When Johnny and Joanie Come Marching Home Again: Recent Developments in USERRA

SPEAKERS

Eric W. Iskra Spilman Thomas & Battle

300 Kanawha Blvd E Charleston, WV 25314

Esther G. Lander

United States Department of Justice Civil Rights Division

950 Pennsylvania Avenue, N.W. Employment Litigation Section, PHB

Washington, D.C. 20530

Kenneth R. Harrison Sr. Sugarman & Susskind, P.A. 100 Miracle Mile, Suite 300

Coral Gables, FL 33134

MODERATOR

Paula Graves Ardelean Butler, Snow, O'Mara, Stevens & Cannada, PLLC

Regions Plaza, Suite 1700 210 E. Capitol Street Jackson, MS 39201

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USERRA OVERVIEW AND RECENT DEVELOPMENTS1

The Uniformed Services Employment and Reemployment Rights Act of 1994

(“USERRA”) provides job protection and rights of reinstatement to employees who participate in

military service. 38 U.S.C. §§ 4301 et seq. USERRA clarified and strengthened the Veterans’

Reemployment Rights Act OF 1974 (“VRRA”) by protecting civilian job rights and benefits for

veterans, members of reserve components, and even individuals activated by the President of the

United States to provide Federal Response for National Emergencies. USERRA also made

major improvements in protecting service member rights and benefits by clarifying the law,

improving enforcement mechanisms, and adding Federal Government executive agencies to

those employees already eligible to receive U.S. Department of Labor assistance in processing

claims of noncompliance.

Definitions (Section 4303)

USERRA uses the term “employer” broadly and includes supervisors, managers, and

even, human resource personnel. See Fed Reg., Vol. No. 244, page 73248. USERRA applies to

“any institution, organization, or other entity that pays salary or wages for work performed or

that has control over employment opportunities, including a person or entity to which the

employer has delegated the performance of employment related responsibilities.” 20 C.F.R. §

1002.5.

Employer/Successor in Interest

USERRA also includes under its definition of “employer” successors-in-interest. In

general, an employer is a successor in interest where there is a substantial continuity in

operations, facilities, and workforce from the former employer. According to USERRA’s

1 Materials prepared by Alyesha P. Asghar, an Employment lawyer at Spilman Thomas & Battle, PLLC, in Charleston, West Virginia.

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implementing regulations, the determination of whether an employer is a successor in interest

must be made on a case-by-case basis using a multi-factor test that considers the following:

(a) Whether there has been a substantial continuity of business operations from the former to the current employer;

(b) Whether the current employer uses the same or similar facilities, machinery, equipment, and methods of production;

(c) Whether there has been a substantial continuity of employees; (d) Whether there is a similarity of jobs and working conditions; (e) Whether there is a similarity of supervisors or managers; and, (f) Whether there is a similarity of products or services.

See 20 C.F.R. § 1002.35 and 36.

The Department of Labor’s approach was followed in Murphree v. Communications

Technologies, Inc., 460 F. Supp. 2d 702 (E.D. La. 2006) and Reynolds v. Rehabcare Group East

Inc., 531 F. Supp. 2d 1050 (S.D. Iowa 2008) with differing results. In Murphree, the plaintiff

worked for MPRI pursuant to a government contract. While the plaintiff was on military leave,

MPRI lost the contract to defendant, Communications Technologies, Inc. (“COMTek”).

COMTek placed one of plaintiff’s co-workers in plaintiff’s position. When plaintiff sought

reemployment from COMTek, the company asserted that it owed plaintiff no reemployment

obligation because he was not its employee. The district court disagreed, holding that COMTek

was a “successor in interest” within the meaning of USERRA.

By contrast, in Reynolds, the district court found that the Department of Labor factors

weighed against a finding of successor in interest. 531 F. Supp. 2d at 1050. The plaintiff’s

employer had provided contract physical therapy services for a rehabilitation center. While

plaintiff was on military leave, her employer lost the contract, and a new company, Rehabcare

Group (the defendant), entered into a subcontract to provide the same physical therapy services

through a different contractor. The district court denied the plaintiff’s motion for a preliminary

injunction, finding that the majority of the Department of Labor factors demonstrated no

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business continuity between plaintiff’s former employer and defendant, despite the fact that both

provided the same services to the rehabilitation center: (i) there was no continuity in business

operations since the new contractor was a completely separate entity from the former contractor,

and neither had any interest, contract, or relationship with the other; (ii) the new contractor did

not purchase any of the former contractor’s equipment or supplies; (iii) none of the former

contractor’s employees worked for the new contractor; and (iv) the supervisors were different.

With regard to parent/subsidiary relationships, USERRA defines “employer” as the entity

that “pays salary or wages for work performed or that has control over employment

opportunities, including a person, institution, organization, or other entity to whom the employer

has delegated the performance of employment-related responsibilities.” 38 U.S.C. §

4303(4)(A)(i). See Dees v. Hyundai Motor Mfg. Alabama, LLC, 605 F.Supp.2d 1220, 1223-1224

(M.D.Ala. 2009)(dismissing claims against Hyundai’s distributor subsidiary, because the entity

to carry out employment-related responsibilities with respect to plaintiff was Hyundai’s

manufacturing subsidiary).

Intentional Discrimination (Section 4311(a))

Employment discrimination on the basis of past, current, or future military obligation is

prohibited. This ban is broad, extending to most areas of employment, including (1) termination,

(2) benefits, (3) hiring, (4) promotion, and (5) reemployment. In order to establish a USERRA

violation, a plaintiff must show by a preponderance of the evidence: 1) that he or she was a

member of the uniformed services; 2) that he or she was denied initial employment or a benefit

of employment; and 3) that military service was a “substantial or motivating factor” in the denial.

See Jolley v. Department of Housing and Urban Development, 299 Fed.Appx. 969, 972 (Fed.

Cir. 2008).

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Denial of a “Benefit of Employment”

Under 38 U.S.C.A. § 4311 an employee cannot be lawfully deprived of a benefit of

employment by an employer because of an employee's military service. A benefit of

employment is broadly defined to include:

any advantage, profit, privilege, gain, status, account, or interest (other than wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment.

