SIGNIFICANT RECENT USERRA CASES (2005-2008)
By Esther Lander
Definitions (Section 4303)
Employer / Successor in Interest
Under USERRA, the definition of “employer” carries particular significance because of
the obligation to reemploy a returning service member. The statute defines employer to include
“any successor in interest to a person, institution, organization, or other [covered] entity . . . .” 38
U.S.C. § 4303(4)(A)(iv). The Department of Labor regulations contemplate a multi-factor
“business continuity” analysis, which does not require a transfer of assets for successor liability
to attach. Rather, “business continuity” emphasizes the actual undertakings of the predecessor
and successor companies. See 20 C.F.R. § 1002.5.
The Department of Labor’s approach was followed in Murphree v. Communications
Technologies, Inc., 460 F. Supp. 2d 702 (E.D. La. 2006) and Reynolds v. Rehabcare Group East
Inc., 531 F. Supp. 2d 1050 (S.D. Iowa 2008) with differing results. In Murphree, the plaintiff
worked for MPRI pursuant to a government contract. While the plaintiff was on military leave,
MPRI lost the contract to defendant, Communications Technologies, Inc. (“COMTek”).
COMTek placed one of plaintiff’s co-workers in plaintiff’s position. When plaintiff sought
reemployment from COMTek, the company asserted that it owed plaintiff no reemployment
obligation because he was not its employee. The district court disagreed, holding that COMTek
was a “successor in interest” within the meaning of USERRA.
By contrast, in Reynolds, the district court found that the Department of Labor factors
weighed against a finding of successor in interest. The plaintiff’s employer had provided
contract physical therapy services for a rehabilitation center. While plaintiff was on military
leave, her employer lost the contract, and a new company, Rehabcare Group (the defendant),
entered into a subcontract to provide the same physical therapy services through a different
contractor. The district court denied the plaintiff’s motion for a preliminary injunction, finding
that the majority of the Department of Labor factors demonstrated no business continuity
between plaintiff’s former employer and defendant, despite that both provided the same services
to the rehabilitation center: (i) there was no continuity in business operations since the new
contractor was a completely separate entity from the former contractor, and neither had any
interest, contract, or relationship with the other (ii) the new contractor did not purchase any of the
former contractor’s equipment or supplies; (iii) none of the former contractor’s employees
worked for the new contractor; and (iv) the supervisors were different.
Finally, in Coffman v. Chugach Support Services, Inc., 411 F.3d 1231 (11th Cir. 2005),
which was decided before the Labor Department promulgated its regulations, the Eleventh
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Circuit employed the “ownership and control” test rather than the “business continuity” test.
Under this approach, there must be a merger or transfer of assets between the predecessor and
successor companies for USERRA liability to attach. As such, the plaintiff could not pursue
USERRA claims against the company that replaced his employer as primary contractor because
the defendant never employed the plaintiff and did not acquire the company that had previously
employed plaintiff.
With regard to parent / subsidiary relationships, USERRA defines “employer” as the
entity that “pays salary or wages for work performed or that has control over employment
opportunities, including a person, institution, organization, or other entity to whom the employer
has delegated the performance of employment-related responsibilities.” 38 U.S.C. §
4303(4)(A)(i). In Dees v. Hyundai Motor Mfg. Alabama, LLC, 2008 WL 2157009 (M.D. Ala.
May 21, 2008), the district court dismissed claims against Hyundai’s distributor subsidiary,
because the entity to carry out employment-related responsibilities with respect to plaintiff was
Hyundai’s manufacturing subsidiary.
Intentional Discrimination (Section 4311(a))
Denial of a “Benefit of Employment”
USERRA Section 4311(a) provides that a service member shall not be denied a “benefit
of employment” because of military service. The statute defines “benefit” liberally to include
“any advantage, profit, [or] privilege . . . that accrues by reason of an employment contract or
agreement . . . [including] . . . the opportunity to select work hours or location of employment.”
Courts have interpreted Section 4311(a) to encompass undesirable transfers, changes in duties, a
negative performance appraisal, and even the benefit of a work place free from harassment.
In Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299 (4th Cir. 2006), the plaintiff
claimed that after returning from military leave, she was assigned lower-level tasks, which
constituted a demotion despite no change in her salary or benefits. The Fourth Circuit recognized
that a significant change in job responsibilities could constitute a denial of “a benefit of
employment.” However, in plaintiff’s case, the difference between her pre- and post-deployment
work was extremely slight. The only significant change was directly attributable to
modifications in the company’s government contract, which applied equally to all employees in
plaintiff’s position. Accordingly, summary judgment for the employer was affirmed. The court
also affirmed the district court’s dismissal of plaintiff’s claim that a two-hour change in her work
shift constituted discrimination in violation of Section 4311. Without deciding whether such a
change could constitute the denial of a “benefit of employment,” the court held that no evidence
beyond plaintiff’s conclusory allegations supported her claim that the schedule shift was
motivated by plaintiff’s military service.
In Maxfield v. Cintas Corp. No. 2, 427 F.3d 544 (8th Cir. 2005), the plaintiff, an army
reservist, claimed that he was discriminatorily transferred and then discharged because of his
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military status. The employer argued that the transfer was not actionable under Section 4311,
which prohibits military status discrimination in “initial employment, reemployment, retention in
employment, [and] promotion,” as well as to “any benefit of employment.” The Eighth Circuit
adopted the Fourth Circuit’s holding in Hill v. Michelin N. Am., Inc., 252 F.3d 307, 312 (4th Cir.
2001), that an undesirable transfer can constitute the denial of a “benefit of employment,” even if
it does not result in lost wages. Because the plaintiff’s pre-service position offered more job
stability and allowed him to earn bonuses based on his own performance rather than the
performance of others, the Fifth Circuit held that he had been denied a “benefit of employment”
within the meaning of section 4311.
In Koehler v. PepsiAmericas, 2006 WL 2035650 (S.D. Ohio July 18, 2006), following a
bench trial, the court found that the plaintiff had been denied a “benefit of employment” when
the company withdrew from his bank account an automatic deposit equal to the pay differential
between his salary and military pay while on reserve duty. The court noted that “while an
employer is not obligated to pay wages to an employee who is called to active military service, an
employer may, as Pepsi did in this case, adopt a policy of providing this benefit. If the employer
adopts such a policy, USERRA protects the employee’s rights under the policy.” Since the
employer had a policy requiring payment for military leave, the employer’s violation of that
policy also violated USERRA.
In Grosjean v. First Energy, 481 F. Supp. 2d 878 (N.D. Ohio 2007), the defendant did not
dispute that plaintiff’s poor performance evaluation had denied him a “benefit of employment,”
within the meaning of USERRA. Accordingly, the court granted the plaintiff summary judgment
with respect to his 2004 performance evaluation because it negatively referenced plaintiff’s
military leave as a cause for plaintiff’s poor performance. The evaluation and the supervisor’s
testimony also clearly demonstrated that plaintiff’s military-related absence was taken into
account and contributed to the plaintiff’s low rating. The court further found insufficient
evidence to establish that the rating would have been the same absent the improper motive,
particularly because when plaintiff complained and the employer removed the negative
references to plaintiff’s military service, the employer increased plaintiff’s rating. The court
further held that the negative evaluation was sufficient to create a genuine issue of material fact
as to whether plaintiff’s subsequent poor performance evaluations and eventual termination were
motivated in part by his USERRA-related activities. However, the court agreed with defendant
that the employer’s decision to place plaintiff on a non-punitive performance improvement plan
was not an “adverse action” within the meaning of section 4311.
Finally, in Vickers v. City of Memphis, 368 F. Supp. 2d 842 (W.D. Tenn. 2005), the
plaintiff filed suit, claiming that after he returned from Iraq he was subject to harassment, hostile
work environment, and disparate treatment in violation of USERRA. According to the
complaint, plaintiff had been called “derogatory ethnic names because of his military service”
and repeatedly called “HABIB.” The defendant moved to dismiss, claiming that USERRA does
not provide a cause of action for harassment, or does not cover harassment based on prior
military service. The court denied the motion on both grounds, holding that freedom from
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harassment due to prior military service could constitute a “benefit of employment” within the
meaning of Section 4311 if the employer has a policy prohibiting the type of conduct about
which the plaintiff complained, and the conduct is sufficiently severe or pervasive to alter the
conditions of employment and create a hostile environment. Similarly, in Steenken v. Campbell
County, 2007 WL 837173 (E.D. Ky. March 15, 1007), the district court held that plaintiff’s claim
that he was forced to resign due to a hostile work environment was cognizable under USERRA
because the right to be free from harassment, broadly construed, is a “benefit of employment,”
within the meaning of section 4311.
“Motivating Factor”
Discrimination claims under USERRA are analyzed using the scheme set forth in NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983). The employee first has the burden
of proving, by a preponderance of the evidence, that his or her military status or obligations were
a “substantial or motivating factor in the adverse [employment] action.” Id. The employer then
can avoid liability by demonstrating that the same action would have been taken regardless of the
plaintiff’s military status or obligations. 38 U.S.C. § 4311(c)(1). Because ascertaining
discriminatory motive is factual in nature, courts are reluctant to grant summary judgment.
