On April 5, 2013 the U.S. Court of Appeals for the 11th Circuit issued its opinion in Landolfi v. Melbourne1, holding that although an employee’s military service motivated the employer’s promotion decisions, his Uniformed Service Employment and Re-employment Rights Act (“USERRA”) discrimination claims must fail because the employer also considered legitimate factors in making the decisions.
In Landolfi, a U.S. Air Force Reservist (“Landolfi”) alleged that the City of Melbourne Fire Department (“Department”), his employer, failed to promote him due to his military service. Specifically, Landolfi claimed that military service motivated the Department to select other candidates for promotion in 2006, 2008, and 2010. Under USERRA a person who is a member of, or has an obligation to perform in, a uniformed service may not be denied a promotion on the basis of membership or obligation. An employer, therefore, violates the statute where the individual’s membership or obligation for service in the uniformed services is a motivating factor in the employer’s failure to promote the individual, unless the employer proves that it would not have promoted the individual absent the individual’s membership or service obligation.
In advancing his discrimination claim, Landolfi alleged that in 2010 the Department’s Chief intimated that the most recent denial occurred because firefighting was not Landolfi’s primary concern and, moreover, because he was deploying with the military instead of serving the Department. Based on these, and other alleged statements, the lower court found that Landolfi had raised a factual question as to whether his military service motivated the employer’s decisions not to promote him, but nonetheless granted summary judgment to the Department because Landolfi would not have been promoted even absent his military obligation because the Department regarded Landolfi as “untrustworthy and disruptive.” Their refusal to promote him did not constitute pre-text for discrimination.
Employers should take two things away from the Landofi decision: 1) Pre-emptive USERRA training will greatly reduce the number of service member’s USERRA claims; and 2) Documenting employment decisions affecting service members is critical in avoiding USERRA liability.
As for USERRA training, employers should conduct regular USERRA compliance training with all managers, supervisors, and decision-makers involved in employment decisions that affect service members. Compliance training can easily avert USERRA claims and subsequent litigation by ensuring service members’ rights are not violated in the first place.
As to documentation of employment decisions, Landolfi stands for the proposition that at least in the 11th Circuit, USERRA liability for denying a service member’s promotion will not be imposed so long as the employer can prove that it would have issued the denial regardless of the employee’s service obligation. In short, the denial of a service member’s promotion may be legal even after an illegal motive has tainted the decision-making process, so long as the employer has documentation or other evidence to show the same result would have occurred regardless of the improper motive.
As a practical reality, this means employers should meticulously document employment decisions affecting service members as they are made. Should a service member bring a USERRA claim and make a factual showing of improper motive, the employer will need to rely on accurate documentation regarding the decision to avoid liability.