More Than You Probably Want to Know About USERRA From the 5th Circuit

Posted 3:02 PM by Michael Fox

In a military city, at a time when troops, involving a substantial number of national guard and reservists, are on the ground in hostile combat, a lawsuit brought by firefighters who also are reservists claiming that the City of San Antonio was violating their rights because of their military service is bound to be politically sensitive. And when the Circuit Court of Appeals is going to reverse a decision in favor of the reservists, you could reasonably expect a detailed explanation of why such a result was necessary. Which is exactly what happened today in Rogers v. City of San Antonio (5th Cir. 12/2/04) [pdf].

The issue was whether or not the City's practice of treating the firefighters as "absent" as opposed to "constructively present" when away on reserve duty for the following benefits was a violation of Uniform Services Employment and Reemployment Rights Act of 1994:

(1) lost straight-time pay;

(2) lost overtime opportunities;

(3) missed upgrading opportunities;

(4) bonus day leave;

(5) perfect attendance leave;

and (6) a twenty-seven hour cap on lost overtime.

Ultimately the Court reversed summary judgment which had been granted in favor of the reservists in all 6 categories. On the first 3, it rendered judgment in favor of the City. On the latter 3 it found factual issues and remanded to the trial court for further proceedings.

The legal argument was over which section of USERRA applied to the reservists' claim. The reservists argued that the issue was controlled by Section 4311(a) that provides:

A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform services in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance, service, application for service, or obligation.

The City argued instead that it was controlled by Section 4316(b)(1):

[A] person who is absent from a position of employment by reason of service in the uniformed services shall be - (A) deemed to be on furlough or leave of absence while performing such service; and (B) entitled to such other rights and benefits not determined by seniority as are generally provided by the employer of the person to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect at the commencement of such service or established while such person performs such service.

The Court's opinion thoroughly (36 pages) reviews the history of legislation designed to protect the employment rights of those serving in the uniformed services, along with its judicial construction. For anyone interested in the issue or a case under USERRA, it should serve as a great starting point. Following that exhaustive review of these two sections, the Court held the City's view was correct.

At the risk of oversimplification, it found that §4311(a) was an anti-retaliation provision, while §4316(b)(1) was designed for exactly this situation. Its purpose was to ensure that on issues involving non-seniority issues, military personnel were given "equal but not preferential" treatment to employees on non-military leaves of absence. In the 6 categories about which questions were raised it found no dispute that was true on the first 3, but there were fact issues as to whether there was equal treatment on the last 3.

The Court did generally agree with the reservists on the applicable statute of limitations under USERRA. It did not rule on the reservists' claim that there is no USERRA statute of limitations and that the claims are subject to being barred only by the doctrines of laches or estoppel, because it found that argument was raised too late in the litigation. It did however agree that the statute of limitations was at least four, not two years as urged by the City.

I was critical in a recent posting of the 1st Circuit for failing to address the central question on religious discrimination in a case involving the Church of Body Modification. Although I didn't call it a court appearing to be too "politically correct", that thought ran through my mind. By contrast, this decision by the 5th Circuit is I think appropriately "politically correct." It takes great pain to explain in detail the rationale for its decision adverse to a group that is uniformly honored and respected for all that they do -- put most starkly -- risking their lives to protect ours.

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