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SIGNIFICANT RECENT USERRA CASES (2005-2008)

By Esther Lander

Definitions (Section 4303)

Employer / Successor in Interest

Under USERRA, the definition of “employer” carries particular significance because ofthe obligation to reemploy a returning service member. The statute defines employer to include“any successor in interest to a person, institution, organization, or other [covered] entity . . . .” 38U.S.C. § 4303(4)(A)(iv). The Department of Labor regulations contemplate a multi-factor“business continuity” analysis, which does not require a transfer of assets for successor liabilityto attach. Rather, “business continuity” emphasizes the actual undertakings of the predecessorand successor companies. See 20 C.F.R. § 1002.5.

The Department of Labor’s approach was followed in Murphree v. CommunicationsTechnologies, Inc., 460 F. Supp. 2d 702 (E.D. La. 2006) and Reynolds v. Rehabcare Group EastInc., 531 F. Supp. 2d 1050 (S.D. Iowa 2008) with differing results. In Murphree, the plaintiffworked for MPRI pursuant to a government contract. While the plaintiff was on military leave,MPRI lost the contract to defendant, Communications Technologies, Inc. (“COMTek”). COMTek placed one of plaintiff’s co-workers in plaintiff’s position. When plaintiff soughtreemployment from COMTek, the company asserted that it owed plaintiff no reemploymentobligation because he was not its employee. The district court disagreed, holding that COMTekwas a “successor in interest” within the meaning of USERRA.

By contrast, in Reynolds, the district court found that the Department of Labor factorsweighed against a finding of successor in interest. The plaintiff’s employer had providedcontract physical therapy services for a rehabilitation center. While plaintiff was on militaryleave, her employer lost the contract, and a new company, Rehabcare Group (the defendant),entered into a subcontract to provide the same physical therapy services through a differentcontractor. The district court denied the plaintiff’s motion for a preliminary injunction, findingthat the majority of the Department of Labor factors demonstrated no business continuitybetween plaintiff’s former employer and defendant, despite that both provided the same servicesto the rehabilitation center: (i) there was no continuity in business operations since the newcontractor was a completely separate entity from the former contractor, and neither had anyinterest, contract, or relationship with the other (ii) the new contractor did not purchase any of theformer contractor’s equipment or supplies; (iii) none of the former contractor’s employeesworked for the new contractor; and (iv) the supervisors were different.

Finally, in Coffman v. Chugach Support Services, Inc., 411 F.3d 1231 (11th Cir. 2005),which was decided before the Labor Department promulgated its regulations, the Eleventh

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Circuit employed the “ownership and control” test rather than the “business continuity” test. Under this approach, there must be a merger or transfer of assets between the predecessor andsuccessor companies for USERRA liability to attach. As such, the plaintiff could not pursueUSERRA claims against the company that replaced his employer as primary contractor becausethe defendant never employed the plaintiff and did not acquire the company that had previouslyemployed plaintiff.

With regard to parent / subsidiary relationships, USERRA defines “employer” as theentity that “pays salary or wages for work performed or that has control over employmentopportunities, including a person, institution, organization, or other entity to whom the employerhas delegated the performance of employment-related responsibilities.” 38 U.S.C. §4303(4)(A)(i). In Dees v. Hyundai Motor Mfg. Alabama, LLC, 2008 WL 2157009 (M.D. Ala.May 21, 2008), the district court dismissed claims against Hyundai’s distributor subsidiary,because the entity to carry out employment-related responsibilities with respect to plaintiff wasHyundai’s manufacturing subsidiary.

Intentional Discrimination (Section 4311(a))

Denial of a “Benefit of Employment”

USERRA Section 4311(a) provides that a service member shall not be denied a “benefitof employment” because of military service. The statute defines “benefit” liberally to include“any advantage, profit, [or] privilege . . . that accrues by reason of an employment contract oragreement . . . [including] . . . the opportunity to select work hours or location of employment.”Courts have interpreted Section 4311(a) to encompass undesirable transfers, changes in duties, anegative performance appraisal, and even the benefit of a work place free from harassment.

In Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299 (4th Cir. 2006), the plaintiffclaimed that after returning from military leave, she was assigned lower-level tasks, whichconstituted a demotion despite no change in her salary or benefits. The Fourth Circuit recognizedthat a significant change in job responsibilities could constitute a denial of “a benefit ofemployment.” However, in plaintiff’s case, the difference between her pre- and post-deploymentwork was extremely slight. The only significant change was directly attributable tomodifications in the company’s government contract, which applied equally to all employees inplaintiff’s position. Accordingly, summary judgment for the employer was affirmed. The courtalso affirmed the district court’s dismissal of plaintiff’s claim that a two-hour change in her workshift constituted discrimination in violation of Section 4311. Without deciding whether such achange could constitute the denial of a “benefit of employment,” the court held that no evidencebeyond plaintiff’s conclusory allegations supported her claim that the schedule shift wasmotivated by plaintiff’s military service.

In Maxfield v. Cintas Corp. No. 2, 427 F.3d 544 (8th Cir. 2005), the plaintiff, an armyreservist, claimed that he was discriminatorily transferred and then discharged because of his

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military status. The employer argued that the transfer was not actionable under Section 4311,which prohibits military status discrimination in “initial employment, reemployment, retention inemployment, [and] promotion,” as well as to “any benefit of employment.” The Eighth Circuitadopted the Fourth Circuit’s holding in Hill v. Michelin N. Am., Inc., 252 F.3d 307, 312 (4th Cir.2001), that an undesirable transfer can constitute the denial of a “benefit of employment,” even ifit does not result in lost wages. Because the plaintiff’s pre-service position offered more jobstability and allowed him to earn bonuses based on his own performance rather than theperformance of others, the Fifth Circuit held that he had been denied a “benefit of employment”within the meaning of section 4311.

In Koehler v. PepsiAmericas, 2006 WL 2035650 (S.D. Ohio July 18, 2006), following abench trial, the court found that the plaintiff had been denied a “benefit of employment” whenthe company withdrew from his bank account an automatic deposit equal to the pay differentialbetween his salary and military pay while on reserve duty. The court noted that “while anemployer is not obligated to pay wages to an employee who is called to active military service, anemployer may, as Pepsi did in this case, adopt a policy of providing this benefit. If the employeradopts such a policy, USERRA protects the employee’s rights under the policy.” Since theemployer had a policy requiring payment for military leave, the employer’s violation of thatpolicy also violated USERRA.

In Grosjean v. First Energy, 481 F. Supp. 2d 878 (N.D. Ohio 2007), the defendant did notdispute that plaintiff’s poor performance evaluation had denied him a “benefit of employment,”within the meaning of USERRA. Accordingly, the court granted the plaintiff summary judgmentwith respect to his 2004 performance evaluation because it negatively referenced plaintiff’smilitary leave as a cause for plaintiff’s poor performance. The evaluation and the supervisor’stestimony also clearly demonstrated that plaintiff’s military-related absence was taken intoaccount and contributed to the plaintiff’s low rating. The court further found insufficientevidence to establish that the rating would have been the same absent the improper motive,particularly because when plaintiff complained and the employer removed the negativereferences to plaintiff’s military service, the employer increased plaintiff’s rating. The courtfurther held that the negative evaluation was sufficient to create a genuine issue of material factas to whether plaintiff’s subsequent poor performance evaluations and eventual termination weremotivated in part by his USERRA-related activities. However, the court agreed with defendantthat the employer’s decision to place plaintiff on a non-punitive performance improvement planwas not an “adverse action” within the meaning of section 4311.

Finally, in Vickers v. City of Memphis, 368 F. Supp. 2d 842 (W.D. Tenn. 2005), theplaintiff filed suit, claiming that after he returned from Iraq he was subject to harassment, hostilework environment, and disparate treatment in violation of USERRA. According to thecomplaint, plaintiff had been called “derogatory ethnic names because of his military service”and repeatedly called “HABIB.” The defendant moved to dismiss, claiming that USERRA doesnot provide a cause of action for harassment, or does not cover harassment based on priormilitary service. The court denied the motion on both grounds, holding that freedom from

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harassment due to prior military service could constitute a “benefit of employment” within themeaning of Section 4311 if the employer has a policy prohibiting the type of conduct aboutwhich the plaintiff complained, and the conduct is sufficiently severe or pervasive to alter theconditions of employment and create a hostile environment. Similarly, in Steenken v. CampbellCounty, 2007 WL 837173 (E.D. Ky. March 15, 1007), the district court held that plaintiff’s claimthat he was forced to resign due to a hostile work environment was cognizable under USERRAbecause the right to be free from harassment, broadly construed, is a “benefit of employment,”within the meaning of section 4311.

“Motivating Factor”

Discrimination claims under USERRA are analyzed using the scheme set forth in NLRBv. Transportation Management Corp., 462 U.S. 393 (1983). The employee first has the burdenof proving, by a preponderance of the evidence, that his or her military status or obligations werea “substantial or motivating factor in the adverse [employment] action.” Id. The employer thencan avoid liability by demonstrating that the same action would have been taken regardless of theplaintiff’s military status or obligations. 38 U.S.C. § 4311(c)(1). Because ascertainingdiscriminatory motive is factual in nature, courts are reluctant to grant summary judgment.

