Why it matters
Providing an important reminder regarding compliance with the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Seventh Circuit Court of Appeals reversed summary judgment in favor of an employer and remanded an employee’s lawsuit that she was subjected to discrimination based on her military status back to the trial court for further proceedings. During her six and a half years of employment with Volvo, a worker was granted more than 900 days of military leave for training and for her deployment to Iraq and Kuwait. When she returned from her tours of duty, the employee experienced post-traumatic stress disorder (PTSD) and took more time off. After she was fired for tardiness, the employee sued, alleging discrimination under both USERRA and the Americans with Disabilities Act (ADA) based on her PTSD. A federal court judge granted summary judgment for Volvo, noting the employer’s patience over a period of six years. But the federal appellate panel reversed, ruling that a jury could find that the plaintiff’s discharge was motivated by the employer’s long-standing frustration with her frequent absences due to military service. The court focused on multiple e-mails from management complaining about her absences and her lack of communication during deployment, as well as the employee’s allegation that her supervisor told her she was an “undue hardship” to the company. The decision provides an important lesson for employers about compliance with USERRA. Even though the employer provided all of the leave mandated by the statute, the court found that communications expressing frustration with the worker’s absences demonstrated a possible discriminatory motive for her termination.
LuzMaria Arroyo began working for Volvo Group North America in June 2005 as a material handler in a parts distribution center in Illinois. The company knew Arroyo was a member of the U.S. Army Reserve when she was hired.
During her six and a half years of employment, Arroyo deployed twice: to Iraq from April 2006 to May 2007 and to Kuwait from April 2009 to August 2010. She also took regular leave for weekend drills, training, and other military activities. Volvo granted her more than 900 days of military leave during her time at the company.
Arroyo pointed to evidence that her supervisors were frustrated about her schedule and absences from work from the beginning of her employment. In the fall of 2005, her supervisor e-mailed management to ask if the company was required to provide time off for her to drive to and from Georgia, where her unit was based, for military drills. She testified that the same supervisor said her military duties were becoming an “undue hardship” for the company and she should transfer to a local unit.
Another e-mail complained that Arroyo only contacted Volvo once during her deployment to Iraq. When she returned from Kuwait, the company offered her a voluntary severance package with the hope that she would accept. She declined.
The situation became more complicated upon Arroyo’s return from the second deployment when she was formally diagnosed with post-traumatic stress disorder (PTSD) and took three months of Family and Medical Leave Act (FMLA) leave. E-mails from management during this time noted that “[Arroyo] is really becoming a pain with all this,” while another message joked that “[s]he’s on vacation in Hawaii.”
When Arroyo returned to work, she requested several accommodations, many of which Volvo granted (such as a meditation room, a mentor, and time off for counseling).
Arroyo was terminated in 2011 for violation of the company’s attendance policy, under which employees received whole or fractional “occurrences” for unexcused absences or tardiness. After several occurrences of tardiness—although often of only a short duration between 1 and 10 minutes late—she was terminated.
Arroyo’s subsequent lawsuit alleged violations of the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Americans with Disabilities Act (ADA). A federal court judge granted summary judgment in favor of Volvo but Arroyo appealed. The federal appellate panel affirmed the dismissal of some of the claims but reversed with respect to plaintiff’s claims of discrimination under both federal statutes. The Seventh Circuit Court of Appeals concluded that Arroyo had sufficiently alleged that her service membership was “a motivating factor” in the adverse employment action taken against her and that Volvo had failed to prove that the termination would have occurred in the absence of her military status.
“Taking all the evidence as a whole, a reasonable jury could infer that Volvo was motivated, at least in part, by anti-military animus toward Arroyo,” the panel wrote. “There is evidence that from the beginning of her employment, her supervisors disliked the burden her frequent military leave placed on the company. They repeatedly discussed disciplining her and denied her rights, such as travel time, to which she was entitled. Some of the e-mails come close to a direct admission of management’s frustration. For example, [one supervisor] discussed his ‘dilemma’ of ‘disciplin[ing] a person for taking too much time off for military reserve duty.’ He later reportedly told Arroyo that accommodating her orders placed an undue hardship on Volvo; [a second supervisor] repeated the same sentiment. [Another manager] complained about Arroyo’s lack of communication while she was deployed in Iraq. A jury could understandably detect in these communications animus toward Arroyo’s military service.”
The court made the connection between the employer’s alleged animus and her termination because she was disciplined for instances of tardiness “often of a relatively minor nature,” when she was only a few minutes late. Further, the “e-mails expressing management’s frustration often transitioned directly into a discussion about disciplining Arroyo under the local attendance policy,” the court said.
“It is true that Volvo granted Arroyo a considerable amount of military leave during her tenure at the company and did not directly discipline her for those particular absences,” the panel acknowledged. “That fact will likely support Volvo’s arguments before a jury. But it does not negate an inference of discriminatory motive on summary judgment.”
Turning to the ADA claim, the court said it presented a “closer call” than the USERRA claim. Although less evidence existed of animus toward Arroyo’s PTSD than concerning her military service, the panel found it to be sufficient for her claim to move forward, again citing company e-mails.
“Internal emails indicate that Volvo management considered disciplining Arroyo for her absences while she was in the hospital [for her initial diagnosis of PTSD], even though she emailed [her supervisor] to tell him about her condition,” the court said. “Another one of her supervisors … joked about Arroyo’s absence, writing that she heard rumors Arroyo was actually vacationing in Hawaii. A few weeks earlier, [the same supervisor] complained … that Arroyo was ‘really becoming a pain with all this.’ This is enough for a jury to find discriminatory motive.”
The timing was also suspicious, the panel said, as the disciplinary steps that led to her termination coincided with the onset and diagnosis of Arroyo’s PTSD, supporting an inference of discrimination.
Reversing summary judgment on the USERRA and ADA discrimination claims, the panel affirmed the lower court’s dismissal of Arroyo’s failure to accommodate, retaliation, and intentional infliction of emotional distress claims.
To read the opinion in Arroyo v. Volvo Group North America, click here.