Recently, in Escher v. BWXT Y-12, LLC, the Sixth Circuit Court of Appeals, which covers Kentucky and Ohio, rendered an important decision regarding claims for retaliation under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).  USERRA generally grants service members reemployment rights when returning from a period of service in the uniformed services, including service members who serve in the reserves or National Guard; in addition, the statute prohibits discrimination based on military service or obligation.  Obviously, with the large number of Americans currently serving actively in the Armed Forces, USERRA is a statute with significant implications for many employers.

In Escher, the plaintiff worked for BWXT Y-12, LLC, which is a contractor for the National Nuclear Security Administration.  The plaintiff was a member of the Naval Reserves.  In 2004, BWXT changed its military leave policies, and the plaintiff complained to an administrative employee in payroll and a senior human resources specialist about the change following his return from leave with the Naval Reserves.  The plaintiff alleged that he was discharged in retaliation for making these complaints.  The employer, however, said the plaintiff was discharged because he was performing work for the Naval Reserves while on the clock for BWXT, including using the company IT system for personal gain.

In order to prevail on a USERRA claim, the employee must first show by a preponderance of the evidence that his protected status was a motivating factor in the adverse employment decision.  The parties assumed that the plaintiff engaged in protected activity when he complained about the military leave policies.  The court recognized that the plaintiff could prove a discriminatory motivation by considering a number of factors, including, but not limited to: (1) proximity in time between the employee’s military activity and the adverse employment action, (2) inconsistencies between the alleged reason for discharge and other actions by the employer, (3) an employer’s expressed hostility towards service members protected by USERRA, and (4) disparate treatment between how the plaintiff was treated compared with other employees.

The Sixth Circuit found that the plaintiff could not establish any of these four factors.  First, the court found that the temporal proximity between the plaintiff’s complaints and his discharge did not show retaliation because the decision-maker who discharged the plaintiff was not aware of the complaints.  Second, the plaintiff alleged that the employer was inconsistent in its application of company policies because the company had a policy that allowed its employees to use its IT resources for official government business.  The plaintiff alleged that his work on the side for the Naval Reserves was official government business.  The court found this argument to be disingenuous.

Third, the plaintiff could not show that the company expressed hostility towards military personnel as it had a generous military leave policy and had been given awards recognizing the same.  Finally, the plaintiff could not show that he had been treated differently than other employees as there was evidence of other employees who were discharged for using the company’s IT system for personal gain.

The court also held that even if the plaintiff could have met his prima facie burden, the employer still would have prevailed because it would have terminated him anyway for a valid reason.  The court also dismissed the plaintiff’s retaliation claims brought pursuant to Tennessee law.

Joseph Leonoro concentrates his practice in matters involving labor and employment law.
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