Congress enacted the Uniformed Services Employment and Reemployment Rights Act (USERRA) to encourage non-career service in the uniformed services, by minimizing the disadvantages to civilian employment which can result from such service. An employer violates the USERRA if an adverse action is taken against an employee, and the employee’s membership in the armed services is a “motivating factor” in that action – unless the employer can prove that it would have taken the same action in the absence of that membership. In an unpublished opinion, the 11th U.S. Circuit Court of Appeals held that an Alabama National Guard member who was fired from his job at an auto assembly plant was unable to establish that his Guard service motivated his firing. Dees v. Hyundai Motor Manufacturing Alabama, LLC, 11th Cir., No. 09-12107, February 26, 2010.
Jerry Leon Dees was a veteran and a member of the National Guard when he was terminated from his employment with Hyundai. He sued the company, claiming that he was discriminated against and harassed because of that status, and that he ultimately was fired because of his National Guard obligations. The district court granted summary judgment in favor of Dee’s claims, and the Eleventh Circuit affirmed that decision on appeal.
To establish a prima facie case under the USERRA, an individual must show that his protected military status was a motivating factor in the adverse action of which he complains. The status need not be the sole cause so long as it is one of the factors relied upon, taken into account, or considered by the employer. Courts may infer discriminatory motivation under the USERRA from a variety of factors, including proximity in time between the employee’s military activity and the adverse employment action suffered, inconsistencies between the proffered reason and the employer’s actions, expressions of hostility by decision makers toward protected military status, and disparate treatment of protected employees when compared to similarly situated non-protected employees. Unless the employee meets this burden, his case cannot go forward. Once that burden is met, the burden shifts to the employer to prove that legitimate business reasons for the action taken would have induced the employer to act, even in the absence of the individual’s military service.
In Dee’s case, the district court found that Dees failed to establish that the Company relied upon, took into account, or conditioned its decision to fire him on the basis of his military service. Dees testified that he had no direct evidence that his military status motivated his termination, and was not fully aware of who was involved in the decision to terminate him. In short, Dee’s allegations were based upon insufficient conclusory statements that were not actual “evidence” of discrimination. In response to Dee’s assertions that two supervisors “harassed” him about his military obligations, the Court specifically pointed out that Dee’s termination was implemented only after an independent investigation by the Company of his performance issues, and that no supervisor’s discriminatory recommendation was the direct cause of the firing.
This case provides to employers two different lessons for avoiding liability under the USERRA. First, employers must be fully aware of the Act, its obligations, and its broad scope. An employee alleging violation of the USERRA does not have to prove that his or her military service was the only reason for an adverse action – only that such service was one of the motivating factors. Therefore, in order to avoid liability under the USERRA, employers should be particularly careful to fully review employment decisions related to military service members to assure that the decisions are based upon business-related criteria, and that military service is not a motivating factor in any work-related decision. The second lesson is that in this case, the Company’s independent investigation of Dee’s work performance convinced the Court that prior remarks alleged to have been made by certain supervisors did not, therefore, form the basis of the termination decision. The lesson here is that a complete and independent investigation, fully documented and focused upon business-related criteria, can help an employer to support the affirmative defense necessary to defeat liability under the USERRA.