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Most employers are aware that they must grant employees leave for military service and reinstate them thereafter, in accordance with the Uniformed Services Employment and Reemployment Rights Act (USERRA). However, even if employers provide leave and properly reinstate employees after military service, they can still run afoul of the anti-discrimination provisions of USERRA. This potential is illustrated by the recent decision of the U.S. Court of Appeals for the Sixth Circuit in Hance v. Norfolk Southern Railway. In that case the appellate court affirmed a judgment in favor of the plaintiff after a bench trial on his claim that he was terminated in violation of USERRA due to his military service obligations.

Hance was a member of the Tennessee Army National Guard, and he requested and received several periods of leave for calls to duty and for training. In 2001 Hance arrived at work with a representative from the military guard, who advised his employer that Hance needed two weeks of leave for military training. His supervisor refused to accept paperwork related to the military training, refused to allow the military representative to record the meeting, and made him leave.

The supervisor then told Hance he needed to travel to Andover, Virginia the day his leave was over, that the travel would be unpaid, and that he was not guaranteed a work schedule. Hance contacted the general chairman of his union who told him he did not have to report and that he would take care of the situation. Hance did not report to Andover, and he was fired for insubordination. He filed a grievance, and his dismissal was upheld in arbitration.

Hance then filed a lawsuit alleging that he was terminated due to his military service in violation of USERRA. The trial court found that his military service was a motivating factor in his termination, and awarded him more than $350,000 in damages. The appellate court affirmed, concluding that under USERRA a plaintiff need only show that discrimination based on anti-military animus is a motivating factor for the discharge; it need not be the sole reason. Evidence of anti-military animus from the supervisor and a decisionmaker, combined with the close temporal relationship between Hance’s two-week leave for military service and his discharge, was legally sufficient to support a finding he had been discharged in violation of USERRA. The court also held that the arbitration decision (finding the discharge was for good cause) was not binding.

This case is a good reminder to employers that, even if they have satisfied the mandates of USERRA by providing leave and reinstatement, they can still be subject to liability for discrimination. Training of supervisors, managers, and human resources personnel regarding USERRA’s anti-discrimination provisions may be helpful in avoiding such liability.

Sonja Lengnick

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