Employment Law Matters : Employment Lawyer & Attorney : Ogletree Deakins Law Firm : Labor Law, Human Resources

The U.S. Supreme Court has held, by unanimous opinion, that an employer may be held liable for employment discrimination under the Uniformed Services Employment and Reemployment Rights Act (USERRA) based on the “discriminatory animus” of an employee who influenced, but did not make, an ultimate employment decision. In interpreting the so-called "cat's paw" theory of liability, the Court declined to adopt the approach suggested by the employer: that a decision-maker's independent investigation and rejection of an employee's allegations of discriminatory animus should negate the effect of any prior discrimination in subsequent actions against that employee. Instead, the Court held that "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." Staub v. Proctor Hospital, No. 09-400, U.S. Supreme Court (March 1, 2011).

Vincent Staub was employed by Proctor Hospital as an angiography technologist, and is a veteran member of the U.S. Army Reserve. Staub's immediate supervisor (Mulally), allegedly was hostile to Staub’s military obligations, often scheduling Staub to work on the weekend rotation, which created conflicts with his military drill schedule. According to Staub, Mulally also scheduled him for extra shifts so he could “pay back” his co-workers for making everyone else having to “bend over backwards” to cover his Reserve absences. Staub reported the problem to his department head (Korenchuk), without success. In fact, Korenchuk also allegedly made similar comments about Staub’s reservist duties, characterizing them as a “waste of taxpayers money."

In January of 2004, Staub received a Corrective Action form from Mulally. In April, Korenchuk informed Proctor Hospital's vice president of human resources Linda Buck, that Staub had violated the January Corrective Action. Relying on Korenchuk's accusation, Buck fired Staub. Staub filed suit against the Hospital claiming that his discharge was motivated by hostility to his military status, in violation of the USERRA. Specifically, Staub argued that while Buck was not hostile to his military obligations, Mulally and Korenchuk (who were hostile) influenced Buck's ultimate employment decision. A jury found in Staub's favor. The Seventh Circuit Court of Appeals reversed, ruling that Buck was not wholly dependent on the advice of Korenchuk and Mulally and, therefore, that the decision was not based upon Staun’s military status.

The issue before the Supreme Court was under what circumstances an employer may be held liable if the company official who makes an adverse employment decision has no discriminatory animus, but is influenced by previous company action that is the product of discriminatory animus in someone else. In deciding this issue, the Supreme Court pointed out that under the USERRA, employers are prohibited from engaging in certain employment actions if an employee's membership in the uniformed services "is a motivating factor in the employer's action." Staub argued that although Buck was not motivated by discriminatory animus in firing him, Proctor Hospital should be responsible because Mulally and Korenchuk acted with discriminatory animus in placing an unfavorable entry on his personnel record. Proctor Hospital argued that an employer is not liable unless the de facto (or actual) decision-maker has a discriminatory animus.

The Court held that Mulally’s and Korencuck’s discriminatory intent was sufficient for liability against the Hospital under the USERRA. In rejecting Proctor Hospital's interpretation of USERRA as "implausible," the Court noted that the employer's view would lead to the “improbable consequence that if an employer isolates a personnel official from an employee's supervisors, vests the decision to take adverse employment actions in that official and asks that official to review the employee's personnel file before taking the adverse action, then the employer will be effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action."

Based upon that rationale, the Court concluded that the presence of an independent investigation does not shield an employer from liability where the investigation took into account a supervisor's biased report. According to the Court, in such circumstances, the employer is at fault “because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision." Because there was evidence that Mulally's and Korenchuk's actions were motivated by hostility toward Staub's military obligations, and because there was evidence that Mulally's and Korenchuk's actions were causal factors underlying Buck's decision to fire Staub, the U.S. Supreme Court reversed and remanded, asking the Seventh Circuit to determine whether a new trial was warranted.

Employers should recognize the importance of this case in the disciplinary/decision-making process. When supervisors act in ways that might suggest discriminatory motives, those actions create unnecessary risks of litigation and possible liability for employers. Of note is the fact that in this case, the decision-maker did not do an independent investigation but instead, relied upon information provided by individuals with ulterior motives. Additional investigation or review of the circumstances could have provided a layer of “good faith” between the ultimate decision-maker and the discriminatory animus of Staub’s supervisors. According to the Court, “if an employer's investigation results in an adverse action for reasons unrelated to the supervisor's original biased action . . . then the employer will not be liable."
 

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The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) was enacted to encourage non-career military service and to prevent discrimination against military service members. An employer may not discriminate against any person because such person has “taken an action to enforce a protection” afforded under USERRA. Generally, protection begins when an employee is called to active duty or military training, and provides orders for such duty or training. However, the 1^st U.S. Circuit Court of Appeals recently held that an employee’s announcement to his employer that he intended to return to active duty after remaining inactive for multiple years was sufficient to trigger protection under the USERRA. Vega-Colon v. Wyeth Pharmaceuticals, 1^st Cir., No. 09-1861, October 28, 2010.