For example, in Maxfield v. Cintas Corp., No. 2, the Eighth Circuit on two occasions
reversed the district court’s dismissal of plaintiff’s discriminatory transfer and termination
claims. See 427 F.3d 544 (8th Cir. 2005) and 487 F.3d.1132 (8th Cir. 2007). The plaintiff had
presented evidence that, before his transfer, plaintiff’s military sergeant received a call from the
employer asking whether plaintiff’s presence at the military base was “imperative.” Further,
plaintiff’s supervisors visited him while on military leave to discuss, in part, plaintiff’s sales
deficit. Finally, plaintiff’s transfer occurred the same day that he returned from military leave. In
Maxfield I, the court held that, from this evidence, a jury could reasonably infer discriminatory
animus. Likewise, on the plaintiff’s discriminatory discharge claim, numerous inconsistencies in
the employer’s proffered non-discriminatory reason for the discharge made summary judgment
inappropriate. For example, although the employer claimed that plaintiff had falsified time
records by placing himself on “sick leave” while on military leave, the employer’s policy
permitted employees to use sick leave while on military leave. In short, the court concluded a
jury must decide whether the plaintiff would have been terminated in the absence of his military
status.
In Maxfield II, the Eighth Circuit applied “law of the case” and the “prior panel rule,” to
again reverse summary judgment for the defendant, since defendant’s arguments and evidence in
support of summary judgment were largely no different than before. The only “new” evidence
consisted of an affidavit from a supervisor stating that the supervisor would have terminated the
plaintiff regardless of his military service; but, the affidavit simply “repackaged”the supervisor’s
deposition testimony and other documents that were presented unsuccessfully during the first
appeal.
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In Steenken v. Campbell County, 2007 WL 837173 (E.D. Ky. March 15, 2007), the
district court found sufficient evidence of discriminatory motive with respect to plaintiff’s
termination claim to withstand summary judgment. The police chief admitted that any military
commitments of officers under his command would interfere with the police department. In
addition, plaintiff offered evidence of disparate discipline. Finally, the district court found that
the employer could not establish, as a matter of law, that it would have taken the same action
regardless of plaintiff’s military leave because plaintiff claimed he had been singled out for
discipline, leading to his termination, because of his military status.
In Brinkley v. Dialysis Clinic, Inc., 403 F. Supp. 2d 1090 (M.D. Ala. 2005), the
employer’s motion for summary judgment was denied regarding whether plaintiff’s selection for
a reduction in force was motivated in part by his military status. The employer argued that
plaintiff was selected because he worked only part-time. However, the plaintiff hotly disputed
that he was a part-time employee, arguing that his hours had been reduced as a direct result of his
military service. This “genuine issues of material fact” made summary judgment inappropriate.
Summary judgment was also denied in Warren v. International Business Machines Corp.,
358 F. Supp. 2d 301 (S.D.N.Y. 2005), where the court held “a reasonable jury could surely find
that [plaintiff’s] status in the reserve was a substantial or motivating factor in IBM’s decision to
discharge him.” The evidence included weekly, and sometimes daily, questions by plaintiff’s
supervisor regarding when he would be on military leave; the comment “you are killing me” by a
supervisor when plaintiff notified him of the need to take leave; his supervisor’s visible
frustration when plaintiff notified him of the need for leave; plaintiff’s supervisor asking plaintiff
to try and get out of taking leave; and, finally, differing explanations for plaintiff’s discharge.
The employer discharged plaintiff for leaving a voice mail to a co-worker stating “pretty soon
I’m gonna hunt you down and kill you . . . ,” when the plaintiff had been trying unsuccessfully to
contact the co-worker about a business deal. Although nobody thought the message was serious,
and plaintiff had an untarnished eight-year employment record, plaintiff was terminated for
making a “death threat.” Alternatively, the employer claimed his termination occurred under a
“zero tolerance” policy – a policy plaintiff was unaware of and had never seen.
In Velazquez-Garcia v. Horizon Lines of Puerto Rico, Inc., 473 F.3d 11 (1st Cir. 2007),
the First Circuit reversed summary judgment for the employer, where the plaintiff produced
evidence of (i) remarks by co-workers making fun of his military status; (ii) complaints by the
supervisor who terminated his employment regarding the difficulty of adjusting schedules; and
(iii) timing – plaintiff’s discharge was immediately following the recoupment of plaintiff’s
military salary from his paychecks. The First Circuit rejected the defendant’s contention that
remarks by co-workers were of “no probative value,” since they were not the decisionmakers;
“stray remarks by non-decisionmakers, while insufficient standing alone to show discriminatory
animus, may still be considered ‘evidence of a company’s general atmosphere of discrimination,’
and thus can be relevant.” (citations omitted). The court also rejected the district court’s reliance
on the fact that other employees who served in the military had been retained. Not only does
such evidence not preclude a claim, in this instance, the plaintiff’s military leave was
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distinguishable since plaintiff, unlike the others, worked shifts, which caused more of a
scheduling problem for the company. The First Circuit also held that defendant had not
demonstrated it would have fired plaintiff regardless of his military leave, making summary
judgment improper: “there is sufficient doubt on this issue, making it a jury question.” While the
employer accused the plaintiff of violating its business ethics code by having a side-business
cashing employee paychecks, plaintiff testified that he never received a copy of the code, nor a
warning from the company to stop. Moreover, other employees who had violated the code were
not summarily dismissed like plaintiff.
In Patton v. Target Corp., 2007 WL 894560 (D. Or. March 21, 2007), summary judgment
for the employer was denied on plaintiff’s demotion claim. The employer argued that it had
made the decision to demote plaintiff prior to his military leave and merely carried out the
decision after he returned. The employer’s evidence included (i) documented negative feedback
regarding plaintiff’s job performance; (ii) opinions of the entire management team, which
included former military personnel, that plaintiff should be demoted; (iii) the employer’s track
record as a “5-star” DOD employer; (iv) the employer’s efforts to recruit managers from the
military; (v) at least eight current and former military employees who were promoted from
plaintiff’s pre-demotion position to the next level; and (vi) four non-military personnel who had
not been promoted to the next level. Nonetheless, the court, viewing the evidence in the light
most favorable to the plaintiff, found that a genuine issue of material fact existed as to whether
plaintiff’s military status was a motivating factor in the decision to demote him. First, in terms
of temporal proximity, plaintiff was notified of the demotion the same day he returned from
military leave. Second, in terms of animus, plaintiff testified to comments, including a
supervisor referring to National Guard members as “weekend warriors,” and plaintiff’s direct
supervisor complaining that the company should recruit more from universities to avoid hiring
military personnel who might be called to service or take leave. Third, inconsistencies existed
with the employer’s proffered rationale for demoting plaintiff and plaintiff’s testimony. The
employer claimed defendant’s demotion was based solely on poor performance, whereas plaintiff
testified that he had been told he was progressing toward a promotion before his military leave.
Finally, the court noted that plaintiff’s lukewarm performance evaluations “were not so
overwhelming that they negate any question about plaintiff’s demotion.”
Summary judgment was also denied on plaintiff’s termination claim in Benitez v.
International Paper Co., 2007 WL 4436874 (W.D. Tex. Dec. 19, 2007) based on the following
evidence of discriminatory motive by plaintiff’s direct supervisor: (i) upon returning from
military leave, plaintiff received his first negative performance evaluation during his 4-year
tenure with the company and was also denied a merit pay increase, both of which were reversed
by the company’s corporate headquarters; (ii) upon returning from military leave plaintiff was
placed in a position with the same title but less management authority and reporting to an
employee who had previously been his equal; (iii) there was close proximity in time between
plaintiff’s military leave and termination; and (iv) unlike prior years, plaintiff’s performance
goals were implemented without his input regarding their feasibility.
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In Woodard v. New York Health and Hospitals Corp., 554 F. Supp. 2d 329 (E.D.N.Y.
2008) the court found sufficient evidence that the employer improperly considered plaintiff’s
military leave when granting her a 4 percent rather than an 8 percent salary increase. The
plaintiff’s performance evaluation stated that she was being given only a six month evaluation
with a 4 percent increase, rather than a one-year evaluation with an 8 percent increase, “due to
leaves (military and FMLA).” The plaintiff also alleged that her supervisor “screamed” at her
about scheduling problems when plaintiff gave notice of her military leave. The court found this
evidence “sufficient to create an inference that the [plaintiff’s] military status was a motivating
factor in this decision.” Nonetheless, because the record clearly showed that the plaintiff had
received a retroactive increase bringing her up to 8 percent, she had no injury to be redressed and
the employer was entitled to summary judgment.
Summary judgment was also granted for the employer in Gannon v. National RR
Passenger Corp., 422 F. Supp. 2d 504 (E.D. Pa. 2006). The plaintiff had been terminated after
he refused for 20 months to reimburse the company for salary that he improperly received while
on military leave. According to Amtrak policy, employees called to military duty are placed in
“leave of absence” status without pay, yet plaintiff continued to receive his salary from May
through December without rectifying the error. After returning from military leave, the parties
were unable to agree on a repayment schedule, which eventually led Amtrak to hire an outside
firm to investigate the wage dispute. The investigation revealed financial irregularities as to both
the current wage dispute and prior military leaves, resulting in plaintiff’s termination. The
plaintiff claimed that under USERRA, his termination was discriminatory and the wage dispute
investigation was retaliatory. The district court granted the employer’s motion for summary
judgment on both claims. On the discrimination claim, the court found that one stray remark by
a non-decisionmaker, which occurred over one year prior to the plaintiff’s termination, could not
establish a prima facie case. Moreover, even if plaintiff had satisfied his prima facie case,
Amtrak had met its burden of showing it would have taken the same action anyway based on the
plaintiff’s 20-month long refusal to reimburse the improperly paid wages.
The court also granted summary judgment on the plaintiff’s retaliation claim. On that
claim, the plaintiff contended that the company retaliated against him by referring the wage
dispute to an outside investigator only one week after his attorney raised legal claims. While the
court found the temporal proximity sufficient to satisfy a prima facie case, the court also found
that Amtrak would have taken the same action anyway, since all parties agreed that an outside
investigation was necessary to avoid potential conflicts of interest.
