by Barbara J. Koenig, Foster, Rieder & Jackson, P.C.
As you know, the Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal statute that protects the employment rights and benefits of uniformed servicemembers who have returned from military deployment. USERRA not only requires employers to rehire returning employees who were absent from their regular employment because of a deployment but also prohibits employers from terminating former servicemembers for a certain period of time following their deployment, except for cause.
Thus, when an employee is deployed for a period in excess of 180 days, he cannot be terminated for 1 year following his return to work unless the termination is for cause. Let’s look at a recent case involving this issue.
“Steven”, a former Marine, joined the Oklahoma National Guard while he was working for QuikTrip Corporation. Steven served a yearlong National Guard deployment in Iraq in 2007 and a second 9-month National Guard deployment in Afghanistan in 2011. Upon his return from Afghanistan in June 2012, he resumed his work at QuikTrip. He was fired 2 months later for violating the company’s written “no call/no show” policy three times in one month.
QuikTrip’s policy states that an employee who arrives more than 2 hours late for his scheduled shift without notifying his supervisor about the tardiness is subject to discipline, up to and including termination. The first violation is usually documented by a written warning. The second violation is normally treated as cause for termination.
Steven brought a lawsuit in federal court claiming that QuikTrip had violated USERRA by prematurely and discriminatorily terminating his employment. He claimed he was protected from termination for 1 year because he had served a 9-month deployment as a member of the armed services.
Furthermore, he argued that he had violated the no call/no show policy only once at most because his tardiness and absences had been excused by his supervisor and the personnel manager the other two times. Therefore, he contended, his termination wasn’t for cause.
The employer presented evidence that Steven had violated the no call/no show policy on three occasions and its policy was to terminate employees for cause under those circumstances. The trial court found that the facts established Steven had violated the policy three times. As a result, it dismissed the case without a trial, granting judgment to the employer. Steven appealed to the U.S. Court of Appeals for the 10th Circuit (which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming).
10th Circuit says employee entitled to a trial
When an employer is granted summary judgment, it means the court has determined that the facts aren’t in dispute and the employer hasn’t violated the law, so a trial is deemed unnecessary. The 10th Circuit examined the facts QuikTrip presented to the trial court and decided there were genuine disputes over the facts and circumstances of Steven’s absences and tardiness that precluded dismissal without a trial.
Steven had testified that his supervisor told him the first violation wouldn’t result in a written warning because of his recent military service. After the second violation, the personnel manager told Steven that in the future he “would be okay” if he called to report his absence before the beginning of his shift the following day. That testimony persuaded the court of appeals that a jury should make the determination about whether the case was triable after hearing the testimony of the witnesses.
A reasonable jury might find that Steven relied on the personnel manager’s statement that he didn’t have to call in his absence until much later in the day, or it could disbelieve Steven and accept the testimony of the personnel manager, who denied ever making that statement.
A jury’s role is to find the facts. When the facts are in dispute, as they were in this case, the jury’s fact-finding role cannot be taken away. The appeals court sent the case back to the trial court so that a jury can hear the disputed evidence and determine whether Steven had reason to believe that he didn’t have to follow the no call/no show policy or whether he was terminated for cause.
No evidence to support discriminatory termination claim
USERRA also prohibits employers from terminating servicemembers based on their membership in or obligations to the armed services. Steven claimed that one of the motivating factors in his termination was his supervisor’s antimilitary animus, and he cited that bias as a second ground for his lawsuit.
The supervisor, also a former Marine, allegedly asked Steven upon his return from Afghanistan if he had “got all of his killing done” and said he should reenlist if he liked military service so much. The 10th Circuit ruled that those two comments, while perhaps insensitive, didn’t establish an antimilitary motivation for his termination, especially since they came from a former Marine. According to the court, there was no connection between the comments and Steven’s termination.
Because Steven presented no evidence to support a discriminatory termination claim under USERRA, that claim was correctly dismissed by the trial court. Starr v. QuikTrip Corporation, No. 15-5079, 10th Circuit (July 13, 2016) (unpublished opinion).
USERRA provides a panoply of protections for returning servicemembers, ranging from the type of position a returning employee must be offered to a favorable calculation of benefits. If your company reemploys a returning servicemember, ensure that someone in HR carefully reviews USERRA to make sure you comply with its provisions during the reemployment process.
Because of the complexity of the issues involved, consult with a qualified employment lawyer so you’re prepared to raise any issues involving cause if you decide to deny reinstatement or terminate an employee who is within the protected period following his return from service.