28 U.S.C. § 4303(2); See Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299 (4th Cir.

2006)(finding that lower-level tasks assigned to a plaintiff after returning from military leave

was a demotion despite no change in her salary or benefits and could constitute a denial of “a

benefit of employment”); Maxfield v. Cintas Corp. No. 2, 427 F.3d 544 (8th Cir. 2005)(finding

that an employee had been denied a “benefit of employment” because an undesirable transfer can

constitute the denial of a “benefit of employment,” even if it does not result in lost wages);

Koehler v. PepsiAmericas, 2006 WL 2035650 (S.D. Ohio July 18, 2006)(finding that the plaintiff

had been denied a “benefit of employment” when the company withdrew from his bank account

an automatic deposit equal to the pay differential between his salary and military pay while on

reserve duty); Vickers v. City of Memphis, 368 F. Supp. 2d 842 (W.D. Tenn. 2005)(denying

Defendant’s motion to dismiss and holding that freedom from harassment due to prior military

service could constitute a “benefit of employment” within the meaning of Section 4311 if the

employer has a policy prohibiting the type of conduct about which the plaintiff complained, and

the conduct is sufficiently severe or pervasive to alter the conditions of employment and create a

hostile environment); Steenken v. Campbell County, 2007 WL 837173 (E.D. Ky. March 15,

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2007)(holding that plaintiff’s claim that he was forced to resign due to a hostile work

environment was cognizable under USERRA because the right to be free from harassment,

broadly construed, is a “benefit of employment” within the meaning of section 4311).

In comparison, the plaintiff in Spadoni v. Easton Area School Dist., 2009 WL 449108

(E.D.Pa. February 20, 2009), a school teacher, was not entitled to relief under the USERRA

where he alleged the school district denied him a benefit of employment by refusing to permit

him to use his accrued sick leave while on military leave. Unlike the plaintiff in Maxfield, not

permitting the teacher to use sick leave while on military leave did not deny him a job advantage

he held prior to his deployment. No district employee enjoyed unrestricted access to accrued

sick leave while on unpaid leave. Employees were allowed to collect payment for unused sick

days only upon retirement and the teacher received this entitlement when he retired. See

Sandoval v. City of Chicago, Illinois, 560 F.3d 703 (7th Cir. 2009)(holding that the city's offering

to police officers alternative foreign testing sites while on military duty in Iraq and El Salvador,

for taking examinations to qualify for promotions to police sergeant, did not deny benefit of

employment to persons in armed services, as prohibited discrimination under 38 U.S.C.A. §

4311(a), since the city treated the officers on military duty the same as other employees by

offering the opportunity to take the test on the same terms as other employees outside city but

not in military service); Crews v. City of Mt. Vernon, 567 F.3d 860 (7th Cir. 2009)(finding that

the City’s rescission of work scheduling policy allowing police officers to make up weekend

shifts missed while attending National Guard drill, allowing officers to collect a full week of pay

in addition to Guard pay, did not constitute discriminatory employment actions because

preferential work scheduling was not a benefit of employment and was not available to all

employees).

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“Motivating Factor”

The plaintiff bears the “initial burden of production to show that, by a preponderance of

the evidence, ‘the employee's military service was a substantial or motivating factor’ in the

adverse employment decision.” See Hart v. Twp. of Hillside, 228 Fed. Appx. 159, 162 (3d

Cir.2007); Spadoni v. Easton Area School Dist., 2009 WL 449108 (E.D.Pa. February 20, 2009).

Once the employee meets this burden, an employer does not violate USERRA if the employer

shows that he or she would have taken the same action, notwithstanding his or her employee's

military leave. Id.

USERRA prohibits discriminatory actions where the employee’s military status is a

“motivating factor” in an adverse employment decision, even if the employee's military status is

not the “sole factor” in the decision. Military status is a “motivating factor” if the defendant

relied on, took into account, considered, or conditioned its decision on that consideration. See

Sandoval v. City of Chicago, 2008 WL 2743750, 4 (N.D.Ill. June 13, 2008)(citations omitted).

Discriminatory motivation under the USERRA may be reasonably 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. Hance v. Norfolk Southern

Ry. Co., 571 F.3d 511, 518 (6th Cir. 2009).

For example, in Steenken v. Campbell County, 2007 WL 837173 (E.D. Ky. March 15,

2007), the district court found sufficient evidence of discriminatory motive with respect to

plaintiff’s termination claim to withstand summary judgment. The police chief admitted that any

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military commitments of officers under his command would interfere with the police department.

In addition, plaintiff offered evidence of disparate discipline. Finally, the district court found

that the employer could not establish, as a matter of law, that it would have taken the same action

regardless of plaintiff’s military leave because plaintiff claimed he had been singled out for

discipline, leading to his termination, because of his military status. See also Brinkley v. Dialysis

Clinic, Inc., 403 F. Supp. 2d 1090 (M.D. Ala. 2005)(denying employer’s motion for summary

judgment regarding whether plaintiff’s selection for a reduction in force was motivated in part by

his military status where plaintiff disputed that he was a part-time employee, arguing that his

hours had been reduced as a direct result of his military service); Warren v. International

Business Machines Corp., 358 F. Supp. 2d 301 (S.D.N.Y. 2005)(holding that a jury could find

that plaintiff’s status in the reserve was a substantial factor in IBM’s decision to discharge

plaintiff where the evidence included weekly, and sometimes daily, questions by plaintiff’s

supervisor regarding when he would be on military leave; the comment “you are killing me” by a

supervisor when plaintiff notified him of the need to take leave; his supervisor’s visible

frustration when plaintiff notified him of the need for leave; plaintiff’s supervisor asking plaintiff

to try and get out of taking leave; and, finally, differing explanations for plaintiff’s discharge).

In comparison, the court in Baptista v. Hartford Bd. of Educ., 2009 WL 2163133, 3-4

(D.Conn. July 21, 2009) dismissed the Plaintiff’s claim that he was “a former Army soldier who

was treated differently from the past ten employees who were caught and or accused of drinking

on the job.” The court reasoned that the Plaintiff’s claim under the USERRA was no more than

a conclusory allegation of veteran discrimination because the Amended Complaint did not even

allege that Defendants were aware of Plaintiff’s veteran status. Where a complaint pleads facts

that are merely consistent with a defendant's liability, it stops short of the line between

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possibility and plausibility of entitlement to relief (internal citations omitted); McDuffie v. Eli

Lilly and Co., 2009 WL 857069, 8 (S.D.N.Y. March 31, 2009)(finding that the mere temporal

connection between Plaintiff’s military reservist status and adverse employment actions was

insufficient to make out a prima facie case against his former employer for discrimination on the

basis of military status); Vega Colon v. Wyeth Pharmaceutical, 611 F. Supp. 2d 110 (D.P.R.

2009)(finding that the employee's military status was not substantial or motivating factor in

employer's decision to extend employee's performance improvement plan where the employer

had a preexisting policy of placing employees on a PIP who received the requisite job evaluation

rating); Gannon v. National RR Passenger Corp., 422 F. Supp. 2d 504 (E.D. Pa. 2006)(finding

that one stray remark by a non-decision maker, which occurred over one year prior to the

plaintiff’s termination, could not establish a prima facie case of discrimination based upon

military status).

Same Decision-Maker Inference

The same decision maker inference has been found to hold little sway in USERRA cases.