Summary judgment was granted for the employer in Martin v. AutoZone, Inc., 411 F.
Supp. 2d 872 (S.D. Ohio 2005). The plaintiff had admitted that the employer always allowed
him time-off to fulfill his military obligations, and the plaintiff agreed that he believed that the
company always treated him fairly. The plaintiff also admitted that he had no evidence to
support his contention that his military service was a motivating factor in his termination.
In Dillie v. LVI Environmental Services, Inc., 2007 WL 2459934 (N.D. Ohio Aug. 24,
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2007), the employer also prevailed on summary judgment: the plaintiff produced no evidence
whatsoever to show that his service in the Air Force 18 years prior to his discharge motivated the
decision to terminate his employment. Similarly, summary judgment was granted for the
employer in Brady v. Calyon Securities (USA), 2007 WL 4440926 (S.D.N.Y. Dec. 17 2007),
where: (i) the alleged discriminatory comments occurred over a year prior to plaintiff’s
termination; (ii) the same supervisor alleged to have made the comments promoted plaintiff a
few months later; and (iii) a comment about plaintiff’s “military like fascination with following
the rules” referred not to plaintiff’s military status, but rather his personality and management
style.
In Dees v. Hyundai Motor Mfg. Alabama, LLC, 2008 WL 2157009 (M.D. Ala. May 21,
2008), summary judgment was also granted for the employer on the plaintiff’s termination claim,
but not his harassment claim. Although two of plaintiff’s supervisors were alleged to have
subjected the plaintiff to a hostile work environment, a different manager spotted and reported
the plaintiff for intentionally sleeping on the job. Plaintiff failed to present any evidence that the
supervisor who reported plaintiff’s sleeping, or the committee who ratified his termination,
harbored any bias against those in the military. Further, the court held that the committee would
have made the same decision absent plaintiff’s military service since intentional sleeping on the
job is considered an infraction that merits termination.
Same Decision-Maker Inference
In Sutherland v. SOS Intern., Ltd., 541 F. Supp. 2d 787 (E.D. Va. 2008), the plaintiff
successfully avoided summary judgment despite the employer’s argument that the same
decisionmaker had hired plaintiff knowing he was an army reservist, and then terminated plaintiff
only eight months later for poor work performance. The plaintiff argued that the same
decisionmaker inference should not apply to him because, at the time of hire, it was not readily
apparent how much plaintiff’s military obligations would disrupt the workforce. The district
court agreed, finding that “[i]f, shortly before Defendants made the decision to terminate
Plaintiff, a meeting or conversation occurred in which Defendants came to a new realization
about the extent of his reservist obligations, a reasonable finder of fact could conclude that the
conversation led to Plaintiff’s termination, even when viewed alongside Defendants’ evidence
that Plaintiff’s job performance was unsatisfactory.”
Failure to Hire
USERRA prohibits an employer from failing to hire an applicant because of his or her
membership in the uniformed services. See 38 U.S.C. § 4311(a).
At least one district court has extended protection to an applicant who was on military
leave and unavailable to work at the time of application. In McLain v. City of Sommerville, 424
F. Supp. 2d 329 (D. Mass. 2006), the plaintiff, who was on active duty, applied for employment
as a police officer. He was selected for hire, but only subject to his availability to attend required
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police academy training on a particular date. The plaintiff notified the City that he would still be
on active duty at the time of the training, but he would be available to attend training upon his
return, within several weeks of the scheduled training. In response, the City told the plaintiff that
he would not be hired. The parties filed cross-motions for summary judgment, and the district
court granted the plaintiff’s motion. The court held that the City had violated USERRA by
denying the plaintiff initial employment based on his military obligation. The court rejected the
City’s argument that the plaintiff’s unavailability, not his military service, motivated its decision
not to hire the plaintiff. The court focused on “the plain language of section 4311(a) . . . [which]
prohibits discrimination based not only on a person’s status as a member of the uniformed
services, but also on the service member’s ‘obligation to perform service.’” The court also
declined to draw any distinction between enlisted military personnel, such as the plaintiff, and
military reservists. The court further rejected the City’s argument that an undue hardship
exception should apply under USERRA’s anti-discrimination provision. Finally, the court
observed that requiring an employer to delay a permanent hire is no more disruptive than
USERRA’s reemployment obligations, especially given the facts of this case, where the delay
between the City’s required start date and the plaintiff’s availability to begin work was relatively
short.
In another “failure to hire” case, Hart v. Township of Hillside, 2007 WL 1063105 (3d Cir.
March 9, 2007), the Third Circuit affirmed summary judgment for the employer. The plaintiff,
who was not selected by a firefighter selection committee, claimed his non-selection was based
on his membership in the National Guard. The Third Circuit assumed, without deciding, that the
plaintiff could establish that his membership was a “motivating factor” in his non-selection,
which would shift the burden of production and persuasion to the employer to establish that the
same action would have been taken anyway. The employer met its burden by offering numerous
legitimate reasons: plaintiff’s casual interview style, his improper dress, a criminal history, a
sub-par driving record, and his performance on a psychological evaluation, which suggested he
was “immature.” Because the plaintiff put forth no evidence to dispute these legitimate reasons,
the Court affirmed summary judgment for the employer.
Failure to Promote
In Smith v. City of Mobile, 2007 WL 2580516 (S.D. Ala. Sept. 5, 2007), the district court
denied summary judgment for defendant on plaintiff’s failure to promote claim. The Fire and
Rescue Chief, who was the ultimate decision-maker with respect to promotions, had testified that
plaintiff’s voluntary deployment with DMAT (part of FEMA) to respond to Hurricane Ivan,
rather than remaining to staff the special needs shelters in Mobile County when faced with
predicted 150 MPH winds: “that’s not the type of decision-making skills you’re looking for with
a deputy chief.” This testimony was sufficient to preclude summary judgment, since a reasonable
jury could find that the plaintiff’s DMAT service was a motivating factor in the Chief’s decision
not to promote him. Further, defendant offered insufficient evidence to demonstrate that plaintiff
would not have been promoted even if he had not been involved with DMAT.
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Similarly, in Wagner v. Novartis Pharmaceuticals Corp., ---F. Supp.2d--- , 2008 WL
2713712 (E.D. Tenn. July 10, 2008), a magistrate judge denied the employer’s motion for
summary judgment on plaintiff’s promotion claim based on the following combination of
evidence: (i) plaintiff’s delayed progress through the management training program; (ii) the
employer’s reliance on unspecified requirements for promotional decisions; (iii) the employer’s
failure to follow its procedures and properly notify plaintiff of the status of the positions he had
applied for; (iv) the employer’s refusal to interview plaintiff for any of the positions he applied
for; and, (v) the employer’s refusal to consider the plaintiff’s military management experience as
a valid replacement for pharmaceutical management experience. This circumstantial evidence
was sufficient for a jury to decide whether plaintiff’s military service was a motivating factor in
the decisions not to promote him, as well as whether the employer would have made the same
decision in the absence of plaintiff’s military service.
By contrast, in Tranter v. Crescent Tp., 2007 WL 3274158 (W.D. Pa. Nov. 5, 2007), the
district court granted the defendant’s motion for summary judgment on the plaintiff’s promotion
claim. The plaintiff, who was a laborer performing road and equipment maintenance, was not
selected for a Leadman position. The position was filled by a majority vote of the township
commissioners, which meant that plaintiff had to prove the majority of members knew of an
improper motive and ratified it. The court found no evidence of discriminatory motive, noting
that (i) the plaintiff had retired from the military before applying for the promotion; (ii) the
plaintiff was encouraged to apply and was chosen as a finalist for an interview; (iii) no questions
were asked during the interview about plaintiff’s military service; and (iv) the commissioners’
unanimous decision to select another applicant was based on the belief that he was better
qualified. Plaintiff’s evidence that he was more qualified “misses the point . . . . Even if [the
plaintiff] disagrees with that decision, there is simply no evidence from which a reasonable juror
could conclude that it was a pretext for discrimination due to [plaintiff’s] military service.”
Furthermore, plaintiff’s evidence of comments made over 10 years prior to the decision at issue
was nothing more than “stray remarks, some over a decade old” that were too remote to establish
military service was a “motivating factor” in the decision not to promote him.
Harassment
Although USERRA does not specifically prohibit military-based harassment, district
courts confronting the issue have assumed that harassment is actionable under USERRA as long
as the harassment is sufficiently severe or pervasive. For example, in Maher v. City of Chicago,
406 F. Supp. 2d 1006 (N.D. Ill. 2006) (magistrate judge), the plaintiff asserted, among other
things, that he had been subject to harassment as a result of his deployment to the Gulf. The
alleged harassment included statements by the plaintiff’s supervisor about the burdens of the
plaintiff’s military leave and requests to plaintiff to get out of his military leave, “among other
squabbles.” Although the court recognized that harassment on account of prior military service
can violate USERRA, the court found that these allegations were insufficiently severe or
pervasive, particularly because the plaintiff had not claimed that the conduct was physically
threatening and testified that it was not severe enough to interfere with his work performance.
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Likewise, in Figueroa Reyes v. Hospital San Pablo Del Este, 389 F. Supp. 2d 205
(D.P.R. 2005), the court found the plaintiff had not established “severe or pervasive” harassment.