For example, in Maxfield v. Cintas Corp., No. 2, the Eighth Circuit on two occasionsreversed the district court’s dismissal of plaintiff’s discriminatory transfer and terminationclaims. See 427 F.3d 544 (8th Cir. 2005) and 487 F.3d.1132 (8th Cir. 2007). The plaintiff hadpresented evidence that, before his transfer, plaintiff’s military sergeant received a call from theemployer asking whether plaintiff’s presence at the military base was “imperative.” Further,plaintiff’s supervisors visited him while on military leave to discuss, in part, plaintiff’s salesdeficit. Finally, plaintiff’s transfer occurred the same day that he returned from military leave. InMaxfield I, the court held that, from this evidence, a jury could reasonably infer discriminatoryanimus. Likewise, on the plaintiff’s discriminatory discharge claim, numerous inconsistencies inthe employer’s proffered non-discriminatory reason for the discharge made summary judgmentinappropriate. For example, although the employer claimed that plaintiff had falsified timerecords by placing himself on “sick leave” while on military leave, the employer’s policypermitted employees to use sick leave while on military leave. In short, the court concluded ajury must decide whether the plaintiff would have been terminated in the absence of his militarystatus.

In Maxfield II, the Eighth Circuit applied “law of the case” and the “prior panel rule,” toagain reverse summary judgment for the defendant, since defendant’s arguments and evidence insupport of summary judgment were largely no different than before. The only “new” evidenceconsisted of an affidavit from a supervisor stating that the supervisor would have terminated theplaintiff regardless of his military service; but, the affidavit simply “repackaged”the supervisor’sdeposition testimony and other documents that were presented unsuccessfully during the firstappeal.

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In Steenken v. Campbell County, 2007 WL 837173 (E.D. Ky. March 15, 2007), thedistrict court found sufficient evidence of discriminatory motive with respect to plaintiff’stermination claim to withstand summary judgment. The police chief admitted that any militarycommitments of officers under his command would interfere with the police department. Inaddition, plaintiff offered evidence of disparate discipline. Finally, the district court found thatthe employer could not establish, as a matter of law, that it would have taken the same actionregardless of plaintiff’s military leave because plaintiff claimed he had been singled out fordiscipline, leading to his termination, because of his military status.

In Brinkley v. Dialysis Clinic, Inc., 403 F. Supp. 2d 1090 (M.D. Ala. 2005), theemployer’s motion for summary judgment was denied regarding whether plaintiff’s selection fora reduction in force was motivated in part by his military status. The employer argued thatplaintiff was selected because he worked only part-time. However, the plaintiff hotly disputedthat he was a part-time employee, arguing that his hours had been reduced as a direct result of his military service. This “genuine issues of material fact” made summary judgment inappropriate.

Summary judgment was also denied in Warren v. International Business Machines Corp.,358 F. Supp. 2d 301 (S.D.N.Y. 2005), where the court held “a reasonable jury could surely findthat [plaintiff’s] status in the reserve was a substantial or motivating factor in IBM’s decision todischarge him.” The evidence included weekly, and sometimes daily, questions by plaintiff’ssupervisor regarding when he would be on military leave; the comment “you are killing me” by asupervisor when plaintiff notified him of the need to take leave; his supervisor’s visiblefrustration when plaintiff notified him of the need for leave; plaintiff’s supervisor asking plaintiffto try and get out of taking leave; and, finally, differing explanations for plaintiff’s discharge. The employer discharged plaintiff for leaving a voice mail to a co-worker stating “pretty soonI’m gonna hunt you down and kill you . . . ,” when the plaintiff had been trying unsuccessfully tocontact the co-worker about a business deal. Although nobody thought the message was serious,and plaintiff had an untarnished eight-year employment record, plaintiff was terminated formaking a “death threat.” Alternatively, the employer claimed his termination occurred under a“zero tolerance” policy – a policy plaintiff was unaware of and had never seen.

In Velazquez-Garcia v. Horizon Lines of Puerto Rico, Inc., 473 F.3d 11 (1st Cir. 2007),the First Circuit reversed summary judgment for the employer, where the plaintiff producedevidence of (i) remarks by co-workers making fun of his military status; (ii) complaints by thesupervisor who terminated his employment regarding the difficulty of adjusting schedules; and(iii) timing – plaintiff’s discharge was immediately following the recoupment of plaintiff’smilitary salary from his paychecks. The First Circuit rejected the defendant’s contention thatremarks by co-workers were of “no probative value,” since they were not the decisionmakers;“stray remarks by non-decisionmakers, while insufficient standing alone to show discriminatoryanimus, may still be considered ‘evidence of a company’s general atmosphere of discrimination,’and thus can be relevant.” (citations omitted). The court also rejected the district court’s relianceon the fact that other employees who served in the military had been retained. Not only doessuch evidence not preclude a claim, in this instance, the plaintiff’s military leave was

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distinguishable since plaintiff, unlike the others, worked shifts, which caused more of ascheduling problem for the company. The First Circuit also held that defendant had notdemonstrated it would have fired plaintiff regardless of his military leave, making summaryjudgment improper: “there is sufficient doubt on this issue, making it a jury question.” While theemployer accused the plaintiff of violating its business ethics code by having a side-businesscashing employee paychecks, plaintiff testified that he never received a copy of the code, nor awarning from the company to stop. Moreover, other employees who had violated the code werenot summarily dismissed like plaintiff.

In Patton v. Target Corp., 2007 WL 894560 (D. Or. March 21, 2007), summary judgmentfor the employer was denied on plaintiff’s demotion claim. The employer argued that it hadmade the decision to demote plaintiff prior to his military leave and merely carried out thedecision after he returned. The employer’s evidence included (i) documented negative feedbackregarding plaintiff’s job performance; (ii) opinions of the entire management team, whichincluded former military personnel, that plaintiff should be demoted; (iii) the employer’s trackrecord as a “5-star” DOD employer; (iv) the employer’s efforts to recruit managers from themilitary; (v) at least eight current and former military employees who were promoted fromplaintiff’s pre-demotion position to the next level; and (vi) four non-military personnel who hadnot been promoted to the next level. Nonetheless, the court, viewing the evidence in the lightmost favorable to the plaintiff, found that a genuine issue of material fact existed as to whetherplaintiff’s military status was a motivating factor in the decision to demote him. First, in termsof temporal proximity, plaintiff was notified of the demotion the same day he returned frommilitary leave. Second, in terms of animus, plaintiff testified to comments, including asupervisor referring to National Guard members as “weekend warriors,” and plaintiff’s directsupervisor complaining that the company should recruit more from universities to avoid hiringmilitary personnel who might be called to service or take leave. Third, inconsistencies existedwith the employer’s proffered rationale for demoting plaintiff and plaintiff’s testimony. Theemployer claimed defendant’s demotion was based solely on poor performance, whereas plaintifftestified that he had been told he was progressing toward a promotion before his military leave. Finally, the court noted that plaintiff’s lukewarm performance evaluations “were not sooverwhelming that they negate any question about plaintiff’s demotion.”

Summary judgment was also denied on plaintiff’s termination claim in Benitez v.International Paper Co., 2007 WL 4436874 (W.D. Tex. Dec. 19, 2007) based on the followingevidence of discriminatory motive by plaintiff’s direct supervisor: (i) upon returning frommilitary leave, plaintiff received his first negative performance evaluation during his 4-yeartenure with the company and was also denied a merit pay increase, both of which were reversedby the company’s corporate headquarters; (ii) upon returning from military leave plaintiff wasplaced in a position with the same title but less management authority and reporting to anemployee who had previously been his equal; (iii) there was close proximity in time betweenplaintiff’s military leave and termination; and (iv) unlike prior years, plaintiff’s performancegoals were implemented without his input regarding their feasibility.

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In Woodard v. New York Health and Hospitals Corp., 554 F. Supp. 2d 329 (E.D.N.Y.2008) the court found sufficient evidence that the employer improperly considered plaintiff’smilitary leave when granting her a 4 percent rather than an 8 percent salary increase. Theplaintiff’s performance evaluation stated that she was being given only a six month evaluationwith a 4 percent increase, rather than a one-year evaluation with an 8 percent increase, “due toleaves (military and FMLA).” The plaintiff also alleged that her supervisor “screamed” at herabout scheduling problems when plaintiff gave notice of her military leave. The court found thisevidence “sufficient to create an inference that the [plaintiff’s] military status was a motivatingfactor in this decision.” Nonetheless, because the record clearly showed that the plaintiff hadreceived a retroactive increase bringing her up to 8 percent, she had no injury to be redressed andthe employer was entitled to summary judgment.

Summary judgment was also granted for the employer in Gannon v. National RRPassenger Corp., 422 F. Supp. 2d 504 (E.D. Pa. 2006). The plaintiff had been terminated afterhe refused for 20 months to reimburse the company for salary that he improperly received whileon military leave. According to Amtrak policy, employees called to military duty are placed in“leave of absence” status without pay, yet plaintiff continued to receive his salary from Maythrough December without rectifying the error. After returning from military leave, the partieswere unable to agree on a repayment schedule, which eventually led Amtrak to hire an outsidefirm to investigate the wage dispute. The investigation revealed financial irregularities as to boththe current wage dispute and prior military leaves, resulting in plaintiff’s termination. Theplaintiff claimed that under USERRA, his termination was discriminatory and the wage disputeinvestigation was retaliatory. The district court granted the employer’s motion for summaryjudgment on both claims. On the discrimination claim, the court found that one stray remark bya non-decisionmaker, which occurred over one year prior to the plaintiff’s termination, could notestablish a prima facie case. Moreover, even if plaintiff had satisfied his prima facie case,Amtrak had met its burden of showing it would have taken the same action anyway based on theplaintiff’s 20-month long refusal to reimburse the improperly paid wages.

