Denial of Promotion Results in USERRA Claim

The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employers from using military service as a "motivating factor" for an adverse employment decision, a relatively low causation standard in employment law. A security guard satisfied this standard with evidence of anti-military statements by her employer and its questionable reason for not considering her application for promotion, causing the 10th U.S. Circuit Court of Appeals to revive her dismissed USERRA claim.

The employee worked for the Wichita Art Museum for the city of Wichita, Kan., as a security guard. She also served as a reservist for the U.S. Navy. After about five years as a security guard, she learned of a vacancy for the museum's operations supervisor position. She and one other person applied. A city employee screened the applications and decided not to advance the employee to the next stage, where she would have been interviewed.

The city claimed the decision resulted entirely from the lack of supervisory experience evident from the employee's application for the position. The new job required at least one year of prior supervisory work.

The application called for the employee to state how many people she supervised. She answered two but identified her job title only as "security" and did not list any supervisory duties. Based on the job title and the absence of any listed supervisory duties, the screening official decided that the application had shown a lack of supervisory experience.

The employee claimed that her employer often complained of and disparaged her military service. She asserted that the museum's executive director once reacted negatively to a reservist commitment the employee had, asking, "[C]an't they reschedule that? Don't they know you have a real job?" When a security guard slammed a door into the employee's shoulder, the executive director reportedly admonished her: "[B]eing [in the] military, I figured you would be able to handle it."

The executive director also allegedly told the employee that she could never get a promotion so long as she remained in the military. When the employee expressed an interest in the position of weekend supervisor, the executive director allegedly responded: "[Y]ou're still in the military. … [Y]ou're not going to be considered or promoted, or you're not going to do anything here."

The city claimed that, even if true, these statements only showed frustration with the employee's unavailability during weekend drill services in the reserves and not hostility toward her military service.

When denied an interview for the promotion, the employee filed a USERRA claim. The district court dismissed the claim on summary judgment, finding insufficient evidence that her military service caused her to be denied an interview, and that the city had satisfied a same-action defense by proving that the screener would have disallowed an interview even if the employee had not been serving in the military.

[SHRM members-only how-to guide: How to Administer Military Leave Benefits Under USERRA]

On appeal, the 10th Circuit reasoned that a motivating factor only requires that anti-military motive influence the screener's decision to disallow an interview. The existence of other innocent motivations is not fatal to the claim. Even if the employee's apparent lack of supervisory experience influenced the city, the employee could still pursue her claim.

Inconsistent evidence emerged concerning whether the executive director had any input into the screener's decision not to interview the employee. While the city claimed she did not, the employee claimed that she asked the screener why she was not considered for promotion, and the screener blamed the executive director. The screener allegedly said that the executive director wanted the employee right where she was and that the employee was not going to go anywhere.

The 10th Circuit found that the same-action defense required the city to show that it always excluded applicants for supervisory promotions when their applications do not conclusively show prior supervisory experience. The city could not satisfy this heavy burden.

The court reversed the grant of summary judgment and reinstated the claim to proceed to trial.

Greer v. City of Wichita, Kan., 10th Cir., No. 18-3159 (Dec. 3, 2019).

Professional Pointer: Employers should recognize the considerable protection that the law provides to employee military service. Employment decisions cannot have any connection to military service, even if such service limits an employee's availability for work.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.