Sixth Circuit Rejects Employer's Independent Investigation and Honest Belief Defenses and Finds Cat's Paw Theory

In June, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment in a USERRA retaliation case on the grounds that the plaintiff produced sufficient direct evidence of discrimination, produced sufficient evidence to proceed under a cat’s paw theory and the employer’s explanation was clearly pretextual when the plaintiff had been fired, in part, for engaging in conduct that violated corporate policy as directed in a text message by his allegedly biased manager.  Hickle v. American Multi-Cinema, Inc., No. 18-4131 (6^th Cir. 2019).  The employer could not rely on an honest belief defense when the investigator did not interview witnesses to the biased threats to terminate the plaintiff for a pretexual reason on account of his military service and supported the termination of the plaintiff in part for violating a policy at the clear direction of his manager who was allegedly biased against him.   

According to the Court’s opinion, the plaintiff had been hired while in high school, joined the national guard, served overseas and was promoted to kitchen manager.  Over the years, his manager repeatedly complained about his military leave and he complained about this to the General Manager.  He was never denied military leave.   When he reported that he required military leave the weekend of a big Avengers movie release in April 2015, his manager indicated in front of another employee that he might be fired if he did not report to work.   He also heard from other employees that his manager was planning to set him up to get fired and he reported this to his manager, who texted him that he should obtain written statements about this before leaving for the day.   Apparently, investigating workplace misconduct is exclusively reserved for corporate employees and obtaining witness statements is considered to be impeding an investigation.  In the meantime, he was involved in a dispute with two subordinates that lead to their termination for trying to take home too many leftover chicken-fingers.  


A corporate investigation commenced and he reported to the investigator that his manager had openly resented his military leave and indicated that he could be fired for attending drill instead of the Avengers premiere.  The investigator also indicated that the General Manager thought he should be fired.  The investigator did not interview the employee who heard the manager threaten the plaintiff with termination.  In the end, the investigator found that the plaintiff had engaged in several instances of misconduct, and he was fired in April 2015 for the chicken finger episode and impeding an investigation, despite the written instruction from his manager.   


On appeal, the Court found that he had produced sufficient direct evidence of retaliation with (disputed) evidence of his manager’s comments to him and his repeated complaints about it to the General Manager and to the investigator even though the discriminatory comments were not made by the decisionmaker or investigator who made the recommendation.   The Court was influenced by the fact that the plaintiff had been terminated for violating a rule at the explicit direction of the manager who had threatened to have him fired for attending national guard drill that same month during the Avengers premiere.

The decisionmaker (Bradley) and those with direct input (Kalman and Melton-Miller) knew about Adler’s persistent, discriminatory comments. . . . In sum, the decisionmaker knew that Hickle was told to commit a fireable offense—gathering statements and thereby impeding an investigation—by someone Hickle had repeatedly said had made discriminatory comments threatening his job.  Yet the decisionmaker chose to fire Hickle.

The Court also found sufficient evidence to proceed to a jury with a cat’s-paw theory of liability.  As previously explained by the Supreme Court, ““if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”  The trial court did not find it to be a jury question whether the manager intended to cause the plaintiff to be fired when she directed him to obtain witness statements in violation of company policy even though she had very recently told him that he would be fired for a pretextual reason if he missed the Avengers premiere in order to attend military drill.   Drawing inferences in favor of the plaintiff could lead a jury to believe that the manager texted him order to set him up to be fired.


The Court indicated that it was also a question for the jury whether an independent investigation by corporate broke any chain of causation between the manager’s alleged animus and the decision to terminate the plaintiff’s employment.   On one hand, the plaintiff may have engaged in other misconduct as alleged by other employees involving the chicken-finger incident which was also cited as additional reasons for his termination, but on the other hand, the investigator weighted the “impeding the investigation” more heavily in her deposition testimony and failed to interview key employee witnesses who could have supported the plaintiff’s concerns with anti-military animus. “As best as we can tell, the investigation consisted mostly of gathering statements from a few employees, and was not necessarily thorough.” (But the deposition at issue admittedly was not clear).   Moreover, the investigator referred to the General Manager as her “partner” in the investigation.