The court also granted summary judgment on the plaintiff’s retaliation claim. On thatclaim, the plaintiff contended that the company retaliated against him by referring the wagedispute to an outside investigator only one week after his attorney raised legal claims. While thecourt found the temporal proximity sufficient to satisfy a prima facie case, the court also foundthat Amtrak would have taken the same action anyway, since all parties agreed that an outsideinvestigation was necessary to avoid potential conflicts of interest.

Summary judgment was granted for the employer in Martin v. AutoZone, Inc., 411 F.Supp. 2d 872 (S.D. Ohio 2005). The plaintiff had admitted that the employer always allowedhim time-off to fulfill his military obligations, and the plaintiff agreed that he believed that thecompany always treated him fairly. The plaintiff also admitted that he had no evidence tosupport his contention that his military service was a motivating factor in his termination.

In Dillie v. LVI Environmental Services, Inc., 2007 WL 2459934 (N.D. Ohio Aug. 24,

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2007), the employer also prevailed on summary judgment: the plaintiff produced no evidencewhatsoever to show that his service in the Air Force 18 years prior to his discharge motivated thedecision to terminate his employment. Similarly, summary judgment was granted for theemployer in Brady v. Calyon Securities (USA), 2007 WL 4440926 (S.D.N.Y. Dec. 17 2007),where: (i) the alleged discriminatory comments occurred over a year prior to plaintiff’stermination; (ii) the same supervisor alleged to have made the comments promoted plaintiff afew months later; and (iii) a comment about plaintiff’s “military like fascination with followingthe rules” referred not to plaintiff’s military status, but rather his personality and managementstyle.

In Dees v. Hyundai Motor Mfg. Alabama, LLC, 2008 WL 2157009 (M.D. Ala. May 21,2008), summary judgment was also granted for the employer on the plaintiff’s termination claim,but not his harassment claim. Although two of plaintiff’s supervisors were alleged to havesubjected the plaintiff to a hostile work environment, a different manager spotted and reportedthe plaintiff for intentionally sleeping on the job. Plaintiff failed to present any evidence that thesupervisor who reported plaintiff’s sleeping, or the committee who ratified his termination,harbored any bias against those in the military. Further, the court held that the committee wouldhave made the same decision absent plaintiff’s military service since intentional sleeping on thejob is considered an infraction that merits termination.

Same Decision-Maker Inference

In Sutherland v. SOS Intern., Ltd., 541 F. Supp. 2d 787 (E.D. Va. 2008), the plaintiffsuccessfully avoided summary judgment despite the employer’s argument that the samedecisionmaker had hired plaintiff knowing he was an army reservist, and then terminated plaintiffonly eight months later for poor work performance. The plaintiff argued that the samedecisionmaker inference should not apply to him because, at the time of hire, it was not readilyapparent how much plaintiff’s military obligations would disrupt the workforce. The districtcourt agreed, finding that “[i]f, shortly before Defendants made the decision to terminatePlaintiff, a meeting or conversation occurred in which Defendants came to a new realizationabout the extent of his reservist obligations, a reasonable finder of fact could conclude that theconversation led to Plaintiff’s termination, even when viewed alongside Defendants’ evidencethat Plaintiff’s job performance was unsatisfactory.”

Failure to Hire

USERRA prohibits an employer from failing to hire an applicant because of his or hermembership in the uniformed services. See 38 U.S.C. § 4311(a).

At least one district court has extended protection to an applicant who was on militaryleave and unavailable to work at the time of application. In McLain v. City of Sommerville, 424F. Supp. 2d 329 (D. Mass. 2006), the plaintiff, who was on active duty, applied for employmentas a police officer. He was selected for hire, but only subject to his availability to attend required

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police academy training on a particular date. The plaintiff notified the City that he would still beon active duty at the time of the training, but he would be available to attend training upon hisreturn, within several weeks of the scheduled training. In response, the City told the plaintiff thathe would not be hired. The parties filed cross-motions for summary judgment, and the districtcourt granted the plaintiff’s motion. The court held that the City had violated USERRA bydenying the plaintiff initial employment based on his military obligation. The court rejected theCity’s argument that the plaintiff’s unavailability, not his military service, motivated its decisionnot to hire the plaintiff. The court focused on “the plain language of section 4311(a) . . . [which]prohibits discrimination based not only on a person’s status as a member of the uniformedservices, but also on the service member’s ‘obligation to perform service.’” The court alsodeclined to draw any distinction between enlisted military personnel, such as the plaintiff, andmilitary reservists. The court further rejected the City’s argument that an undue hardshipexception should apply under USERRA’s anti-discrimination provision. Finally, the courtobserved that requiring an employer to delay a permanent hire is no more disruptive thanUSERRA’s reemployment obligations, especially given the facts of this case, where the delaybetween the City’s required start date and the plaintiff’s availability to begin work was relativelyshort.

In another “failure to hire” case, Hart v. Township of Hillside, 2007 WL 1063105 (3d Cir.March 9, 2007), the Third Circuit affirmed summary judgment for the employer. The plaintiff,who was not selected by a firefighter selection committee, claimed his non-selection was basedon his membership in the National Guard. The Third Circuit assumed, without deciding, that theplaintiff could establish that his membership was a “motivating factor” in his non-selection,which would shift the burden of production and persuasion to the employer to establish that thesame action would have been taken anyway. The employer met its burden by offering numerouslegitimate reasons: plaintiff’s casual interview style, his improper dress, a criminal history, asub-par driving record, and his performance on a psychological evaluation, which suggested hewas “immature.” Because the plaintiff put forth no evidence to dispute these legitimate reasons,the Court affirmed summary judgment for the employer.

Failure to Promote

In Smith v. City of Mobile, 2007 WL 2580516 (S.D. Ala. Sept. 5, 2007), the district courtdenied summary judgment for defendant on plaintiff’s failure to promote claim. The Fire andRescue Chief, who was the ultimate decision-maker with respect to promotions, had testified thatplaintiff’s voluntary deployment with DMAT (part of FEMA) to respond to Hurricane Ivan,rather than remaining to staff the special needs shelters in Mobile County when faced withpredicted 150 MPH winds: “that’s not the type of decision-making skills you’re looking for witha deputy chief.” This testimony was sufficient to preclude summary judgment, since a reasonablejury could find that the plaintiff’s DMAT service was a motivating factor in the Chief’s decisionnot to promote him. Further, defendant offered insufficient evidence to demonstrate that plaintiffwould not have been promoted even if he had not been involved with DMAT.

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Similarly, in Wagner v. Novartis Pharmaceuticals Corp., ---F. Supp.2d--- , 2008 WL2713712 (E.D. Tenn. July 10, 2008), a magistrate judge denied the employer’s motion forsummary judgment on plaintiff’s promotion claim based on the following combination ofevidence: (i) plaintiff’s delayed progress through the management training program; (ii) theemployer’s reliance on unspecified requirements for promotional decisions; (iii) the employer’sfailure to follow its procedures and properly notify plaintiff of the status of the positions he hadapplied for; (iv) the employer’s refusal to interview plaintiff for any of the positions he appliedfor; and, (v) the employer’s refusal to consider the plaintiff’s military management experience asa valid replacement for pharmaceutical management experience. This circumstantial evidencewas sufficient for a jury to decide whether plaintiff’s military service was a motivating factor inthe decisions not to promote him, as well as whether the employer would have made the samedecision in the absence of plaintiff’s military service.

By contrast, in Tranter v. Crescent Tp., 2007 WL 3274158 (W.D. Pa. Nov. 5, 2007), thedistrict court granted the defendant’s motion for summary judgment on the plaintiff’s promotionclaim. The plaintiff, who was a laborer performing road and equipment maintenance, was notselected for a Leadman position. The position was filled by a majority vote of the townshipcommissioners, which meant that plaintiff had to prove the majority of members knew of animproper motive and ratified it. The court found no evidence of discriminatory motive, notingthat (i) the plaintiff had retired from the military before applying for the promotion; (ii) theplaintiff was encouraged to apply and was chosen as a finalist for an interview; (iii) no questionswere asked during the interview about plaintiff’s military service; and (iv) the commissioners’unanimous decision to select another applicant was based on the belief that he was betterqualified. Plaintiff’s evidence that he was more qualified “misses the point . . . . Even if [theplaintiff] disagrees with that decision, there is simply no evidence from which a reasonable jurorcould conclude that it was a pretext for discrimination due to [plaintiff’s] military service.” Furthermore, plaintiff’s evidence of comments made over 10 years prior to the decision at issuewas nothing more than “stray remarks, some over a decade old” that were too remote to establishmilitary service was a “motivating factor” in the decision not to promote him.

Harassment

Although USERRA does not specifically prohibit military-based harassment, districtcourts confronting the issue have assumed that harassment is actionable under USERRA as longas the harassment is sufficiently severe or pervasive. For example, in Maher v. City of Chicago,406 F. Supp. 2d 1006 (N.D. Ill. 2006) (magistrate judge), the plaintiff asserted, among otherthings, that he had been subject to harassment as a result of his deployment to the Gulf. Thealleged harassment included statements by the plaintiff’s supervisor about the burdens of theplaintiff’s military leave and requests to plaintiff to get out of his military leave, “among othersquabbles.” Although the court recognized that harassment on account of prior military servicecan violate USERRA, the court found that these allegations were insufficiently severe orpervasive, particularly because the plaintiff had not claimed that the conduct was physicallythreatening and testified that it was not severe enough to interfere with his work performance.

