USERRA Burden of Proof Print

          On January 4, 2007, the First Circuit Court of Appeals addressed the burden of proof under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).  In Carlos Velazquez-Garcia v. Horizon Lines of Puerto Rico, Inc., No. 06-1082, the employee alleged that he was fired from his job due to his military service in violation of USERRA.  The Court of Appeals reversed the decision of the district court judge, concluding that the court had incorrectly applied USERRA’s burden shifting analysis.  Unlike the burden shifting analysis in most employment law cases (the so-called McDonnell-Douglas framework), where the ultimate burden of proof rests with the employee to show that the employer’s stated reason for termination was pretext, under USERRA, the employee DOES NOT have to prove that the employer’s stated reason is a pretext.  Once the employee establishes a prima facie case of discrimination (i.e. his or her protected military status was a substantial or motivating factor in the adverse employment action), the ultimate burden of proof then shifts to the employer to prove by a preponderance of evidence that the adverse employment action would have been taken despite the protected status.  This is a significant divergence from most employment law claims, and makes USERRA more likely to get to a jury with the ultimate burden of persuasion placed squarely on the employer.

          The employee was in the military reserves, and the employer paid his full salary during periods of military service (one was a 6 month period for basic training) and then deducted amounts constituting his military salary per USERRA regulations.  At some point in time, the employer stopped its practice of paying wages in cash and began issuing checks.  The employee saw a business opportunity and began offering a side business cashing the checks of Horizon employees for a fee.  These services were performed primarily outside the gate and in the employer’s parking lot.
          In September 2004, Horizon finished recouping the amounts owed by the employee based on his military pay.  On September 21, 2004 (seven months after he began his side business), the Operations Manager observed the employee cashing checks, reported this to other managers, and 4 days later the employee was terminated.  Although the termination letter did not state a reason, the employee was told that the check-cashing side business was in violation of the employer’s Code of Business Conduct, which addressed in part using your position for private gain and conflict of interest issues.

          The employee filed suit, alleging that no one had warned him regarding his side business, he had not received copy of “Code”, the Operations Manager who ostensibly observed the check cashing had made the employee’s life difficult because of scheduling issues involving his military service, and there had been anti-military remarks made to the employee by coworkers.
          The District Court Judge found that the employee failed to produce sufficient evidence for a reasonable jury to believe the employee’s military service was at least “a motivating factor” in the decision to fire him.  The Judge discounted the anti-military remarks because the employee didn’t report them to the employer.  The “timing” of his termination was discounted because he had returned from several other training sessions without being fired.  Lastly, the Judge noted that no other employees in the military had been demoted or fired.
          Regarding the “stray” anti-military remarks, the First Circuit noted that at least one of the sources was a manager responsible for “scheduling” and, in connection with other evidence (i.e. the Operations Manager having scheduling concerns), a jury should decide the import of these anti-military remarks.  The First Circuit noted that the employee’s failure to report these remarks can’t be used as an affirmative defense because the employee was terminated (citing Faragher v. City of Boca Raton, 524 U.S. 775, 808 (1998)) although the jury could assess the employee’s credibility regarding his failure to report.  Finally the Court noted that for “timing” purposes, it was not the “timing” of the return from service but the “timing” of the recoupment of the salary in relation to the termination that a jury should decide.  The Court also pointed out that most of the other military personnel at the employer were not shift employees and their positions did not create as much scheduling conflict.

          It seems apparent that “scheduling” was the major focus of this case, and employers should be aware that military personnel must be accommodated regarding their schedules regardless of whether the military service is “ordered” or the employee volunteers for active duty which can include training exercises that requires time off from work.  While this can be frustrating, USERRA’s overriding goal is to protect men and women in military service. In order to reduce scheduling issues, an employer should request a copy of the employee’s “drill” schedule and set up a work schedule that accommodates the reservist’s or Guard Member’s drill date schedule. When legitimate scheduling issues do arise regarding voluntary commitments, it is appropriate to responsibly discuss with the employee scheduling issues to explore other appropriate arrangements, but employers must understand that military service scheduling (voluntary or otherwise) must take precedence and as this case demonstrates, military employees are provided significant protections under USERRA.  In those rare instances where an employee’s volunteer time away from work for military exercises is generated by ulterior motives or are extremely disruptive to the operations of the employer, communication to the employee’s commanding officer may help resolve issues. 

Feel free to contact any of the TMF attorneys to discuss this or any other legal matter.

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