The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is the latest in a series of laws that have protected servicemembers’ reemployment rights and from discrimination based upon their uniformed service. USERRA is specifically designed to encourage “noncareer” service in the uniformed services, to minimize disruptions in the lives of servicemembers and their employers, and to prohibit discrimination based upon uniformed service. 38 U.S.C. 4301.
With the many deployments of reserve component servicemembers since 9/11, the limits of a servicemembers’ rights under USERRA have been tested extensively as employers often resist employing or reemploying servicemembers because of the disruptions to their operations.
Murphy v. Radnor Twshp, ____ F.3d ____ (5th Cir. Oct. 23, 2013) is the most recent consideration of Section 4311’s prohibition against discrimination, and the employer’s burden to succeed on a summary judgment motion once the employee demonstrates that his/her uniformed service was “a motivating factor” in the adverse employment action.
Plaintiff Major John Murphy joined the Air Force in 1997 and served on active duty until 2002, at which time he transitioned to the Air Force active reserves where he currently serves. He applied to the position of Township Manager for Radnor in June, 2009, and an interview was conducted on July 22, 2009 before four members of the township board. During the 45 minute interview, ten minutes was devoted to questions regarding his military obligations, including how many days he was absent during his previous employment due to his military duties and how Radnor would be affected by any future military obligations and how many days he would be absent due to his future obligations. Thereafter, Maj. Murphy was informed that he would not be considered for the second round of interviews, allegedly being told that the Board had “serious reservations about [his] ongoing military obligation.”
Radnor later argued that it would have made the decision not to hire Maj. Murphy regardless of his uniformed service, since (1) the other candidates were more qualified than Murphy; (2) Murphy had exaggerated the extent of his prior municipal experience; (3) Murphy’s application was riddled with typos and errors; and (4) a call from Murphy’s brother to a Radnor commissioner was inappropriate and led the commissioners to question Murphy’s character.
Maj. Murphy commenced a lawsuit alleging that Radnor violated Section 4311 of USERRA. The District Court granted summary judgment in favor of Radnor, concluding that Radnor merely had “to show that no reasonable jury could find its reasons for not hiring Murphy was invalid.” Murphy then appealed to the Fifth Circuit Court of Appeals.
The Court reversed, holding that under a claim for discrimination under Section 4311, “USERRA requires [a Defendant] show a legitimate reason for not hiring [the Servicemember] that is ‘so compelling’ and ‘so meagerly contested’ that there is no genuine dispute that [the Servicemember] would not have been hired regardless of his future military obligations.” The Court concluded there were factual issues that precluded summary judgment in favor of the Defendant.
Under USERRA there are generally two causes of action: First, under Section 4312, an employer will be held liable for its failure to reemploy the servicemember after his/her uniformed service, or to reemploy the servicemember at the “escalator” position, with the same status, pay and benefits as though the servicemember was continuously employed during the uniformed service.Second, an employer is prohibited from discriminating against an individual based upon his/her past, current or future uniformed service, and the related cause of action for “retaliation” under Section 4311.
A Section 4311 discrimination claim is typically much more difficult to prove than a Section 4312 claim since a claimant must present proof of the employer’s motives, whereas under a Section 4312 reemployment claim, a claimant merely has to show his/her eligibility for reemployment.
“A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.” 38 U.S.C. § 4311(a).
Courts have struggled with the procedural requirements and standard of proof for a claimant to proceed to trial on his/her discrimination claims. The statute and regulations require that a claimant must bring forward proof that the uniformed service was a motivating factor, but not the sole factor, in the adverse employment decision. 38 U.S.C. 4311(c). Once the employee has met this initial burden, the burden then shifts to the employer to prove that it would have made the decision regardless of the employee’s uniformed service. But what quantum of evidence need an employer present that it would have made the adverse employment decision regardless of the uniformed service in order to prevail on a summary judgment motion?
There was sufficient evidence that Murphy’s uniformed service was “a substantial or motivating factor” in Radnor’s decision not to select Murphy for the second round of interviews. Discriminatory animus is often proven by circumstantial evidence, and may be inferred from a variety of factors, “including proximity in time between the employee’s military activity and the adverse employment action, inconsistencies between the proffered reason and other actions of the employer, an employer’s expressed hostility towards members protected by the statute together with knowledge of the employee’s military activity, and disparate treatment of certain employees compared to other employees with similar work records or offenses.”
Having met his initial burden of proof, the burden then shits to the defendant to prove that it would have taken the adverse action for non-discriminatory reasons, regardless of the employee’s military service. The Court, relying upon Madden v. Rolls Royce Corp., 563 F.3d 636 (7th Cir. 2009), concluded that “All that is meant [by this standard] is that if the [employer] had two reasons for taking an adverse action against the [employee], one of them forbidden by the statute and the other not, and the [employer] can show that even if the forbidden one had been absent the adverse action would still have been taken, the [employee] loses.” Id. at 638.
The Court carefully analyzed Radnor’s first proffered reason why Murphy would not have been hired–that other candidates were clearly more qualified. It found that “Radnor has thus failed to meet its burden of producing evidence so compelling that no reasonable jury could possibly determine that based on his qualifications, and irrespective of his future military obligations, Murphy would not have been hired for the job.”
In litigation, case strategy is driven by the parties’ calculations regarding whether the claims will be allowed to proceed to trial. If an employer believes it will prevail at summary judgment merely by presenting reasons why it would have made the same decision regardless of the employee’s uniformed service, it will be encouraged to incur the litigation expense to have the court decide the issue rather than earnestly engaging in settlement discussions. However, the heightened burden adopted by the Court in Murphy v. Radnor, once the employee meets his/her burden of establishing uniformed service was a motivating factor, will likely encourage employers to settle such claims once the servicemember demonstrates that his/her uniformed service was a motivating factor.
Although the Court did not specifically address whether this standard is applicable to claims for “retaliation” under Section 4311(b), it stands to reason that it would equally apply in those situations as well. Thus, once a claimant has met his/her burden of proof that the adverse employment action was at least in part motivated by retaliation for making or assisting in a USERRA complaint against the employer, the employer will have to convince the trier of fact at trial that it would have made the decision regardless of USERRA complaint.