At least in Sutherland v. SOS Intern., Ltd., 541 F.Supp.2d 787, 793 (E.D.Va. 2008), the district

court found that shortly before the defendants made the decision to terminate plaintiff (an army

reservist), the individual who hired the plaintiff could have come to a new realization about the

extent of his reservist obligations. See also Gillie-Harp v. Cardinal Health, Inc., 249 F.Supp.2d

1113, 1119 (W.D.Wis. 2003)(finding that the mere fact that the same decision maker both hired

and fired an employee who was Air Force reservist did not preclude employee's USERRA

discrimination action).

Failure to Hire

USERRA prevents discrimination in initial hiring on the basis of unavailability due to

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active service in the military. See 38 U.S.C. § 4311(a); McLain v. City of Sommerville, 424 F.

Supp. 2d 329 (D. Mass. 2006)(finding that requiring an employer to delay a permanent hire is no

more disruptive than USERRA’s reemployment obligations, especially where the delay between

the City’s required start date and the plaintiff’s availability to begin work was relatively short);

Hart v. Township of Hillside, 2007 WL 1063105 (3d Cir. March 9, 2007)(affirming summary

judgment for the employer where the employee did not put forth any evidence to dispute

employer’s proffered legitimate reasons for discharging the plaintiff). Specifically, in

accordance with USERRA, employers cannot make discriminatory hiring decisions based on an

applicant’s military service, even if such service results in delaying the start date and training of

the prospective employee.

Failure to Promote

An employer’s willful effort to deprive a service member of the opportunity to be

promoted is actionable as an “adverse employment action” under USERRA. 38 U.S.C.

§4311(b); see Smith v. City of Mobile, 2007 WL 2580516 (S.D. Ala. Sept. 5, 2007)(denying

defendant’s motion for summary judgment where supervisor made derogatory comments

regarding plaintiff’s judgment based upon plaintiff’s voluntary deployment with FEMA);

Wagner v. Novartis Pharmaceuticals Corp., 565 F. Supp.2d 940 (E.D. Tenn. 2008)(denying

defendant’s motion for summary judgment where circumstantial evidence created an issue of

fact); Compare Tranter v. Crescent Tp., 2007 WL 3274158 (W.D. Pa. Nov. 5, 2007)(granting

defendant’s motion for summary judgment where the plaintiff was denied a position that was

filled by a majority vote of the township commissioners, which meant that plaintiff had to prove

the majority of members knew of an improper motive and ratified it.)

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Harassment

Although USERRA does not specifically prohibit an employer from subjecting an

employee to harassment or a hostile work environment due to an employee's military status, the

Act specifically prohibits the denial of “any benefit of employment by an employer” to members

of uniformed service based on their membership and/or performance of service. See for e.g.,

Maher v. City of Chicago, 406 F. Supp. 2d 1006 (N.D. Ill. 2006) (magistrate judge)(although the

court recognized that harassment on account of prior military service can violate USERRA, it

found that plaintiff’s allegations were insufficiently severe or pervasive, particularly because

plaintiff had not claimed that the conduct was physically threatening and testified that it was not

severe enough to interfere with his work performance); Figueroa Reyes v. Hospital San Pablo

Del Este, 389 F. Supp. 2d 205 (D.P.R. 2005)(finding that plaintiff had not established “severe or

pervasive” harassment where he had failed to provide sufficient evidence of a hostile work

environment and noting that USERRA does not specifically prohibit harassment based on

military status); but cf. Dees v. Hyundai Motor Mfg. Alabama, LLC, 605 F.Supp.2d 1220 (M.D.

Ala. 2009)(denying summary judgment on plaintiff’s harassment claim where the following

alleged actions by plaintiff’s supervisors were sufficiently severe or pervasive to warrant a trial:

(i) frequent derogatory comments about plaintiff’s guard service; (ii) demanding military orders

for training weekends that do not require military orders; (iii) implicitly threatening continued

employment; (iv) accusing plaintiff of placing his military service above his civilian job; and (v)

unfairly and punitively assigning plaintiff more dangerous and physically threatening work).

Additionally, some district courts have viewed harassment claims as actionable under

Section 4311’s “denial of a benefit of employment” provision. See Steenken v. Campbell

County, 2007 WL 837173 (E.D. Ky. March 15, 1007)(holding that plaintiff’s claim that he was

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forced to resign due to a hostile work environment was cognizable under USERRA because the

right to be free from harassment, broadly construed, is a “benefit of employment,” within the

meaning of section 4311); Vickers v. City of Memphis, 368 F. Supp. 2d 842 (W.D. Tenn.

2005)(holding that freedom from harassment due to prior military service could be a “benefit of

employment” within the meaning of Section 4311 if the employer has a policy prohibiting the

type of conduct about which the plaintiff complains, and the conduct is sufficiently severe or

pervasive to alter the conditions of employment and create a hostile environment).

Reemployment Rights (Section 4312 and 4313)

Employees who satisfy the eligibility requirement under USERRA are entitled to

reemployment as long as they are a member of the U.S. armed services and meet the following

five conditions:

1. The employee must have civilian employment;

2. The employee must give his employer notice prior to military service;

3. The employee’s cumulative length of service causing his absence from employment must be less than five years;

4. The employee must have been released from military service with at least a general discharge under Honorable Conditions; and

5. When the employee returns from active duty, he or she must report back to work within a certain period of time.

38 U.S.C. §§ 4304 and 4312.

The Notice Requirements

An employee must give notice to his or her employer before taking military leave.

Notice to the employer may be either written or oral and does not need to follow any particular

kind of format. See Acker v. Greenville Surgery Center Ltd. Partnership, 2008 WL 163060

(D.S.C. January 15, 2008)(recognizing that verbal notification of the requirement for military

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leave is sufficient). Valid notice of military leave may also be provided to the employer by an

appropriate officer of the particular branch of the armed forces in which the employee will be

serving. In rare cases, USERRA recognizes that it may be impossible for an employee to give

advance notice to the employer. In those cases, the advance notice requirement may be excused

because of “military necessity” or circumstances that make notice to the employer “otherwise

impossible or unreasonable.” 38 U.S.C. § 4312(a). The decision about whether notice is

excused by military necessity is made by the Secretary of Defense and is not subject to judicial

review. See 32 C.F.R. § 104; 38 U.S.C. § 4312(b).

