Jottings By An Employer's Lawyer

Thursday, January 04, 2007

USERRA Uses 2 not 3 Prong Burden Shifting Approach - 1st Circuit

Reversing a district court's summary judgment, the 1st Circuit today joined what it found all other circuits to have considered the issue and holds that the burden shifting analysis in USERRA cases is the 2 prong standard used for the NLRA, rather than the 3 prong McDonnell Douglas standard used in Title VII. Velasquez-Garcia v. Horizon Lines of Puerto Rico, Inc. (1st Cir. 1/4/07) [pdf].

Garcia complained he was terminated because of his military service. The company claimed he was terminated for violating its Code of Business Conduct because he was cashing other employee's paychecks for a fee. He had not been warned about his conduct nor did he have any prior disciplinary action. He claimed discrimination in violation of USERRA. The Court of Appeals after reviewing the legislative history found that the appropriate test for burden shifting was that used under the NLRB:

The employee first has the burden of showing, by a preponderance of the evidence, that his or her protected status was ‘a substantial or motivating factor in the adverse [employment] action’; the employer may then avoid liability only by showing, as an affirmative defense, that the employer would have taken the same action without regard to the employee's protected status.

Emphasizing its point, the Court stressed "this two-pronged burden-shifting analysis is markedly different from the three-pronged burden-shifting analysis in Title VII actions."

And in this case decisive. Once Garcia established that his military service may have played a role in his termination, the employer could win only by showing that it would have taken the action regardless of his military service. Since all that was required at the summary judgment stage was for Garcia to show there were triable issues of fact on both, the appeals court sent the case back for a jury to decide.

The case also has a good study of how courts can differ in the way they view evidence. It may also be a reflection that at times certain plaintiffs' claims are more in favor, for lack of a better term. Unlikely that it is on a conscious level, but judges are humans (at least most are) and are influenced by the same things as all other citizens, including at this particular moment great gratitude for those who serve in the military.


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