E.D. Ky.: Hostile Environment on Return from Military Could Violate USERRA

By Maria Greco Danaher Apr 27, 2007

The right to be free from a hostile work environment could fit the definition of an employment “benefit” for purposes of the Uniformed Services Employment and Reemployment Rights Act (USERRA), a federal district court ruled.

Gregory Steenken began working for the Campbell County, Ky., Police Department as a patrol officer in August 2000. Steenken also was a member of the U.S. Marine Reserves.

In October 2001, Steenken was called to six months of active duty as part of Operation Enduring Freedom, from which he was honorably discharged in 2002.

Steenken alleged that throughout his employment, supervisors criticized him for his military service by remarking on his marksmanship, making statements that his military service would have an adverse impact on the department’s ability to protect the public, and purposely omitting letters of commendation from his personnel file. Steenken claimed that after his return from active duty, the harassment and criticism intensified, that he was disciplined for issues for which other officers were not, and that he was assigned substandard equipment. According to Steenken, his work environment became so intolerable that he was forced to resign in October 2003.

In response to a subsequent lawsuit filed by Steenken, the county contended that it had appropriately re-employed Steenken after his return from active duty, and that the criticism and discipline to which Steenken had been subjected was warranted because of his violation of department rules.

To prove a violation of USERRA, Steenken had to show that his employer had used his military affiliation as a “motivating factor” for adverse employment actions. However, an employer can affirmatively defend against that allegation if it can prove that it would have taken the same actions notwithstanding the military affiliation.

The county filed a motion for summary judgment, arguing that its actions were justified, and that Steenken was treated appropriately.

The court denied the motion, determining first that discrimination under USERRA could be established indirectly by showing an employer’s expressed hostility toward members protected by the statute or disparate treatment. The court found that the county was unable to sufficiently support an attempt to show that its conduct would have been the same notwithstanding Steenken’s reservist status.

While Steenken may or may not prevail at trial, his theories were sufficient to allow the court to find that a reasonable jury could resolve the factual issues in his favor and that based on that fact, the case could move forward to trial.

Steenken v. Campbell County, E.D. Ky, No. 04-224-DLB (March 15, 2007).

Professional Pointer: Although this lower court opinion has narrow precedential value, its message cannot be ignored: that the right to be free from a hostile work environment could fall within the USERRA’s prohibitions against a denial of any “benefit of employment” to an individual with time in the armed services. While this holding should not be interpreted to allow returning reservists to violate work rules with impunity, it can serve as a reminder to employers that work rules and policies must be enforced consistently to avoid liability for unequal treatment of individuals protected by statute.

Maria Greco Danaher is an attorney with the firm of Dickie, McCamey & Chilcote in Pittsburgh.

Related Articles:

Workplace Rights for Service Members: The USERRA Regulations Deconstructed, Legal Report, March/April 2006

RIF of Worker on Military Leave Raises Notice Dilemma, HR News, May 18, 2006

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SHRM Online Workplace Law Focus Area

Editor’s Note: This article should not be construed as legal advice.


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