Labor & Employment Law Daily No USERRA claim for adverse action against military spouse; forced resignation after husband’s deployment not unlawful
Wednesday, July 18, 2018

No USERRA claim for adverse action against military spouse; forced resignation after husband’s deployment not unlawful

By Marjorie Johnson, J.D.

An adverse employment action against a military spouse is not a basis for liability under the Uniformed Services Employment and Reemployment Rights Act (USERRA), a federal court in Ohio ruled in tossing an employee’s claim that she was forced to resign from her telecommuting position after announcing she would be moving from Ohio to Virginia for two years to join her husband during his deployment with the U.S. Navy. And while she herself was a veteran, she also failed to plausibly allege any facts that would allow the reasonable inference that her own prior military service was a motivating factor that caused her forced resignation and/or the company’s refusal to rehire her two years later when she returned. The court granted the employer’s motion to dismiss and declined to exercise supplemental jurisdiction over her state law claims (Norris v. Glassdoor, Inc., July 13, 2018, Marbley, A.).

Telecommuting job. The employee began working for Glassdoor, Inc. in 2007, after having served in the Navy from 1997 to 2005. Prior to being hired, she and her husband (who still served in the Navy) had been friends with both the CEO and its content manager since 1988. The company facilitates “professional connections and information sharing between employers and job seekers” and allows users to post company reviews on its website. The employee’s job was to monitor the users’ postings and she worked remotely from her Ohio home.

Forced to resign after husband’s deployment. In 2011, the Navy deployed her husband to Virginia for two years. When she advised Glassdoor that she planned to relocate and continue working remotely, she was told that she would lose her job unless she remained in Ohio. However, in exchange for her resignation, it agreed to rehire her when she returned following the deployment. Feeling that she was being forced to resign, she accepted the offer, and only later learned that she would lose her right to future performance-based stock distributions.

Denied rehire. In 2013, after her husband’s deployment, she returned to Ohio and contacted the company to express her interest in being rehired. However, she never received any response and was never reemployed. She then brought this lawsuit under USERRA asserting discrimination based on her association with her husband and/or her own past military service.

Spousal activity not protected. Though the employee alleged that her husband’s military activity was a motivating factor in her forced resignation and non-rehire, the Sixth Circuit had not yet decided whether USERRA allows claims based on spousal activity. Therefore, the district court looked to the text of the statute, which in relevant part bars certain adverse employment actions on the basis of a person’s military “membership, application for membership, performance of service, application for service, or obligation.”

Text of statute was clear. Based on the statutory language, Congress “was clear that USERRA protects past, current, and prospective members of the uniformed services from adverse employment actions on the basis of their own service,” ruled the court. Additionally, implementing regulations made clear that discrimination against a military spouse was not a basis for liability. For instance, the Notice of Rights and Duties Under the USSERA states that, “To the extent that the comment seeks an affirmative statement that spouses and dependents are protected from discrimination by their own employers because they are related to an individual covered by USERRA, such a request exceeds the coverage of the statute.”.

The court also rejected the employee’s assertion that section (b) of the statute indicated that USERRA’s protections were broad enough to cover her based on the inclusion of the phrase “any person.” However, this portion of USERRA did not apply to the employee since it contained a list of prerequisites which showed that it was meant to protect employees due to their pursuit of other legal protections available to them under USERRA or their assistance to another individual who is bringing a USERRA claim, none of which the employee satisfied.

Indeed, if Congress had wished to provide the same protection for military spouses such a clause logically would have fit into this section. Thus, though the employee argued that USERRA should be interpreted broadly to protect her, Congress explicitly outlined the scope of USERRA’s remedial purpose and it did not include protection of military spouses.

No bias against own veteran status. She also failed to plausibly allege that her own military service, from 1997 to 2005, was a motivating factor that caused Glassdoor to ask her to resign in 2011 or decline to rehire her in 2013. Significantly, her veteran status, on its own, did not entitle her to relief under USERRA. Indeed, if all veterans who experienced adverse employment actions for nondiscriminatory reasons could recover legal damages from their employers, USERRA might make veterans unemployable.

Six-year lapse. It was also not enough that she alleged that her employer had knowledge of her veteran status. Rather, she was required to allege a factual basis for discriminatory motivation, and her bare statement that Glassdoor subjected her to “disparate treatment on the basis of her prior service” was insufficient. Indeed, not only had the company known of her veteran status when they hired her in the first place, but six years had elapsed between her military activity and resignation.

No hostility. The employee also did not claim that Glassdoor expressed hostility toward veterans or provide any facts indicating its proffered reasons for requesting her resignation and/or failing to rehire her were pretextual. Rather, by her own allegation, her husband’s military service and her decision to follow him to Virginia were what motivated the company to demand her resignation. Accordingly, the court dismissed her USERRA claims and declined to exercise supplemental jurisdiction over her state law claims.

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