A new USERRA case gives a useful review of the limits of claims against employers when veterans return from military service.
In Woodard v. New York Health and Hospital Corp., No.1:04cv05297 (E.D.N.Y., March 17, 2008), the employee worked in a management position overseeing surveys of healthcare centers to evaluate their accreditation and regulatory practices. She also served in the Army Reserve as a major, taking three weeks of military leave when she was hired in 1995, and completing her annual Reserve requirements thereafter.
Woodard took an extended military leave from October 2001 until March 29, 2004. On her return, she was not returned to her former job (which was still vacant) but instead assigned to a quality assurance area that was understaffed. Nevertheless she retained her management title and the same salary grade.
Woodard sued claiming that she was discriminated against because her pay increase was reduced following an evaluation in 2001 and because her new position upon return in 2004 did not involve managerial duties, but instead required a number of “secretarial” functions.
Initially the court ruled that Woodard made a prima facie case of USERRA discrimination because her pay raise, which was only half of what it should have been, occurred in close proximity to her return from military leave and because her supervisor referred to her military leave of absence in a memo justifying the reduced pay raise.
Important safety tip here: in memos, employee evaluations, emails, or polite conversation, do not refer to protected factors in the same sentence as adverse employment actions.
But the court then noted that merely making a prima facie case, and perhaps even showing pretext, is not enough if you don’t have damages. In this case, the employer retroactively credited Woodard with a pay increase equivalent to what she would have received if she had been working full time, without the leaves of absence. This effectively mooted her USERRA discrimination claim.
Woodard’s re‑employment claim is subject to a somewhat more confusing analysis. In fact, you might be able to make a case that the court got this one wrong. It is undisputed that Woodard was not put back in her old job, but was moved laterally to an understaffed position that had slightly different duties, although she retained her title and salary. The employer justified not putting her back in the same position by noting that the company was operating on a very tight budget that precluded new hiring and employees were being moved around throughout the hospital to ensure critical positions were filled. Other employees were assigned to perform the essential elements of Woodard’s old job, which the court said essentially caused “her old job to disappear”.
Given that the requirements for the job were still there, I’m pretty sure that an employer does not get the flexibility under USERRA to simply shift somebody out of their old job and into a new one because it was able to manage staffing the old position with the remaining employees. The language of the statute is clear—it requires a return to work in the position the employee would have had if she had not left. The court’s opinion is not clear on how the employer demonstrated that it could not have reassigned the duties of the new position to remaining employees when Woodard returned and simply put Woodard back into her old job. I think this may be an issue revisited on appeal because it seems inconsistent with the plain language of the statute.
In other words, you don’t get to reassign an employee simply because other people have proved capable of doing her job while she’s gone. If the obligations to perform those tasks remain, and the company has not reorganized that position out of existence, I think a good case could be made that the requirement to put the employee back in that position remains and the employer’s obligation is to shuffle staffing to make up for any other shortfalls rather than having the burden fall on the returning service member.