Franklin County Court of Appeals Upholds OCRC Order That Employer Retaliated Against Office Manager For Informing Employee of Discrimination.

Last week, the Franklin County Court of Appeals upheld an order by the Ohio Civil Rights Commission reinstating an office manager who had been fired in retaliation for telling an African-American employee that he had been denied health insurance which was provided to white employees and for helping that employee bring a discrimination claim against the employer. HLS Bonding v. Ohio Civ. Rights Comm., 2008-Ohio-4107 (8/14/08). The court of appeals found sufficient evidence in the record to prove both a prima facie case of retaliation and that the employer’s explanation for his termination was pretextual -- i.e., a disguise to hide the true retaliatory motive.

In that case, the office manager had received nothing but positive performance evaluations and raises. Indeed, only a month before he was terminated, the managing partners asked him to join their business partnership. The office manager asked the employer to extend health insurance benefits to the company’s only full-time African-American employee, but they refused. He then told the employee how other (white) employees were provided with insurance benefits and that he thought the employee should receive similar benefits. That employee – who had requested insurance benefits in the past -- then confronted the employers (while taping the conversation with knowledge of the office manager) and filed a Charge of Discrimination with the OCRC which listed the office manager as a witness. After receiving a copy of the Charge, the employer then demoted the office manager, terminated all employee health insurance benefits, demoted the office manager again and ultimately fired him – purportedly for poor performance and insubordination.

The office manager filed a Charge with the OCRC alleging that he had been fired in retaliation for the African-American employee filing his Charge. Following a public hearing, the Commission ruled in favor of the office manager and ordered the employer to reinstate him and to pay him within ten days by certified check all back pay, benefits and interest (less his interim earnings).

Interestingly, the Court affirmed the OCRC’s ruling that the employer retaliated against the office manager under the Ohio Civil Right Act’s participation clause, rather than the opposition clause. Ohio Revised Code § 4112.02(I) provides that "[i]t shall be an unlawful discriminatory practice * * * [f]or any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section ["opposition clause"] or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code ["participation clause"]." (emphasis added). This is probably because, as noted in my June 28, 2008 blog, “’[t]he distinction between employee activities protected by the participation clause and those protected by the opposition clause is significant because federal courts have generally granted less protection for opposition than for participation in enforcement proceedings.’ Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989).”

The Franklin County Court then noted that “reliable, probative, and substantial evidence supports the finding that [the office manager] engaged or participated in a protected activity. Anyone who participates in bringing a claim of unlawful discriminatory practice is engaging in a protected activity. [The office manager] alerted [the African-American employee] to the health care issue. [The office manager] told [the African-American employee] that he would testify on [the employee’s] behalf before the Commission. [The employee] named [the office manager] as a witness when he brought his claim. [The office manager] told his employer that it should offer [the employee] health care benefits [and] was present and knew [the employee] was "wired," when [he] then asked their employer for health care benefits.”

The court failed to explain why the office manager’s conduct was not protected opposition. As recently noted by the Sixth Circuit in Niswander v. The Cincinnati Ins. Co., No. 07-3738 (6th Cir. 6/24/08), “’The opposition clause . . . covers conduct such as “complaining to anyone (management, unions, other employees, or newspapers) about allegedly unlawful practices; refusing to obey an order because the worker thinks it is unlawful under Title VII; and opposing unlawful acts by persons other than the employer—e.g., former employers, union, and co-workers. . . . We have explained that ‘the only qualification that is placed upon an employee’s invocation of protection from retaliation under Title VII’s opposition clause is that the manner of [the employee’s] opposition must be reasonable.” In contrast, the Sixth Circuit has noted that the participation clause “extends to persons who have participated in any manner in Title VII proceedings.” In this case, the Franklin County Court rejected the employer’s arguments that the office manager’s conduct could not constitute protected participation because it pre-dated the filing of the OCRC/EEOC Charge and any government investigation because the court considered "the instigation of proceedings leading to the filing of a complaint or a charge * * * is a prerequisite to protection under the participation clause” under Sixth Circuit precedent. It seems more likely that the OCRC and the court did not want to address the reasonableness of the office manager’s conduct under the opposition clause precedent.


The court found the evidence also showed that there was a causal connection between the filing of the OCRC Charge and the demotions and eventual termination of the office manager because the office manager’s first demotion – removing his authority over the benefit plans – took place only two weeks after the employer’s receipt of the OCRC Charge.

The court also agreed with the conclusion of pretext from the employer’s articulated explanation for why it demoted and terminated the office manager. First, the employer never counseled the office manager about his supposed poor performance before his demotion. On the contrary, they had recently asked him to become one of their business partners. In addition, the OCRC hearing officer office did not find the witness to be credible that the office manager was fired because he scared the managing partner during a conversation. Finally, the weight of the circumstantial evidence presented in the prima facie case was much more convincing as to why the office manager was fired.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/10/2008/2008-ohio-4107.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.

Butler County Court of Appeals Holds that Continuous Violation Doctrine Does Not Extend CBA Deadline for Filing Grievances.

