for his discharge. The fact that he was given the termination
agreement during his deployment is not evidence of discrimination against his
military service in light of the record evidence as a whole, which demonstrates
that Plaintiff was aware at the time he signed his employment contract and
prior to his deployment that [Heritage] was seeking a permanent orthopedic
surgeon. Additionally, the fact that Plaintiff’s replacement, Dr.Mosley, was
also a service member who could be called to active duty undermines any
argument Plaintiff could make regarding [the Hospital]’s alleged discrimination
against service members.
. . . .
[The Hospital] sought to replace [the plaintiff] because it wanted
a permanent orthopedic surgeon, not because of [his] military service. Its motivation
to find a permanent employee is reflected both in that it offered [him] the permanent
position and that it continued looking for his replacement before it knew of
his deployment. That [the Hospital] hired [the plaintiff] in the first place
and then replaced him with Mosley further demonstrates that it did not disfavor
military physicians.
The majority also affirmed dismissal of the plaintiff’s
breach of contract claims because the contract had been terminated under its
own terms and the plaintiff was not entitled to military pay (i.e., a salary differential) under the Hospital’s
policy because the policy – like USERRA itself
-- contained a specific exception for when the employee is employed for
brief, non-recurrent periods with no reasonable expectation of continued
employment for an indefinite or significant period.
The dissent would have found disputed issues of fact based
on the fact that the Hospital could have opted to extend or continue the
one-year contract indefinitely as it had previously extended or renewed his
30-day employment contracts for several months before offering him the one-year
contract. In that event, the hospital
would not have qualified for the re-employment exception. Further, there was evidence that the Hospital’s
CEO had stated to the new orthopedic surgeon that the plaintiff’s sudden
deployment “had really messed things up” and that he had already confirmed that
the candidate would not be re-deployed before offering him the job. Therefore, evidence existed that his military
service had motivated the hospital to replace him.
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 be changed or 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.
