USERRA and the Escalator Principle

In Evans v. MassMutual Fin. Group, 2012 U.S. Dist. LEXIS 52521 (W.D.N.Y. April 13, 2012), the Court, in denying the defense motion for summary judgment, discussed the Uniformed Services Employment and Reemployment Rights Act’s (USERRA) so-called “escalator principle.”  This term was borrowed from a Supreme Court decision under the predecessor statute to USERRA.  See Fishgold v. Sullivan Dry Dock & Repair Corp., 328 U.S. 275, 284-85 (1946) (“The returning veteran does not step back on the seniority escalator at the point he stepped off.  He steps back on at the precise point he would have occupied had he kept his position continuously during the war.”)  The case involved a returning national guardsman who contended that he should be reinstated as a manager; whereas the employer contended that he should be reinstated as a sales agent.  The dispute was presented to the Court in the context of a motion for summary judgment.  The Court found that there was a genuine issue of material fact as to whether, prior to his deployment, the plaintiff was a manager or a sales agent.  

After denying summary judgment on that question, the Court turned to the plaintiff’s alternative argument in which plaintiff contended that, even if he was not a sales manager prior to his deployment by the national guard, there was a “reasonable certainty” that he would have progressed to that position had he not been deployed, and had he remained employed during that time at MassMutual.  This argument called upon the court to consider the so-called “escalator principle” contained in USERRA.  That statute, in section 4316(a), provides that a returning service member is entitled to “the seniority and other rights and benefits determined by seniority that the person had on the date of the commencement of service in the uniformed services plus the additional seniority and rights and benefits that such person would have attained if the person had remained continuously employed.”  The U.S. Department of Labor regulations state that this statutory language means that “[a]s a general rule, the employee is entitled to reemployment in the job position that he or she would have attained with reasonable certainty if not for the absence due to uniformed service.”  20 C.F.R. § 1002.191.  See Serricchio v. Wachovia Sec. LLC, 658 F.3d 169, 175 (2d Cir. 2011) (discussing the “escalator principle”); See also Bagnall v. City of Sunrise, Florida, 2011 U.S. Dist. LEXIS 94565 (S.D. Fla. August 24, 2011).  

In concluding his opinion, Judge Larimer discussed the important difference between section 4312 of USERRA, the reemployment guaranty provision of the act, with section 4311, the anti-discrimination provision of the act.  The Court noted that, while section 4311’s anti-discrimination language requires a showing of discriminatory intent, section 4312 requires no showing of intent.  The Court held that section 4312 is simply a guaranty of reemployment, and plaintiff need not show that his military status was a motivating factor in MassMutual’s alleged refusal to rehire him as a sales manager upon his return from military service.  Finally, on this point, Judge Larimer noted the contrary holding from the Sixth Circuit in Curby v. Archon, 216 F.3d 549, 556-57 (6th Cir. 2000), finding that the Curby analysis had been and should be rejected as erroneous.

Practitioners should keep in mind that the escalator can not only ascend, but also descend.  In other words, if the returning service member would have been demoted had s/he remained continuously employed, then reinstatement would be to the lower position, not the position s/he held prior to deployment.  Federal employees, it should be noted, are exempted from the descending elevator.  See 5 C.F.R. § 353.209(a).

USERRA requires prompt reemployment.  See 38 U.S.C. § 4301.  See also Coffman v. Chugach Support Services, Inc., 411 F. 3d 1231, 1234 (11th Cir. 2005).  While USERRA does not define “prompt reemployment,” the regulations (20 C.F.R. § 1002.181) provide that, absent special circumstances, reemployment should occur within two weeks of the employee’s application for reemployment.

            An excellent site to research USERRA issues, for example, the application of the “escalator principle” go to www.servicemembers-lawcenter.org, where you will find more than 700 articles, mostly about USERRA, some 112 of which were added in 2011 alone.  The site has a detailed subject index, including a header for articles discussing the “escalator principle.”
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Fifth Circuit's Decision Finding USERRA Harassment Claims Not Cognizable Mmay Be Overruled by the Congress

In Carder v. Continental Airlines, 636 F.3d 172 (5th Cir. 2011), petition for cert. denied 181 L. Ed. 2d 235 (Oct. 3, 2011), the Fifth Circuit held that USERRA does not create a cause of action for hostile work environment.  The Court’s decision, authored by Circuit Judge W. Eugene Davis, relied on the current language of USERRA, which does not contain the phrase “the terms, conditions, or privileges of employment” found in Title VII, which the Supreme Court heavily relied upon to find a cause of action for harassment.  Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 63-66 (1986).  In contrast, USERRA, in current § 4311(a) states that a protected person “shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that [protected status].” (emphasis supplied).

Presumably, both houses will agree shortly on legislation containing a Carder-override.  Given that it is characterized as a clarification, and thus potentially retroactive, employers should proceed henceforth, if they have not already, to conduct their business as though the law prohibits harassment of those protected by the Uniformed Services Employment and Reemployment Rights Act. 

On October 12, 2011, the U.S. House of Representatives passed H.R. 2433, the “Veteran Opportunity to Work Act”, which contains § 401, which would effectively overrule the Carder decision.  H.R. 2433, 112th Cong. (2011). Section 251 states as follows:

“Section 4303(2) of title 38, United States Code, is amended by inserting ‘the terms, conditions, or privileges of employment, including’ after ‘means’.”

The House indicated that the legislation is intended to “clarify” USERRA.  Thus, it is already being argued that the amendment would be retroactive.  See H.R. 2433, Section 1 “Short Title; Table of Contents”.  

On November 11, 2011, the Senate passed similar legislation in the form of section 251 of the VOW to Hire Heroes Act, S. 951, which was combined with H.R. 2433 and inserted as an amendment replacing the entirety of H.R. 674. See S. Res. 951, 112th Cong. (2011); H.R. 674, 112th Cong. (2011).

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