Earlier this month, the Butler County Court of Appeals overruled an arbitration decision in favor of the union which had ordered the city employer to fill two vacant positions with bargaining unit members. City of Fairfield v. AFSCME, Ohio Council 8, 2008-Ohio-3891 (8/4/08). In that case, the collective bargaining agreement provided that grievances must be filed within 3 days of the event giving rise to the grievance. However, a grievance was not filed until almost a month after the issue came to the attention of the union. Nonetheless, the arbitrator ruled that the grievance was timely because it was a continuing violation for the City to continue to staff the duties of the two jobs at issue with non-union employees. The Court held that it was beyond the arbitrator’s authority to ignore the clear and unambiguous language in the CBA. In fact, the arbitrator lacked jurisdiction to even consider the grievance under the circumstances.

As stated by the court, “[t]he arbitrator was not authorized to ignore or modify plain and unambiguous provisions of the CBA. . . . Rather, the arbitrator was restricted to the interpretation and application of the CBA. . . . The CBA's three-day time limitation upon the filing of grievances was plain and unambiguous. The arbitrator's "continuing violation" determination did not comport with, and in fact defeated, the plain and unambiguous three-day time limitation upon grievances. This amounted to an impermissible extension of the arbitrator's powers. . . . The arbitrator cannot vest jurisdiction in himself. Holding that the arbitrator's assumption of jurisdiction is not subject to judicial review would permit the arbitrator unfettered discretion in assuming jurisdiction over a matter, even where none exists. Where an arbitrator's assumption of jurisdiction is unlawful, it is not an unassailable finding of fact or legal interpretation immune from the purview of a reviewing court. . . . Were it so, the arbitrator's determination of jurisdiction would be infallible even where contrary to the bargain contemplated by the terms of the CBA.” (citations omitted).

The Court “conclude[d] that the arbitrator's assumption of jurisdiction over the grievance was unlawful. Id. The award departed from the essence of the CBA in that it conflicted with an express, unambiguous term of the agreement. . . . The arbitrator thus exceeded his powers as contemplated by R.C. 2711.10(D) when he exercised jurisdiction over the grievance.” (citation omitted).

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/12/2008/2008-ohio-3891.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 Affirms Employer’s Summary Judgment on Race and Retaliation Claims Despite Messy Termination and Possible Evidence of Pretext

Today, the Sixth Circuit Court of Appeals affirmed the summary judgment entered by the federal court in Columbus in favor of an employer who terminated an African-American employee three times without always following all of its written procedures because the plaintiff was unable to show that any similarly-situated white employee was treated better. Moreover, the court affirmed dismissal of the plaintiff’s retaliation claims because there was no temporal proximity between his termination and when he filed his EEOC and OCRC Charges and no additional acts of retaliation. Gibson v. Shelly Co., No. 07-3009 (8/20/08). Nonetheless, the Court indicated that (i) it would still consider retaliation claims despite the passage of one year between the protected conduct and the adverse employment action; (ii) that the court could consider actions taken by the employer against the plaintiff outside the limitations period and (iii) that a plaintiff need not always show that similarly situated employees reported to the same supervisor if the supervisor’s role in termination decisions was minor.

Plaintiff was hired in 2003 (and in prior years) to assist with highway paving projects. As in other years, he received copies of the employer’s safety manual which provided for the Safety Committee terminating employees for one (and no more than two) serious safety violations (i.e., those which could result in serious injury or death) and for two (and no more than four) non-serious safety violations in a year. The manual also provided for conducting prompt investigations, including interviews with the violating employee, and that employees could be terminated at will (although, as a practical matter, because of union contracts, employees, such as plaintiff, could only be terminated for just cause). Employees who are terminated are not eligible for reemployment for at least one year.

Plaintiff’s first termination took place in May 2003 after he had been observed on three separate occasions driving the roller into moving traffic (which could have killed commuters) and after the employer received a sexual harassment complaint about inappropriate comments Plaintiff had made to a female co-worker. However, the decision was not made by the Safety Committee and the employer never completed its investigation of the sexual harassment complaint by, for instance, interviewing the Plaintiff. The employer also gave differing accounts of the reasons for his termination, at times citing only the safety violations and at others also referring to the sexual harassment allegations. Plaintiff filed a Charge of Discrimination with the EEOC and the OCRC (which were dismissed in February 2004) and a union grievance (which resulted in his reinstatement and back pay almost two years later). Plaintiff did not file a lawsuit after receiving his right-to-sue letters, and was inadvertently hired in June 2004, but was terminated two days later on account of his prior termination and the failure of the arbitrator to render a decision in the union grievance. Plaintiff again filed Charges of Discrimination and Retaliation with the OCRC and EEOC, but they were dismissed in April 2005.

Honoring the arbitration decision, Plaintiff was again hired in Spring 2005, but was again fired on May 12, 2005 following two serious safety violations. In one incident, he almost ran into a co-worker with the roller, and in another, he ran the roller off the road and almost into a ditch while grabbing something out of his lunch bag. An investigation was conducted, but again, the Plaintiff was not interviewed. This time, however, the Safety Committee considered the investigation report and voted to terminate Plaintiff. Plaintiff again filed a Charge of Discrimination and Retaliation with the OCRC and, again, it dismissed it in February 2006. Plaintiff then filed suit.

