Temp Not Entitled to Re-employment After Military Service

By Jeffrey L. Rhodes Nov 20, 2015
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An orthopedic surgeon who signed a one-year employment contract with a hospital and declined regular employment has no claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA), the 6th U.S. Circuit Court of Appeals ruled.

The Heritage Medical Center sought an orthopedic surgeon in 2010. To fill the position, it used a temporary service, which provided Heritage with a temporary doctor, Richard Slusher. Slusher’s 30-day assignment began on July 20, 2010, and was renewed multiple times through October 2010. By that time, Heritage was searching for a more-permanent orthopedic surgeon and offered the position to Slusher. Slusher did not accept the position because he wanted to “keep [his] options open,” but he agreed to serve as an orthopedic surgeon on a short-term basis. In January 2011, Slusher signed a one-year contract beginning on Feb. 28, 2011. Under the terms of the contract, either party could terminate the agreement at any time as long as 90 days’ notice was provided. The contract did not provide for renewal or extension. At the time the contract was signed, Heritage knew that Slusher was in the military and that he could be called up for deployment at any time.

Heritage continued looking for a more-permanent orthopedic surgeon. On April 7, 2011, Heritage contacted Emmett Mosley to discuss his filling that role. On May 4, 2011, Slusher received military orders that he was being deployed. The following day, he notified Heritage of his deployment.

On May 16, 2011, Heritage entered into a recruitment agreement with Mosley, which included a three-year practice commitment and stated that Mosley would begin working on Aug. 1, 2011. On June 1, 2011, Heritage’s CEO, Dan Buckner, met with Mosley for dinner. According to Mosley, Buckner told Mosley during the dinner that Slusher’s deployment had “really messed things up” at Heritage. Buckner also allegedly said he knew that Mosley was also in the military and had almost completed his commitment. Buckner allegedly told Mosley that he had to make sure Mosley would not be deployed again before continuing to approach him about possible employment at Heritage.

Slusher was granted military leave by Heritage and reported for duty on June 10, 2011. Shortly thereafter, he deployed to Kuwait and then to Iraq. On July 28, 2011, Heritage sent Slusher a termination agreement. It stated that Slusher’s appointment would end on Oct. 26, 2011. Slusher signed the agreement and sent it back to Heritage, stating that he intended to return to Heritage after his appointment ended in October and to work until Oct. 26, 2011. Slusher returned from deployment on Oct. 3, 2011, and continued working at Heritage until his employment ended on Oct. 26, 2011.

In October 2011, Slusher filed a complaint about his termination with the Veterans’ Employment and Training Service of the Department of Labor. Once the agency completed its investigation, Slusher filed a lawsuit in federal court. He brought claims of discrimination under USERRA, which requires that employers reinstate employees who leave for military service during their employment.

Heritage filed a motion for summary judgment with the district court. The court granted that motion, dismissing the case prior to trial. On appeal, the 6th Circuit determined that USERRA did not apply to Slusher, finding that temporary employees are not covered by the act’s re-employment rights provisions. In determining that Slusher’s employment was temporary, the court considered Slusher’s rejection of a regular employment contract, the at-will nature of his one-year contract and the fact that Slusher was aware that Heritage was looking for a more-permanent surgeon.

The 6th Circuit also considered Slusher’s claim that he had been discriminated against because of his military service. The court found insufficient evidence to establish discrimination. It was clear, the court said, that Heritage hired Slusher knowing that he was a military reservist and offered him a more-permanent position despite the chance that he would be deployed. For these reasons, the 6th Circuit upheld the dismissal of Slusher’s claims.

Slusher v. Shelbyville Hosp. Corp., 6th Cir., No. 15-5256 (Oct. 26, 2015).

Professional Pointer: Employers must be very careful when discussing employment decisions with staff or others. In this case, the plaintiff’s strongest evidence of discrimination came from the CEO’s alleged comments indicating the company’s frustration with the plaintiff’s deployment. Refraining from such a discussion would have likely prevented the lawsuit.

Jeffrey L. Rhodes is managing partner of the civil division of Albo & Oblon, a business and employment law firm in Arlington, Va.

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