By Marjorie Johnson, J.D.
An employee was judicially and equitably estopped from advancing USERRA claims asserting his employer unlawfully failed to reemploy him in the job he held prior to his deployment (with the same seniority), once he allegedly recovered from his service-connected disability, since he consistently and unequivocally represented that his injuries were permanent. Dismissing his claims on summary judgment, a federal court in Illinois held that his “unexpected recovery” did not reignite his USERRA rights since to allow him to advance his claim would effectively allow him to play “fast and loose” with this court, a prior court, the Veterans Administration (VA) and the Navy’s Physical Evaluation Board (PEB) (Brown v. Con-Way Freight, Inc.
, March 7, 2016, Kendall, V.).
Before his deployment to Iraq in 2006, the employee worked as a driver sales representative (DSR), which entailed loading freight and operating a tractor trailer. In January 2009, he applied for VA benefits due to service-related injuries. The PEB placed him on the temporary disability retired list (TDRL) and the VA began paying him monthly disability benefits for “static” (permanent) disabilities.
In January 2009, he was honorably discharged and requested reemployment. Because his injuries prevented him from performing the DSR job, his employer placed him in a customer service representative (CSR) job and adjusted his seniority. He filed a USERRA lawsuit challenging the lower pay, but alleging that he suffered a “permanent disability” during his military service. However, he lost on summary judgment after the court determined that his employer had met its USERRA obligations.
In mid-2012, he provided the company with a full medical release and requested reinstatement to his DSR position. Because it believed it had met its USERRA obligations, the company told him he would have to apply when a position became available. He did so and was placed in a DSR position in March 2013 with a corresponding change to seniority.
Meanwhile, in February 2013, he submitted a hearing petition to the PEB requesting to be placed on the permanent disability retired list (PDRL). The PEB concluded that he suffered service-related disabilities that created “a significant impact” on his ability to perform his military duties, including “unable to do prolonged, heavy work overhead,” and assigned him a total disability rating of 20 percent.
The employee could not advance a claim under Section 4313 of USERRA since that section protected service members “at the instant of seeking reemployment” and he was undisputedly reemployed shortly after his honorable discharge. Moreover, he failed to show the “reasonable efforts” language required that the section’s protections reach beyond the moment of reemployment. He clearly represented that his injuries were permanent and the court refused to find that the DOL’s interpretation of USERRA would allow for a situation where an employee can make one representation, rescind that representation, take the exact opposite position, and yet still fall within the scope of the statute’s protections.
Nor could he advance his claim that the employer violated his Section 4316(a) rights by refusing to provide him his 2004 seniority rank both when he was reemployed as a CSR in 2009 and when he was medically released in 2012. With regard to his rehire in 2009, the court refused to revisit the prior court’s holding that the employer met its USERRA obligations. Moreover, he was judicially and equitably estopped from asserting his claims as to July 2012.
Finding that he was judicially estopped from claiming that the company violated USERRA by changing his seniority rank in 2012, the court noted it was undisputed that he previously represented his injuries were permanent upon return from service, throughout prior litigation, to the VA in 2009, and to the PEB in 2008 and 2013. His “consistent and unequivocal” representations were that he was not going to recover. While he now contended his “unexpected recovery” should reignite his USERRA rights, to allow him to continue to litigate his claim would effectively allow him to play “fast and loose” with this court, the previous court, the VA, and the PEB.
The inconsistencies were most pronounced when considering his representations to the PEB in 2013 when he requested placement on the PDRL, which resulted in its finding that he would be significantly impacted in his ability to perform “prolonged, heavy work overhead.” Yet, in March 2013, he applied to a DSR position, despite the fact that the DSR position often required heavy overhead lifting. Such representations were clearly inconsistent.
The court rejected his assertion that PEB criteria were different than that of the DSR position. A plain reading of his representations indicated that he claimed and was held to be unable to perform heavy overhead tasks in one instance, yet in the other instance claimed to be able to perform such tasks. Moreover, allowing him to continue to litigate his claim would allow him to derive “unfair advantage or impose an unfair detriment” on his employer, which created the CSR position for him after he represented to it that he was permanently injured.
His claim was also equitably estopped since he could not legally represent that he was permanently injured when it benefited him, and then state that same injury was temporary in order to gain another benefit. Since both parties agreed on the permanency of his injury both at the time of rehiring and during his prior litigation, placing additional burdens on the employer (where it already met or exceeded its USERRA obligations) was unreasonable and could discourage employers from reemploying self-proclaimed permanently injured service members, who have any possibility of recovery, for fear of future lawsuits.