By Lorene D. Park, J.D. An Army reservist who claimed a school district failed to reemploy him three times after military service in 2008 won partial summary judgment on his USERRA claims after a federal court in Nevada found the employer liable in two of those instances. The court noted that USERRA does not require any specific words and his email offering to "help" temporarily "If you should need me" was sufficient. Also rejected was the employer’s argument that putting him in the same level position but in a different region satisfied its obligations. The court explained that he was entitled to his same position even if it required firing the person who filled in while he was out. The employer’s motion for summary judgment was also denied in part after the court found triable questions on whether the employer’s pre-November 2008 actions constituted discrimination or retaliation and were willful (Keene v. Clark County School District, June 30, 2016, Gordon, A.). The employee worked for the school district in an administrative position of "Data Coordinator III, Northeast Region." He also served as an Army reservist. In 2007, he informed the school district he would be activated for deployment to Iraq in 2008. He was required to attend training between August 2007 and May 2008 and was granted leave each time. However, he claimed his direct supervisor expressed hostility, once saying he needed to "make up his mind" whether he was working for the school district or the Army. (She disputed making that comment.) May 2008 reemployment request. In April 2008, the employee requested leave for military duty June through August 2008. He also had to attend a military training for most of May. On May 28, he allegedly told the supervisor his training ended and he would return the next day. She allegedly responded that his "services were no longer required," though she claimed she never said that. The employee applied for unemployment benefits and the school district indicated the reason for separation was "military leave." On a June 4 performance evaluation for the 2007-2008 school year, the supervisor gave the employee the highest possible rating but noted it had been a "difficult" year because his time was "divided" between his job and his military duty. June 2008 reemployment request. In a June 12 email to the supervisor and the superintendent, the employee stated that he was "back in town until July 21st when I report for Iraqi language training." He expressed concern that schools in the Northeast did not have proper support and "wanted to offer to come on as a temp to help support these schools . . ." He also wrote: "If you should need me please call. . . ." The superintendent responded that they had it covered. Honorable discharge, November 2008 return. The employee reported for military duty on September 7, but due to health issues, he was honorably discharged on October 29. He wrote to the district’s chief HR officer on November 1, asking to be reinstated pursuant to USERRA. He also stated that, because others hired in his same position at the same time had been promoted, he should be given a higher position. He was placed in the position of "Data Coordinator III, East Region"—the same position and pay scale, but in a different region. The employee claimed it was also different in seniority ranking, promotional opportunities, and job requirements. He continued to pursue his "rights to be properly reemployed." In 2009, he returned to the classroom, though he continued to apply for administrative positions. He retired in 2015. USERRA reemployment. After filing suit, the employee sought partial summary judgment that the employer violated USERRA by failing to reemploy him in May, June, and November 2008. Denying the motion in part, the court found triable questions on whether the May 2008 phone call was a request for reemployment. The supervisor did not remember the call, denied saying his services were not needed, and his testimony was inconsistent on the issue. Moreover, in the unemployment proceedings, the stated reason for separation was military leave, not termination. Liable for June failure to reemploy. However, the employer was liable for failing to reemploy the employee after his June 2008 email. While the school district argued that it was merely an offer to temporarily assist and not a request for reemployment, "USERRA does not require an employee’s application for reemployment to follow any particular format." The request can be written or oral, and it need only "indicate that the employee is a former employee returning from service in the uniformed services and that he or she seeks reemployment with the pre-service employer." Here, the email to the superintendent, though containing "equivocal language," was enough. Consequently, the school district violated his USERRA rights as to the June request. Liable for denying same position in November. The employee also won summary judgment as to the school district’s failure to put him in the same position after his November 2008 return from military duty. As an initial matter, the court found that he was not entitled to a promotion under USERRA’s escalator principle. It noted that the two individuals to whom he compared himself (who started at the same time in the same position) were not automatically promoted but received them through an application process and the employee admitted he did not apply for any promotions before his deployment. That said, he was entitled to be placed back in his pre-service position and the school district violated USERRA when it instead put him in a position for another region. The court noted that USERRA requires placement back in the same position, even if that means terminating the individual who filled in while the employee was out. Employer’s motion on discrimination and retaliation claims. The school district moved for summary judgment against the employee’s discrimination and retaliation claims relating to his military service. The court denied the motion as to the May, June, and November requests for reemployment. In its view, a jury could find that military service was a motivating factor in the adverse employment actions of June and November, and the alleged adverse action in May. On the other hand, summary judgment was granted against the discrimination and retaliation claims related to actions after November 2008. The court explained that the school district’s inaction in not reversing its decision as to the position to which the employee was entitled to return following military service was "not a new and discrete adverse employment action, rather, it was the continuing effect" of the November 2008 decision. Moreover, the employee provided no evidence that his military service was a motivating factor in subsequent adverse actions. Rights and benefits. Summary judgment was also granted in part against the employee’s claim that the district violated USERRA by denying him rights and benefits. The motion was denied as to the November 2008 failure to reemploy him in the same position he held before deployment, but he did not support his claim that he was denied seniority rights and benefits and he offered no evidence showing he was entitled to additional retirement benefits. Liquidated damages. The employer’s motion was denied as to liquidated damages. While it argued that it took extensive steps to comply with USERRA, the court explained that intent to violate the statute is not necessary and issues of fact remained as to whether the district’s acts were willful. Specifically, question remained as to its knowledge, intent, and motivation for not rehiring the employee in May and June 2008, and not returning him to his pre-service position in November 2008.
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