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One of your computer technicians is also a petty officer in the US Naval Reserves. As part of her military obligation, she was deployed on full-time active duty for six months, after which she came back to work at the same title, salary, consulting engagement, and work location. But there were certain changes to her job responsibilities: during her leave, your company consolidated its network operations, so some of the higher level contract work was no longer performed by her or anyone else. Also, about two weeks after she returned to work, she was reassigned to a later shift, which conflicted with night classes she was taking. She arranged for various supervisors and co-workers to replace her when her work schedule conflicted with her classes and she did not miss any classes as a result of her new schedule. But she told you she believed that her USERRA rights were being violated.
Other things remained the same about her employment as well: certain disciplinary problems also continued. On various occasions, she left work early without authorization, was absent from a team conference call, was rude to customers, and was the subject of various co-worker complaints about behavioral and attendance issues. Three months after her return to work she was placed on a performance improvement plan based on both pre-deployment and post-deployment conduct. Nonetheless, the performance problems continued, and she was fired. She sues your company for violating her rights under USERRA. Did you violate the law?
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Answer: |
On similar facts, a federal appeals court found that an employer did not violate the Uniformed Services Employment and Reemployment Rights Act (USERRA). First, the employee was rehired with the same title, salary, consulting engagement, and work location upon her immediate return to work from military leave. The fact that the employee's shift schedule was altered several weeks after she was rehired or that other slight work changes were made did not implicate her USERRA rights. Similarly, the employee could not show discrimination based upon her membership in the armed services, as there was no evidence her military status was a motivating factor in any of the employer’s actions.
Moreover, she could not establish an unlawful discharge claim. According to the court, the issue was whether, based on the undisputed evidence in the record, it was objectively reasonable for the employer to dismiss her. The court found that the undisputed evidence showed an extensive pattern of unprofessional misconduct taking place over the course of years, well documented by the employer, and reported to management from a wide variety of co-workers and other sources. She was notified that her misconduct was cause for discharge and given an opportunity to improve her performance, including specifically what remedial actions were required. Nonetheless, she failed to address the problems. These undisputed facts were sufficient to meet the employer's burden under USERRA of showing that the employee, a service member, was discharged for cause. Because evidence of the employee's misconduct here was overwhelming and largely uncontroverted, there was no liability under USERRA.
Source: Francis v Booz, Allen & Hamilton, Inc, 4thCir, 152 LC ¶10,682.
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