Diversity Insight

USERRA Claim by Veteran Who Applied for New Job After Deployment

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), the federal law that establishes the rights and responsibilities of uniformed servicemembers and their civilian employers, generally guarantees an employee returning from military service or training the right to be reemployed in his former job with the same benefits. In a recent decision handed down by the 8th Circuit, the right to reemployment was given new life and potentially taken a step further.

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In Scudder v. Dolgencorp, LLC, Samuel Scudder, an Afghanistan War veteran, wanted to return to his civilian job after he completed his military service and a year-long medical transition out of the military. Scudder had informed his employer of his medical condition, and the employer had granted him leave. However, he failed to hear from the employer about the status of his job as his leave was winding down. The lack of communication led the employer to consider Scudder’s employment terminated. He subsequently applied for another job with the same title at a different store but wasn’t hired.

In 2016, Scudder sued his former employer in federal court in Arkansas, accusing it of violating USERRA by refusing to reinstate him after he returned from military leave. He argued that he never intended to resign when his leave ended. The employer persuaded the lower court to grant summary judgment (i.e., dismiss the case without a trial), arguing that Scudder’s application for a job at another store wasn’t a “demand for reemployment” as required under USERRA because he wasn’t seeking to be reinstated to his old job. The district court judge agreed and found that by resigning, Scudder had waived his USERRA rights.

Scudder appealed, and on August 17, 2018, the 8th Circuit issued its opinion. The court of appeals disagreed with the lower court, noting that USERRA requires only that a military veteran apply for “a position of employment” with his former employer and notify the employer of his return from leave. The court found that Scudder had met that threshold when he noted on his application for another position that he had prior experience with the employer and he left his previous job for a military deployment.

Furthermore, the court found that there was a genuine issue of fact regarding whether Scudder had actually resigned during his communications with the employer’s leave administrator. As a result, it was improper for the trial court to grant the employer’s motion for summary judgment. The three-judge panel of the 8th Circuit unanimously agreed to reverse the grant of summary judgment and send the case back to the lower court for further proceedings.

The appellate court’s decision clarifies that servicemembers who apply for a new job with their former employer upon returning from a deployment are still protected by USERRA. The court explained, “Both parties agree Scudder did not have to apply to the same position in which he was previously employed, but need only apply to ‘a position of employment’ with [the employer].” Stay tuned for the final outcome in this case and its potential impact for employers.

Sara Nasseri is an associate with Fortney & Scott, LLC in Washington, D.C. and contributor to Federal Employment Law Insider. She may be contacted at snasseri@fortneyscott.com.