The plaintiff, a nurse, claimed he was constructively discharged and subject to a hostile work
environment because of his military obligation. Noting that USERRA does not specifically
prohibit harassment based on military status, the district court assumed arguendo that harassment
is cognizable. The court held, however, that plaintiff had failed to provide sufficient evidence of
a hostile work environment. The only “potentially hostile conduct” aimed at plaintiff was a
negative performance evaluation and a threat by a terminated supervisor on the supervisor’s last
day of employment. No negative consequence flowed from this incident, and the court
concluded “we do not find this single alleged harassment episode, initiated by an employee who
has been terminated by his employer and was hours from his final exit, sufficient to support a
hostile work environment claim.” The court also found the plaintiff’s other complaints “fall so
short of being harassment as to not warrant individual consideration.” These complaints
included complaints that his supervisor (i) participated unannounced in conference calls; (ii)
requested better notice of plaintiff’s military leaves; and (iii) requested that plaintiff train others
to do certain duties to minimize disruption while plaintiff was on military leave.
A different result was reached in Dees v. Hyundai Motor Mfg. Alabama, LLC, 2008 WL
2157009 (M.D. Ala. May 21, 2008), where the district court denied summary judgment on
plaintiff’s harassment claim. After finding harassment claims cognizable under USERRA, the
court concluded the following alleged actions by plaintiff’s supervisors were sufficiently severe
or pervasive to warrant a trial: (i) frequent derogatory comments about plaintiff’s guard service;
(ii) demanding military orders for training weekends that do not require military orders; (iii)
implicitly threatening continued employment; (iv) accusing plaintiff of placing his military
service above his civilian job; and (v) unfairly and punitively assigning plaintiff more dangerous
and physically threatening work.
Some district courts have viewed harassment claims as actionable under Section 4311’s
“denial of a benefit of employment” provision. In Steenken v. Campbell County, 2007 WL
837173 (E.D. Ky. March 15, 1007), the district court held that plaintiff’s claim that he was forced
to resign due to a hostile work environment was cognizable under USERRA because the right to
be free from harassment, broadly construed, is a “benefit of employment,” within the meaning of
section 4311. The same result was reached in Vickers v. City of Memphis, 368 F. Supp. 2d 842
(W.D. Tenn. 2005). In Vickers, the plaintiff filed suit, claiming that after he returned from Iraq
he was subject to harassment, hostile work environment, and disparate treatment in violation of
USERRA. According to the complaint, plaintiff had been called “derogatory ethnic names
because of his military service” and repeatedly called “HABIB.” The defendant moved to
dismiss, claiming that USERRA does not provide a cause of action for harassment, or does not
cover harassment based on prior military service. The court denied the motion on both grounds,
holding that freedom from harassment due to prior military service could be a “benefit of
employment” within the meaning of Section 4311 if the employer has a policy prohibiting the
type of conduct about which the plaintiff complains, and the conduct is sufficiently severe or
pervasive to alter the conditions of employment and create a hostile environment.
11
Reemployment Rights (Sections 4312 and 4313)
USERRA Section 4312 entitles reemployment rights and benefits to employees who are
absent from work due to military obligations. The reemployment obligation applies only to those
individuals who were actual employees prior to leaving for military service. So, for example, in
Quick v. Frontier Airlines, Inc., 544 F. Supp. 2d 1197 (D. Colo. 2008), the plaintiff was not
entitled to reemployment protections, such as retroactive seniority, simply because he had been
accepted into the pilot applicant pool for future hire.
Some courts initially confused the distinction between Section 4311’s discrimination
prohibition and Section 4312’s reemployment obligation. More recent court decisions agree that
the two provisions are separate and distinct requirements, and that Section 4312 does not apply to
discrimination claims, nor does a violation of Section 4312 require a showing of intent.
For example, in Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299 (4th Cir. 2006), the
plaintiff argued that Section 4312 not only required reemployment, but also protected her from
discriminatory modifications to the terms and conditions of her employment following
reinstatement. Specifically, she claimed that adverse changes to her work hours and
responsibilities weeks after her reemployment violated Section 4312. The Fourth Circuit rejected
the plaintiff’s arguments, holding that Section 4312 applies only at the moment of rehire. Once
the service member has been reemployed, Section 4312 drops out of the picture and Section 4311
(not 4312) protects against discriminatory changes in working conditions and Section 4316
prohibits summary dismissal for a limited period of time. The plaintiff could not succeed under
Section 4312 because it was undisputed that she had been rehired with the same title, salary,
consulting engagement, and work location as before her military leave.
More recently, in Pittman v. Department of Justice, 486 F.3d 1276 (Fed. Cir. 2007), the
Federal Circuit affirmed dismissal of Plaintiff’s reemployment claim where the plaintiff was
restored to his prior position as a corrections officer and worked a single shift before being placed
on paid administrative leave with full benefits for two months prior to his discharge. Similarly, in
Patton v. Target Corp., 2007 WL 894560 (D. Or. March 21, 2007), the court granted summary
judgment for the employer on plaintiff’s reemployment claim because “Plaintiff was reemployed
following his National Guard training for a period of at least one hour” upon his return, despite
being demoted shortly thereafter.
The Notice Requirements
USERRA requires the employee to provide advance written or verbal notice to the
employer of his or her need to take military leave, unless such advance notice is precluded by
military necessity, or is otherwise impossible or unreasonable. See 38 U.S.C. § 4312(a).
Although USERRA does not specify how far in advance notice must be given to the employer, the
Labor Department regulations provide that notice should be provided “as far in advance as is
reasonable under the circumstances.” 20 C.F.R. § 1002.85(d).
12
In Acker v. Greenville Surgery Center Ltd. Partnership, 2008 WL 163060 (D.S.C. Jan. 15,
2008), the court denied the employer’s motion for summary judgment on plaintiff’s reemployment
claim, which was premised on the plaintiff’s failure to follow its procedures for notification of the
need for military leave. The court recognized that verbal notification is sufficient, and held that
there were disputed facts regarding whether plaintiff had provided verbal notification of his need
for leave.
The “Escalator” Position, or one of “Like Seniority, Status, and Pay” (Section 4313)
In terms of reemployment positions, courts continue to interpret USERRA favorably for
the reservist, regardless of the employer’s legitimate business needs. In Duarte v. Agilent
Technologies, Inc., 366 F. Supp. 2d 1039 (D. Colo. 2005), the plaintiff, a Marine Corp reservist,
held the position of “primary design consultant.” Upon returning from an eight-month call to
active duty, plaintiff was placed in a modified position. The employer did not place him in his
pre-service position because the design process for the following year had already begun, and the
employer believed it would be too disruptive to replace the acting primary design consultant.
Plaintiff’s new duties included working on a special survey project and assisting other primary
design consultants. Four months later, plaintiff was selected for termination due to budgetary
cuts. Following a bench trial, the court held that the employer had violated the plaintiff’s
reemployment rights by failing to reemploy him in a position of like “status” to the position he
held prior to his military leave. Although the plaintiff’s salary and benefits remained the same,
his “status” had been diminished by his modified duties.
However, in Long v. Ellis Environmental Group, LC, 2007 WL 1020005 (N.D. Fla. March
30, 2007), the district court granted the employer’s motion for summary judgment on the
plaintiff’s “status” reemployment claim. The plaintiff, whose deployment exceeded 90 days, was
offered the position of Vice President of Airforce Programs, rather than his pre-deployment
position of Vice President of Construction. The plaintiff did not dispute that the position held the
same seniority and pay; plaintiff argued that the offered position did not hold the same “status.”
Citing the Labor Department’s regulations (20 C.F.R. § 1002.194), the court considered six
factors to determine whether the positions were of comparable status: (i) opportunities for
advancement; (ii) general working conditions; (iii) job location; (iv) shift assignment; (v) rank;
and (vi) responsibility. The court found that the positions had similar job duties and management
responsibilities, and that the offered position held greater responsibilities and opportunities for
advancement. Further, due to extensive changes within the company during plaintiff’s
deployment, his former job was no longer the same position, having decreased in responsibilities
and importance. Accordingly, the court held that, as a matter of law, plaintiff had been offered a
position of like seniority, status, and pay to the one that he would have held had he never been
called to active duty.
Similarly, in Vander Wal v. Sykes Enterprises, Inc., 377 F. Supp. 2d 738 (D.N.D. 2005)
summary judgment was granted on the plaintiff’s reemployment claim. The employer reemployed
the service member with a pay increase to reflect the raise he would have received while on active
13
duty, and there was no dispute that his new job assignment was comparable to his assignments
before leaving.
The district court also rejected the plaintiff’s reemployment claim in Woodard v. New York
Health and Hospitals Corp., 554 F. Supp. 2d 329 (E.D.N.Y 2008). While plaintiff was on a 2year military leave, her duties as a quality assurance manager were absorbed by co-workers and
her position remained open. When she returned from military leave, the employer decided to
eliminate her prior position and place her in a different quality assurance position to fulfill a
shortage. There was no dispute that her new position had the same seniority and pay. The court
also found that the positions had similar status based on undisputed witness testimony that the
new position remained a management-level position that took advantage of plaintiff’s skills and
qualifications. The only difference between her old and new position was that the former
involved quality assurance of facilities and the latter involved quality assurance with respect to
patient care. The district court rejected the plaintiff’s contention that her new position was largely
secretarial because she was required to prepare meeting minutes. The evidence established that
“an analytical background was necessary so that the person preparing the minutes could
understand and respond to the substance of the quality assurance meetings.” Finally, in plaintiff’s
absence a Ph. D. was selected to fill the position.