Angel Vega-Colon, a member of the Army Reserves, became employed by Wyeth Pharmaceuticals as a Packaging Equipment Supervisor in 2002. From 2002 to February 2004, Vega was on active military status and took various leaves from Wyeth for military training. From 2004 to 2007, Vega was on inactive status with the Army Reserves, and took no leaves. However, in February 2006, he received an invitation to return to active duty as a captain, and informed his supervisor that he was going to return to active duty in the future, with a high probability that he would be mobilized. Shortly after that, in April 2006, Vega applied for a promotion to Reliability Engineer, but was not chosen for the position. 

In February 2007, Vega was returned to active military status and was promoted to captain. As a condition of that promotion, Vega was required to join an active military unit and participate in military exercises. Also in February 2007, Vega received his 2006 job performance evaluation from Wyeth in which his performance rating declined from “solid performer,” which it had been from 2003 through 2005, to “needs improvement.” Vega disagreed with this evaluation, and requested an investigation by the company. In April 2007, he filed a discrimination complaint with the US Department of Labor’s Veterans’ Employment and Training Services (VETS), based on Wyeth’s failure to hire him for the Reliability Engineer position. Vega ultimately withdrew that complaint.

On May 7, 2007, Vega met with Wyeth’s employee relations director and site director. Although the content of the discussion is disputed, Wyeth alleges that Vega made a threatening remark during the meeting which caused Wyeth to restrict Vega’s access to the facility. When Vega subsequently attempted to enter the plant to drop off military orders for a leave, he was told that he could not enter because the database listed him as terminated. However, Vega never stopped receiving his salary and benefits, and ultimately returned from that particular leave with his plant access restored. 

In July 2007, Vega was placed on a Performance Improvement Plan (PIP) which required him to meet certain objectives within 90 days. While he met that criteria, Vega was told in November 2007 that the PIP would be extended for “other reasons” until he returned from any upcoming military leave. His military unit was mobilized later that month and has not yet returned from deployment. Prior to being deployed, Vega filed a legal action against Wyeth, alleging certain violations of the USERRA, including failure to promote him in 2006, his lowered performance rating, and the extension of the PIP in spite of his completion of the objectives. The lower court granted Wyeth’s motion for summary judgment on the claims, holding that the actions complained of by Vega took place before his deployment in 2007 and, therefore, that he was not protected by the USERRA at that point. 

The First Circuit reversed on appeal, finding that Vega’s February 2006 notification to his supervisor of his planned return to active duty and his possible deployment was sufficient to trigger the protections of the USERRA, and that once the company had notification that Vega might be called to active duty, the USERRA began to apply. The Court held that to deny an employee the protections of the Act until a literal application for leave is signed and delivered would be contrary to the purpose of the USERRA.

Reviewing the merits of this case, the First Circuit upheld the dismissal of Vega’s claims related to the failure to promote him, his allegations of hostile environment, and his low performance rating. However, the Court reversed the dismissal of Vega’s claim regarding the extension of his PIP during his military leave, citing wording in the PIP itself that it would be extended after Vega’s return from leave so that “positive behavior and work habits could be verified,” in spite of the fact that Vega has successfully met the criteria set forth in the original PIP. Further, the PIP actually cited Vega’s authorized leave as one of the reasons for the extension – a clear indication that the action was taken “because of” his military status.

This case makes two important points for employers. First, protection under the USERRA can be triggered at any point in time in which an employer has information about the employee’s military status on which discriminatory treatment may be based – and that formal military orders are not always required to trigger those protections. Second, the USERRA does not allow an employer to treat an individual differently because of his military leave, and extending a performance improvement plan simply to “make sure” that an individual retains his performance improvements until he or she returns form an authorized military leave can be viewed by the courts as a violation of that Act.

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On October 28, 2009, President Obama signed the National Defense Authorization Act (NDAA), which includes provisions that expand the military leave entitlements of the Family and Medical Leave Act (FMLA) by expanding both the “qualifying exigency” leave and military caregiver leave that became effective in January 2008.

Prior to these new amendments, an eligible employee whose spouse, son, daughter or parent was on active duty or called to active duty in support of a contingency operation as a member of the National Guard or Reserves was entitled to “qualifying exigency” leave. The new law extends qualifying exigency leave to an eligible employee whose spouse, son, daughter, or parent is a member of any branch of the military, including the National Guard or Reserves, and who was deployed or called to active duty in a foreign country. In addition to extending qualifying exigency leave to eligible family members of a member of any branch of the Armed Forces, the new law eliminates the requirement that the active duty be in support of a contingency operation.

The new law did not change the length of leave entitlement under the FMLA. A covered employer still must allow an eligible employee up to a total of 12 workweeks of unpaid leave during the normal 12-month period established by the employer for FMLA leave. The reasons for which an eligible employee can take qualifying exigency leave also are unchanged. Such leave still can be taken for short-notice deployment, military events, and related activities such as official ceremonies, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and additional activities to address other events which arise out of the covered military member’s active duty or call to active duty status.

