Mixed-Motive Defense Bars USERRA Constructive Discharge Claim

​A middle school assistant principal could not establish constructive discharge under the Uniformed Services Employment and Reemployment Rights Act (USERRA) because a jury ruled that his employer would have acted in the same way even if it had not taken his military service and protected activity into account. While the plaintiff argued that the mixed-motive defense was not available in a constructive discharge claim, the 5th U.S. Circuit Court of Appeals disagreed.

Spring Independent School District (Spring ISD) employed the plaintiff from August 2013 until July 2019, first as a teacher and later, beginning with the 2016 school year, as an assistant principal at Dueitt Middle School. During this time, the plaintiff was in the Army Reserve and took leave to fulfill his military duties.

In November 2018, the plaintiff was called to a meeting with Dueitt's principal and Spring ISD's assistant superintendent for middle schools. The assistant superintendent testified that the meeting was to discuss the plaintiff's professional judgment, complaints about him from parents and other performance issues. The plaintiff recorded part of the meeting, during which the assistant superintendent asked him how he would manage his work responsibilities so that he did not "screw over" his colleagues because of his choice to serve in the Army Reserve.

The assistant superintendent sent a memo to the plaintiff after the meeting that memorialized their discussion, including his direction that the plaintiff needed to have a plan for ensuring that his military duties did not negatively affect his colleagues. The plaintiff retained a lawyer who sent a letter to Spring ISD concerning his USERRA rights. Soon after, the plaintiff was reassigned from overseeing eighth grade students to overseeing seventh grade students, but his job responsibilities and duties otherwise remained the same.

Parents continued to complain about the plaintiff. A new assistant superintendent of middle schools met with the plaintiff in March 2019. The meeting did not go well, and the assistant superintendent sent the plaintiff a memorandum afterward about his professionalism. Spring ISD opened an investigation into allegations that the plaintiff behaved improperly when disciplining a student.

After concluding that the plaintiff had violated school policy and ethical standards, Spring ISD placed him on home duty in May 2019. That same month, the Spring ISD board voted to propose nonrenewal of his contract at the end of the school year.

The plaintiff sued, alleging violations of his USERRA rights, and the nonrenewal was rescinded. Spring ISD offered the plaintiff a one-year contract for the next school year at a different school. The plaintiff refused to sign the contract in part because he was concerned that he would be admitting to the allegations against him, allegations that he denied and that could negatively impact his military career. The plaintiff's lawsuit proceeded to a jury trial.

The parties jointly submitted jury instructions to the district court, to which neither party objected. These instructions included questions asking whether the plaintiff's military status and USERRA-protected activity were motivating factors in his constructive discharge. The jury answered yes. The instructions also asked whether Spring ISD would have constructively discharged the plaintiff even if it had not taken his military service and protected activity into account, providing a mixed-motive defense. The jury answered yes to these questions, too.

Both parties moved for entry of judgment. The plaintiff asked the court to disregard the jury's answers to the questions concerning Spring ISD's affirmative defense. The plaintiff argued that the defense was not available in a constructive discharge context. The district court disagreed and entered judgment for Spring ISD, and the plaintiff appealed to the 5th Circuit.

The 5th Circuit analyzed USERRA's standard of causation and affirmative defenses. While USERRA prohibits employers from using military service or protected activity as a motivating factor in their decisions, it also provides an employer with an affirmative defense if it can prove that it would have taken the same action in the absence of military status or protected activity.

The plaintiff argued that the mixed-motive defense does not apply in a constructive discharge case because an employer does not necessarily intend a constructive discharge. However, the 5th Circuit rejected this argument, finding that the claim relies on intentional actions by the employer to create intolerable working conditions. In a constructive discharge claim, the employer can argue that it acted for reasons other than discrimination or retaliation.

The 5th Circuit thus upheld the district court's decision.

Garcia-Ascanio v. Spring Independent School District, 5th Cir., No. 22-20363 (July 17, 2023).

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