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Returning soldier loses job – loses lawsuit. Second Circuit affirms.

The Second Circuit recently took a restricted view of the reemployment protection the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) provides to employees who are returning from military service.

In Hart v. Family Dental Group, PC, 2011 U.S. App. LEXIS 10967 (2d Cir. 2011), a dentist who was a member of the U.S. Army Reserves sought to return to his contract position at Family Dental Group (“FDG”) after a six-month tour in Iraq.  Three days after he returned from his tour, FDG handed him a letter notifying him that it would terminate his employment contract and fire him in 60 days.  After the dentist questioned the legality of his termination, FDG issued him a second letter reducing the amount of notice given from 60 to 30 days (which is what the employment contract required).  The dentist then obtained the help of the U.S. Department of Labor (“DOL”).  DOL informed FDG that, based on the duration of the dentist’sIraq tour, § 4316(c)(2) of USERRA provided that FDG could not discharge him for 180 days following his return.   FDG waited 180 days, and fired the dentist.  Subsequently, the dentist filed a lawsuit in federal district court alleging several violations of his USERRA rights.

A jury trial was held on the dentist’s claims.  After the dentist rested his case, the district court granted judgment as a matter of law in favor of FDG on six of the eight USERRA claims, and the jury found in favor of FDG on two counts that addressed whether FDG discriminated against the dentist for him being a member of the U.S. Army Reserves.   On appeal, the dentist only challenged the district court’s grant of judgment as a matter of law in favor of FDG as to his two USERRA 38 U.S.C. § 4312(a) claims, which dealt with whether FDG complied with its USERRA obligation of reemploying the dentist in either the position of employment in which he would have been employed if his continuous employment had not been interrupted by his military service or in a position of like seniority, status and pay for which he was qualified.

The Second Circuit defined the issue on appeal as whether FDG’s letter providing the dentist with 60-days notice (later amended to 30-days) and the dentist’s subsequent termination violated § 4312(a).  The Second Circuit affirmed the grant of judgment as a matter of law on the two claims being appealed, finding that FDG complied with “all [that] § 4312 requires”.  The court of appeals reasoned that FDG complied with § 4312 because the evidence was clear that the dentist was reemployed for 180 days upon his return from his military tour, with the same seniority and other rights and benefits or lack of benefits that he had before he left on his tour.

Importantly, while the outcome of the case is unfortunate for the dentist who sacrificed to serve his country, Hart should not discourage other employees who are affiliated with the uniformed services from asserting their substantial USERRA rights.  The Second Circuit decided Hart on a narrow basis because the dentist was only appealing his USERRA 38 U.S.C. § 4312(a) claims.  Indeed, the Second Circuit noted that it expressed “no opinion” on the merit of the dentists’ USERRA claims under § 4311 (which bans discrimination and retaliation against military service members) or § 4316 (which provides that a reemployed service member is entitled to the seniority, rights and benefits determined by seniority that the person had on the date of the commencement his/her military tour plus the additional seniority and rights and benefits that he/she would have attained if the person had remained continuously employed).  Therefore, if you believe your USERRA rights have been violated, you should consult with competent legal counsel.

(Thank you to Attorney Erick Diaz for contributing this post)