The new amendments expand military caregiver leave in two ways: First, the new law extends military caregiver leave to eligible family members of veterans who were members of any branch of the military at any time within five years of receiving the medical treatment that triggers the need for military caregiver leave. Therefore, employees who are family members of a current service member or veteran undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred in the line of duty may take up to six months of caregiver leave, so long as the veteran was a member of the military within five years of receiving such treatment. Employers do not have the option of using the typical FMLA calendar-year method for military caregiver leave – the 12-month period begins when the employee begins using caregiver leave.

Second, the new amendment expands the definition of a “serious injury or illness” for purposes of determining eligibility for military caregiver leave. It has been expanded to include the aggravation of existing or pre-existing injuries to an active duty service member in the Armed Forces. Thus, employees may now take military caregiver leave for a family member whose pre-existing injury or illness was aggravated while on active duty. For veterans, the definition allows the leave whether the injury or illness manifested itself before or after the Armed Forces member became a veteran.

The NDAA did not specify the date on which these amendments to the family military leave entitlements become effective. Thus, the presumption is that these changes took effect when President Obama signed the NDAA on October 28. It is anticipated that the U.S. Department of Labor will issue guidance to address the changes in the near future.
 

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The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects members of the armed services against employment discrimination related to the benefits of their employment. The 7th U.S. Circuit Court of Appeals has held that such protection refers to employment benefits that are “extended generally to military and non-military employees alike,” and that discontinuing a benefit that had been extended only to employees with military obligations does not violate the USERRA. Crews v. Mt. Vernon, 7th Cir., No. 08-2435, June 2, 2009.

Ryan Crews, an officer of the Police Department in Mt. Vernon, Illinois, has been a member of the Army National Guard since 1988. As a Guard member, Crews is required to attend certain weekend training and preparedness exercises on a monthly basis. Under the collective bargaining agreement between the City and the police employees, the City has the discretion to establish work schedules to meet operational needs. Police officers’ weekly schedules typically consist of five 8-hour shifts and two days off. Crews’ military obligations frequently conflict with his work schedule. In these instances, the City has grants time-off to Crews (and other Guard member/employees) to attend drills. While the leave is unpaid, the City has allowed Guard member/employees to turn in their military pay in exchange for their regular City pay, so as not to incur any net loss in weekly wages. Guard member/employees also may allocate paid time off to days missed for military drill, thereby collecting both City pay and military pay for those days.

For several years, the City maintained a policy under which Crews was permitted to reschedule work shifts that fell on drill weekend, allowing him to use weekend-drill shifts as his weekly days off. This allowed Crews to collect military pay for the drill weekends, while also collecting his full weekly City pay. Three other Guard member/employees were granted this scheduling benefit between 2000 and 2003.

In 2006, the City hired two additional Guard member/employees. At that point, it was determined by the City that extending the policy to an increasing number of individuals would result in numerous and costly scheduling conflicts, because the policy allowed Guard member/employees to work weekday shifts that already were fully staffed. Following the policy’s rescission, Crews no longer can collect a full week’s pay during his drill weeks, unless he uses his limited paid time off. This problem is especially acute for Crews because, as a corporal, his regular work schedule is Wednesday through Sunday; he has no ability to bid for preferred days off like lower-ranking officers do.

In 2006, Crews filed a complaint against the City, alleging that the rescission of the work scheduling policy denied to him a “benefit of employment” based on his military status, in violation of the USERRA. The lower court denied Crews’ motion for summary judgment, and found in favor of the City. Crews appealed to the Seventh Circuit, which upheld that decision. According to the appellate court, the “benefit of employment” referenced in the USERRA is one that is provided to both military and non-military employees and, therefore, that law “reaches only discriminatory employment actions that provide military employees with fewer benefits.” Rescinding a preferential work schedule, thereby placing Crews on equal footing with other police department employees who required days off for non-military reasons, was not a violation of the USERRA.

The City’s ability, as set forth in the relevant collective bargaining agreement, to “establish work schedules to meet operational needs,” is likely to have been a factor in the Court’s analysis of this issue. Employers who plan to modify or eliminate preferential schedules previously granted to service member/employees should base such modification or elimination on a documented business reason. To do otherwise may support a claim of discriminatory treatment or retaliation under the USERRA.

USERRA does more than prevent discrimination and, according to the Department of Labor, “establishes a floor, not a ceiling, for the employment and reemployment rights and benefits of those it protects.” Therefore, nothing in the Seventh Circuit’s decision suggests that employers should not continue to provide greater benefits to military service members. Also, if such increased benefits are made part of a negotiated agreement, employers may be legally obligated to continue their implementation. In situations similar to this case, however, in which a more favorable work schedule was instituted solely for the convenience and benefit of military service members, it is likely that employers can modify or eliminate such benefit for business-related reasons without violating the USERRA.
 

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