However, an employee does not need to receive the employer’s permission before

leaving for military service in order to protect his or her reemployment rights. Prior consent

would improperly grant the employer veto authority over an employee’s ability to perform in the

uniformed services. Additionally, an employee is not required to decide, at the time of his or her

leave for military service, whether he or she plans to return to that civilian job. 20 C.F.R. §

1002.88. Instead, an employee can defer this decision until after he or she concludes his or her

military service. Nonetheless, in Barker v. Office of Adjutant General of State, 907 N.E.2d

574 (Ind. App. 2009), the Plaintiff who failed to give notice of military leave was denied

reemployment. Plaintiff argued that he was never advised or counseled regarding his separation

from the civil service. The court found that even assuming Plaintiff had been incorrectly told

that he was not required to give notice to his former employer requesting a leave of absence from

his civil service position upon deciding to enter the AGR in order to maintain reemployment

rights under USERRA, such misinformation did not preclude Office of Adjutant General from

denying reemployment.

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Honorable Discharge

Generally, under USERRA a threshold requirement for armed services personnel seeking

USERRA protection includes an honorable discharge from the armed forces. 38 U.S.C. § 4304.

Failure of an employee to truthfully represent his or her discharge status and failure of the

employee’s attorney to verify the employee’s discharge status may result in sanctions against the

employee and the attorney. See Adams v. Penn Line Services, Inc., 620 F.Supp.2d

835 (N.D.Ohio 2009).

The “Escalator” Position, or one of “Like Seniority, Status and Pay” (Section 4313)

USERRA provides that eligible employees should be reemployed in the job that they

would have attained had they not been absent for military service (the “escalator” principle),

with the same seniority, status and pay, as well as other rights and benefits determined by

seniority. See 38 U.S.C. § 4313(a)(2)(A). If the absence is for fewer than 91 days, the employee

is entitled to the exact position the employee would have held but for the absence. 38 U.S.C. §

4313(a)(1)(A). When an employee has been absent for 91 days or longer, he or she is entitled to

reemployment in the escalator position, but the employer may also reinstate the member in any

position of like seniority, status and pay for which he or she is qualified.

For example, in Long v. Ellis Environmental Group, LC, 2007 WL 1020005 (N.D. Fla.

March 30, 2007), the district court granted the employer’s motion for summary judgment on the

plaintiff’s “status” reemployment claim. The plaintiff, whose deployment exceeded 90 days,

was offered the position of Vice President of Airforce Programs, rather than his pre-deployment

position of Vice President of Construction. The plaintiff did not dispute that the position held

the same seniority and pay; plaintiff argued that the offered position did not hold the same

“status.” Citing the Department of Labor’s regulations (20 C.F.R. § 1002.194), the court

considered six factors to determine whether the positions were of comparable status: (i)

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opportunities for advancement; (ii) general working conditions; (iii) job location; (iv) shift

assignment; (v) rank; and (vi) responsibility. The court found that the positions had similar job

duties and management responsibilities, and that the offered position held greater responsibilities

and opportunities for advancement. Further, due to extensive changes within the company

during plaintiff’s deployment, his former job was no longer the same position, having decreased

in responsibilities and importance. Accordingly, the court held that, as a matter of law, plaintiff

had been offered a position of like seniority, status, and pay to the one that he would have held

had he never been called to active duty.

USERRA also requires that reasonable efforts (such as training or retraining) be made to

enable returning members of the uniformed services to refresh or upgrade their skills to help

them qualify for reemployment. 38 U.S.C. § 4313(a)(2)(B). If an employee cannot qualify for

the “escalator position” or a comparable position, the employee is entitled to reemployment in a

position that is the nearest approximation to the escalator position.

Application for Reemployment

USERRA provides that, upon completing uniformed service, an employee is required to

notify his pre-service employer of the employee's intent to return to his employment position by

“either reporting to work or submitting a timely application for reemployment.” 38 U.S.C.A. §

4312(e); see 20 C.F.R. § 1002.115. However, this application need not be in writing. Acker v.

Greenville Surgery Center Ltd. Partnership, 2008 WL 163060 (D.S.C. January 15, 2008).

Additionally, an employee’s lists of issues or conditions accompanying his or her application do

not void his or her reinstatement request. Serrichio v. Wachovia Securities, LLC, 556 F.Supp.2d

99 (D.Conn. 2008).

In the case of a person whose period of service in the uniformed services was less than 31

days, an employee must report to work on the next full work day. A person whose period of

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service was for more than 30 days but less than 181 days must submit an application for

reemployment with the employer no later than 14 days after the completion of the period of

service or if submitting such application within such period is impossible or unreasonable

through no fault of the person, the next first full calendar day when submission of such

application becomes possible. Finally, a person whose period of service in the uniformed

services was for more than 180 days must apply for reemployment no later than 90 days after the

completion of the period of service.

An employee who fails to comply with USERRA’s application requirements does not

automatically forfeit his entitlement to USERRA’s protection, “but shall be subject to the

conduct rules, established policy, and general practices of the employer pertaining to

explanations and discipline with respect to absence from scheduled work.” 38 U.S.C.A. §

4312(e)(3); Day v. Lockheed Martin Space Systems Co., 2008 WL 718142 (E.D.La. March 14,

2008).

Prompt Reemployment (Section 4313(a))

Congress enacted USERRA to prohibit employment discrimination on the basis of

military service as well as to provide prompt reemployment to those individuals who engage in

non-career service in the military. See Coffman v. Chugach Support Servs., Inc., 411 F.3d 1231,

1234 (11th Cir.2005) (citing 38 U.S.C. § 4301). The Act, however, does not define “prompt

reemployment.” However, 20 C.F.R. §1002.181 provides that absent unusual circumstances,

reemployment must occur within two weeks of the employee’s application for reemployment.

On the other hand, prompt reinstatement following several years of active duty may require more

time, because the employer may have to reassign or give notice to another employee who

occupied the returning employee's position. Id.

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In Petty v. Metropolitan Government of Nashville-Davidson, 538 F.3d 431 (6th Cir.

2008), the plaintiff, a police officer, sued his employer for failing to promptly reemploy him

following his military leave. After plaintiff’s return from a two-year tour of duty, employer

required him to undergo a return-to-work process, applicable to all police officers returning from

leave, which included a physical and mental fitness examination. Three weeks later, upon

completion of the return-to-work process, the employer returned the plaintiff to work. The

district court granted summary judgment for the defendant, relying on the standard set forth in

the federal regulations, which states that “prompt reemployment” means “as soon as practicable

under the circumstances of each case.” Although the regulations also provide that “absent

unusual circumstances,” reemployment must occur within two weeks, the district court

interpreted the “as soon as practicable” language as allowing the employer enough flexibility to

require the employee to comply with a return-to-work process, where appropriate. The Sixth

Circuit not only reversed, but ordered the district court to enter summary judgment for the

plaintiff/service member. The Sixth Circuit quoted Section 4302(b), which states that USERRA

supersedes any policy, plan, or practice that limits or eliminates in any manner any right or

benefit provided by USERRA. Because the return-to-work process was an additional

prerequisite, it was superseded by USERRA’s reemployment provisions. Accordingly, making

the service member complete the process violated USERRA. See also Vander Wal v. Sykes

Enterprises, Inc., 377 F. Supp. 2d 738 (D.N.D. 2005)(granting summary judgment for the

employer where the employee was released from active duty on April 22, 2004, and reemployed

on May 4, 2004, but completed an application for reemployment, stating that he would be unable

to return to work until May 4, 2004).