Although the employer’s failure to follow its own procedures, shifting and inconsistent explanations for his 2003 termination and failure to interview Plaintiff during its several investigations may have constituted evidence of pretext in connection with the parties’ respective burden of proof (and entitling Plaintiff to a jury trial of his claims), the trial and appellate courts concluded that it did not need to evaluate the sufficiency of the employer’s explanation for the termination – or Plaintiff’s evidence of pretext – because Plaintiff failed to satisfy his prima facie burden of proving that he was treated differently than similarly-situated employees. In particular, the courts found that the Plaintiff failed to identify any white employees who committed two serious safety violations who were not fired.

In addition, the courts found that the plaintiff failed to show that he was terminated for filing Charges of Discrimination in May 2003 or 2004 because he was not fired until June 2004 and May 2005 – approximately a year after the Charges had been filed. While the Sixth Circuit pointed out that it has found sufficient evidence of retaliation in cases where a year had passed between the adverse employment action and the filing of the Charge, those cases also possessed other evidence of retaliation – unlike this case. “We have never suggested that a lack of temporal proximity dooms a retaliation claim. In fact, we have previously found retaliation when the termination followed the complaint by over a year. . . . However, in order to overcome a lack of temporal proximity, the plaintiff must present sufficient evidence supporting the causal connection. “[W]here some time elapses between when the employer learns of a protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causality.”

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0507n-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.

Ohio Appeals Court: Unemployment Compensation Was Properly Denied When Employee Could Not Satisfactorily Perform Difficult Job.

The Cuyahoga County Court of Appeals affirmed the denial of unemployment compensation to an employee who failed to successfully complete his 9-month probationary period and attributed this to unreasonable job expectations and lack of sufficient job training. Lyons v. Director, Ohio Job and Family Services, 2008-Ohio-3547 (7/17/08). Although the employee was successful in his first three months and received a 10% raise, his performance was severely criticized thereafter and, like half of the employees who started work with him, was terminated for poor performance. The employee blamed the lack of adequate job training and unreasonable job expectations, but the court found that “[u]nsuitability [for employment] may be found where the requirements of the job are extremely stringent.”

By way of background, the employee was hired as a research analyst by a medical market research firm. His duties included conducting “epidemiology research and examining various products and their comparative differences.” The employer contended that it provided intensive training for the first three weeks, including showing “him company guidelines, protocols and worksheets but, according to [his supervisor], training was on-going.” In contrast, the employee testified that his training only lasted a few days. In any event, after his first three-month probationary evaluation, he scored well and received a 10% raise. However, his next three-month evaluation was negative and, despite being given additional time to improve, he was terminated after insufficient improvement was observed. In particular, “his analysis was not sufficiently detailed and he did not request guidance.” As evidence, emails from his supervisor’s boss were produced during the administrative hearing showing pre-existing criticism of his “work for lack of depth and content.”

His supervisor “acknowledged that, of the four people who were hired with him, only two are still with [the firm]. She also noted that [the employee] was frequently tardy but she could not say whether this interfered with his ability to perform the work. Rather, it seemed to show a loss of interest in the job. . . . . Finally, she explained that the job is extremely challenging, the company only hires "way above average workers" and it is difficult for the company to find appropriate employees. Extremely talented individuals, including a doctor, have had difficulty holding the position.” Indeed, the employee himself testified about preparing numerous drafts of reports which never met management’s expectations.

The court found that “[u]nsuitability for a position constitutes fault sufficient to support a just cause [for termination] determination.” Relying on Supreme Court precedent, the court noted that an “employer may properly find an employee unsuitable for the required work, and thus to be at fault, when: (1) the employee does not perform the required work, (2) the employer made known its expectations of the employee at the time of hiring, (3) the expectations were reasonable, and (4) the requirements of the job did not change since the date of the original hiring for that particular position.” The primary issue of contention in evaluating the employee’s entitlement to unemployment compensation was whether the employer’s job expectations were reasonable.

“The evidence demonstrated that the position is extremely challenging. It is undisputed that the company only hires "way above average workers" and it is difficult for the company to find appropriate employees. Extremely talented individuals including a doctor have had difficulty holding the position. Only two of the four people hired with [the employee] were still employed at [by the employer] at the time of the hearing. Moreover, the evidence demonstrated that the employee, although the claimant is extremely intelligent and well-educated, could not complete many of the assignments to the employer's satisfaction. The stringent job requirements do not bar the determination of unsuitability. . . . In addition, the employer's expectations were made known to [the employee] at the time he was hired, the expectations, though high, are reasonable in light of the nature of the position and the requirements of the job did not change.”

Although the employee argued that the job expectations were unreasonable in light of the amount of job training provided, the court disagreed because the employee “held the position for approximately eight months, his work was critiqued in a detailed way and personnel was available to answer questions.” In other words, permitting a suitable time for on-the-job learning, providing formal feedback and having personnel available for questions is sufficient job training.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/8/2008/2008-ohio-3547.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.