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U.S. Supreme Court Broadens USERRA Protections for Members of the Military

Posted on Sunday, May 01, 2011 at 12:00PM
Posted by Howard A. Liberman

As a naval reservist myself, I am writing to the large number of peace officers and firefighters who are members of the military reserve or the National Guard.

Has your sergeant complained about the burden you cause him by his having to fill minimum staffing requirements while you are off on military drills or at annual training? Has your lieutenant made similar comments? Have these same supervisors initiated disciplinary action against you as a result of this animus toward your military duty? This may be actionable under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

Most service members know that USERRA protects your job while you are mobilized to active duty. It also protects you from discrimination or adverse employment action motivated by hostility toward your military duty.

On March 1, 2010, the U.S. Supreme Court unanimously sided with Army Reservist Vincent Staub against his employer, Proctor Hospital in Peoria, Illinois, where he worked as a technician. Staub’s supervisors made statements hostile to his military obligations. Janice Mulally, Staub’s direct supervisor, scheduled Staub for additional shifts without notice so that he would “pay the department for everyone else having to bend over backwards to cover [his] schedule for the reserves.” She also told Staub’s co-worker that Staub’s “military duty had been a strain on the department” and asked her to help “get rid of him.” Another supervisor, Michael Korenchuk, referred to Staub’s military obligation as “a bunch of smoking and joking and a waste of taxpayers’ money,” but testified that he knew Mulally was “out to get” Staub.

The hospital issued Staub a “corrective action” warning for violating a company rule requiring him to stay in his work area when not working with a patient. He was fired for allegedly violating that directive. The Vice President of Human Resources relied upon the allegation and fired Staub.

A jury found that Staub’s “military status was a motivating factor in [Proctor Hospital’s] decision to discharge him.” The 7th Circuit Court of Appeals reversed that decision and found for Proctor Hospital, as there was no animus towards the military by the terminating officer.

The U.S. Supreme Court reversed the 7th Circuit Court of Appeals decision unanimously (8-0), with Justice Elena Kagan recusing herself due to prior involvement with the case as solicitor general. The Court held that “if a supervisor performs an act motivated by anti-military 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.”

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