USERRA failure-to-promote plaintiff need not show he was objectively qualified to meet initial pleading burden

By Joy Waltemath

By Kathleen Kapusta, J.D.

Responding to a straightforward certified question with an equally straightforward answer, the Third Circuit held that in a USERRA failure-to-promote discrimination suit, plaintiffs need not plead and prove they were objectively qualified for the position sought in order to meet their initial burden under the statute. Rather, employers may raise lack of qualification as a nondiscriminatory justification for declining to promote the plaintiff, notwithstanding his or her military service (Carroll v. Delaware River Port Authority, December 12, 2016, Fuentes, J.).

Hired in 1989 as a Port Authority police officer, the employee was a member of the uniformed services in various capacities, including six years as a navy corpsman and 10 years as a member of the Pennsylvania National Guard. When not on active duty in the military, he maintained his employment with the Port Authority, ascending to the rank of corporal.

In late 2008, he was ordered to active duty and was deployed to Iraq in early 2009, where he was severely injured. He returned in late 2009 and was in rehabilitation for his injuries until his honorable discharge in 2013. He has not worked for the Port Authority since his Iraq deployment.

No promotion. In 2010 and 2012, while on active duty but in rehabilitation, he applied for a promotion to the rank of sergeant. Although he was interviewed, he was not promoted. He then sued, alleging he was not promoted due to unlawful discrimination based on his military service. He moved for summary judgment on his 2012 promotion claim and the Port Authority moved for summary judgment on all claims.

Certified question. After the district court denied both motions, the Port Authority sought an interlocutory appeal on the question of whether the employee had to plead and prove that he was objectively qualified for a promotion to sergeant in order to sustain his discrimination suit under USERRA.

Two-step burden shifting framework. Holding that the answer to this question is no, the appeals court pointed out that when plaintiffs allege discrimination in violation of USERRA, courts apply a two-step burden-shifting framework adapted from NLRB v. Transportation Management Corp. Under this framework, an employee making a USERRA claim bears the initial burden of showing that his military service was “a substantial motivating factor” in the adverse employment action. If this requirement is met, the employer then can come forward with evidence to show that it would have taken the adverse action anyway, for a valid reason.

The Port Authority was seeking to alter this framework, the court observed, by importing an additional requirement from other antidiscrimination statutes. It argued that USERRA plaintiffs must sustain their initial burden by demonstrating two facts by a preponderance of the evidence: (1) they were objectively qualified for the position sought, and (2) their military service was “a substantial or motivating factor” in the adverse employment action. Under the Port Authority’s proposed framework, the employee could not meet his initial burden under USERRA—even if he could show that his military service was “a substantial or motivating factor”—because he could not demonstrate that he was objectively qualified for the promotion to sergeant.

Rejecting this argument, the court found that the statute is clear that an employer violates USERRA if a plaintiff’s “membership . . . in the uniformed services is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership.” Moreover, all appeals courts interpreting USERRA have recognized this unambiguous language and held that a plaintiff meets his or her initial burden simply by showing that military service was “a substantial or motivating factor” in the adverse employment action. “The clear implication of these uniform holdings is that plaintiffs need not plead or prove that they are objectively qualified in order to meet their initial burden under USERRA,” said the court, finding instead, it is incumbent on employers to raise a plaintiff’s lack of qualifications at the second step of the USERRA framework.

Reliance on other statutes misplaced. While the Port Authority placed much weight on Title VII, the ADA, and ADEA, which all have been interpreted under the McDonnell Douglas framework to require an initial showing that the plaintiff is objectively qualified for the position sought, the court found pointed out the Transportation Management has been consistently applied to analyze USERRA claims. Nor did the Port Authority identify any case in which a plaintiff failed to meet his or her initial burden under the Transportation Management framework by failing to plead and prove objective qualifications. Finding that the employee need not plead and prove he was objectively qualified for the promotions to sustain his USERRA discrimination suit, the court remanded the case back to the district court for further proceedings.

Source:: Employment Law Daily Newsfeed