The Court also found that the plaintiff produced sufficient circumstantial evidence of retaliation, particularly from the employer’s failure to articulate a cogent explanation for why “impeding an investigation” was an dischargeable offense when his own allegedly biased manager directed him to do gather the witness statements at issue.   The Court did not find it to be a close question whether sufficient evidence had been produced merely because the employer had always granted the plaintiff’s military leave requests.

We do not find this fact to be determinative, as there could be numerous situations in which an employer would grant requests for military leave (albeit grudgingly) for years and nevertheless finally wrongfully terminate an employee for taking such leave.  Certainly, granting Hickle’s leave requests helps AMC’s case, but it does not insulate AMC from charges of retaliation.

While the district court found that the employer had satisfied its burden of proving that it would have terminated the plaintiff even if he had never served in the military because of the other incidents alleged by his subordinates, the Court found that this was a question for the jury because:

it remains an open question whether the decisionmaker relied solely on the chicken-finger incident in deciding to terminate Hickle, and whether she would have reached the same conclusion in the absence of the charges of impeding the investigation. 

  The Court distinguished a case where the investigator did not know about the potential discriminatory animus and conducted a more thorough investigation.  The Court also rejected the employer’s honest belief defense when the investigator was aware of the manager’s potentially biased motive in directing the plaintiff to violate corporate policy and obtain witness statements.

Here, [the investigator] knew of Hickle’s USERRA complaints and knew that Adler told Hickle to take action that would amount to impeding the investigation; nevertheless, Bradley seems to have considered the charge of impeding the investigation relevant to the decision.  Thus, the honest-belief rule does not help the defendant.  The “particularized facts that were before [the employer] at the time the decision was made,”  . . ., included Adler’s anti-military comments and her text to Hickle telling him to collect statements.  This was not a case in which the decisionmaker was acting on a clean record and in ignorance of lurking discriminatory motives.  The decisionmaker was fully aware of the facts suggesting that the “impeding the investigation” charge was pretextual.

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.

Sixth Circuit Affirms Dismissal of USERRA Claim Where Plaintiff Was Employed Under One-Year Contract Without Renewal Term

Yesterday, a divided Sixth Circuit Court of Appeals affirmed a hospital employer’s summary judgment on a surgeon’s USERRA claim on the grounds that the surgeon’s one-year employment contract which could be terminated without cause upon 90 days’ notice constituted “brief, non-recurrent employment” with “no reasonable expectation” that it would “continue indefinitely or for a significant period” under USERRA’s re-employment exception and therefore did not require the hospital to reinstate him following his reservist deployment to Iraq and Kuwait.  Slusher v. Shelbyville Hospital Corp., No. 15-5256 (6^th Cir. 10-26-15).  The Court’s opinion was also influenced by the fact that the hospital had been searching for a permanent orthopedic surgeon before hiring the plaintiff, that plaintiff had been offered and declined that job, that the plaintiff’s one-year contract did not contain an automatic renewal term and that his employment was terminated under the terms of his contract once the hospital recruited and hired a permanent orthopedic surgeon.  The majority also found that the plaintiff could not show that he had been discriminated against on account of his military service under that factual situation.  Finally, the Court found that the plaintiff was not entitled to military pay under the Hospital’s policy.

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.

Sixth Circuit: Employer’s Resentment of Work Employee Missed Due to Military Service Supported Imposing Wrongful Discharge Liability Under USERRA.

Earlier this month, the Sixth Circuit affirmed a bench trial verdict in a wrongful discharge case brought under USERRA by an employee who had been fired in part because of insubordination, but which the trial court found was motivated mostly by the employee’s missing work because of his national guard service. The Court, however, remanded the case for reconsideration of the $352,846 of damages imposed by the trial judge. Hance v. Norfolk Southern Railway Co., No. 07-5475 (6th Cir. 7/1/09). Although the employee’s alleged insubordination had been independently investigated and substantiated in a union arbitration, the Court believed there was sufficient evidence that the employer would not have terminated the employee for the alleged insubordination if his supervisor and manager had not both expressed resentment of the amount of work he missed because of his national guard service.