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Likewise, in Figueroa Reyes v. Hospital San Pablo Del Este, 389 F. Supp. 2d 205(D.P.R. 2005), the court found the plaintiff had not established “severe or pervasive” harassment. The plaintiff, a nurse, claimed he was constructively discharged and subject to a hostile workenvironment because of his military obligation. Noting that USERRA does not specificallyprohibit harassment based on military status, the district court assumed arguendo that harassmentis cognizable. The court held, however, that plaintiff had failed to provide sufficient evidence ofa hostile work environment. The only “potentially hostile conduct” aimed at plaintiff was anegative performance evaluation and a threat by a terminated supervisor on the supervisor’s lastday of employment. No negative consequence flowed from this incident, and the courtconcluded “we do not find this single alleged harassment episode, initiated by an employee whohas been terminated by his employer and was hours from his final exit, sufficient to support ahostile work environment claim.” The court also found the plaintiff’s other complaints “fall soshort of being harassment as to not warrant individual consideration.” These complaintsincluded complaints that his supervisor (i) participated unannounced in conference calls; (ii)requested better notice of plaintiff’s military leaves; and (iii) requested that plaintiff train othersto do certain duties to minimize disruption while plaintiff was on military leave.

A different result was reached in Dees v. Hyundai Motor Mfg. Alabama, LLC, 2008 WL2157009 (M.D. Ala. May 21, 2008), where the district court denied summary judgment onplaintiff’s harassment claim. After finding harassment claims cognizable under USERRA, thecourt concluded the following alleged actions by plaintiff’s supervisors were sufficiently severeor pervasive to warrant a trial: (i) frequent derogatory comments about plaintiff’s guard service;(ii) demanding military orders for training weekends that do not require military orders; (iii)implicitly threatening continued employment; (iv) accusing plaintiff of placing his militaryservice above his civilian job; and (v) unfairly and punitively assigning plaintiff more dangerousand physically threatening work.

Some district courts have viewed harassment claims as actionable under Section 4311’s“denial of a benefit of employment” provision. In Steenken v. Campbell County, 2007 WL837173 (E.D. Ky. March 15, 1007), the district court held that plaintiff’s claim that he was forcedto resign due to a hostile work environment was cognizable under USERRA because the right tobe free from harassment, broadly construed, is a “benefit of employment,” within the meaning ofsection 4311. The same result was reached in Vickers v. City of Memphis, 368 F. Supp. 2d 842(W.D. Tenn. 2005). In Vickers, the plaintiff filed suit, claiming that after he returned from Iraqhe was subject to harassment, hostile work environment, and disparate treatment in violation ofUSERRA. According to the complaint, plaintiff had been called “derogatory ethnic namesbecause of his military service” and repeatedly called “HABIB.” The defendant moved todismiss, claiming that USERRA does not provide a cause of action for harassment, or does notcover harassment based on prior military service. The court denied the motion on both grounds,holding that freedom from harassment due to prior military service could be a “benefit ofemployment” within the meaning of Section 4311 if the employer has a policy prohibiting thetype of conduct about which the plaintiff complains, and the conduct is sufficiently severe orpervasive to alter the conditions of employment and create a hostile environment.

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Reemployment Rights (Sections 4312 and 4313)

USERRA Section 4312 entitles reemployment rights and benefits to employees who areabsent from work due to military obligations. The reemployment obligation applies only to thoseindividuals who were actual employees prior to leaving for military service. So, for example, inQuick v. Frontier Airlines, Inc., 544 F. Supp. 2d 1197 (D. Colo. 2008), the plaintiff was notentitled to reemployment protections, such as retroactive seniority, simply because he had beenaccepted into the pilot applicant pool for future hire.

Some courts initially confused the distinction between Section 4311’s discriminationprohibition and Section 4312’s reemployment obligation. More recent court decisions agree thatthe two provisions are separate and distinct requirements, and that Section 4312 does not apply todiscrimination claims, nor does a violation of Section 4312 require a showing of intent.

For example, in Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299 (4th Cir. 2006), theplaintiff argued that Section 4312 not only required reemployment, but also protected her fromdiscriminatory modifications to the terms and conditions of her employment followingreinstatement. Specifically, she claimed that adverse changes to her work hours andresponsibilities weeks after her reemployment violated Section 4312. The Fourth Circuit rejectedthe plaintiff’s arguments, holding that Section 4312 applies only at the moment of rehire. Oncethe service member has been reemployed, Section 4312 drops out of the picture and Section 4311(not 4312) protects against discriminatory changes in working conditions and Section 4316prohibits summary dismissal for a limited period of time. The plaintiff could not succeed underSection 4312 because it was undisputed that she had been rehired with the same title, salary,consulting engagement, and work location as before her military leave.

More recently, in Pittman v. Department of Justice, 486 F.3d 1276 (Fed. Cir. 2007), theFederal Circuit affirmed dismissal of Plaintiff’s reemployment claim where the plaintiff wasrestored to his prior position as a corrections officer and worked a single shift before being placedon paid administrative leave with full benefits for two months prior to his discharge. Similarly, inPatton v. Target Corp., 2007 WL 894560 (D. Or. March 21, 2007), the court granted summaryjudgment for the employer on plaintiff’s reemployment claim because “Plaintiff was reemployedfollowing his National Guard training for a period of at least one hour” upon his return, despitebeing demoted shortly thereafter.

The Notice Requirements

USERRA requires the employee to provide advance written or verbal notice to theemployer of his or her need to take military leave, unless such advance notice is precluded bymilitary necessity, or is otherwise impossible or unreasonable. See 38 U.S.C. § 4312(a). Although USERRA does not specify how far in advance notice must be given to the employer, theLabor Department regulations provide that notice should be provided “as far in advance as isreasonable under the circumstances.” 20 C.F.R. § 1002.85(d).

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In Acker v. Greenville Surgery Center Ltd. Partnership, 2008 WL 163060 (D.S.C. Jan. 15,2008), the court denied the employer’s motion for summary judgment on plaintiff’s reemploymentclaim, which was premised on the plaintiff’s failure to follow its procedures for notification of theneed for military leave. The court recognized that verbal notification is sufficient, and held thatthere were disputed facts regarding whether plaintiff had provided verbal notification of his needfor leave.

The “Escalator” Position, or one of “Like Seniority, Status, and Pay” (Section 4313)

In terms of reemployment positions, courts continue to interpret USERRA favorably forthe reservist, regardless of the employer’s legitimate business needs. In Duarte v. AgilentTechnologies, Inc., 366 F. Supp. 2d 1039 (D. Colo. 2005), the plaintiff, a Marine Corp reservist,held the position of “primary design consultant.” Upon returning from an eight-month call toactive duty, plaintiff was placed in a modified position. The employer did not place him in hispre-service position because the design process for the following year had already begun, and theemployer believed it would be too disruptive to replace the acting primary design consultant. Plaintiff’s new duties included working on a special survey project and assisting other primarydesign consultants. Four months later, plaintiff was selected for termination due to budgetarycuts. Following a bench trial, the court held that the employer had violated the plaintiff’sreemployment rights by failing to reemploy him in a position of like “status” to the position heheld prior to his military leave. Although the plaintiff’s salary and benefits remained the same,his “status” had been diminished by his modified duties.

However, in Long v. Ellis Environmental Group, LC, 2007 WL 1020005 (N.D. Fla. March30, 2007), the district court granted the employer’s motion for summary judgment on theplaintiff’s “status” reemployment claim. The plaintiff, whose deployment exceeded 90 days, wasoffered the position of Vice President of Airforce Programs, rather than his pre-deploymentposition of Vice President of Construction. The plaintiff did not dispute that the position held thesame seniority and pay; plaintiff argued that the offered position did not hold the same “status.” Citing the Labor Department’s regulations (20 C.F.R. § 1002.194), the court considered sixfactors to determine whether the positions were of comparable status: (i) opportunities foradvancement; (ii) general working conditions; (iii) job location; (iv) shift assignment; (v) rank;and (vi) responsibility. The court found that the positions had similar job duties and managementresponsibilities, and that the offered position held greater responsibilities and opportunities foradvancement. Further, due to extensive changes within the company during plaintiff’sdeployment, his former job was no longer the same position, having decreased in responsibilitiesand importance. Accordingly, the court held that, as a matter of law, plaintiff had been offered aposition of like seniority, status, and pay to the one that he would have held had he never beencalled to active duty.

Similarly, in Vander Wal v. Sykes Enterprises, Inc., 377 F. Supp. 2d 738 (D.N.D. 2005)summary judgment was granted on the plaintiff’s reemployment claim. The employer reemployedthe service member with a pay increase to reflect the raise he would have received while on active

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duty, and there was no dispute that his new job assignment was comparable to his assignmentsbefore leaving.

The district court also rejected the plaintiff’s reemployment claim in Woodard v. New YorkHealth and Hospitals Corp., 554 F. Supp. 2d 329 (E.D.N.Y 2008). While plaintiff was on a 2-year military leave, her duties as a quality assurance manager were absorbed by co-workers andher position remained open. When she returned from military leave, the employer decided toeliminate her prior position and place her in a different quality assurance position to fulfill ashortage. There was no dispute that her new position had the same seniority and pay. The courtalso found that the positions had similar status based on undisputed witness testimony that thenew position remained a management-level position that took advantage of plaintiff’s skills andqualifications. The only difference between her old and new position was that the formerinvolved quality assurance of facilities and the latter involved quality assurance with respect topatient care. The district court rejected the plaintiff’s contention that her new position was largelysecretarial because she was required to prepare meeting minutes. The evidence established that“an analytical background was necessary so that the person preparing the minutes couldunderstand and respond to the substance of the quality assurance meetings.” Finally, in plaintiff’sabsence a Ph. D. was selected to fill the position.

