Federal Appellate Court Finds Potential USERRA Violations

The Uniformed Services Employment and Re-Employment Rights Act (USERRA) has been around since 1994, but there are very few court decisions under this law. So, I was pretty excited to see a published opinion by the U.S. Court of Appeals for the Sixth Circuit and couldn’t wait to read what it had to say about the law.

Nearly 25 years after it was enacted, I still have not had a single client ask me any questions about this law. Maybe this will just be knowledge for me to store away in my gray matter. Nonetheless, I thought I’d share it, because I think it has some value for employers.

In Hickle v American Multi-Cinema, Inc, plaintiff Jared Hickle was fired from his job. The defendant claims it was for unprofessional behavior and for impeding an investigation. Hickle, who also served in the Ohio Army National Guard, believed it was due to the defendant’s anti-military animus, so he filed suit under USERRA and the comparable Ohio law.

The district court in Ohio granted the defendant’s motion to dismiss, but the federal appellate court reinstated the case. Let’s take a closer look at what happened.

Hickle began his career at the theater in 2004 while he was still in high school. Two years later, he received a promotion to operations coordinator at the theater. In 2008, Hickle joined the National Guard. Before he left for training, Hickle interviewed with Tim Kalman (the defendant theater’s General Manager) for a management position. When Hickle mentioned that he would need a six-month leave of absence for military training, Kalman immediately ended the interview.

Hickle did not receive the promotion, but the person who did thanked him “for joining the military. I just got promoted.” Hickle received a promotion into management following his training and became kitchen manager in 2013. During that time, Hickle continued to serve, including a one-year tour in Afghanistan.

Senior Manager Jacqueline Adler, Hickle’s immediate supervisor, made several comments over the years about how frustrating his time off was to her and that maybe he should be moved to the front of the house where there are more managers to cover for him when he is gone "and it wouldn’t be such a [headache] to her.”

In June 2014, Hickle was supposed to close on the Thursday night before his military obligation on Friday. Closing occurred well after midnight which was when his orders could commence. Thus, Hickle informed Adler he could not close on Thursday. In response Adler commented that he needed to find another job because he no longer met the defendant’s minimum qualifications. Hickle told Kalman about Adler’s comment, and he said he would take care of it.

After returning from military duty, Hickle asked to meet with Kalman and Adler. During the meeting, Hickle provided Kalman with a pamphlet that provided a detailed explanation of an employer’s obligations under USERRA. After the meeting, Adler continued to make comments suggesting that Hickle could (or should) be fired for taking time off for military service, including in February 2015 when Hickle asked for time off for military duty, and she suggested that they needed to replace him.

In April 2015,  the defendant was expecting huge crowds for “Avengers weekend.” Hickle reminded Adler that he would be gone that weekend for military service. Adler told him that he would be fired if he missed work that weekend. When Hickle reminded her that terminating him for military service would be illegal, she said “that’s okay. We will find something else to terminate you on.” The defendant would later argue that Adler was just joking. However, Hickle was fired in April, not long after she made that comment.

Hickle was fired because of the chicken finger incident. No kidding, I’m not making this up. Apparently, one of the employees told Hickle that Quinton Branham had asked her to make extra food, so he could take it home at the end of the shift. She refused, but a “to go” box was found with 10 chicken fingers in it. This exceeded the amount an employee could take home for a shift meal.

Branham admitted that they were his but that they had been abandoned and would have been tossed out. Hickle told the employees that they could not take food home that night but would be permitted to eat their meal at the theater. Well, when finger licking good chicken is at stake, apparently tempers flare. Another employee began cursing at Hickle and acting disrespectful. Hickle wrote a statement concerning the incident and denied losing his temper or otherwise acting unprofessional in return.

The next day, an employee told Hickle that Adler was plotting to get rid of him. According to the employee, Adler was asking an employee to get into an argument with Hickle in front of other employees so they could then write statements against him. While Hickle gathered employee statements about Adler’s plot, the defendant was investigating Hickle about the chicken finger incident.

Hickle’s actions were viewed as impeding the investigation. Hickle was fired by Keana Bradley, a “corporate adjudicator” after reviewing findings by the defendant’s corporate compliance office which conducted the investigation with input from Kalman.   

Under USERRA, employees who perform military service are protected from termination because of their military service. A plaintiff has to show by a preponderance (a tipping of the scales of justice) that his protected status was a “substantial or motivating factor in the adverse employment action.” Then the employer needs to show by a preponderance that it would have taken the same action without considering the military service and for a lawful reason.

The appellate court found that the district court was wrong when it held that Hickle had not offered any direct evidence of the violation. The decision maker was well aware of Adler’s persistent, discriminatory comments and threats and that Hickle was gathering evidence of Adler’s plot to frame him. 

The court, relying on the Supreme Court’s decision in Staub v Proctor Hosp, 562 US 422 (2011), applied the “cat’s paw” theory: “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”

Hickle presented evidence of Adler’s comments, including that she stated she would find another reason to fire him, and of her plotting to get him fired. Thus, a fact issue existed that needed to be resolved by a jury to determine whether Adler may have influenced the decision.

The defendant tried to rely on a case where the investigator was not aware of the plaintiff’s complaints about military leave and conducted a thorough investigation, terminating the employee solely for lawful reasons. However, the appellate court found the instant case to be distinguishable, stating: “[t]his was not a case in which the decision maker was acting on a clean record and in ignorance of lurking discriminatory motives. The decision maker was fully aware of the facts suggesting that the ‘impeding the investigation’ charge was pretextual.”

The defendant also argued that it had never denied Hickle’s request for time off, which the district court found to be persuasive evidence of a lack of anti-military animus. But the appellate court said this was not “determinative, as there could be numerous situations in which an employer would grant requests for military leave (albeit grudgingly) for years and nevertheless finally wrongfully terminate an employee for taking such leave.” While granting leave helps the defendant’s case, it does not insulate it from liability.

So, in the end, a jury will decide whether  the defendant relied solely on the chicken finger incident in deciding to fire Hickle and whether it would have reached the same result absent the allegations that he had impeded the defendant’s investigation.

I see two lessons from this case. First, and while recognizing that staffing can become a legitimate concern, I would encourage employers to be supportive of employees who are willing to serve in the military.

Second, if you want to avoid the cat’s paw theory, choose your decision maker carefully and keep that individual completely independent and far away from the opinions and taint of the supervisor who will be accused of discrimination. Such strategy decisions may best be made with the assistance of legal counsel or the cat’s paw may end up without chicken fingers to fall back on.

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