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Can I Be Fired For Taking Time Off For My Military Obligations? I Need A Lawyer!

| Nov 12, 2015 | Workers' Compensation Retaliation, Wrongful Termination |

Best Ohio Military Discrimination Attorney Answer: Can I be disciplined for missing work due weekend military drills? Can I still sue my employer for wrongful termination, if I am given all requested military leave but then fired? What evidence do I need to prove my military discrimination case against my boss?

Employment Law, Military, Army, Navy, Air Force, Marines, National Guard, Employment, Lawyer, attorney, service member, deployment, USERRA, Cleveland, Columbus, Toledo, Cincinnati, Yesterday was Veteran’s Day. Instead of posting a military discrimination blog on Veteran’s Day, our employment attorneys are intentionally doing the next day to make it clear that protecting our military service member of the Army, Navy, Air Force, Marines, or Coast Guard is not a one day recognition. It is something that our employment law lawyers do every day because these service members protect our rights, freedom and safety every day.

One would think that an employer would appreciate it if it learned that one its employees were serving our country in the military. After all, it is because of our nation’s military, and the security it provides that we have the free enterprise system that we do. Unfortunately, this is often not true, as short-sighted employers regularly discriminate against service members whose leave obligations they find to be burdensome.

Pursuant to the Uniformed Services Employment and Reemployment Rights Act (“USERRA“), employers may not discriminate against members of the military. Moreover, USERRA requires employers to restore employees who take military leave to their prior position with all benefits. Employers may not retaliate against an employee who has exercised their rights under USERRA, nor discharge that employee within one year of re-employment, except for cause. Critically, an employer can still run afoul of USERRA even when they grant an employee all the military leave they require, if the employee can show that the employer took an adverse action against them, and that it is likely that their military service was a motivating factor for the adverse action.

The recent case of Arroyo v. Volvo Group North America, LLC demonstrates the trouble employers can get themselves into when they start having discussions about an employee’s military leave and proposed discipline interchangeably. The plaintiff in this case, LuzMaria Arroyo, was a materials handler at Volvo’s parts distribution center in Joliet, Illinois, and also a reservist in the U.S. Army. During her employment at Volvo, Arroyo deployed twice to Iraq and Kuwait, and she regularly took leave for weekend drills and other military activities. Because Arroyo’s reserve base was based out of Fort Benning, Georgia, Arroyo would typically take additional days off to facilitate her travel time to and from Illinois. Overall, Arroyo took roughly 900 days of leave for her military service from June of 2005 until her termination in November of 2011.

Ohio, employer, employee, best, Brian Spitz, top, discriminated, fired, wrongfully terminated, wrongful termination, How do I, What should I do, Uniformed Services Employment and Reemployment Rights Act, boss, managerArroyo’s managers were frustrated at how much time Arroyo was taking off for her military obligations. Indeed, discovery revealed several emails in which Arroyo’s managers whined and complained about having to provide Arroyo with military leave. For example, Keith Schroeder, Volvo’s director of distribution, sent the following email to Volvo’s director of labor relations, Bruce Olin:

I find myself with a dilemma if I were to discipline a person for taking too much time off for military reserve duty. . . . I certainly give her credit for serving our country but of course I am also responsible for our business needs.

One of the chief complaints Arroyo’s managers had with regards to her military leave was that it was causing an “undue burden” to Volvo, that Arroyo participated in extra training, and that Arroyo required travel time because she was stationed in Georgia. In response to Schroeder’s above email, Olin replied:

First, we do not have to grant time off for [Arroyo’s] travel time. Her legal obligation is 2 weeks per year, which we do give off, and 1 weekend per month. The drills she attended were most likely extra training, which we do not have to grant the time. We do not have to give extra time for her travel to and from her weekend duty. She does have the option to transfer to a closer unit, we cannot make her transfer.

As it turns out, Olin was wrong – USERRA makes no distinctions between involuntary time and voluntary time a service member spends training (“extra training”), and Arroyo was entitled by law to sufficient travel time plus eight hours of rest:

(1) Subject to paragraph (2), a person referred to in subsection (a) shall, upon the completion of a period of service in the uniformed services, notify the employer referred to in such subsection of the person’s intent to return to a position of employment with such employer as follows:

(A) In the case of a person whose period of service in the uniformed services was less than 31 days, by reporting to the employer—

(i) not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight hours after a period allowing for the safe transportation of the person from the place of that service to the person’s residence

Nonetheless, Schroeder forwarded the email to Temko. Temko then told Arroyo that she was not entitled to a travel day, and that any day she took for travel would fall under Volvo’s normal attendance policy.