Summary judgment was also granted in favor of the employer in Mullner v. Strain, 2007WL 2713265 (E.D. La. Sept. 14, 2007), on the plaintiff’s reemployment claim. Prior to takingmilitary leave, the employer had transferred the plaintiff from a Tax Auditor position to a newposition as Radio Room Operator. However, the plaintiff never actually started working as aRadio Room Operator because she elected to take leave under the Family and Medical Leave Act(“FMLA”). Following her FMLA leave, the plaintiff reported directly to the U.S. Air Force forbasic training. After being separated from the Air Force, the employer restored the plaintiff to theRadio Room Operator position. The Plaintiff claimed that under section 4312, she was entitled toreemployment as a Tax Auditor. The court disagreed, finding that it was “of no moment” that shehad elected to take FMLA leave instead of reporting to her new position. What mattered was thatthe plaintiff had been transferred to her new position prior to taking military leave. “In otherwords, Plaintiff has no claim for a violation of her right to reemployment because she wasreinstated to the same position which she occupied (regardless of her objection) prior to herdeparture for basic training.”

Application for Reemployment

In order for the employer’s reemployment obligation to arise, the returning servicemember must reapply for employment within the time periods specified by USERRA, which varydepending upon the length of service. A plaintiff’s failure to timely apply for reemployment canprove fatal to his or her reemployment claim even if the employer previously indicated that theservice member would have no job upon his or her return. For example, in Hodges v. PrestageFarms, Inc., 2007 WL 1153120 (N.D. Miss. April 18, 2007), the plaintiff, while home on leavefrom active duty, was told by his civilian employer that he would no longer have a job with the

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company upon his return. Consequently, when the plaintiff was released from active duty, he didnot reapply for employment within the 90-day period prescribed by USERRA. The district courtgranted summary judgment for the employer because of USERRA’s “clear, unambiguous []requirement that [plaintiff] reapply for employment within 90 days of his discharge from activeduty in order to have a right to reclaim his job under USERRA and reap the other benefits of thestatute.” Although the statute also provides that reemployment rights are not forfeited if theservice member complies with the employer’s rules and policies, the employer’s policies providedfor automatic termination of employment if absent from work for three days without notice orexcuse. Since the plaintiff waited nearly two months beyond 93 days to apply for reemployment,the court held that he could not satisfy an essential element of his prima facie case, noting that“there is nothing in the statute to suggest any other basis for excusing a failure to reapply withinthe time set by the statute, even if the jury were to find that [plaintiff] was improperly fired by thedefendant.”

By contrast in Acker v. Greenville Surgery Center Ltd. Partnership, 2008 WL 163060(D.S.C. Jan. 15, 2008), the court denied the employer’s motion for summary judgment onplaintiff’s reemployment claim, which was premised in part on plaintiff’s failure to timely applyfor reemployment. Since the employer had sent plaintiff a COBRA notice while plaintiff was onmilitary leave indicating that plaintiff had been terminated, the court found “a genuine issue ofmaterial fact concerning whether it was unreasonable for plaintiff not to report back to work.”

An employer cannot require a returning service member to submit a written application forreemployment. For example, in Dunlap v. Grupo Antolin Kentucky, Inc., 2007 WL 855335 (W.D.Ky. March 14, 2007), the court rejected the employer’s argument that it was entitled to requireplaintiff to file a written application before plaintiff could seek reemployment. Relying on theplain language of USERRA and the Labor Department regulations, the court held that “Defendantis not entitled to place additional requirements upon plaintiff before he can gain reemploymentunder USERRA.” Accordingly, plaintiff’s reemployment rights accrued when he reported towork and orally asked for his job back.

The plaintiff in Serricchio v. Wachovia Securities, LLC, 556 F. Supp. 2d 99 (D. Conn.2008), also satisfied the “reapplication” requirement, despite including a list of issues in hisreapplication letter that plaintiff believed the employer should remedy in connection with hisreinstatement. The employer argued that the plaintiff’s request was “conditional,” and therefore,not valid. The court disagreed, finding that “although the letter contains an enumeration ofactions taken by defendants which plaintiff viewed as damaging his career, his reinstatementrequest was not expressly conditioned on the employer’s meeting his demands, only red-flaggingadditional USERRA rights implicated by his reinstatement request.” Since the letter expresslyrequested reinstatement and referenced USERRA, plaintiff had satisfied the reapplicationrequirement.

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“Prompt” Reemployment (Section 4313(a))

USERRA requires “prompt” reemployment of returning service members. Although two-weeks is generally considered “prompt,” courts have adopted a flexible approach utilizing the “assoon as practicable” under the circumstances standard adopted in USERRA’s implementingregulations. Under this flexible approach, courts consider the length of the military leave and theposition at issue to determine whether the gap in time between application and reemployment isreasonable.

In Petty v. Metropolitan Government of Nashville-Davidson, 2006 WL 3333509 (M.D.Tenn. Nov. 16, 2006), the plaintiff, a police officer, sued his employer for, among other things,failing to promptly reemploy him following his military leave. After the plaintiff had returnedfrom a two-year tour of duty, the employer required him to undergo a return-to-work process,applicable to all officers returning from leave, which included a physical and mental fitnessexamination. Three weeks later, upon completion of the return-to-work process, the employerreturned the plaintiff to work. The plaintiff argued that USERRA superceded the employer’sreturn-to-work process. The district court disagreed. Relying on the standard set forth in thefederal regulations, the court stated that “prompt reemployment” means “as soon as practicableunder the circumstances of each case.” Although the regulations also provide that “absent unusualcircumstances,” reemployment must occur within two weeks, the court interpreted the “as soon aspracticable” language as allowing the employer enough flexibility to require the employee tocomply with a return-to-work process, where appropriate. In the plaintiff’s case, the court foundthat three weeks was “as soon as practicable” given that the plaintiff had been on leave for overone year, and the return-to-work procedure was uniformly applied to all officers. Furthermore, thecourt held that USERRA does not exempt returning service members from demonstrating thatthey are still qualified to hold their position, especially for a job as demanding as police officer. Accordingly, the court granted the employer’s motion for summary judgment.

The court also granted summary judgment for the employer in Vander Wal v. SykesEnterprises, Inc., 377 F. Supp. 2d 738 (D.N.D. 2005). The service member was released fromactive duty on April 22, 2004, and reemployed on May 4, 2004. Plaintiff completed anapplication for reemployment, stating that he would be unable to return to work until May 4,2004. It was undisputed that the plaintiff never notified the employer he would be availablesooner than May 4, 2004, although his attorney wrote a letter to the company prior to May 4demanding the plaintiff’s immediate reemployment. The court found “as a matter of law,” thatunder USERRA standards, the plaintiff was promptly reemployed where he was offeredreemployment only four days after his attorney sent the demand letter and reemployed withinseven days of the letter. Plaintiff’s co-plaintiff, who was reemployed only seven business daysafter completing his application for reemloyment also had been “promptly” reemployed within themeaning of USERRA.

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“Changed Circumstances” Statutory Defense

Employers are excused from their reemployment obligations if their “circumstances haveso changed as to make such reemployment impossible or unreasonable.” 38 U.S.C. §4312(d)(1)(A). This exception has been narrowly construed. The Labor Department regulationsexplain that the exception could apply when there has been an intervening reduction in force thatwould have included the service member. The exception does not apply simply because anotheremployee has been hired to fill the reemployment position during the service member’s absence,even if reemployment might require the termination of that replacement employee. See 20 C.F.R.§ 1002.139(a).

In Dunlap v. Grupo Antolin Kentucky, Inc., 2007 WL 855335 (W.D. Ky. March 14, 2007),the district court granted the plaintiff summary judgment on his reemployment claim, rejecting theemployer’s “changed circumstance” defense. The district court found that “mere low work load,layoffs, and a hiring freeze” at the time plaintiff reapplied were not enough to invoke the“changed circumstance” defense, particularly where the employer subsequently hired or rehired 99employees in positions similar to that held by plaintiff. Further, changed circumstances were notestablished simply because there were no open positions or because plaintiff had been replaced.

The “changed circumstance” defense was successfully asserted, however, in Madden v.Rolls-Royce Corp., 2008 WL 747290 (S.D. Ind. March 18, 2008). In that case, the plaintiff hadbeen hired by a staffing service, CDI, to provide temporary work for Rolls Royce. Upon theplaintiff’s return from military leave, Rolls Royce did not want plaintiff back on the work-site andwas also in the process of terminating its contract with CDI. As a result, plaintiff’s“reemployment at Rolls- Royce through CDI was impossible or unreasonable at that point in time,which is enough to insulate CDI from liability under USERRA.”

“Brief, Non-recurrent Period” Statutory Defense

An employer is also not required to reemploy a service member whose pre-serviceemployment was for a “brief, non-recurrent period, and there is no reasonable expectation thatsuch employment will continue indefinitely or for a significant period.” 38 U.S.C. §4312(d)(1)(c). In Madden v. Rolls-Royce Corp., 2008 WL 747290 (S.D. Ind. March 18, 2008), forexample, the court granted Rolls Royce’s motion for summary judgment where plaintiff’semployment at Rolls Royce was pursuant to an agreement to provide “temporary contractpersonnel service needs” and plaintiff testified that he knew his employment was temporary (for90 days) and would only become permanent if Rolls Royce still had a need in 90 days. Accordingly, plaintiff was not entitled to reemployment.

Comparable Rights and Benefits (Section 4316(b)(1))

Section 4316(b) provides that when an employee is absent from work for military service,he or she should be deemed on “furlough or leave of absence” and be afforded such rights and

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benefits as are generally provided to other employees on similar leaves of absence.