Summary judgment was also granted in favor of the employer in Mullner v. Strain, 2007
WL 2713265 (E.D. La. Sept. 14, 2007), on the plaintiff’s reemployment claim. Prior to taking
military leave, the employer had transferred the plaintiff from a Tax Auditor position to a new
position as Radio Room Operator. However, the plaintiff never actually started working as a
Radio Room Operator because she elected to take leave under the Family and Medical Leave Act
(“FMLA”). Following her FMLA leave, the plaintiff reported directly to the U.S. Air Force for
basic training. After being separated from the Air Force, the employer restored the plaintiff to the
Radio Room Operator position. The Plaintiff claimed that under section 4312, she was entitled to
reemployment as a Tax Auditor. The court disagreed, finding that it was “of no moment” that she
had elected to take FMLA leave instead of reporting to her new position. What mattered was that
the plaintiff had been transferred to her new position prior to taking military leave. “In other
words, Plaintiff has no claim for a violation of her right to reemployment because she was
reinstated to the same position which she occupied (regardless of her objection) prior to her
departure for basic training.”
Application for Reemployment
In order for the employer’s reemployment obligation to arise, the returning service
member must reapply for employment within the time periods specified by USERRA, which vary
depending upon the length of service. A plaintiff’s failure to timely apply for reemployment can
prove fatal to his or her reemployment claim even if the employer previously indicated that the
service member would have no job upon his or her return. For example, in Hodges v. Prestage
Farms, Inc., 2007 WL 1153120 (N.D. Miss. April 18, 2007), the plaintiff, while home on leave
from active duty, was told by his civilian employer that he would no longer have a job with the
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company upon his return. Consequently, when the plaintiff was released from active duty, he did
not reapply for employment within the 90-day period prescribed by USERRA. The district court
granted summary judgment for the employer because of USERRA’s “clear, unambiguous []
requirement that [plaintiff] reapply for employment within 90 days of his discharge from active
duty in order to have a right to reclaim his job under USERRA and reap the other benefits of the
statute.” Although the statute also provides that reemployment rights are not forfeited if the
service member complies with the employer’s rules and policies, the employer’s policies provided
for automatic termination of employment if absent from work for three days without notice or
excuse. Since the plaintiff waited nearly two months beyond 93 days to apply for reemployment,
the court held that he could not satisfy an essential element of his prima facie case, noting that
“there is nothing in the statute to suggest any other basis for excusing a failure to reapply within
the time set by the statute, even if the jury were to find that [plaintiff] was improperly fired by the
defendant.”
By contrast in Acker v. Greenville Surgery Center Ltd. Partnership, 2008 WL 163060
(D.S.C. Jan. 15, 2008), the court denied the employer’s motion for summary judgment on
plaintiff’s reemployment claim, which was premised in part on plaintiff’s failure to timely apply
for reemployment. Since the employer had sent plaintiff a COBRA notice while plaintiff was on
military leave indicating that plaintiff had been terminated, the court found “a genuine issue of
material fact concerning whether it was unreasonable for plaintiff not to report back to work.”
An employer cannot require a returning service member to submit a written application for
reemployment. For example, in Dunlap v. Grupo Antolin Kentucky, Inc., 2007 WL 855335 (W.D.
Ky. March 14, 2007), the court rejected the employer’s argument that it was entitled to require
plaintiff to file a written application before plaintiff could seek reemployment. Relying on the
plain language of USERRA and the Labor Department regulations, the court held that “Defendant
is not entitled to place additional requirements upon plaintiff before he can gain reemployment
under USERRA.” Accordingly, plaintiff’s reemployment rights accrued when he reported to
work and orally asked for his job back.
The plaintiff in Serricchio v. Wachovia Securities, LLC, 556 F. Supp. 2d 99 (D. Conn.
2008), also satisfied the “reapplication” requirement, despite including a list of issues in his
reapplication letter that plaintiff believed the employer should remedy in connection with his
reinstatement. The employer argued that the plaintiff’s request was “conditional,” and therefore,
not valid. The court disagreed, finding that “although the letter contains an enumeration of
actions taken by defendants which plaintiff viewed as damaging his career, his reinstatement
request was not expressly conditioned on the employer’s meeting his demands, only red-flagging
additional USERRA rights implicated by his reinstatement request.” Since the letter expressly
requested reinstatement and referenced USERRA, plaintiff had satisfied the reapplication
requirement.
15
“Prompt” Reemployment (Section 4313(a))
USERRA requires “prompt” reemployment of returning service members. Although twoweeks is generally considered “prompt,” courts have adopted a flexible approach utilizing the “as
soon as practicable” under the circumstances standard adopted in USERRA’s implementing
regulations. Under this flexible approach, courts consider the length of the military leave and the
position at issue to determine whether the gap in time between application and reemployment is
reasonable.
In Petty v. Metropolitan Government of Nashville-Davidson, 2006 WL 3333509 (M.D.
Tenn. Nov. 16, 2006), the plaintiff, a police officer, sued his employer for, among other things,
failing to promptly reemploy him following his military leave. After the plaintiff had returned
from a two-year tour of duty, the employer required him to undergo a return-to-work process,
applicable to all officers returning from leave, which included a physical and mental fitness
examination. Three weeks later, upon completion of the return-to-work process, the employer
returned the plaintiff to work. The plaintiff argued that USERRA superceded the employer’s
return-to-work process. The district court disagreed. Relying on the standard set forth in the
federal regulations, the court stated that “prompt reemployment” means “as soon as practicable
under the circumstances of each case.” Although the regulations also provide that “absent unusual
circumstances,” reemployment must occur within two weeks, the court interpreted the “as soon as
practicable” language as allowing the employer enough flexibility to require the employee to
comply with a return-to-work process, where appropriate. In the plaintiff’s case, the court found
that three weeks was “as soon as practicable” given that the plaintiff had been on leave for over
one year, and the return-to-work procedure was uniformly applied to all officers. Furthermore, the
court held that USERRA does not exempt returning service members from demonstrating that
they are still qualified to hold their position, especially for a job as demanding as police officer.
Accordingly, the court granted the employer’s motion for summary judgment.
The court also granted summary judgment for the employer in Vander Wal v. Sykes
Enterprises, Inc., 377 F. Supp. 2d 738 (D.N.D. 2005). The service member was released from
active duty on April 22, 2004, and reemployed on May 4, 2004. Plaintiff completed an
application for reemployment, stating that he would be unable to return to work until May 4,
2004. It was undisputed that the plaintiff never notified the employer he would be available
sooner than May 4, 2004, although his attorney wrote a letter to the company prior to May 4
demanding the plaintiff’s immediate reemployment. The court found “as a matter of law,” that
under USERRA standards, the plaintiff was promptly reemployed where he was offered
reemployment only four days after his attorney sent the demand letter and reemployed within
seven days of the letter. Plaintiff’s co-plaintiff, who was reemployed only seven business days
after completing his application for reemloyment also had been “promptly” reemployed within the
meaning of USERRA.
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“Changed Circumstances” Statutory Defense
Employers are excused from their reemployment obligations if their “circumstances have
so changed as to make such reemployment impossible or unreasonable.” 38 U.S.C. §
4312(d)(1)(A). This exception has been narrowly construed. The Labor Department regulations
explain that the exception could apply when there has been an intervening reduction in force that
would have included the service member. The exception does not apply simply because another
employee has been hired to fill the reemployment position during the service member’s absence,
even if reemployment might require the termination of that replacement employee. See 20 C.F.R.
§ 1002.139(a).
In Dunlap v. Grupo Antolin Kentucky, Inc., 2007 WL 855335 (W.D. Ky. March 14, 2007),
the district court granted the plaintiff summary judgment on his reemployment claim, rejecting the
employer’s “changed circumstance” defense. The district court found that “mere low work load,
layoffs, and a hiring freeze” at the time plaintiff reapplied were not enough to invoke the
“changed circumstance” defense, particularly where the employer subsequently hired or rehired 99
employees in positions similar to that held by plaintiff. Further, changed circumstances were not
established simply because there were no open positions or because plaintiff had been replaced.
The “changed circumstance” defense was successfully asserted, however, in Madden v.
Rolls-Royce Corp., 2008 WL 747290 (S.D. Ind. March 18, 2008). In that case, the plaintiff had
been hired by a staffing service, CDI, to provide temporary work for Rolls Royce. Upon the
plaintiff’s return from military leave, Rolls Royce did not want plaintiff back on the work-site and
was also in the process of terminating its contract with CDI. As a result, plaintiff’s
“reemployment at Rolls- Royce through CDI was impossible or unreasonable at that point in time,
which is enough to insulate CDI from liability under USERRA.”
“Brief, Non-recurrent Period” Statutory Defense
An employer is also not required to reemploy a service member whose pre-service
employment was for a “brief, non-recurrent period, and there is no reasonable expectation that
such employment will continue indefinitely or for a significant period.” 38 U.S.C. §
4312(d)(1)(c). In Madden v. Rolls-Royce Corp., 2008 WL 747290 (S.D. Ind. March 18, 2008), for
example, the court granted Rolls Royce’s motion for summary judgment where plaintiff’s
employment at Rolls Royce was pursuant to an agreement to provide “temporary contract
personnel service needs” and plaintiff testified that he knew his employment was temporary (for
90 days) and would only become permanent if Rolls Royce still had a need in 90 days.
Accordingly, plaintiff was not entitled to reemployment.
Comparable Rights and Benefits (Section 4316(b)(1))
Section 4316(b) provides that when an employee is absent from work for military service,
he or she should be deemed on “furlough or leave of absence” and be afforded such rights and
17
benefits as are generally provided to other employees on similar leaves of absence.
