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Unveiling The Forgotten Anti-Discrimination Might of USERRA

by | Jul 5, 2023 | Employment Discrimination, Employment Law, Federal Law Update, Military Status Discrimination, Retaliation, Wrongful Termination |

In this blog, we will embark on a comprehensive exploration of the remarkable anti-discrimination powers of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). Contrary to popular belief, USERRA extends beyond protecting employees’ rights during military leave and serves as a formidable shield against discrimination based on military service or affiliation. So, for our Army, Navy, Air Force, Marines, Coast Guard and Reserve servicepeople and veterans, let’s dive into the key questions surrounding this crucial topic and shed light on your rights.

As a springboard, we are going to use the recent United States Court of Appeals for the Third Circuit decision in Thomas v. Broward Cnty. Sheriff’s Off., No. 22-11322, 2023 WL 4113309 (11th Cir. June 22, 2023). In this case, Scott Thomas applied to work as a helicopter pilot for the Broward County Sheriff’s Office’s air rescue program. During the interview process, a potential issue arose regarding Thomas’s logbooks. He maintained two logbooks, an official one and a backup version. When asked to present his official logbook during the interview, Thomas claimed it was stored in Virginia and required FBI clearance to disclose due to covert flights he had undertaken for the Federal Bureau of Investigation. Instead, he offered his backup logbook, which contained intentional alterations to obscure sensitive details. Despite the discrepancies, Thomas was hired as an air rescue helicopter pilot in November 2018, alongside four other pilots.

Once employed, Danielle Fuller, who had civilian pilot experience, became the chief pilot of the unit and Thomas’ boss. She openly displayed animosity toward the military pilots. She made offensive and derogatory comments about military pilots, expressing a preference for civilian pilots and questioning the capabilities of military pilots. Fuller treated military pilots differently. Two incidents further confirmed Thomas’s belief that Fuller discriminated against military pilots. He confronted her about her treatment of the military pilots, and when he requested leave, Fuller denied it and belittled him and the other pilots by calling them “children” that need to listen to their “mother.” Fuller later investigated the pilots’ backgrounds and requested their logbooks. While the other pilots brought their official logbooks, Thomas brought his backup logbook upon Fuller’s instruction. The numbers in Thomas’s backup logbook differed slightly from his resume, and Fuller argued that these discrepancies should be viewed as falsification for which Thomas should be fired. This led to Chief Nugent terminating Thomas’s probationary employment.

A jury found that the Broward County Sheriff’s Office discriminated and retaliated against Thomas, awarding him $240,000 in lost wages. The jury also found that the sheriff’s office “willfully violated the law.” While this finding of willfulness would typically entitle Thomas to liquidated damages (double the award), the district judge held that the jury’s finding on willfulness was only “advisory” and denied Thomas’s motion for liquidated damages. Broward County Sheriff’s Office appealed and Thomas cross-appealed.

Can I be denied a job because of my military background?

No. Are you concerned that your military service might hinder your chances of landing a job? Fear not! USERRA stands as a guardian of equal opportunities. Under USERRA, employers are prohibited from discriminating against prospective employees due to their military service or affiliation. Your qualifications and skills take precedence in the hiring process, regardless of your military background.

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Can veterans and reserve military members be treated differently at work for fired based on their service history?

No. USERRA’s provisions prohibit discrimination against employees who have performed service in a uniformed service. Prohibited discrimination under USERRA occurs when a “person who … has performed … service in a uniformed service” is “denied … retention in employment … by an employer on the basis of that … performance of service.” 38 U.S.C. § 4311(a). If you are denied retention in employment by an employer based on your performance of military service, it constitutes prohibited discrimination or wrongful termination under USERRA. To establish a violation, employee must demonstrate that military service was a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken even in the absence of military service.

Evidence that military status was a motivating factor can include an employer’s expressed hostility towards protected individuals under USERRA, along with knowledge of the employee’s military activity, as well as inconsistencies between the reasons provided by the employer and their other actions. USERRA provides a broad range of evidence that can be used to demonstrate discrimination based on military status.

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Can I be fired for reporting or opposing military discrimination or harassment?

Again, no. USERRA also includes robust anti-retaliation provisions. Employers are prohibited from retaliating against employees who exercise their rights under USERRA or assist others in exercising their rights. This protection ensures that you can report discrimination, file complaints, or participate in investigations related to USERRA violations without fear of adverse actions or retaliation from your employer.

What damages are available under USERRA for wrongful termination based on military discrimination?

USERRA offers remedies to those who have be wrongfully fired or discriminated against, including recovery of lost wages and benefits, reinstatement to the previous position or a comparable one, the possibility of liquidated damages in cases of willful violations, and the recovery of reasonable attorneys’ fees and costs.

What did the Court of Appeals do in Thomas?

First, the United States Court of Appeals for the Eleventh Circuit affirmed the jury’s verdict for Thomas on the retaliation. It not only pointed to Fuller’s overt hostility toward military members but also to the inconsistencies regarding its reasons for termination:

The evidence also revealed inconsistencies between the proffered reasons for terminating Thomas’s employment and the sheriff’s office’s other actions. The sheriff’s office insists that it justified Thomas’s termination on the “consistent explanation” of the “unverified flight experience and discrepancies between his [p]ilot [e]xperience [f]orm, [r]esume, and personal backup logbook.” But we look to inconsistences between the termination reasons and “other actions of the employer,” not within the reasons given for termination. Id. (citation omitted). Thomas introduced evidence that the sheriff’s office hired him with the full knowledge that his flight experience could not be verified by an official logbook—a fact inconsistent with its contention that the unverified experience disqualified Thomas from employment. Thomas testified that he informed the office of his dual logbook situation at his second interview. And Thomas testified that his interviewer, Miller, “was okay” with it and with slight deviations between his application materials and his logbook. Nothing about that situation changed between Thomas’s hiring and firing. Thomas also testified that Fuller was “perfectly fine” with having access only to Thomas’s backup logbook in early January, less than three weeks before Thomas was fired. So a reasonable jury could credit Thomas’s testimony and find that the sheriff’s office’s actions were inconsistent with its proffered explanation.

Id. at *4.

Furthermore, the Eleventh Circuit Court of Appeals held that the district court judge erroneously refused to award Thomas liquidated damages by discounting the jury’s express finding of willfulness as being just “advisory.” Specifically, the Eleventh Circuit held that once the parties agreed to submit the issue of willfulness to the jury, and especially because the district judge did not indicate before trial that the jury’s determination would only be advisory, the jury’s decision on that matter was automatically binding. It held: “Where the parties consent to a jury finding and the district court does not specify whether the finding will be non-binding under Rule 39(c)(1) or binding under Rule 39(c)(2), the jury finding is binding by default. Basic considerations of fairness and due process require that the parties know to whom they are presenting their cases beforehand too. The parties are entitled to know at the outset of the trial whether the decision will be made by the judge or the jury…. Were it otherwise, any litigant who received an unfavorable jury verdict on an issue not triable as of right would automatically get a second bite at the apple, in that the district court could overwrite the jury finding whenever it disagreed. No such judicial veto power is hidden within Rule 39(c).” Id. at *6.

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Do I have a claim for military discrimination under USERRA?

USERRA is your powerful ally in the fight against discrimination based on military service or affiliation. By consulting with an employment law attorney to understand your USERRA rights, including the criteria for prohibited discrimination and the broad range of evidence that can be used to demonstrate a violation, you can best assert those rights and seek a proper remedy. Remember, the information provided in this blog is for general guidance and should not be considered legal advice. Consult with an attorney to address your specific circumstances and navigate any USERRA-related concerns. So, call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

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