In Tully v. Department of Justice, 481 F.3d 1367 (C.A. Fed. 2007), the plaintiff served onactive duty for two years, during which time the employer placed him on “leave without pay”status, which did not include paid holidays. The plaintiff claimed he was entitled to pay for thoseholidays during which he was absent for military service, arguing that section 4316(b)(1)(B)entitles a service member to the best benefits available to any employee for any leave of absence. However the Court disagreed, finding that the leaves must be “comparable” to trigger the right toequivalent treatment, which required analysis of the leave duration, among other things. Althoughthe court rejected the Administrative Judge’s comparison with respect to whether or not otherforms of leave were paid versus unpaid, such consideration was harmless, given that the length ofplaintiff’s leave alone was sufficient to distinguish it from other forms of leave with holiday pay. Because the plaintiff’s extended leave of two years was dissimilar to shorter leaves for juror orwitness duty, he was not entitled to holiday pay.

Section 4316(b) does not provide for preferential treatment. In Crews v. City of Mt.Vernon, 2008 WL 2224898 (S.D. Ill., May 27, 2008), the plaintiff filed suit, claiming that theemployer violated USERRA by discontinuing a policy of permitting service members to work ontheir regularly scheduled days off in lieu of days when they had to attend weekend training drills. The plaintiff characterized his claim as a discrimination claim under section 4311, contending thatthe decision to discontinue this flexible scheduling policy constituted the “denial of a benefit” ofemployment in violation of USERRA. The district court, however, properly analyzed plaintiff’sclaim under section 4316, and considered whether plaintiff was entitled to a non-seniority benefitthat was provided to employees taking comparable forms of non-military leave. Because theplaintiff had failed to identify any comparable form of leave that permitted scheduling flexibility,the court agreed with the defendant, that plaintiff was treated equally to those who took non-military leave. Accordingly, his claim could not survive summary judgment.

Protection from Discharge Without Cause (Section 4316 (c))

One unique feature of USERRA is its protection from discharge without cause for a periodof time following reemployment. In order to qualify for this protection, the “period of servicebefore the reemployment [must be] more than 30 days . . . .” In Warren v. International BusinessMachines Corp., 358 F. Supp. 2d 301 (S.D.N.Y. 2005), the district court held that the 30-dayrequirement means consecutive days, and not cumulative days. Because all of plaintiff’s leaves ofabsences fell short of 30 days, his claim under Section 4316(c) failed as a matter of law.

Courts have adopted a “reasonable” standard for what constitutes “cause” for purposes ofSection 4316, i.e., was the employer’s termination decision reasonable under the circumstances. In Johnson v. Michigan Clam Svc., Inc., 471 F. Supp. 2d 967 (D. Minn. 2007), the plaintiff wasterminated during USERRA’s 180-day period of protection from discharge without “cause” forrefusing to sign a non-competition and confidentiality agreement. The parties cross-moved forsummary judgment, and the district court affirmed the magistrate judge’s report and

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recommendation denying both motions. Citing the federal regulations, the district court placedthe burden of proof on the employer to demonstrate that plaintiff’s discharge for refusing to signthe agreement was “reasonable.” Because the reasonableness of plaintiff’s actions depended inpart on whether the agreement was lawful, the lawfulness of the agreement needed to be decidedbefore ruling on the USERRA issue. Further, even assuming the agreement was lawful, thereasonableness of asking the plaintiff to sign it depended upon the surrounding circumstances,such as, for example, economic conditions in the company and in the plaintiff’s department. Accordingly, a trial was necessary to determine the reasonableness of the plaintiff’s termination.

In Duarte v. Agilent Technologies, Inc., 366 F. Supp. 2d 1039 (D. Colo. 2005), following abench trial, the judge found the employer had violated Section 4316. The plaintiff, a Marine Corpreservist, held the position of “primary design consultant.” Upon returning from an eight-monthcall to active duty, plaintiff was placed in a modified position. Four months later, plaintiff wasselected for termination for budgetary reasons. Following a bench trial, the court found that theemployer had violated Section 4316(c) by terminating the plaintiff without cause during the 180-day protected period. The employer’s decision to select plaintiff for discharge was unreasonablebecause it directly resulted from the employer’s failure to properly reemploy plaintiff followinghis military service.

At least one court has allowed a 4316(c) claim to proceed under a theory of “constructivedischarge” during the protected period. In Serricchio v. Wachovia Securities, LLC, 556 F. Supp.2d 99 (D. Conn. 2008), the plaintiff, a financial advisor, returned from a two-year military leave tofind that his employer, Prudential Securities, had sold its brokerage business to Wachovia. Wachovia had changed the business model resulting in the loss of many of plaintiff’s formerclients. Wachovia offered to reinstate plaintiff as a financial advisor with his clients that hadremained and the opportunity to cold-call new accounts. The plaintiff never responded to theoffer, and was terminated for “job abandonment.” Plaintiff argued that he had been constructivelydischarged without cause because the reemployment conditions were “so onerous that he had nochoice but to leave.” The court agreed that a reasonable juror could find plaintiff had beenconstructively discharged: “he returned to what had been a financially comfortable position tofind a job in which he had no book of business and had to begin anew by cold-calling prospectivecustomers in order to pay off the $2000 monthly advance which Wachovia offered him ascompensation, leaving him incapable of supporting himself and his family . . . . reasonable jurorscould find the conditions under which Serriccio was offered reemployment ‘so intolerable that areasonable person in the employee’s position would have felt compelled to resign’” (citationsomitted).

Although it is difficult to achieve summary judgment on a Section 4316 claim, summaryjudgment has been granted where there is significant and uncontradicted evidence to support thedischarge decision. For example, in Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299 (4thCir. 2006), the Fourth Circuit affirmed summary judgment for the employer on the plaintiff’sSection 4316 claim based on “overwhelming and uncontroverted” evidence of plaintiff’smisconduct. This evidence included tardiness, missed conference calls, inappropriate conduct in

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front of customers, complaints from co-workers, and more. Accordingly, despite plaintiff’ssubjective view that she acted professionally, it was objectively reasonable for the employer todismiss her.

Similarly, in Smith v. Pepsi Bottling Group, 2007 WL 2572241 (D.S.C. Aug. 31, 2007),summary judgment was granted on plaintiff’s 4316(c) claim where plaintiff was responsible for asignificant inventory discrepancy, and gave demonstrably false information about it. Although theplaintiff hypothesized that another employee had framed him, he had no factual support for histheory. Further, the plaintiff had notice that misrepresentation of company inventory documentswas grounds for discharge because it was in the company handbook, which the plaintiff admittedto receiving. Finally, the plaintiff admitted he had no evidence to support his belief that hismilitary absence had something to do with his discharge.

Summary judgment has also been granted under Section 4316 where the plaintiff’stermination resulted from extreme financial hardship. In Ferguson v. Walker, 397 F. Supp. 2d964 (C.D. Ill. 2005), the plaintiff’s employer, the Village of Ludlow, experienced financialproblems and gave plaintiff the option either to accept a pay cut or a transfer from his position asfull-time police chief to a full-time school resources officer. When plaintiff declined bothoptions, his employment was terminated. Plaintiff brought suit under USERRA, claiming hisdischarge violated the Act’s protection from discharge except for cause. The employer arguedthat there was “cause” to discharge plaintiff based on evidence that the Village had a significantbudgetary deficit and needed to cut police staff. The record also reflected that the plaintiff wasnot replaced by another full-time officer, and that subsequent to plaintiff’s discharge, the Villageemployed only two part-time officers with no benefits. The district court held that “cause” fortermination means only that the decision was “a reasonable one under the circumstances.” Assuch, “cause” could exist where severe adverse economic conditions necessitated the dissolutionof an existing job. Accordingly, the employer was entitled to summary judgment.

Pension Benefits (Section 4318)

USERRA Section 4318(b)(1) provides that an employer must allocate to an employeepension benefit plan during a period of military leave in the same manner, and to the same extent,the allocation occurs for other employees during the time of service. In Scott v. AbsoluteInsulation, Inc., 2007 WL 2728551 (W.D. Pa. Sept. 17, 2007), summary judgment was granted asto liability in favor of the plaintiffs, who were trustees of various employee benefits plans. It wasundisputed that the employer failed to make mandatory contributions to an annuity fund while oneof defendant’s employees was on active duty military leave.

However, in Archo v. Central States, Southeast and Southwest Areas Pension Fund, 2007WL 2936216 (M.D. Fla. Oct. 9, 2007), the district court granted summary judgment for thedefendant, a pension fund, on plaintiff’s claim under section 4318. The plaintiff had worked part-time for UPS until 1980, when he ceased employment to begin four years of active service withthe Navy. Upon his return in 1984, the plaintiff resumed part-time employment with UPS, and in

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1985 converted to full-time employment. Plaintiff argued that he was entitled to pension creditsfor the four-year period during which he as on military leave, even though UPS only madecontributions for full-time employees. The plaintiff claimed that “but for” his military leave, hewould have become full-time back in 1981, as evidenced by his acceptance of full-timeemployment in 1985. The court disagreed, finding that the Trustees to the fund did not actarbitrarily by refusing plaintiff’s claim. First, the court noted that it is unclear whether USERRArequires an employer to make pension contributions on behalf of a service member who does notalready meet the eligibility requirements at the time he begins military leave. Second, evenassuming USERRA requires contributions for those who would later meet eligibilityrequirements, section 4318(b)(3) provides that the employer’s liability is calculated “at the rate theemployee would have received but for the period of [military service],” unless the date is not“reasonably certain,” in which case the employer’s liability is calculated based on the employees“average” rate of compensation during the 12-month period immediately preceding the militaryleave. Because it was undisputed that plaintiff worked part-time during the 12-month periodpreceding his military leave, he would not have been eligible for employer contributions. Further,the plaintiff had presented no evidence from which the court could infer plaintiff would havebecome a full-time employee “but for” his military leave. Inferences from events occurring yearslater (namely, his acceptance of full-time employment in 1985) was insufficient.

