Employment Law Daily Returning veteran didn’t ‘clearly and unequivocally resign’ from employment
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Tuesday, August 21, 2018

Returning veteran didn’t ‘clearly and unequivocally resign’ from employment

By Ronald Miller, J.D.

A district court erred in granting summary judgment against a returning veteran’s claim that Dollar General, his former employer, unlawfully denied him reemployment rights as required under USERRA, ruled the Eighth Circuit. The appeals court identified factual disputes as to whether the employee resigned from his employment and waived his USSERA rights, whether he applied for reemployment by applying for a similar store manager position at a different store, and whether his receipt of social security benefits barred his USERRA claim. Accordingly, summary judgment was reversed and remanded (Scudder v. Dolgencorp, LLC, August 17, 2018, Shepherd, B.).

Wounded in action. In June 2013, the employee, a member of the Arkansas National Guard, was hired and later promoted to store manager at a Dollar General store. When he was deployed overseas in April 2014, he coordinated his military leave through Dollar General’s third-party leave coordinator. The employee was wounded in action, and from December 2014 to February 2016, he was assigned for medical transition out of the military. He provided notice to the leave coordinator of his continuing military leave and was approved for leave through April 2016.

Resignation processed. On March 31, 2016, the employee spoke with a claims examiner for the leave coordinator, allegedly to find out if he needed to put in a two weeks’ notice because his leave was running out. The examiner understood the employee to be resigning and emailed notice of his resignation to Dollar General. Concluding that the employee had resigned, Dollar General processed the separation of his employment effective April 5, 2016, and sent him an exit survey. The employee responded to the email stressing that he enjoyed working for Dollar General and would love to continue to work for the company. He received no response.

Looking for work. That same April, the employee applied online for a store manager position at another Dollar General store. He stated that he was formerly a store manager and listed the National Guard as a former employer. He was not hired for the position.

Disability application. While the employee had been on military leave in December 2015, he applied for Social Security Disability benefits. The Social Security Administration (SSA) determined that he was not eligible; his application for reconsider was also denied. However, in December 2016, a SSA law judge ultimately approved his application for benefits finding that the employee had become totally disabled on December 10, 2014, and he continues to receive disability benefits.

No reemployment demand. In May 2016, the employee filed suit against Dollar General, asserting his right to reemployment under USERRA. Granting summary judgment to Dollar General, the district court found that the employee had not applied for reemployment as required by USERRA because he never communicated a request for reemployment. The district court further found that the application for the store manager position at a different store was not a demand for reemployment to his prior position. It also found that the employee waived his right to reemployment when he resigned.

Waiver. On appeal, the employee contended that he did not waive his right to reemployment under USERRA because he never resigned. He further argued that his application for the store manager position constituted an application for reemployment as defined by USERRA. Under USERRA, a returning service member must give advance notice of his service and, upon completion of that service, “submit an application for reemployment” within an allotted timeframe.

Resignation question. Here, the appeals court first considered whether the employee waived his right to reemployment under USERRA by resigning from Dollar General. During the employee’s conversation with the claims examiner, he told her he wanted to speak with someone at Dollar General to “find out if he needed to put in his two weeks’ notice because he could not return to work on April 2, 2016, the date his approved leave ended.” The examiner understood this conversation to be the employee’s resignation and reported as such to Dollar General. On appeal, the parties dispute whether he “clearly and unequivocally” resigned.

Because the employee inquired “if” he needed to put in his two weeks’ notice, his argument adamantly denying he resigned was plausible. A reasonable factfinder could conclude that the employee did not “clearly and unequivocally” resign. And because there was a genuine dispute of material fact as to the employee’s resignation, the Eighth Circuit found that summary judgment was inappropriate on that basis.

Application for new position. The appeals court next considered whether the employee’s application for the store manager position at a different store constituted an “application for reemployment” under USERRA. USERRA does not mandate the application be in a particular form, or even in writing, but it should indicate that the employee was a former employee returning from service and he or she sought reemployment. In determining whether an application is sufficient, “the critical inquiry always must be whether, considering all of the circumstances, a reasonable employer would be put on notice that the applicant is a returning veteran who seeks reemployment.”

Viewing the evidence in the light most favorable to the employee, the court concluded that a reasonable jury could find that the employee’s application for the store manager position at a different store was sufficient to give a reasonable employer adequate notice that the employee was a returning service member seeking reemployment. On his application, the employee indicated that he was previously employed by Dollar General and was seeking a position following his return from military service.

Estoppel. Finally, Dollar General asserted that the employee’s USERRA claim was barred by judicial estoppel. In order to receive disability benefits, the employee told the SSA that he was unable to work in any capacity since December 10, 2014. At first glance, the employee’s statements to the SSA might appear to be “clearly inconsistent” with his position in this litigation. However, the court pointed out that successful application for disability benefits was not necessarily inconsistent with a later claim asserting a right to reemployment, because the SSA does not take into account “reasonable accommodation” in determining whether an individual is disabled. Here, the employee claimed that he was able to work for Dollar General with reasonable accommodation. Accordingly, summary judgment in favor of the employer was reversed and remanded.

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