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Can My Supervisor Harass Me About My Military Service Obligations? I Need A Lawyer!

| Jan 23, 2015 | Employment Discrimination, Military Status Discrimination, Wrongful Termination |

Best Ohio Military Discrimination Attorney Answer: Can my employer tell me to choose between my job and serving in the military? Can I pursue a hostile work environment claim on because my manger harasses me about my military service? 

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Our employment discrimination lawyers have blogged before, about employers wrongfully terminating or discriminating against employees that serve our county in the armed forces. But, it still amazes me that any employer would take a hostile attitude against the men and women that server our country, protect us, fight for our freedoms, and put their lives on the line for us. And, yet, it happens every day. But, fear not, the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) gives us a weapon to fight for them and against such employment discrimination. USERRA requires employers to rehire employees who leave to serve in the military, and prohibits employers from terminating veterans or reservist for up to one year after they return from their military service without just cause. Can employers harass you about your military service as long as they comply with these requirements?

I want to sue my company for USERRA violations and need a lawyer in Ohio. To learn about all your USERRA and military discrimination rights, call attorney Brian Spitz and all of the employment law lawyers at The Spitz Law Firm to set up a free initial consultation.

Until 2011, USERRA did not generally permit hostile work environment claims. In Carder v. Continental Airlines, several pilots who were also pilots in the national guard alleged that they were regularly subjected to a hostile work environment at Continental because of their military service. The pilots alleged that Continental supervisors had placed numerous restrictions on their ability to take military leave, had arbitrarily attempted to cancel military leave, and made several abusive comments, such as, “If you guys take more than three or four days a month in military leave, you’re just taking advantage of the system”; “I used to be a guard guy, so I know the scams you guys are running”; “Your commander can wait. You work full time for me. Part-time for him”; “I need to speak with you, in person, to discuss your responsibilities here at Continental Airlines”; “Continental is your big boss, the Guard is your little boss”; “It’s getting really difficult to hire you military guys because you’re taking so much military leave”; “You need to choose between Continental and the Navy.”

Nonetheless, the Fifth Circuit Court of Appeals granted Continental’s motion to dismiss the pilots lawsuit, finding that the plain language of USERRA did not allow for hostile work environment claims because it narrowly defined “discrimination” as denial of any “benefit of employment”:

From the plain language of § 4301(3), it is clear that one of the purposes of USERRA is to prohibit discrimination and acts of reprisal against service members because of their service. Section 4311(a) defines this discrimination to include the denial of any “benefit of employment.” The language of § 4303(2) defining the word “benefit” and the phrase “benefit of employment” includes the long list of terms “advantage, profit, privilege, gain, status, account, or interest.” But § 4303(2) does not refer to harassment, hostility, insults, derision, derogatory comments, or any other similar words. Thus, the express language of the statute does not provide for a hostile work environment claim.

However, only a few months after the court’s decision in Carder, and probably in direct response to Carder, Congress passed the VOW to Hire Heroes Act, which, among other things, broadened the definition of “discrimination” in USERRA by defining “benefits of employment” to include “terms, conditions, or privileges of employment,” language that has been used in other statutes to allow for hostile work environment claims.

Subsequently, this type of claim was then address in McDaniel v. Loyola Univ. Med. Ctr., which held:

Defendants next argue that Count II fails to state a claim of a hostile work environment under USERRA. Neither the Supreme Court nor the Seventh Circuit has explicitly decided whether a claim of hostile work environment is cognizable under USERRA. Only the Fifth Circuit has fully considered the issue. In Carder v. Cont’l Airlines, Inc., 636 F.3d 172, 177-79 (5th Cir. 2011), the court noted the similarity of USERRA to Title VII, and found that the language “terms, conditions, or privileges of employment” was central to the Supreme Court’s recognition of Title VII hostile work environment claims. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986). On the basis that this language from Title VII was absent from USERRA, the court concluded that a hostile work environment claim was not cognizable. Carder, 636 F.3d at 179. But, shortly thereafter, Congress amended USERRA to add to the definition of “benefit” the “terms, conditions, or privileges of employment.” 38 U.S.C. § 4303. In light of the amendment addressing the Fifth Circuit’s precise concern, it seems clear that the Fifth Circuit now would find a hostile work environment claim cognizable under USERRA, and indeed, at least one federal district court has since done so. See Montoya v. Orange County Sheriff’s Dep’t., 987 F. Supp. 2d 981, 2013 WL 6662707 at *79 (C.D. Cal. 2013).