Section 4318(b)(1) also provides that service in the uniformed service that is deemed to beservice with the employer, is so deemed “under the terms of the plan or any applicable collectivebargaining agreement.” In Kelly v. W.G. Tomko, Inc., 2007 WL 906430 (M.D. Pa. March 22,2007), the district court denied the employer’s motion to dismiss a lawsuit filed by the servicemember’s pension plan to recover pension payments. Because the collective bargainingagreement defined the defendant as the employer, “the Defendant’s argument that the Union [wasthe service member’s] actual employer flies in the face of the CBA and [was] clearly notavailing.”

Retaliation

USERRA’s retaliation protection extends not only to service members who assert theirrights under the Act, but also to any person, regardless of whether he or she performed service,who assists in enforcing USERRA’s provisions. See 38 U.S.C. § 4311(b)(4). In Cook v. CTCCommunications Corp., 2007 WL 3284337 (D.N.H. Oct. 30, 2007), the plaintiff, a humanresources manager, alleged she had been retaliated against for notifying her supervisor that anemployee’s termination would violate USERRA, and refusing to manufacture pretextual reasonsto terminate the employee. On the employer’s motion for summary judgment, first, the courtrecognized that plaintiff’s lack of military status did not affect her protection from retaliationunder USERRA. Next, the court addressed whether the plaintiff had engaged in “protected”activity, or was merely carrying out her job responsibilities as a human resources manager. Because there were factual disputes as to whether the plaintiff “stepped outside her role as ahuman resources manager by refusing to follow her [supervisor’s] direction and advocating onbehalf of the employee against CTC,” the court denied summary judgment for the employer. The

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court also found that plaintiff’s “motivating factor” evidence, consisting primarily of the temporalproximity between plaintiff’s termination and her complaint, while “weak at best,” was sufficientto survive summary judgment.

To state a retaliation claim under USERRA, the plaintiff must allege that he or shesuffered an adverse employment action as a result of engaging in protected activity. The NinthCircuit held that “protected activity” for purposes of USERRA’s retaliation provision can includeexercising the right to reemployment, even where the plaintiff made no formal application forreemployment. In Wallace v. City of San Diego, 479 F.3d 616 (9th Cir. 2006), the plaintiff hadreturned to work following numerous military leaves without completing a formal application forreemployment. The Ninth Circuit held that the plaintiff could rely on adverse employment actionsthat pre-dated his first formal application for reemployment to support his retaliation claim. Exercising the right to reemployment requires only (i) properly notifying the employer of the needfor a service-related absence; (ii) taking a cumulative leave of no more than five years; and (iii)reporting to work or reapplying for employment, depending upon the length of absence. Accordingly, his early military leaves constituted protected activity.

Also in Wallace, the Ninth Circuit reversed the trial court’s JNOV verdict for thedefendant on the plaintiff’s claim that he was constructively discharged in retaliation for hisprotected activity. At trial, the plaintiff presented the following evidence in support of his claim: (i) he was not considered for promotions to sergeant; (ii) he was excessively and disparatelydisciplined in response to minor misconduct; (iii) his request to teach at the police academy wasrefused without justification or explanation despite having taught there for years; (iv) he wasdisciplined for absences from work necessitated by his military obligations; (v) his request to takemilitary leave was refused despite providing reasonable notice under the circumstances; (vi)termination proceedings were initiated against him, which were resolved with a four-daysuspension because he had not received “approval” to take military leave; and (vii) he was issued“unacceptable” performance ratings and placed on probation by a former supervisor despite histransfer to a new division and supervisor. The district court set aside the jury’s award of $256,800in damages and granted the police department’s motion for judgment as a matter of law basedprimarily on the fact that plaintiff’s working conditions had improved following his transfer to anew division such that he could not establish a constructive discharge. On appeal, the NinthCircuit reversed, holding that under the “totality of the circumstances,” the evidence permitted areasonable jury to conclude that plaintiff’s employment conditions had not sufficiently changed topreclude a constructive discharge claim.

As with other employment laws, under USERRA there must be a nexus between thedecision to take adverse action against the service member and his or her protected activity. InFrancis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299 (4th Cir. 2006), the Fourth Circuit upheldsummary judgment for the employer despite the close proximity in time between plaintiff’sUSERRA complaint and her discharge. The actions that led to plaintiff’s probation andtermination occurred before her protected activity. This undisputed fact belied the conclusion thatthe employer was motivated by the plaintiff’s USERRA complaint.

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However, in Patton v. Target Corp., 2007 WL 894560 (D. Or. March 21, 2007), thetemporal sequence of events was alone sufficient to create a genuine dispute over whether theplaintiff was terminated for taking steps to protect his rights under USERRA. On July 9, theplaintiff had sent a company-wide e-mail regarding his demotion, which the employer claimedwas inaccurate, disruptive, displayed poor judgment, and was the true reason for his termination. The following day, July 10, the plaintiff contacted ESGR about his demotion. The next day, July11, the DOL contacted the employer about the plaintiff’s claim. The plaintiff testified that theemployer was “uncooperative or rude,” and that plaintiff’s direct supervisor complained he shouldnot have brought “third party representation” into the matter. Then, on July 14, plaintiff’s e-mailaccount was disabled and his employment terminated.

Finally, to survive summary judgment with respect to a USERRA retaliation claim, theplaintiff must suffer a materially adverse action, rather than mere inconvenience or alteration ofjob responsibilities. For example, in Crews v. City of Mt. Vernon, 2008 WL 2224898 (S.D. Ill.May 27, 2008), the district court granted the defendant’s motion for summary judgment onplaintiff’s USERRA retaliation claim, where plaintiff had alleged that he was denied a trainingclass, defendants had made unwarranted negative comments about him, and he received a lowmark on one quarterly evaluation in the area of “attitude.” In rejecting the plaintiff’s retaliationclaim, the court noted that, “while the definition of adverse action is not limited to a loss of salaryor benefits, it is not so broad as to include everything that makes an employee unhappy . . . Inother words the adverse action must materially alter the terms and conditions of employment.”(citations and internal quotations omitted)(emphasis in original).

Arbitration Agreements

Although there is a split in authority regarding whether agreements to arbitrate USERRAclaims are enforceable, the majority of courts to address the issue have found that they are.

In Garrett v. Circuit City Stores, Inc., 449 F.3d 672 (5th Cir. 2006), the plaintiff signed anindividual agreement to arbitrate claims arising from the cessation of his employment with CircuitCity. Following plaintiff’s termination, he filed suit, claiming that his discharge violatedUSERRA. The district court denied the employer’s motion to compel arbitration becauseUSERRA Section 4302 states that USERRA supercedes any contract or agreement that reduces orlimits any “right or benefit” provided by USERRA, such as the right to pursue claims in federalcourt. The Fifth Circuit reversed, however, finding that Section 4302 refers only to substantiverights and not procedural rights, such as the desire for a judicial forum. The Fifth Circuit’sapproach was followed in Ernest v. Lockheed Martin Corp., 2008 WL 2958964 (D. Colo. July 29,2008), Kitts v. Menards, Inc., 519 F. Supp. 2d 837 (N.D. Ind. 2007), Landis v. Pinnacle Eye Care,LLC, 2007 WL 2668519 (W.D. Ky. Sept. 6, 2007), and Klein v. City of Lansing, 2007 WL1521187 (W.D. Mich. May 21, 2007). Also, in Baudoin v. Mid-Louisiana AnesthesiaConsultants, Inc., 2007 WL 2175913 (W.D. La. July 30, 2007), the district court found plaintiff’sUSERRA claim was subject to an agreement to arbitrate.

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The opposite conclusion was reached in Lopez v. Dillard’s, Inc., 382 F. Supp. 2d 1245 (D.Kan. 2005), where the district court held that agreements to arbitrate are preempted by USERRASection 4302(b). Similarly, the district court in Breletic v. CACI, Inc.- Federal, 413 F. Supp. 2d1329 (N.D. Ga. 2006), refused to dismiss a USERRA lawsuit for failure to arbitrate basedprimarily on USERRA's legislative history. In that case, as a condition of hiring, plaintiff wasrequired to sign an employment agreement containing a mandatory arbitration provision. Theprovision covered claims “arising out of or relating to [his] employment or the termination of suchemployment,” with no specific mention of USERRA. Following a call to active duty, the plaintiffsought reemployment and was told his job had been abolished. The plaintiff filed a USERRAcomplaint, after which the employer offered him a new position and presented him with a newemployment contract. His new employment contract also contained a mandatory arbitrationclause, but was subject to any and all rights the plaintiff may have under USERRA. The plaintifffiled suit without seeking to arbitrate his USERRA claim, and the employer moved to dismiss thecomplaint for failure to arbitrate. The court denied the motion, finding that although the text ofUSERRA is ambiguous, the legislative history specifically states that any waiver of rights must beclear, convincing and specific, and may apply only to known rights, not future claims. Thus, thecourt concluded, the waiver signed by the plaintiff seeking to waive future claims was invalid. Alternatively, the court found the waiver was not clear, convincing, and specific since the plaintiffhad obtained a letter from his employer stating that his employment agreement was subject to anyand all rights he may have under USERRA.