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Exceptions to Reemployment Rights

There are three exceptions to reemployment rights under USERRA: (1) changed

circumstances, (2) undue hardship, and (3) when the prior employment was temporary or for a

brief, nonrecurring period.

“Changed Circumstances” Statutory Defense

USERRA provides that an employer is not required to reemploy a returning service

member if the employer’s “circumstances have so changed as to make such reemployment

impossible or unreasonable.” 20 C.F.R. §1002.139(a). This exception is available when there

has been a reduction in the employer’s workforce, which would have reasonably included the

returning service member. However, this exception does not apply where no opening exists at

the time of the reemployment application or where the replacement employee must be terminated

in order to reinstate the returning service member. Id.

In Woodard v. New York Health and Hospitals Corp., 554 F.Supp.2d 329 (2008), the

court held that USERRA’s “escalator principle,” which requires that an employee be reemployed

in a position that reflects with reasonable certainty the pay, benefits, seniority, and other job

perquisites, that he or she would have attained if not for period of military service, permits an

employer to take into consideration changes in the workplace during an employee's period of

military leave. See also Dunlap v. Grupo Antolin Kentucky, Inc., 2007 WL 855335 (W.D. Ky.

March 14, 2007)(finding that “mere low work load, layoffs, and a hiring freeze” at the time

plaintiff reapplied were not enough to invoke the “changed circumstance” defense, particularly

where the employer subsequently hired or rehired 99 employees in positions similar to that held

by plaintiff); Murphree v. Communications Technologies, Inc., 460 F.Supp.2d 702

(2008)(holding that a military support contractor's hiring of a replacement employee on a

18

permanent basis after a reservist had been called up did not constitute changed circumstances

under USERRA).

“Undue Hardship” Statutory Defense

Where the employer can establish that training or retraining the returning service member

to enable him or her to qualify for reemployment is an undue hardship on the company, the

employer can claim a statutory defense. 20 C.F.R. § 1002.139(b). In order to prove an “undue

hardship” under USERRA, the employer must identify the nature and cost of the necessary

action and the overall financial resources of the affected facility and the employer.

“Brief, Nonrecurrent Period” Statutory Defense

This defense arises when the position from which the person leaves for military leave is

for a “brief, nonrecurrent period and there is no reasonable expectation that such employment

will continue indefinitely or for a significant period.” 38 U.S.C. § 4312(d)(1)(A)-(C); 20 C.F.R.

§ 1002.139(c). The statute does not define “significant period.” However, a person holding a

seasonal job may have reemployment rights if there was a reasonable expectation that the job

would be available next season. See, e.g., Stevens v. Tennessee Valley Authority, 687 F.2d 158,

161–62 (6th Cir. 1982); see also Madden v. Rolls-Royce Corp., 2008 WL 747290 (S.D. Ind.

March 18, 2008)(aff’d by Madden v. Rolls Royce Corp., 563 F.3d 636, 638 (7th Cir.

2009)(granting employer’s motion for summary judgment where plaintiff’s employment at Rolls

Royce was pursuant to an agreement to provide “temporary contract personnel service needs”

and plaintiff testified that he knew his employment was temporary - for 90 days - and would only

become permanent if Rolls Royce still had a need in 90 days).

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Comparable Rights and Benefits (Section 4316(b)(1))

While an individual is performing military service, he or she is deemed to be on a

furlough or leave of absence and is entitled to the non-seniority rights accorded other individuals

on non-military leaves of absence. 38 U.S.C. § 4316(b)(1). Succinctly, with respect to non-

seniority benefits, USERRA does not provide a returning service member preferential treatment

in comparison to his or her civilian counterpart who takes a comparable form of non-military

leave.

Section 4316(b) does not provide for preferential treatment. In Crews v. City of Mt.

Vernon, 2008 WL 2224898 (S.D. Ill., May 27, 2008), the plaintiff filed suit, claiming that the

employer violated USERRA by discontinuing a policy of permitting service members to work on

their regularly scheduled days off in lieu of days when they had to attend weekend training drills.

The plaintiff characterized his claim as a discrimination claim under Section 4311, contending

that the decision to discontinue this flexible scheduling policy constituted the “denial of a

benefit” of employment in violation of USERRA. The district court, however, properly analyzed

plaintiff’s claim under Section 4316, and considered whether plaintiff was entitled to a non-

seniority benefit that was provided to employees taking comparable forms of non-military leave.

Because the plaintiff had failed to identify any comparable form of leave that permitted

scheduling flexibility, the court agreed with the defendant, that plaintiff was treated equally to

those who took non-military leave. Accordingly, his claim could not survive summary

judgment.

Protection from Discharge Without Cause (Section 4316(c))

USERRA protects returning service members from discharge without cause for a period

of time after reemployment. If the returning service member’s military service lasted between

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31 and 180 days, the service member may not be terminated without cause for 180 days after the

date of reemployment. In order to qualify for this protection, the “period of service before the

reemployment [must be] more than 30 days ....” In Warren v. International Business Machines

Corp., 358 F. Supp. 2d 301 (S.D.N.Y. 2005), the district court held that the 30-day requirement

means consecutive days, and not cumulative days. Because all of plaintiff’s leaves of absences

fell short of 30 days, his claim under Section 4316(c) failed as a matter of law.

If the service member’s period of military service was more than 180 days, this

protection applies for one year after reemployment. Returning service members with less than

31 days of military service do not have protection against discharge without cause, but like other

returning service members, they are protected from discrimination based on military service or a

continuing service obligation. 20 C.F.R. § 1002.248.

Several courts have adopted a “reasonable” standard for what constitutes “cause” for

purposes of Section 4316, i.e., was the employer’s termination decision reasonable under the

circumstances. See Johnson v. Michigan Clam Svc., Inc., 471 F. Supp. 2d 967 (D. Minn.

2007)(finding that that a trial was necessary to determine the reasonableness of the plaintiff’s

termination); Anderson v. Sanford L.P., 2008 WL 351227, 5 (E.D.Tenn. February 7,

2008)(denying Defendant’s motion for summary judgment where Plaintiff presented evidence

that created a genuine issue of fact as to whether the defendant’s reasons were genuine or merely

pretextual); Duarte v. Agilent Technologies, Inc., 366 F. Supp. 2d 1039 (D. Colo. 2005)(finding

that Plaintiff who was placed in a modified position after returning from an eight month call to

service and discharged within four months for budgetary reasons was terminated without cause

during the 180-day protected period).