Even before Carder, both the First and Eleventh Circuits assumed for the sake of argument that the claim was cognizable. Vega-Colon v. Wyeth Pharmaceuticals, 625 F.3d 22, 32 (1st Cir. 2010) (“For purposes of this decision we assume, without deciding” that a hostile work environment claim is cognizable under USERRA); Dees v. Hyundai Motor Mfg. Alabama, LLC, 368 Fed. Appx. 49, 53 (11th Cir. 2010) (“Assuming without deciding that harassment or hostile work environment is a cognizable claim under USERRA, [plaintiff] lacks standing to bring such a claim.”). Moreover, the Supreme Court has observed the similarity between USERRA and Title VII, in Staub v. Proctor Hosp., 131 S.Ct. 1186, 1191, 179 L. Ed. 2d 144 (2011), and the Seventh Circuit has applied Title VII analysis in USERRA cases. Crews v. City of Mt. Vernon, 567 F.3d 860, 869 (7th Cir. 2009) (applying Title VII’s “materially adverse” requirement for retaliation claims to USERRA). In light of the foregoing, the Court concludes that a hostile work environment claim is cognizable under USERRA.

In McDaniel, the United States District Court for the Northern District of Illinois, was faced with USERRA claim by a former medical school resident, who was an armed forces member. In his complaint, Mark McDaniel alleges that he was wrongfully terminated from the five-year Orthopaedic Residency Program at Loyola University Medical Center because of his service in theUnited States Air Force and Air National Guard. In June 2012, McDaniel told his boss that he needed to take leave for military service. At the meeting to discuss his military leave request, his boss demanded to a copy of McDaniel’s military orders and told McDaniel that he was being placed on academic probation. His boss then allegedly told his co-worker that they had to work extra hours so that McDaniel could have military leave. Because the boss displayed a very negative attitude toward the situation, it fostered a hostile attitude from his co-workers. Based on Carder, and the arguments advance therein, Loyola University Medical Center moved to have the hostile work environment claim dismissed arguing that there was not enough evidence to support a hostile work enviroment. The District Court rejected this motion and let McDaniel’s case proceed:

In the instant case, Plaintiff, responding to Defendants’ arguments that the Amended Complaint did not allege sufficiently severe and pervasive conduct, submitted a lengthy affidavit expounding upon his claim of a hostile work environment. Plaintiff sketches the origins of the anti-military animus in his work place, detailing an encounter with Hopkinson and later Salazar surrounding a student lecture on medical school and the military in which Hopkinson found his story disruptive, and Salazar thought Plaintiff’s military “deal” better than his own. Plaintiff further alleges that his detached retina was actually caused by his work environment. Plaintiff elaborates extensively on his treatment by Defendants, ranging from name-calling (“Airman Snuffy” — a derogatory military name), derogatory comments about Plaintiff’s military status and “blue-collar” ways to public humiliation and being screamed at in the middle of the hallway by a Dr. Stover for his military attitude. These allegations put into context Plaintiff’s claim that he felt harassed by Salazar’s repeated requests for his orders and his struggle to find coverage for his shifts while on military leave. The allegations in the affidavit are far more detailed than those in the Amended Complaint, and all of the additional facts serve to illustrate the original claims. Taking all the allegations in the affidavit to be true, Plaintiff provides ample factual basis to show that the conduct did occur frequently, was severe, was humiliating, and did impede Plaintiff’s ability to do his job. Plaintiff alleges that he was harassed because of his military status, that the harassment was so severe and pervasive as to alter the conditions of his employment, and that because he reported the harassment to Hopkinson to no avail, that there is a basis for employer liability. Plaintiff therefore has stated a claim for hostile work environment, and, accordingly, Defendants’ motion to dismiss Count II is denied.

As you can see, it is now possible for a member of the military who has been harassed by his employer about his military obligations to pursue a hostile work environment claim against his employer.

If you have been fired, discriminated against, demoted based on your military service, be it for the Army, Navy, Air Force, Marines or National Guard; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation at 866-797-6040. If you have been wrongfully terminated or fired for any reason within one year of returning from serving in the United States Armed Forces, you may have a claim. Do not wait. Call the right attorney now. You have protected us. Let us protect you. The Spitz Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.

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The materials available at the top of this page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “How do I get reinstated after serving in the U.S. military (Army, Navy, Air Force, Marines or National Guard)?”, “What should I do if I was fired while serving in the military?” “My boss discriminated against me because …” or “I was fired within a year of returning from he U.S. military (Army, Navy, Air Force, Marines or National Guard)? What should I do?” — It would be best for to contact an Ohio attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.