Timeliness

USERRA does not contain a statute of limitations and expressly precludes application ofany state statute of limitations. See 38 U.S.C. § 4323(i). Several courts have applied the federalfour-year limitations period to USERRA claims. In Nino v. Haynes Intern., Inc., 2005 WL4889258 (S.D. Ind. Aug. 19, 2005), the plaintiff filed his USERRA action six years after histermination. The employer moved to dismiss, claiming that the four-year statute of limitationsfound at 28 U.S.C. § 1658(a) applied. The court agreed, holding that, because USERRAguarantees rights and liabilities that are not in its predecessor statute (the VRRA), USERRA is an“Act of Congress” within the meaning of Section 1658(a) and, therefore, its four-year limitationsperiod applies. See also Wagner v. Novartis Pharmaceuticals Corp., --- F. Supp.2d --- , 2008 WL2713712 (E.D. Tenn. July 10, 2008) (same); 20 CFR 1002.311 (recognizing that USERRA doesnot contain a statute of limitations, and expressly precludes application of any state statute oflimitations; but, noting that at least one court has applied the federal four-year limitations period).

Right to a Jury Trial

In Duartre v. Agilent Technologies, Inc., 366 F. Supp. 2d 1036 (D. Colo. 2005), theplaintiff, who made a claim for liquidated damages, was entitled to a jury trial even thoughUSERRA does not expressly provide for such a right. Several courts previously had held thatthere was no right to a jury trial under USERRA’s predecessor statute, the VRRA. However,unlike the VRRA, USERRA allows a plaintiff to recover liquidated damages. Because liquidated

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damages are considered “suits at common law,” the Seventh Amendment’s right to a jury trialattaches. The right also attaches because an award of liquidated damages is considered punitive innature and, therefore, is a “remedy at law.”

Injunctive Relief

No special rules apply to obtaining a preliminary injunction under USERRA. In Bedrossian v. Northwestern Memorial Hosp., 409 F.3d 840 (7th Cir. 2005), the plaintiff, aphysician, sought a preliminary injunction under USERRA enjoining his hospital-employer fromfailing to renew his employment contract at the end of his appointment. The physician argued thatunder USERRA he need not show “irreparable harm,” which is typically required to warrantinjunctive relief. Alternatively, he argued that he had satisfied the standard by showing loss ofincome and damage to his reputation. The district court rejected the plaintiff’s arguments, and theSeventh Circuit affirmed. The Seventh Circuit held that, as with other employment statutes suchas Title VII and the ADA, the normal rules of equity apply, including the required showing ofirreparable harm before granting a preliminary injunction. To warrant an injunction in the contextof employment discharge cases, the type of irreparable injury must depart from the harms typicallyassociates with most discharge cases. Because the plaintiff had alleged only harms that arecommon in all employment cases, he failed to show the necessary irreparable harm required towarrant a preliminary injunction.

Class Certification

In Sandoval v. City of Chicago, 2007 WL 3087136 (N.D. Ill., Oct. 18, 2007), the districtcourt denied without prejudice a motion for class certification filed by two named plaintiff policeofficer seeking to certify a class consisting of “All persons who are or have been employed by theCity of Chicago who, while they were employed by the City, were called to active duty in theUnited States military and who, upon return from active duty, were denied reemployment,retention in employment, promotion, or any employment [from] January 1, 1997 to the present.”

First, the court found that the plaintiffs had failed to propose an adequate class definitionbecause the definition was overbroad and would encompass an untold number of class memberswho lacked standing to maintain an action on their own behalf because they were not subject todiscrimination under USERRA. Second, the named plaintiffs presented no evidence to tie theCity’s alleged wrongdoing with respect to them, to the expansive class they sought to certify. Third, for similar reasons, the court found that plaintiffs failed to satisfy the requirements of Rule23(a): (i) the plaintiffs failed to provide a reasonable estimate of putative class members withintheir class definition, only offering instead the number of City employees in the military; (ii)plaintiffs offered no statistics or other evidence to support a “pattern or practice” of across theboard discrimination, relying instead on their own anecdotal allegations of promotiondiscrimination, which were inherently individualized and unsuitable for class treatment; (iii)plaintiffs failed to satisfy typicality since they alleged only promotion discrimination, yet the classencompassed reemployment, retention, and other benefits, and plaintiffs offered no evidence

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beyond mere speculation that other class members had claims similar to them; and (iv) absent anadequate class definition, the court could not determine whether there were disqualifying conflictsof interest between the named plaintiffs and putative class members.

Damages

USERRA does not provide for punitive damages or emotional distress damages. See, e.g.,Sutherland v. SOSi Intern., Ltd., 2007 WL 2332412 (E.D. Va. Aug. 10, 2007) (grantingdefendant’s motion dismiss plaintiff’s claim for emotional pain and distress damages). Rather,the damage remedies under USERRA are limited to compensation for lost wages or benefitssuffered by reason of the employer’s violation. See 38 U.S.C. § 4323(d)(1)(B). The court alsomay require the employer to pay an equal amount in liquidated damages if the court determinesthat the employer’s violation was “wilful.” Id. § 4323(d)(1)(c). In addition to these monetaryremedies, the statute provides the courts with “full equity powers . . . to vindicate fully the rightsand benefits” guaranteed by USERRA.

In Carpenter v. Tyler Indep. School Dist., 429 F. Supp. 2d 848 (E.D. Tex. 2006)(magistrate judge), the court invoked its equitable powers to award the plaintiff front pay in lieu ofreinstatement. The jury had found the employer discriminated against the plaintiff school teacherby not renewing his employment contract. Nonetheless, the jury awarded the plaintiff no back paydamages. Plaintiff filed a motion for judgment as a matter of law, asking the court to disregardthe jury’s verdict with respect to damages and award him $76,948.48 in back wages. The courtrefused to overturn the jury’s back pay finding, inferring from the record that the jury believed theplaintiff failed to mitigate his damages. However, the court invoked its equitable powers to makethe plaintiff whole and awarded one year’s front pay in lieu of reinstatement, which wasappropriate in light of the acrimony between the parties.

Liquidated damages are rarely awarded. In Duarte v. Agilent Technologies, Inc., 366 F.Supp. 2d 1039 (D. Colo. 2005), following a bench trial, the court found USERRA had beenviolated but declined to award liquidated damages. The court held that the employer’s knowledgethat USERRA might apply was insufficient to establish willfulness. In Koehler v. PepsiAmericas,2006 WL 2035650 (S.D. Ohio July 18, 2006), on the other hand, the court awarded liquidateddamages. In that case, the employer deducted from the reservist’s bank account previouslydeposited funds to reflect the difference between his military pay and salary. The bank accountdeduction violated the employer’s policy to pay a salary differential to employees on militaryleave. The district court awarded the plaintiff liquidated damages, finding that the employer had“improperly and willfully” withheld a benefit of employment. On appeal, the Sixth Circuitaffirmed, holding that there was sufficient evidence to support the district court’s finding thatPepsi knew or showed reckless disregard for whether its denial of the pay differential to theplaintiff was prohibited by USERRA. See Koehler v. PepsiAmericas, Inc., 2008 WL 628925 (6thCir., March 6, 2008). Accordingly, the liquidated damages award was appropriate.

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Retroactivity

USERRA is not retroactive. In Bowlds v. General Motors Manufacturing, 411 F.3d 808(7th Cir. 2005), the plaintiff argued that his employer violated USERRA by failing to reemployhim between 1983 and 1989 while he was on disability retirement. However, the President didnot sign USERRA into law until October 13, 1994, and the statute provides that it applies only toreemployment initiated after the 60-day period beginning on that date. Accordingly, the SeventhCircuit joined the Federal and Eighth Circuit in holding that USERRA does not applyretroactively.

Pleading Affirmative Defenses

As with other statutes, affirmative defenses under USERRA are subject to the noticepleading standard set forth in Fed. R. Civ. P. 8, and should be stricken if they are bare orconclusory without any short plain statement of facts in support. Thus, in Crews v. Mt. Vernon,2007 WL 1521498 (S.D. Ill. May 22, 2007), the district court granted plaintiff’s motion to strikethe following affirmative defenses:

“The prayer seeks relief not permitted by USERRA”“The prayer seeks relief not permitted by the United States Constitution”“Plaintiff has failed to mitigate damages”

In addition, the Court struck the statement “All actions taken by Defendants . . . werebased on legitimate and non-discriminatory reasons having nothing to do with plaintiff’s militaryservice,” because the statement constitutes a denial of the allegations, not an affirmative defense.

Attorney’s Fees and Costs

Section 4323(h)(1) provides: “No fees or court costs may be charged or taxed against anyperson claiming rights under this chapter.” Thus, in Crews v. Mt. Vernon, 2007 WL 1521495(S.D. Ill. May 22, 2007), the court granted the plaintiff’s motion to strike the defendant’s feedemand. The Seventh Circuit also interpreted Section 4323(h)(1) as permitting USERRA litigantsto initiate suit without prepaying court filing fees. See Davis v. Advocate Health Center PatientCare Exp., 523 F.3d 681 (7th Cir. 2008). Finally, in Staub v. Proctor Hospital, 2008 WL2001935 (C.D. Ill May 7, 2008), the district court awarded reasonable attorney’s fees in theamount of $128,766 following a $57,640.00 jury verdict in plaintiff’s favor. See also Hance v.Norfolk Southern Ry. Co., 2007 WL 3046355 (E.D. Tenn. Oct. 16, 2007) (affirming magistratejudge report and recommendation awarding plaintiff $145,887.50 in attorney’s fees and $5001.57in costs).