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Additionally, at least one court has allowed a 4316(c) claim to proceed under a theory of

“constructive discharge” during the protected period. For example, in Serricchio v. Wachovia

Securities, LLC, 556 F. Supp. 2d 99 (D. Conn. 2008), the plaintiff, a financial advisor, returned

from a two-year military leave to find that his employer, Prudential Securities, had sold its

brokerage business to Wachovia. Wachovia had changed the business model resulting in the loss

of many of plaintiff’s former clients. Wachovia offered to reinstate plaintiff as a financial

advisor with his clients that had remained and the opportunity to cold-call new accounts. The

plaintiff never responded to the offer and was terminated for “job abandonment.” Plaintiff

argued that he had been constructively discharged without cause because the reemployment

conditions were “so onerous that he had no choice but to leave.” The court agreed that a

reasonable juror could find plaintiff had been constructively discharged: “he returned to what

had been a financially comfortable position to find a job in which he had no book of business and

had to begin anew by cold-calling prospective customers in order to pay off the $2000 monthly

advance which Wachovia offered him as compensation, leaving him incapable of supporting

himself and his family . . . reasonable jurors could find the conditions under which Serricchio

was offered reemployment ‘so intolerable that a reasonable person in the employee’s position

would have felt compelled to resign’” (citations omitted).

Although it is difficult to achieve summary judgment on a Section 4316 claim, summary

judgment has been granted where there is significant evidence to support the discharge decision.

See, for e.g., Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299 (4th Cir. 2006)(affirming

summary judgment for the employer on the plaintiff’s Section 4316 claim based on

“overwhelming and uncontroverted” evidence of plaintiff’s misconduct, that included tardiness,

missed conference calls, inappropriate conduct in front of customers, complaints from co-

22

workers and more); Moore v. Blockbuster, Inc., 2009 WL 904045 (D.N.J. March 31,

2009)(finding that an employer acted reasonably when it terminated an employee with on-going

military obligations after the employee failed to complete a relocation after nine months); Smith

v. Pepsi Bottling Group, 2007 WL 2572241 (D.S.C. Aug. 31, 2007)(granting summary judgment

to employer on plaintiff’s 4316(c) claim where plaintiff was responsible for a significant

inventory discrepancy and gave demonstrably false information about it).

Summary judgment has also been granted under Section 4316 where the plaintiff’s

termination resulted from extreme financial hardship. In Ferguson v. Walker, 397 F. Supp. 2d

964 (C.D. Ill. 2005), the plaintiff’s employer, the Village of Ludlow, experienced financial

problems and gave plaintiff the option either to accept a pay cut or a transfer from his position as

full-time police chief to a full-time school resources officer. When plaintiff declined both

options, his employment was terminated. Plaintiff brought suit under USERRA, claiming his

discharge violated the Act’s protection from discharge except for cause. The employer argued

that there was “cause” to discharge plaintiff based on evidence that the Village had a significant

budgetary deficit and needed to cut police staff. The record also reflected that the plaintiff was

not replaced by another full-time officer, and that subsequent to plaintiff’s discharge, the Village

employed only two part-time officers with no benefits. The district court held that “cause” for

termination means only that the decision was “a reasonable one under the circumstances.” As

such, “cause” could exist where severe adverse economic conditions necessitated the dissolution

of an existing job. Accordingly, the employer was entitled to summary judgment.

Pension Benefits (Section 4318)

USERRA requires employers to treat the period of military leave as service with the

employer for purposes of vesting and the accrual of pension benefits. 38 U.S.C. §4318(b)(1).

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Additionally, military leave may not be treated as a break in service under the pension plan. On

reemployment of the returning service member, the employer must make any employer

contributions to the pension plan that would have been required on behalf of the returning

employee had he continued working for the employer during the period of service. See for e.g.

Scott v. Absolute Insulation, Inc. 2007 WL 2728551 (W.D. Pa. September 17, 2007). Similarly,

the returning service member must be allowed to make up any employee contributions or

elective deferrals he would have been eligible to make during his period of service. A rehired

veteran has up to three times the period of service - not to exceed five years - to make up missed

employee contributions. 38 U.S.C. §4318(b)(2). The amount of makeup contributions is subject

to the limits that would have applied during the military service period. 38 U.S.C. §4318(b)(3).

However, in Arocho v. Central States, Southeast and Southwest Areas Pension Fund,

2007 WL 2936216 (M.D. Fla. Oct. 9, 2007), the district court granted summary judgment for the

defendant, a pension fund, on plaintiff’s claim under section 4318. The plaintiff had worked

part-time for UPS until 1980, when he ceased employment to begin four years of active service

with the Navy. Upon his return in 1984, the plaintiff resumed part-time employment with UPS,

and in 1985 converted to full-time employment. Plaintiff argued that he was entitled to pension

credits for the four-year period during which he as on military leave, even though UPS only

made contributions for full-time employees. The plaintiff claimed that “but for” his military

leave, he would have become full-time back in 1981, as evidenced by his acceptance of full-time

employment in 1985. The court disagreed, finding that the Trustees to the fund did not act

arbitrarily by refusing plaintiff’s claim. First, the court noted that it is unclear whether USERRA

requires an employer to make pension contributions on behalf of a service member who does not

already meet the eligibility requirements at the time he begins military leave. Second, even

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assuming USERRA requires contributions for those who would later meet eligibility

requirements, section 4318(b)(3) provides that the employer’s liability is calculated “at the rate

the employee would have received but for the period of [military service],” unless the date is not

“reasonably certain,” in which case the employer’s liability is calculated based on the employees

“average” rate of compensation during the 12-month period immediately preceding the military

leave. Because it was undisputed that plaintiff worked part-time during the 12-month period

preceding his military leave, he would not have been eligible for employer contributions.

Further, the plaintiff had presented no evidence from which the court could infer plaintiff would

have become a full-time employee “but for” his military leave. Inferences from events occurring

years later (namely, his acceptance of full-time employment in 1985) were insufficient.

Retaliation

USERRA not only protects employees from discrimination based on their military status,

but also protects employees from adverse employment actions taken when they have asserted

their USERRA rights. 38 U.S.C. § 4311(b); see also Francis v. Booz, Allen & Hamilton, Inc.,

452 F.3d 299 (4th Cir. 2006)(upholding summary judgment for the employer despite the

temporal proximity between plaintiff’s USERRA complaint and her discharge where the actions

that led to plaintiff’s probation and termination occurred before her protected activity).

Finally, to survive summary judgment with respect to a USERRA retaliation claim, the

plaintiff must suffer a materially adverse action, rather than mere inconvenience or alteration of

job responsibilities. For example, in Crews v. City of Mt. Vernon, 2008 WL 2224898 (S.D. Ill.