In Tully v. Department of Justice, 481 F.3d 1367 (C.A. Fed. 2007), the plaintiff served on
active duty for two years, during which time the employer placed him on “leave without pay”
status, which did not include paid holidays. The plaintiff claimed he was entitled to pay for those
holidays during which he was absent for military service, arguing that section 4316(b)(1)(B)
entitles a service member to the best benefits available to any employee for any leave of absence.
However the Court disagreed, finding that the leaves must be “comparable” to trigger the right to
equivalent treatment, which required analysis of the leave duration, among other things. Although
the court rejected the Administrative Judge’s comparison with respect to whether or not other
forms of leave were paid versus unpaid, such consideration was harmless, given that the length of
plaintiff’s leave alone was sufficient to distinguish it from other forms of leave with holiday pay.
Because the plaintiff’s extended leave of two years was dissimilar to shorter leaves for juror or
witness duty, he was not entitled to holiday pay.
Section 4316(b) does not provide for preferential treatment. In Crews v. City of Mt.
Vernon, 2008 WL 2224898 (S.D. Ill., May 27, 2008), the plaintiff filed suit, claiming that the
employer violated USERRA by discontinuing a policy of permitting service members to work on
their regularly scheduled days off in lieu of days when they had to attend weekend training drills.
The plaintiff characterized his claim as a discrimination claim under section 4311, contending that
the decision to discontinue this flexible scheduling policy constituted the “denial of a benefit” of
employment in violation of USERRA. The district court, however, properly analyzed plaintiff’s
claim under section 4316, and considered whether plaintiff was entitled to a non-seniority benefit
that was provided to employees taking comparable forms of non-military leave. Because the
plaintiff had failed to identify any comparable form of leave that permitted scheduling flexibility,
the court agreed with the defendant, that plaintiff was treated equally to those who took nonmilitary leave. Accordingly, his claim could not survive summary judgment.
Protection from Discharge Without Cause (Section 4316 (c))
One unique feature of USERRA is its protection from discharge without cause for a period
of time following reemployment. In order to qualify for this protection, the “period of service
before the reemployment [must be] more than 30 days . . . .” In Warren v. International Business
Machines Corp., 358 F. Supp. 2d 301 (S.D.N.Y. 2005), the district court held that the 30-day
requirement means consecutive days, and not cumulative days. Because all of plaintiff’s leaves of
absences fell short of 30 days, his claim under Section 4316(c) failed as a matter of law.
Courts have adopted a “reasonable” standard for what constitutes “cause” for purposes of
Section 4316, i.e., was the employer’s termination decision reasonable under the circumstances.
In Johnson v. Michigan Clam Svc., Inc., 471 F. Supp. 2d 967 (D. Minn. 2007), the plaintiff was
terminated during USERRA’s 180-day period of protection from discharge without “cause” for
refusing to sign a non-competition and confidentiality agreement. The parties cross-moved for
summary judgment, and the district court affirmed the magistrate judge’s report and
18
recommendation denying both motions. Citing the federal regulations, the district court placed
the burden of proof on the employer to demonstrate that plaintiff’s discharge for refusing to sign
the agreement was “reasonable.” Because the reasonableness of plaintiff’s actions depended in
part on whether the agreement was lawful, the lawfulness of the agreement needed to be decided
before ruling on the USERRA issue. Further, even assuming the agreement was lawful, the
reasonableness of asking the plaintiff to sign it depended upon the surrounding circumstances,
such as, for example, economic conditions in the company and in the plaintiff’s department.
Accordingly, a trial was necessary to determine the reasonableness of the plaintiff’s termination.
In Duarte v. Agilent Technologies, Inc., 366 F. Supp. 2d 1039 (D. Colo. 2005), following a
bench trial, the judge found the employer had violated Section 4316. The plaintiff, a Marine Corp
reservist, held the position of “primary design consultant.” Upon returning from an eight-month
call to active duty, plaintiff was placed in a modified position. Four months later, plaintiff was
selected for termination for budgetary reasons. Following a bench trial, the court found that the
employer had violated Section 4316(c) by terminating the plaintiff without cause during the 180day protected period. The employer’s decision to select plaintiff for discharge was unreasonable
because it directly resulted from the employer’s failure to properly reemploy plaintiff following
his military service.
At least one court has allowed a 4316(c) claim to proceed under a theory of “constructive
discharge” during the protected period. In Serricchio v. Wachovia Securities, LLC, 556 F. Supp.
2d 99 (D. Conn. 2008), the plaintiff, a financial advisor, returned from a two-year military leave to
find that his employer, Prudential Securities, had sold its brokerage business to Wachovia.
Wachovia had changed the business model resulting in the loss of many of plaintiff’s former
clients. Wachovia offered to reinstate plaintiff as a financial advisor with his clients that had
remained and the opportunity to cold-call new accounts. The plaintiff never responded to the
offer, and was terminated for “job abandonment.” Plaintiff argued that he had been constructively
discharged without cause because the reemployment conditions were “so onerous that he had no
choice but to leave.” The court agreed that a reasonable juror could find plaintiff had been
constructively discharged: “he returned to what had been a financially comfortable position to
find a job in which he had no book of business and had to begin anew by cold-calling prospective
customers in order to pay off the $2000 monthly advance which Wachovia offered him as
compensation, leaving him incapable of supporting himself and his family . . . . reasonable jurors
could find the conditions under which Serriccio was offered reemployment ‘so intolerable that a
reasonable person in the employee’s position would have felt compelled to resign’” (citations
omitted).
Although it is difficult to achieve summary judgment on a Section 4316 claim, summary
judgment has been granted where there is significant and uncontradicted evidence to support the
discharge decision. For example, in Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299 (4th
Cir. 2006), the Fourth Circuit affirmed summary judgment for the employer on the plaintiff’s
Section 4316 claim based on “overwhelming and uncontroverted” evidence of plaintiff’s
misconduct. This evidence included tardiness, missed conference calls, inappropriate conduct in
19
front of customers, complaints from co-workers, and more. Accordingly, despite plaintiff’s
subjective view that she acted professionally, it was objectively reasonable for the employer to
dismiss her.
Similarly, in Smith v. Pepsi Bottling Group, 2007 WL 2572241 (D.S.C. Aug. 31, 2007),
summary judgment was granted on plaintiff’s 4316(c) claim where plaintiff was responsible for a
significant inventory discrepancy, and gave demonstrably false information about it. Although the
plaintiff hypothesized that another employee had framed him, he had no factual support for his
theory. Further, the plaintiff had notice that misrepresentation of company inventory documents
was grounds for discharge because it was in the company handbook, which the plaintiff admitted
to receiving. Finally, the plaintiff admitted he had no evidence to support his belief that his
military absence had something to do with his discharge.
Summary judgment has also been granted under Section 4316 where the plaintiff’s
termination resulted from extreme financial hardship. In Ferguson v. Walker, 397 F. Supp. 2d
964 (C.D. Ill. 2005), the plaintiff’s employer, the Village of Ludlow, experienced financial
problems and gave plaintiff the option either to accept a pay cut or a transfer from his position as
full-time police chief to a full-time school resources officer. When plaintiff declined both
options, his employment was terminated. Plaintiff brought suit under USERRA, claiming his
discharge violated the Act’s protection from discharge except for cause. The employer argued
that there was “cause” to discharge plaintiff based on evidence that the Village had a significant
budgetary deficit and needed to cut police staff. The record also reflected that the plaintiff was
not replaced by another full-time officer, and that subsequent to plaintiff’s discharge, the Village
employed only two part-time officers with no benefits. The district court held that “cause” for
termination means only that the decision was “a reasonable one under the circumstances.” As
such, “cause” could exist where severe adverse economic conditions necessitated the dissolution
of an existing job. Accordingly, the employer was entitled to summary judgment.
Pension Benefits (Section 4318)
USERRA Section 4318(b)(1) provides that an employer must allocate to an employee
pension benefit plan during a period of military leave in the same manner, and to the same extent,
the allocation occurs for other employees during the time of service. In Scott v. Absolute
Insulation, Inc., 2007 WL 2728551 (W.D. Pa. Sept. 17, 2007), summary judgment was granted as
to liability in favor of the plaintiffs, who were trustees of various employee benefits plans. It was
undisputed that the employer failed to make mandatory contributions to an annuity fund while one
of defendant’s employees was on active duty military leave.
However, in Archo v. Central States, Southeast and Southwest Areas Pension Fund, 2007
WL 2936216 (M.D. Fla. Oct. 9, 2007), the district court granted summary judgment for the
defendant, a pension fund, on plaintiff’s claim under section 4318. The plaintiff had worked parttime for UPS until 1980, when he ceased employment to begin four years of active service with
the Navy. Upon his return in 1984, the plaintiff resumed part-time employment with UPS, and in
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1985 converted to full-time employment. Plaintiff argued that he was entitled to pension credits
for the four-year period during which he as on military leave, even though UPS only made
contributions for full-time employees. The plaintiff claimed that “but for” his military leave, he
would have become full-time back in 1981, as evidenced by his acceptance of full-time
employment in 1985. The court disagreed, finding that the Trustees to the fund did not act
arbitrarily by refusing plaintiff’s claim. First, the court noted that it is unclear whether USERRA
requires an employer to make pension contributions on behalf of a service member who does not
already meet the eligibility requirements at the time he begins military leave. Second, even
assuming USERRA requires contributions for those who would later meet eligibility
requirements, section 4318(b)(3) provides that the employer’s liability is calculated “at the rate the
employee would have received but for the period of [military service],” unless the date is not
“reasonably certain,” in which case the employer’s liability is calculated based on the employees
“average” rate of compensation during the 12-month period immediately preceding the military
leave. Because it was undisputed that plaintiff worked part-time during the 12-month period
preceding his military leave, he would not have been eligible for employer contributions. Further,
the plaintiff had presented no evidence from which the court could infer plaintiff would have
become a full-time employee “but for” his military leave. Inferences from events occurring years
later (namely, his acceptance of full-time employment in 1985) was insufficient.
