HR Management & Compliance

Was Reservist Discriminated Against Due to the Possibility of Deployment?

Shortly after a military reservist informed his supervisor about a possible and impending deployment, he was punished and fired. He claims it was discrimination.


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Despite satisfactory performance ratings in his first 3 years with the employer, after the notification, he received an unsatisfactory performance rating and disciplinary letters
at work and was denied an opportunity to participate in a training program. Eventually, his employment was terminated.

What Happened

From 2006 to 2010, “Louis” served as a major in the U.S. Army reserves and worked as an assistant principal for supervision of mathematics at New Utrecht High School (NUHS) in Brooklyn, New York.
Louis received orders in the fall of 2009, notifying him of a possible 1-year deployment to Afghanistan. When he showed the deployment letter to his supervisor on October 30, she threw it on her desk and said, “[Y]ou’re going to leave a broken department behind” and “[H]ow can you do that to me? I am stuck with cleaning up … the mess.”
While Louis attended a predeployment planning session the following week, the supervisor filed a disciplinary letter regarding his inadvertent absence from a meeting that had taken place 7 weeks earlier.
The supervisor did not give a rationale for the timing of the disciplinary letter, saying only that she was following New York City Department of Education (DOE) regulations requiring disciplinary letters to be filed within 90 days of an underlying incident.
In September, she had apparently told Louis and his union representative that she would not issue a disciplinary letter as long as he did not miss another meeting. That was the only meeting that he had missed.
After notice of the possible deployment was given, the supervisor’s interactions with Louis changed. For example, she was no longer friendly to him, and she stopped informal communications with him.
In meetings with NUHS assistant principals, the supervisor announced a break in school practice when she said military recruiters would only be allowed in the school on career day and gave indications that she did not want Louis to work at the school anymore. At one meeting, she said she was “cleaning house,” pointed to Louis, and said “Poof, be gone.”
Louis needed his supervisor’s endorsement for a training program that would qualify him to become a principal, but the supervisor did not sign the paperwork by the deadline, which meant that he was unable to participate in the training.
In the 8 months after notifying his supervisor of the planned deployment, Louis received an unsatisfactory performance rating and three disciplinary letters and was terminated from his assistant principal position at the end of the 2009–2010 school year on the basis of his supervisor’s recommendation.
Louis filed a wrongful termination suit under the Uniformed Services Employment and Reemployment Rights Act (USERRA). A district court ruled in favor of his employer. Louis appealed the decision to the U.S. Court of Appeals for the Second Circuit, which includes Connecticut, New York, and Vermont.

What the Court Said

The appeals court vacated the district court’s decision. Citing USERRA, the appeals court noted that employers are prohibited from denying “employment, reemployment, retention in employment, promotion, or any benefit of employment” on the basis of a person’s “membership” in or “obligation to perform service in a uniformed service.” USERRA also states that an employer is liable if it is shown that “the person’s membership … is a motivating factor in the employer’s action.”
The court said that Louis established a prima facie case of discrimination, agreeing with him that a rational jury could conclude that his supervisor’s frustration with his potential military deployment was a motivating factor in his termination.
The DOE and supervisor argued that Louis’s alleged performance problems at NUHS during the 2009–2010 school year were so significant that he would have been terminated anyway.
They said he forgot to attend a meeting in the supervisor’s office, failed—along with another school employee—to notice that the state had sent the wrong advanced placement exam booklets to the school, provided inadequate guidance to teachers, and missed school on May 14 when he was supposed to be involved in a professional development session.
On less than 24 hours’ notice, Louis was apparently asked by a one-star general to give a military briefing at Fort Dix in New Jersey on May 14. He followed school procedures for reporting his unexpected absence, and the professional development session had to be rescheduled.
Those alleged performance problems were not significant enough for a jury to conclude that he would have been terminated even if there had been no possibility that he would be deployed, the court said.
Dilfanian v. New York City Department of Education, et al. (No. 16-1428) (U.S. Court of Appeals, 2nd Cir., 6/13/17)
Supervisors and managers should be trained on employees’ rights under USERRA. It is important for supervisors to understand that they are prohibited from discriminating against employees on the basis of their membership—or duty to serve—in the military. That includes the need to refrain from disciplining, terminating, or denying benefits of employment to members of the Army Reserves or National Guard on the basis of their military service.