May 27, 2008), the district court granted the defendant’s motion for summary judgment on

plaintiff’s USERRA retaliation claim, where plaintiff had alleged that he was denied a training

class, defendants had made unwarranted negative comments about him and he received a low

25

mark on one quarterly evaluation in the area of “attitude.” In rejecting the plaintiff’s retaliation

claim, the court noted that, “while the definition of adverse action is not limited to a loss of

salary or benefits, it is not so broad as to include everything that makes an employee unhappy . . .

In other words the adverse action must materially alter the terms and conditions of employment.”

(citations and internal quotations omitted)(emphasis in original).

Furthermore, any employee is protected from retaliation regardless of whether the

employee has performed military service. Cook v. CTC Communications Corp., 2007 WL

3284337 (D.N.H. Oct. 30, 2007)(recognizing that plaintiff who claimed retaliation for notifying

her supervisor that another employee’s termination would violate USERRA was protected and

that plaintiff’s “motivating factor” evidence, consisting primarily of the temporal proximity

between plaintiff’s termination and her complaint, while “weak at best,” was sufficient to survive

summary judgment).

Arbitration Agreements

While the majority of courts have concluded that contracts to arbitrate USERRA claims

are enforceable, a minority of courts have held to the contrary. The majority of courts, following

the reasoning in Garrett v. Circuit City Stores, Inc., 449 F.3d 672 (5th Cir. 2006), have reasoned

that (1) nothing in USERRA's statutory language or legislative history demonstrates a

Congressional intent to preclude arbitration; and (2) there is no inherent conflict between

arbitration and USERRA's underlying structure and purpose. Further, these courts have found

that an employee opposing contractual arbitration of his or her claim under USERRA had the

burden to prove that Congress intended to preclude waiver of judicial forum for such claims. Id.;

38 U.S.C.A. 4302(b). See e.g. Kitts v. Menards, Inc., 519 F.Supp.2d 837 (N.D.Ind.2007); Ernest

v. Lockheed Martin Corp., 2008 WL 2958964 (D.Colo. Jul 29, 2008); Klein v. City of Lansing,

26

2007 WL 1521187 (W.D.Mich. May 21, 2007); Landis v. Pinnacle Eye Care, LLC, 537 F.3d 559

(6th Cir. 2008); Ohlfs v. Charles Schwab & Co., Inc., 2008 WL 4426012 (D.Colo. September 25,

2008).

In comparison, some district courts addressing the question at issue here ruled that

USERRA claims were not subject to arbitration. See e.g. Lopez v. Dillard's, Inc., 382 F.Supp.2d

1245, 1249 (D.Kan.2005)(holding that USERRA superseded an arbitration agreement between

an employee and employer); Breletic v. CA CI, Inc.-Federal, 413 F.Supp.2d 1329

(N.D.Ga.2006)(same).

Timeliness

USERRA does not contain a statute of limitations and expressly precludes the application

of any state statute of limitations. See 38 U.S.C. § 4323(i); 20 C.F.R. § 1002.311. However,

Congress enacted USERRA nearly four years after enacting 28 U.S.C. § 1658. Accordingly,

USERRA is subject to § 1658. Congress, recognizing that USERRA did not discuss the federal

statute of limitations, passed the Veterans’ Benefits Improvement Act in 2008 (“VBIA”) to

provide expressly that no statute of limitations shall apply. 38 U.S.C. § 4327. The legislature,

however, stopped short of bestowing retroactive effect upon the new law, and at least in

Middleton v. City of Chi., the court declined to extend it without a clear directive. 2009 WL

2581440 (7th Cir. August 24, 2009).

The VBIA struck the provision in USERRA that prohibited applying state statutes of

limitation, formerly, as amended, at 38 U.S.C. § 4323(i), and replaced it with the following:

If any person seeks to file a complaint or claim with the Secretary [of Labor], the Merit Systems Protection Board, or a Federal or State court under this chapter alleging a violation of this chapter, there shall be no limit on the period for filing the complaint or claim.

27

Pub. L. No. 110-389, § 311(f)(1), 122 Stat. 4145, 4164 (2008)(codified at 38 U.S.C. § 4327(b)).

The Middleton court held that “[r]ather than ‘clarifying’ that no statute of limitations applied to

USERRA, the 2008 Congress substantively changed the law so that § 1658 would not apply.”

2009 WL 2581440 (7th Cir. August 24, 2009).

In the past, the Department of Labor has recognized that at least one court has applied the

federal four-year limitations period found in the federal catchall statute of limitations. 28 U.S.C.

§ 1658(a); 20 C.F.R. § 1002.311. Nonetheless, the Department of Labor stated that it would

maintain its original position that no statute of limitations applied to USERRA, but it noted that

“the issue will ultimately be resolved by the courts.” 70 Fed.Reg. at 75, 287 – 288 (December

19, 2005).

Right to a Jury Trial

USERRA does not expressly provide for a right to a jury trial. However, it does permit a

plaintiff to seek liquidated damages. See 38 U.S.C. § 4324(c)(1)(A)(iii). The provision for

liquidated damages is considered a “suit at common law” and, therefore, the Seventh

Amendment’s right to a jury trial attaches. See Maher v. City of Chi., 463 F.Supp.2d 837, 844

(N.D.Ill. 2006)(holding that liquidated damages under USERRA are punitive and therefore

subject to trial by jury); Middleton v. City of Chicago, 2009 WL 2581440 (7th Cir. August 24,

2009)(recognizing that USERRA provides for a right to a jury trial based upon its statutory grant

of liquidated damages).

Injunctive Relief

No special rules apply to obtaining preliminary injunctions under USERRA. Like most

other plaintiffs, a USERRA plaintiff has standing to seek a preliminary injunction when

irreparable harm is imminent.

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In Bedrossian v. Northwestern Memorial Hosp., 409 F.3d 840 (7th Cir. 2005), the

plaintiff, a physician, sought a preliminary injunction under USERRA enjoining his hospital-

employer from failing to renew his employment contract at the end of his appointment. The

physician argued that under USERRA he need not show “irreparable harm,” which is typically

required to warrant injunctive relief. Alternatively, he argued that he had satisfied the standard

by showing loss of income and damage to his reputation. The district court rejected the

plaintiff’s arguments, and the Seventh Circuit affirmed. The Seventh Circuit held that, as with

other employment statutes such as Title VII and the ADA, the normal rules of equity apply,

including the required showing of irreparable harm before granting a preliminary injunction. To

warrant an injunction in the context of employment discharge cases, the type of irreparable

injury must depart from the harms typically associated with most discharge cases. Because the

plaintiff had alleged only harms that are common in all employment cases, he failed to show the

necessary irreparable harm required to warrant a preliminary injunction. See also Reynolds v.