Section 4318(b)(1) also provides that service in the uniformed service that is deemed to be
service with the employer, is so deemed “under the terms of the plan or any applicable collective
bargaining agreement.” In Kelly v. W.G. Tomko, Inc., 2007 WL 906430 (M.D. Pa. March 22,
2007), the district court denied the employer’s motion to dismiss a lawsuit filed by the service
member’s pension plan to recover pension payments. Because the collective bargaining
agreement defined the defendant as the employer, “the Defendant’s argument that the Union [was
the service member’s] actual employer flies in the face of the CBA and [was] clearly not
availing.”
Retaliation
USERRA’s retaliation protection extends not only to service members who assert their
rights under the Act, but also to any person, regardless of whether he or she performed service,
who assists in enforcing USERRA’s provisions. See 38 U.S.C. § 4311(b)(4). In Cook v. CTC
Communications Corp., 2007 WL 3284337 (D.N.H. Oct. 30, 2007), the plaintiff, a human
resources manager, alleged she had been retaliated against for notifying her supervisor that an
employee’s termination would violate USERRA, and refusing to manufacture pretextual reasons
to terminate the employee. On the employer’s motion for summary judgment, first, the court
recognized that plaintiff’s lack of military status did not affect her protection from retaliation
under USERRA. Next, the court addressed whether the plaintiff had engaged in “protected”
activity, or was merely carrying out her job responsibilities as a human resources manager.
Because there were factual disputes as to whether the plaintiff “stepped outside her role as a
human resources manager by refusing to follow her [supervisor’s] direction and advocating on
behalf of the employee against CTC,” the court denied summary judgment for the employer. The
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court also found that plaintiff’s “motivating factor” evidence, consisting primarily of the temporal
proximity between plaintiff’s termination and her complaint, while “weak at best,” was sufficient
to survive summary judgment.
To state a retaliation claim under USERRA, the plaintiff must allege that he or she
suffered an adverse employment action as a result of engaging in protected activity. The Ninth
Circuit held that “protected activity” for purposes of USERRA’s retaliation provision can include
exercising the right to reemployment, even where the plaintiff made no formal application for
reemployment. In Wallace v. City of San Diego, 479 F.3d 616 (9th Cir. 2006), the plaintiff had
returned to work following numerous military leaves without completing a formal application for
reemployment. The Ninth Circuit held that the plaintiff could rely on adverse employment actions
that pre-dated his first formal application for reemployment to support his retaliation claim.
Exercising the right to reemployment requires only (i) properly notifying the employer of the need
for a service-related absence; (ii) taking a cumulative leave of no more than five years; and (iii)
reporting to work or reapplying for employment, depending upon the length of absence.
Accordingly, his early military leaves constituted protected activity.
Also in Wallace, the Ninth Circuit reversed the trial court’s JNOV verdict for the
defendant on the plaintiff’s claim that he was constructively discharged in retaliation for his
protected activity. At trial, the plaintiff presented the following evidence in support of his claim:
(i) he was not considered for promotions to sergeant; (ii) he was excessively and disparately
disciplined in response to minor misconduct; (iii) his request to teach at the police academy was
refused without justification or explanation despite having taught there for years; (iv) he was
disciplined for absences from work necessitated by his military obligations; (v) his request to take
military leave was refused despite providing reasonable notice under the circumstances; (vi)
termination proceedings were initiated against him, which were resolved with a four-day
suspension because he had not received “approval” to take military leave; and (vii) he was issued
“unacceptable” performance ratings and placed on probation by a former supervisor despite his
transfer to a new division and supervisor. The district court set aside the jury’s award of $256,800
in damages and granted the police department’s motion for judgment as a matter of law based
primarily on the fact that plaintiff’s working conditions had improved following his transfer to a
new division such that he could not establish a constructive discharge. On appeal, the Ninth
Circuit reversed, holding that under the “totality of the circumstances,” the evidence permitted a
reasonable jury to conclude that plaintiff’s employment conditions had not sufficiently changed to
preclude a constructive discharge claim.
As with other employment laws, under USERRA there must be a nexus between the
decision to take adverse action against the service member and his or her protected activity. In
Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299 (4th Cir. 2006), the Fourth Circuit upheld
summary judgment for the employer despite the close proximity in time between plaintiff’s
USERRA complaint and her discharge. The actions that led to plaintiff’s probation and
termination occurred before her protected activity. This undisputed fact belied the conclusion that
the employer was motivated by the plaintiff’s USERRA complaint.
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However, in Patton v. Target Corp., 2007 WL 894560 (D. Or. March 21, 2007), the
temporal sequence of events was alone sufficient to create a genuine dispute over whether the
plaintiff was terminated for taking steps to protect his rights under USERRA. On July 9, the
plaintiff had sent a company-wide e-mail regarding his demotion, which the employer claimed
was inaccurate, disruptive, displayed poor judgment, and was the true reason for his termination.
The following day, July 10, the plaintiff contacted ESGR about his demotion. The next day, July
11, the DOL contacted the employer about the plaintiff’s claim. The plaintiff testified that the
employer was “uncooperative or rude,” and that plaintiff’s direct supervisor complained he should
not have brought “third party representation” into the matter. Then, on July 14, plaintiff’s e-mail
account was disabled and his employment terminated.
Finally, to survive summary judgment with respect to a USERRA retaliation claim, the
plaintiff must suffer a materially adverse action, rather than mere inconvenience or alteration of
job responsibilities. For example, in Crews v. City of Mt. Vernon, 2008 WL 2224898 (S.D. Ill.
May 27, 2008), the district court granted the defendant’s motion for summary judgment on
plaintiff’s USERRA retaliation claim, where plaintiff had alleged that he was denied a training
class, defendants had made unwarranted negative comments about him, and he received a low
mark on one quarterly evaluation in the area of “attitude.” In rejecting the plaintiff’s retaliation
claim, the court noted that, “while the definition of adverse action is not limited to a loss of salary
or benefits, it is not so broad as to include everything that makes an employee unhappy . . . In
other words the adverse action must materially alter the terms and conditions of employment.”
(citations and internal quotations omitted)(emphasis in original).
Arbitration Agreements
Although there is a split in authority regarding whether agreements to arbitrate USERRA
claims are enforceable, the majority of courts to address the issue have found that they are.
In Garrett v. Circuit City Stores, Inc., 449 F.3d 672 (5th Cir. 2006), the plaintiff signed an
individual agreement to arbitrate claims arising from the cessation of his employment with Circuit
City. Following plaintiff’s termination, he filed suit, claiming that his discharge violated
USERRA. The district court denied the employer’s motion to compel arbitration because
USERRA Section 4302 states that USERRA supercedes any contract or agreement that reduces or
limits any “right or benefit” provided by USERRA, such as the right to pursue claims in federal
court. The Fifth Circuit reversed, however, finding that Section 4302 refers only to substantive
rights and not procedural rights, such as the desire for a judicial forum. The Fifth Circuit’s
approach was followed in Ernest v. Lockheed Martin Corp., 2008 WL 2958964 (D. Colo. July 29,
2008), Kitts v. Menards, Inc., 519 F. Supp. 2d 837 (N.D. Ind. 2007), Landis v. Pinnacle Eye Care,
LLC, 2007 WL 2668519 (W.D. Ky. Sept. 6, 2007), and Klein v. City of Lansing, 2007 WL
1521187 (W.D. Mich. May 21, 2007). Also, in Baudoin v. Mid-Louisiana Anesthesia
Consultants, Inc., 2007 WL 2175913 (W.D. La. July 30, 2007), the district court found plaintiff’s
USERRA claim was subject to an agreement to arbitrate.
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The opposite conclusion was reached in Lopez v. Dillard’s, Inc., 382 F. Supp. 2d 1245 (D.
Kan. 2005), where the district court held that agreements to arbitrate are preempted by USERRA
Section 4302(b). Similarly, the district court in Breletic v. CACI, Inc.- Federal, 413 F. Supp. 2d
1329 (N.D. Ga. 2006), refused to dismiss a USERRA lawsuit for failure to arbitrate based
primarily on USERRA's legislative history. In that case, as a condition of hiring, plaintiff was
required to sign an employment agreement containing a mandatory arbitration provision. The
provision covered claims “arising out of or relating to [his] employment or the termination of such
employment,” with no specific mention of USERRA. Following a call to active duty, the plaintiff
sought reemployment and was told his job had been abolished. The plaintiff filed a USERRA
complaint, after which the employer offered him a new position and presented him with a new
employment contract. His new employment contract also contained a mandatory arbitration
clause, but was subject to any and all rights the plaintiff may have under USERRA. The plaintiff
filed suit without seeking to arbitrate his USERRA claim, and the employer moved to dismiss the
complaint for failure to arbitrate. The court denied the motion, finding that although the text of
USERRA is ambiguous, the legislative history specifically states that any waiver of rights must be
clear, convincing and specific, and may apply only to known rights, not future claims. Thus, the
court concluded, the waiver signed by the plaintiff seeking to waive future claims was invalid.
Alternatively, the court found the waiver was not clear, convincing, and specific since the plaintiff
had obtained a letter from his employer stating that his employment agreement was subject to any
and all rights he may have under USERRA.