As stated by the Court:

On appeal, [the employer] argues that the district court erred in attributing antimilitary animus to [the employer]and in concluding that [the employer] failed to prove that a nondiscriminatory reason actually motivated the discharge. Regarding the attribution of anti-military animus to the company, [the employer] argues that [the plaintiff’s] immediate supervisor, lacked the authority to investigate or terminate [the plaintiff] and, therefore, that [the supervisor’s] anti-military animus cannot be imputed to the company. But in addition to evidence of [the supervisor’s] hostile attitude, testimony by union representative . . . indicated that Assistant Superintendent Bryson had also expressed concern about [the plaintiff’s] taking “too much time off for the military.” Significantly, Bryson was responsible for the decision to dismiss [the plaintiff]. This evidence of anti-military animus from a decisionmaker, combined with the close temporal relationship between [the plaintiff’s] two-week leave for military service and his discharge was legally sufficient to support the district court’s finding that [the plaintiff] was discharged in violation of USERRA.

The Court also refused to accord res judicata status to the labor arbitration which upheld the plaintiff’s discharge for insubordination. Although courts “accord broad deference” to arbitration decisions, the Court has

previously recognized as an exception to this rule that district courts are not bound by arbitration decisions in employment discrimination cases under Title VII or 42 U.S.C. § 1981. . . . “a federal court may, in the course of trying a Title VII or section 1981 action, reconsider evidence rejected by an arbitrator in previous proceedings.” Id. at 142. In the context of an employment discrimination case, deference is due to an arbitrator’s interpretation of provisions in a collective bargaining agreement or other employment contract, but Becton cautions that an arbitrator’s decision regarding “just cause” for termination is not equivalent to the inquiry and burden-shifting framework mandated by Congress in an employment discrimination case. See id. Hence, a federal court should not consider an arbitrator’s decision binding in a discrimination suit, because to do so would “unnecessarily limit[] the plaintiff’s opportunity to vindicate his statutory and constitutional rights.” Id.

In this case, the district court considered the arbitrator’s decision, the factual dispute over whether Hance’s reporting instructions were clear, and the evidence of anti-military animus by Hance’s superiors. Because the district court was not required to consider the arbitrator’s determination as conclusive, that determination could not prevent the court from holding – correctly, we conclude – that Norfolk Southern had failed to demonstrate a valid, nondiscriminatory basis for Hance’s dismissal, as measured by the standard required under section 4311(c)(1).

Insomniacs may read the decision in full at http://www.ca6.uscourts.gov/opinions.pdf/09a0224p-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.

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.

Sixth Circuit: USERRA Claims Subject to Arbitration Clause in Employment Agreement.

Today, the Sixth Circuit held that an optometrist’s claims that he was discriminated against in violation of USERRA was subject to the arbitration clause he signed when he was hired. In Landis v. Pinnacle Eye Care LLC, 07-6204 (6th Cir.), when the plaintiff optometrist signed his employment agreement upon being hired in 1995, it contained an arbitration clause where he promised “to ‘resolve any controversy, dispute or disagreement arising out of or relating to [the] Agreement’ through negotiation or, if negotiation proved unsuccessful, through arbitration governed by the American Arbitration Association.” He claims that he negotiated revised terms of employment in 2004 when he was called up by the National Guard to serve in Afghanistan. However, when he returned to work in 2005, the defendant employer refused to honor the alleged modified terms of employment and allegedly “threatened that any further
involvement with the military would adversely affect his career.”

When the plaintiff optometrist filed suit over the breach of the modified agreement and threats about his military career, the district court stayed the action on account of the arbitration clause in his employment agreement and referred the entire matter (including the claims against the individual defendants) to arbitration. The Sixth Circuit agreed because the plaintiff’s claims “fall within the scope of the employment agreement since Article VIII, Section 8.7 of the agreement states that ‘[t]his Agreement constitutes the entire agreement between Practice and Optometrist pertaining to the employment relationship between Practice and Optometrist.’ Therefore, any termination or modification of employment necessarily relates to ‘the employment relationship’ and is subject to the arbitration clause.” Moreover, the claims against the individual defendants (who were not parties to the employment agreement) “were subject to the arbitration clause of the employment agreement. These parties were employers within the meaning of USERRA, 38 U.S.C. § 4303(4)(A), and the claims against them arose in their capacities as managers” of the employer’s offices. Finally, although a few district courts in other jurisdictions disagreed, the Sixth Circuit found that there was nothing in the statutory language of USERRA or its history to indicate that it was not subject to the Federal Arbitration Act to the same extent as Title VII, the ADEA and other federal employment statutes.

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0285p-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.