Labor & Employment Law Daily National Guardsman discharged for insubordination survives summary judgment against USERRA claim
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Wednesday, April 14, 2021

National Guardsman discharged for insubordination survives summary judgment against USERRA claim

By Ronald Miller, J.D.

The court found that in the present case, the issue of motivation remained an unresolved fact question.

A member of the National Guard survived an employer’s motion for summary judgment against his claim that he was wrongfully terminated due to his military service and because of an upcoming mobilization in violation of USERRA, ruled a federal district court in Mississippi. The court determined that the record featured factual discrepancies, as well as significant questions about the mindset of various representatives and employees of the employer, such that summary judgment was improper (Smith v. East Mississippi Power Association, April 8, 2021, Wingate, H.).

Deployments. The employee has been a member of the Mississippi Army National Guard since 1990. He was hired by the employer on December 9, 1999, as a “Groundman” while he was still active in the Guard. He was employed by the employer for more than 17 years before his termination.

Throughout his employment, the employee took multiple military service-related leaves of absence for training and deployment, including a deployment lasting one year, and another lasting over three years. The employee’s employment record reflected that, except for his first deployment, each time he returned from military leave, the employer restored him immediately to his prior employment position. He also received step increases, pay realignments, and annual pay increases. Additionally, his job titles changed over the years.

Confrontation. The employer claimed that it terminated the employee because of his insubordination and an escalating pattern of conflict between him and his supervisor. On July 5, 2017, the employee had a heated exchange with the supervisor over work issues, namely, the proper way to ground an electrical wire. Immediately thereafter, the employee reported the incident to the office manager.

According to the employee, on the following day he returned to the office and apologized to the supervisor for having lost his temper, and explained that his father had just passed away, and he was still emotional and upset. The employee was issued a written reprimand for insubordination by the office manager. He asserted that the office manager indicated they “would keep [the incident] in house”—meaning that it would not be sent to the home office. However, the write-up was forwarded to the employer’s human resources director, who informed the company CEO about it.

Termination. Thereafter, the CEO required that the incident report be completed on a new form and required written statements from each person present at the site. The statements from the other crew members, who observed the incident, were consistent with the employee’s account.

On August 2, 2017, the employee received a mobilization letter from his National Guard unit, advising him that he would be mobilized for another year of overseas duty, sometime in early 2018. According to the employee, he gave the letter to his office manager the same day or the next day.

On August 7, 2017, the employee was requested to submit a detailed statement describing the July 5 incident. Meanwhile, he sent the letter of mobilization to the HR director. On August 14, 2017, the CEO terminated the employee, citing the July 5 incident as the cause of termination.

USERRA claim. The employee filed a complaint alleging that the employer terminated him because of his military service in violation of USERRA. The employer moved for summary judgment on the basis that the employee failed to present any factual or legal grounds which would allow this case to proceed to the jury.

USERRA Section 4311, 38 U.S.C. § 4311(a), provides that a serviceperson “shall not be denied retention in employment, or any benefit of employment” because of the person’s military service. An employer violates this prohibition when “membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor” in an employment decision.

The court found that in the present case, the issue of motivation remained an unresolved fact question. According to the employer, its CEO began the disciplinary process on or about July 17, 2017. But it offered no proof that the CEO made the decision to terminate the employee prior to HR director’s receipt of the mobilization letter on August 10. According to the CEO, he was unaware of the employee’s upcoming deployment, and that his decision was in no way influenced by the pending deployment.

However, the court noted that a jury could find that because the CEO and HR director worked in the same office, and had ample opportunity to converse, the employee’s letter of mobilization could have been brought to the CEO’s attention. Considering the employee’s allegations of harassment and the temporal proximity of his mobilization letter to his termination date, a jury might find that his military status influenced the employer’s decision to terminate him.

Because the court was persuaded that genuine disputes of material facts remained in this lawsuit, it denied the employer’s motion for summary judgment.

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