Timeliness
USERRA does not contain a statute of limitations and expressly precludes application of
any state statute of limitations. See 38 U.S.C. § 4323(i). Several courts have applied the federal
four-year limitations period to USERRA claims. In Nino v. Haynes Intern., Inc., 2005 WL
4889258 (S.D. Ind. Aug. 19, 2005), the plaintiff filed his USERRA action six years after his
termination. The employer moved to dismiss, claiming that the four-year statute of limitations
found at 28 U.S.C. § 1658(a) applied. The court agreed, holding that, because USERRA
guarantees rights and liabilities that are not in its predecessor statute (the VRRA), USERRA is an
“Act of Congress” within the meaning of Section 1658(a) and, therefore, its four-year limitations
period applies. See also Wagner v. Novartis Pharmaceuticals Corp., --- F. Supp.2d --- , 2008 WL
2713712 (E.D. Tenn. July 10, 2008) (same); 20 CFR 1002.311 (recognizing that USERRA does
not contain a statute of limitations, and expressly precludes application of any state statute of
limitations; but, noting that at least one court has applied the federal four-year limitations period).
Right to a Jury Trial
In Duartre v. Agilent Technologies, Inc., 366 F. Supp. 2d 1036 (D. Colo. 2005), the
plaintiff, who made a claim for liquidated damages, was entitled to a jury trial even though
USERRA does not expressly provide for such a right. Several courts previously had held that
there was no right to a jury trial under USERRA’s predecessor statute, the VRRA. However,
unlike the VRRA, USERRA allows a plaintiff to recover liquidated damages. Because liquidated
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damages are considered “suits at common law,” the Seventh Amendment’s right to a jury trial
attaches. The right also attaches because an award of liquidated damages is considered punitive in
nature and, therefore, is a “remedy at law.”
Injunctive Relief
No special rules apply to obtaining a preliminary injunction under USERRA. In
Bedrossian v. Northwestern Memorial Hosp., 409 F.3d 840 (7th Cir. 2005), the plaintiff, a
physician, sought a preliminary injunction under USERRA enjoining his hospital-employer from
failing to renew his employment contract at the end of his appointment. The physician argued that
under USERRA he need not show “irreparable harm,” which is typically required to warrant
injunctive relief. Alternatively, he argued that he had satisfied the standard by showing loss of
income and damage to his reputation. The district court rejected the plaintiff’s arguments, and the
Seventh Circuit affirmed. The Seventh Circuit held that, as with other employment statutes such
as Title VII and the ADA, the normal rules of equity apply, including the required showing of
irreparable harm before granting a preliminary injunction. To warrant an injunction in the context
of employment discharge cases, the type of irreparable injury must depart from the harms typically
associates with most discharge cases. Because the plaintiff had alleged only harms that are
common in all employment cases, he failed to show the necessary irreparable harm required to
warrant a preliminary injunction.
Class Certification
In Sandoval v. City of Chicago, 2007 WL 3087136 (N.D. Ill., Oct. 18, 2007), the district
court denied without prejudice a motion for class certification filed by two named plaintiff police
officer seeking to certify a class consisting of “All persons who are or have been employed by the
City of Chicago who, while they were employed by the City, were called to active duty in the
United States military and who, upon return from active duty, were denied reemployment,
retention in employment, promotion, or any employment [from] January 1, 1997 to the present.”
First, the court found that the plaintiffs had failed to propose an adequate class definition
because the definition was overbroad and would encompass an untold number of class members
who lacked standing to maintain an action on their own behalf because they were not subject to
discrimination under USERRA. Second, the named plaintiffs presented no evidence to tie the
City’s alleged wrongdoing with respect to them, to the expansive class they sought to certify.
Third, for similar reasons, the court found that plaintiffs failed to satisfy the requirements of Rule
23(a): (i) the plaintiffs failed to provide a reasonable estimate of putative class members within
their class definition, only offering instead the number of City employees in the military; (ii)
plaintiffs offered no statistics or other evidence to support a “pattern or practice” of across the
board discrimination, relying instead on their own anecdotal allegations of promotion
discrimination, which were inherently individualized and unsuitable for class treatment; (iii)
plaintiffs failed to satisfy typicality since they alleged only promotion discrimination, yet the class
encompassed reemployment, retention, and other benefits, and plaintiffs offered no evidence
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beyond mere speculation that other class members had claims similar to them; and (iv) absent an
adequate class definition, the court could not determine whether there were disqualifying conflicts
of interest between the named plaintiffs and putative class members.
Damages
USERRA does not provide for punitive damages or emotional distress damages. See, e.g.,
Sutherland v. SOSi Intern., Ltd., 2007 WL 2332412 (E.D. Va. Aug. 10, 2007) (granting
defendant’s motion dismiss plaintiff’s claim for emotional pain and distress damages). Rather,
the damage remedies under USERRA are limited to compensation for lost wages or benefits
suffered by reason of the employer’s violation. See 38 U.S.C. § 4323(d)(1)(B). The court also
may require the employer to pay an equal amount in liquidated damages if the court determines
that the employer’s violation was “wilful.” Id. § 4323(d)(1)(c). In addition to these monetary
remedies, the statute provides the courts with “full equity powers . . . to vindicate fully the rights
and benefits” guaranteed by USERRA.
In Carpenter v. Tyler Indep. School Dist., 429 F. Supp. 2d 848 (E.D. Tex. 2006)
(magistrate judge), the court invoked its equitable powers to award the plaintiff front pay in lieu of
reinstatement. The jury had found the employer discriminated against the plaintiff school teacher
by not renewing his employment contract. Nonetheless, the jury awarded the plaintiff no back pay
damages. Plaintiff filed a motion for judgment as a matter of law, asking the court to disregard
the jury’s verdict with respect to damages and award him $76,948.48 in back wages. The court
refused to overturn the jury’s back pay finding, inferring from the record that the jury believed the
plaintiff failed to mitigate his damages. However, the court invoked its equitable powers to make
the plaintiff whole and awarded one year’s front pay in lieu of reinstatement, which was
appropriate in light of the acrimony between the parties.
Liquidated damages are rarely awarded. In Duarte v. Agilent Technologies, Inc., 366 F.
Supp. 2d 1039 (D. Colo. 2005), following a bench trial, the court found USERRA had been
violated but declined to award liquidated damages. The court held that the employer’s knowledge
that USERRA might apply was insufficient to establish willfulness. In Koehler v. PepsiAmericas,
2006 WL 2035650 (S.D. Ohio July 18, 2006), on the other hand, the court awarded liquidated
damages. In that case, the employer deducted from the reservist’s bank account previously
deposited funds to reflect the difference between his military pay and salary. The bank account
deduction violated the employer’s policy to pay a salary differential to employees on military
leave. The district court awarded the plaintiff liquidated damages, finding that the employer had
“improperly and willfully” withheld a benefit of employment. On appeal, the Sixth Circuit
affirmed, holding that there was sufficient evidence to support the district court’s finding that
Pepsi knew or showed reckless disregard for whether its denial of the pay differential to the
plaintiff was prohibited by USERRA. See Koehler v. PepsiAmericas, Inc., 2008 WL 628925 (6th
Cir., March 6, 2008). Accordingly, the liquidated damages award was appropriate.
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Retroactivity
USERRA is not retroactive. In Bowlds v. General Motors Manufacturing, 411 F.3d 808
(7th Cir. 2005), the plaintiff argued that his employer violated USERRA by failing to reemploy
him between 1983 and 1989 while he was on disability retirement. However, the President did
not sign USERRA into law until October 13, 1994, and the statute provides that it applies only to
reemployment initiated after the 60-day period beginning on that date. Accordingly, the Seventh
Circuit joined the Federal and Eighth Circuit in holding that USERRA does not apply
retroactively.
Pleading Affirmative Defenses
As with other statutes, affirmative defenses under USERRA are subject to the notice
pleading standard set forth in Fed. R. Civ. P. 8, and should be stricken if they are bare or
conclusory without any short plain statement of facts in support. Thus, in Crews v. Mt. Vernon,
2007 WL 1521498 (S.D. Ill. May 22, 2007), the district court granted plaintiff’s motion to strike
the following affirmative defenses:
“The prayer seeks relief not permitted by USERRA”
“The prayer seeks relief not permitted by the United States Constitution”
“Plaintiff has failed to mitigate damages”
In addition, the Court struck the statement “All actions taken by Defendants . . . were
based on legitimate and non-discriminatory reasons having nothing to do with plaintiff’s military
service,” because the statement constitutes a denial of the allegations, not an affirmative defense.
Attorney’s Fees and Costs
Section 4323(h)(1) provides: “No fees or court costs may be charged or taxed against any
person claiming rights under this chapter.” Thus, in Crews v. Mt. Vernon, 2007 WL 1521495
(S.D. Ill. May 22, 2007), the court granted the plaintiff’s motion to strike the defendant’s fee
demand. The Seventh Circuit also interpreted Section 4323(h)(1) as permitting USERRA litigants
to initiate suit without prepaying court filing fees. See Davis v. Advocate Health Center Patient
Care Exp., 523 F.3d 681 (7th Cir. 2008). Finally, in Staub v. Proctor Hospital, 2008 WL
2001935 (C.D. Ill May 7, 2008), the district court awarded reasonable attorney’s fees in the
amount of $128,766 following a $57,640.00 jury verdict in plaintiff’s favor. See also Hance v.
Norfolk Southern Ry. Co., 2007 WL 3046355 (E.D. Tenn. Oct. 16, 2007) (affirming magistrate
judge report and recommendation awarding plaintiff $145,887.50 in attorney’s fees and $5001.57
in costs).
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