Labor & Employment Law Daily Trainer’s perception that Marine had PTSD could be basis of USERRA claim
Thursday, August 29, 2019

Trainer’s perception that Marine had PTSD could be basis of USERRA claim

By Joy P. Waltemath, J.D.

The Marine never said he had PTSD nor claimed to be disabled, but his trainer believed he did, appeared afraid of him, and allegedly failed to train him, ultimately resulting in the Marine’s termination.

Finding that a trainer’s perception that his trainee, a former Marine, suffered from PTSD from his military service and was a safety risk could form the basis for a USERRA discrimination claim, a federal district court refused to grant summary judgment to Exxon on the Marine’s discriminatory discharge claim. Here the Marine claimed he was not disabled and did not suffer from PTSD; rather, he contended that his trainer associated PTSD—and psychological instability—with his prior military service and influenced his supervisors to discharge him as a result (Cain v. Exxon Mobil Corp., August 26, 2019, deGravelles, J.).

Seven years after completing 20-plus years active duty, the Marine began working as a non-destructive testing technician for a contractor at Exxon and wanted to work for Exxon directly as an assistant operator. He completed the Basic Operator Training (BOT) and was assigned to a trainer who, after the Marine disclosed his military service, allegedly accused—and circulated this allegation—that the Marine suffered from PTSD. The trainer told coworkers that the Marine “may freak out on the unit at any time;” he wrote notes indicating he was concerned about the Marine’s alleged PTSD; he said the PTSD was a “red flag;” he questioned the Marine’s memory and attributed the Marine’s joke in response about taking medication during his service as referring to PTSD, although the Marine never referenced PTSD.

The Marine claimed that as a result, Exxon failed to provide him with adequate training and then claimed he was behind in his training “due to his past military service and perceived PTSD.” When the Marine was re-assigned to a new trainer who trained him for six days, that trainer allegedly reported he had the required knowledge for the job and observed he had been treated differently than others. Nonetheless, a supervisor characterized the Marine as being a “burden” and that he was a “major safety risk,” and he was terminated after about six months.

He originally filed suit under Louisiana law, but those claims were dismissed, and he proceeded under USERRA. Exxon moved for summary judgment, contending that even the Marine conceded that PTSD, not military service, was the reason for his trainer’s concerns and no one else ever expressed any animosity based on military service; that his termination years after military service negated any inference of discrimination; and that it would have fired him for failure to qualify for the position regardless of his military service. Exxon also argued that allegations of PTSD or perceived PTSD attributed to military service “cannot form the basis for a discrimination claim under USERRA.”

Can a military injury form the basis of discrimination under USERRA? The court distinguished two cases on which Exxon relied to argue that a military injury cannot be the basis for a discrimination claim under USERRA. The first, Felton v. City of Jackson, Mississippi, was a claim of refusal to accommodate the plaintiff’s PTSD, which had its genesis in his military service, but he did not raise a USERRA claim, only a disability claim.

Here, the Marine specifically invoked Section 4311 of USERRA alleging discrimination based on past military service and unequivocally denied that he claimed a disability, PTSD or anything else. He was not arguing PTSD as a result of military service; he denied that he has PTSD. Rather, he claimed that Exxon associated his prior military service with PTSD and being unstable, which was a negative and incorrect association that is discriminatory under USERRA.

The second case, Bennett v. Dallas Independent School District, involved a police officer who suffered a knee injury while on military leave, and when he returned was assigned to a security guard position, after which he sued for disability and military service discrimination. The Bennett court found that the plaintiff failed to show that his military service was a motivating factor in the employer’s decisions regarding his reassignments and termination. In Bennett, the plaintiff actually had PTSD; here the Marine specifically denied any disability. He argued that he was discriminated against due to a mistaken association of past military service with a psychiatric condition; thus, the preconceived notion about military service, not any disability, was the basis of his claim.

Motivating factor. USERRA is to be liberally construed; military service need only be one of the factors in the employer’s decision, and it is enough for the employer to “consider” military service, stressed the court. Here, the evidence showed that the trainer made notes, gave deposition testimony, and expressed concerns to his supervisors regarding the Marine’s perceived PTSD due to military service and what he believed were associated safety concerns (e.g., that he was “capable of coming out there and shooting everybody”), linking his military service with irrational behavior. This alleged discriminatory association was evidence of a discriminatory animus towards former military personnel generally and the Marine specifically, the court concluded.

Considering additional evidence, the court also cited testimony that the trainer became fearful for everyone’s safety, told his supervisors that the Marine suffered from PTSD, and then failed to train him, which eventually led to his termination. The Marine also had evidence that a second trainer provided testimony that the first trainer had a problem with him but that he “was prepared and able to work in the unit.”

Cat’s paw evidence. The trainer’s supervisors ultimately terminated the Marine; the trainer was not the final decisionmaker, so the court considered whether the trainer intended the Marine to be fired. There was evidence from the second trainer to that effect, and Exxon admitted that the trainer reported his feelings about the Marine to his supervisors, but it was unclear whether this influenced the supervisors’ decision to fire him. The Marine argued this raised a material issue of fact precluding summary judgment, and the court agreed, finding that the supervisors who ultimately terminated his employment likely were not motivated independently by a discriminatory animus based on his military service, but fact questions remained as to whether the trainer’s PTSD fears motivated them to terminate him. These issues required a for a credibility determination that is inappropriate for summary judgment.

Fired anyway. Exxon argued that the Marine would have been terminated regardless of his military service because he could not pass his training, learn his unit, and perform the job of assistant operator. There was record evidence to support that defense, noted the court, but there were other issues to preclude summary judgment, including: whether the Marine was required to learn information and pass tests that other apprentices were not required to do; whether other apprentices were in the military or not; and whether the Marine’s evaluations were considered to be “passing” or not. Based on record evidence, a jury could find disparate treatment of the Marine in his training, which set him up for failure; it could credit the second trainer’s testimony that the Marine was treated unfavorably and still could perform the job. As a result, the court denied summary judgment.

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