Subsequently, Arroyo deployed to Baghdad for nearly a year – from April 2006 to May of 2007. In April of 2007, Temko became frustrated at how long Arroyo had been out, and he complained to Olin that he had only heard from Arroyo once since she had deployed. Temko then asked Olin if he could contact Arroyo’s unit. Olin responded in an email in which he stated: “Unfortunately, there isn’t a lot we can do. . . . Per the law we have to wait for her. Sorry it isn’t what you wanted to hear.”

Arroyo provided testimony that when she returned from Baghdad, Temko confronted her, and pressured her to consider transferring to a local unit, and that Schroeder made it “very clear” that her continued employment at Volvo depended upon her doing so. As result of this pressure, Arroyo reluctantly transferred her duty station to Darien, Illinois in March of 2008.

However, even with her new unit, Arroyo continued to deploy fairly frequently. Arroyo deployed from April of 2008 to October of 2008 with her new unit, and upon her return, Temko and Schroeder confronted Arroyo about how long she had been out. Arroyo was out again for training from November 3, 2008 to November 10, 2008. When Arroyo failed to report to work within a few days, Temko sent Schroeder an email in which he discussed disciplining, suspending, or even terminating Arroyo. However, when Schroeder contacted Arroyo, he learned that her training had been extended. Schroeder responded to Temko by explaining “we likely have no recourse due to her military service.”

Arroyo deployed once again in support of Operation Iraqi Freedom from April of 2009 until mid-August 2010. Given the length of Arroyo’s service, she was entitled to 90 days to return to work after her tour of duty ended. Nonetheless, Volvo decided to offer Arroyo a voluntary severance package the first day she returned from service. Arroyo refused.

In the year that followed, Temko and Schroeder began to discipline Arroyo from minor attendance infractions, ranging from Arroyo’s being one minute late, to ten minutes late. Based on Volvo’s attendance policy, Arroyo was given a verbal warning, a written warning, and a suspension, before she was terminated.

Arroyo sued Volvo, arguing that Volvo had terminated her because of her military status (she also claimed she had been discriminated against due her disability, but that is a whole other blog). Volvo defended by arguing that it had always allowed Arroyo to take the time she needed for military leave, and had never disciplined Arroyo for taking leave. Volvo further argued that it had followed its attendance policies, and it terminated Arroyo in accordance with those policies.

At the trial court level, the court decided that Arroyo had failed to establish that her military service was a motivating factor in Volvo’s decision to terminate her employment. The trial court also found that Volvo was acting within its discretion by strictly enforcing its attendance policy against Arroyo. As a result of these findings, the trial court granted Volvo’s motion for summary judgment, and awarded Volvo cost. Arroyo appealed.

At the appellate level, the Seventh Circuit Court of Appeal took issue with the trial court’s opinion, finding that the trial court had “underestimated” the significance of Temko and Schroeder’s emails, and that questions of fact remained regarding whether Volvo had enforced its attendance policy equally, leading to an inference of discrimination:

Taking all the evidence as a whole, a reasonable jury could infer that Volvo was motivated, at least in part, by anti-military animus toward Arroyo. There is evidence that from the beginning of her employment, her supervisors disliked the burden her frequent military leave placed on the company. They repeatedly discussed disciplining her and denied her rights, such as travel time, to which she was entitled. Some of the emails come close to a direct admission of management’s frustration. For example, Schroeder discussed his “dilemma” of “disciplin[ing] a person for taking too much time off for military reserve duty.” He later reportedly told Arroyo that accommodating her orders placed an undue hardship on Volvo; Jarvis repeated the same sentiment. Temko complained about Arroyo’s lack of communication while she was deployed in Iraq. A jury could understandably detect in these communications animus toward Arroyo’s military service.

Animus or frustration alone, however, does not support a claim of discrimination. It must have been linked, as a motivating factor, to an adverse employment action. 38 U.S.C. § 4311(c)(1). Again, we think a jury could reasonably conclude that there was such a link here. The emails expressing management’s frustration often transitioned directly to a discussion about disciplining Arroyo under the local attendance policy for her tardiness and absences. In the end, she was not disciplined directly for her military leave. But she was disciplined for other instances of tardiness, often of a relatively minor nature — one or only a few minutes late. A jury could infer from the evidence that Arroyo’s punishment for such infractions was actually motivated by her supervisors’ long-standing frustration about her frequent absences.

Moreover, the court of appeal found that the trial court had applied the wrong standard when it determined that Volvo had the right to fire Arroyo because she had undisputedly violated Volvo’s attendance policy. The Court explained that regardless of Arroyo’s attendance violations, Volvo still had the burden of demonstrating that it would have fired Arroyo regardless of her military service. Noting that Volvo could only identify one other employee who had been terminated as a result of minor attendance violations, the court of appeals reasoned that questions of fact remained for the jury to decide as to this issue. Based on this, the Court reversed the trial courts grant of summary judgment on Arroyo’s USERRA claim, and remanded it for further proceedings.

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 (216) 291-4744. 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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