Rehabcare Group East Inc., 531 F. Supp. 2d 1050 (S.D. Iowa 2008)(holding that a request to

reinstate an employee in the position of physical therapist with the contracting employer at a

contracting facility at the same seniority and pay rates as when she left for military service, a

request for an award of back pay and an equal sum for liquidated damages, and a request for an

award of front pay were not the types of damages that demonstrated irreparable injury, as

required to issue a preliminary injunction on a claim under USERRA).

Class Certification

The district court in Sandoval v. City of Chicago, 2007 WL 3087136 (N.D.Ill. October

18, 2007) found that the Plaintiffs had neither proposed an adequate class definition to meet

Federal Rule of Civil Procedure 23 requirements nor satisfied the Rule 23 standard. Therefore,

29

their motion for class certification was denied without prejudice. However, the court did not

preclude the possibility of class certification in a USERRA action.

Damages

USERRA does not provide for punitive damages or emotional distress damages. See,

e.g., Sutherland v. SOSi Intern., Ltd., 2007 WL 2332412 (E.D. Va. Aug. 10, 2007)(granting

defendant’s motion dismiss plaintiff’s claim for emotional pain and distress damages); Steenken

v. Campbell County, 2007 WL 837173 (E.D.Ky. March 15, 2007)(finding that plaintiff's

recovery for alleged emotional distress is already subsumed by a number of Plaintiffs' other

claims including USERRA). A successful service member whose USERRA rights have been

violated may receive “make whole” relief such as back pay and lost benefits, which may also be

doubled for “willful” violations. 38 U.S.C. § 4323(d). A violation is willful if the employer’s

conduct was knowingly or recklessly in disregard of the law. Id. A successful service member

may also receive attorney’s fees, expert witness fees, and other expenses and costs incurred in

pursuing his or her claim.

Liquidated damages are rarely awarded. In Duarte v. Agilent Technologies, Inc., 366 F.

Supp. 2d 1039 (D. Colo. 2005), the court found USERRA had been violated but declined to

award liquidated damages. The court held that the employer’s knowledge that USERRA might

apply was insufficient to establish willfulness. In Koehler v. PepsiAmericas, 2006 WL 2035650

(S.D. Ohio July 18, 2006), on the other hand, the court awarded liquidated damages. In that

case, the employer deducted from the reservist’s bank account previously deposited funds to

reflect the difference between his military pay and salary. The bank account deduction violated

the employer’s policy to pay a salary differential to employees on military leave. The district

court awarded the plaintiff liquidated damages, finding that the employer had “improperly and

30

willfully” withheld a benefit of employment. On appeal, the Sixth Circuit affirmed, holding that

there was sufficient evidence to support the district court’s finding that Pepsi knew or showed

reckless disregard for whether its denial of the pay differential to the plaintiff was prohibited by

USERRA. See Koehler v. PepsiAmericas, Inc., 2008 WL 628925 (6th Cir., March 6, 2008).

Accordingly, the liquidated damages award was appropriate.

However, in Reyes v. Goya of Puerto Rico, Inc., --- F.Supp.2d ----, 2009 WL 1971332

(D.Puerto Rico July 9, 2009) the court held that a former employee’s claim against an employer

for alleged emotional distress, under Puerto Rico tort law, was not within domain preempted by

USERRA, protecting returning veterans’ employment rights, since tort law did not reduce, limit,

or eliminate any right or benefit provided by USERRA, and tort claim did not hinge upon same

facts underlying USERRA claim.

Retroactivity

USERRA is not retroactive. It was signed into law on October 1, 1994, and provides that

it applies only to reemployment initiated after the 60-day period beginning on that date.

Uniformed Services Employment and Reemployment Rights Act of 1994, Pub.L. No. 103-353 §

8(a). “Congress has not directed the courts to apply this statute retroactively, and the Supreme

Court has held that courts should be extremely hesitant to apply a statute retroactively, where

Congress has not expressly mandated such an extension.” Bowlds v. General Motors Mfg. Div.

of General Motors Corp., 411 F.3d 808, 811 (7th Cir. 2005); Fernandez v. Dep't of the Army,

234 F.3d 553, 557 (Fed.Cir.2000) (holding that retroactive application of the USERRA would

“impair rights a party possessed when he acted, increase a party's liability for past conduct, or

impose new duties with respect to transactions already completed”)(quoting Landgraf v. USI

31

Film Prods., 511 U.S. 244, 280 (1994)); Newport v. Ford Motor Co., 91 F.3d 1164, 1167 (8th

Cir.1996).

Pleading Affirmative Defenses

As with other statutes, affirmative defenses under USERRA are subject to the notice

pleading standard set forth in Fed. R. Civ. P. 8, and should be stricken if they are bare or

conclusory without any short plain statement of facts in support.

Thus, in Crews v. Mt. Vernon, 2007 WL 1521498 (S.D. Ill. May 22, 2007), the district

court granted plaintiff’s motion to strike the following affirmative defenses:

“The prayer seeks relief not permitted by USERRA” “The prayer seeks relief not permitted by the United States Constitution” “Plaintiff has failed to mitigate damages”

In addition, the Court struck the statement “All actions taken by Defendants ... were

based on legitimate and non-discriminatory reasons having nothing to do with plaintiff’s military

service,” because the statement constitutes a denial of the allegations, not an affirmative defense.

Attorney’s Fees and Costs

USERRA provides that no fees or court costs can be charged or taxed against any person

claiming rights under it. 38 U.S.C. §4323(h). In several cases, courts have either permitted

USERRA litigants to initiate suits without prepaying court filings fees or refunded fees and court

costs to USERRA plaintiffs. See for e.g. Crews v. Mt. Vernon, 2007 WL 1521495 (S.D. Ill. May

22, 2007)(granting plaintiff’s motion to strike defendant’s fee demand); Davis v. Advocate

Health Center Patient Care Exp., 523 F.3d 681 (7th Cir. 2008); Fincher v. Georgia Pacific,

LLC, 2009 WL 1075269 (N.D.Ga. April 28, 2009)(granting USERRA plaintiff's motion for

refund of filing fee).

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Jurisdiction

A federal district court lacks jurisdiction over a USERRA action brought by an individual

against a state as an employer. The plain language of the statute, as well as its legislative history,

showed that Congress intended that actions brought by individuals against a state be commenced

in state court, and, by providing that claims against a state "may" be brought in state court, the

statute did not evince an unequivocal intent to abrogate the states' sovereign immunity so as to

provide for federal court jurisdiction. Townsend v. University of Alaska, 543 F.3d 478 (9th Cir.

2008). Thus, the Court of Appeals held that an action brought by a former employee of the

University of Alaska in federal district court, in which he alleged that he was fired from his job

because of his military status with the Alaska Air National Guard in violation of USERRA, was

properly dismissed for lack of subject matter jurisdiction.

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