The First Circuit Court of Appeal recently clarified the burden of proof employees and employers bear in connection with discrimination and retaliation claims under the Uniform Services Employment and Redeployment Rights Act of 1994 (USERRA), and thereby aligned itself with all other federal courts of appeal that had previously considered the issue.
Plaintiff Velázquez-García worked as a marine supervisor for Horizon Lines of Puerto Rico. In December 2002, Velázquez enlisted in the U.S. Marine Corps Reserves. During Velázquez's military service, Horizon continued to pay Velázquez his full salary, and adjusted his work hours to accommodate his military training. However, Velázquez contended that his superiors complained about and pressured Velázquez regarding the shift modifications. Velázquez also claimed he was taunted by other Horizon employees for his military service.
In September 2004, Horizon terminated Velázquez after a supervisor discovered that Velázquez was operating a side business cashing payroll checks for Horizon employees, in violation of Horizon's Code of Conduct. Velázquez sued, claiming that Horizon fired him because of his military service. The trial court dismissed the claim, finding that Velázquez failed to show a discriminatory motive for his firing or that Horizon's stated reason for his firing - the Code violation - was pretextual. The First Circuit reversed, and sent the case back for trial.
The court held that, under USERRA, employees need only prove that discrimination was "a [not the] motivating or substantial factor" in the discriminatory treatment. The employer must then prove that the discriminatory action would have been taken even absent the employee's military service. The court found that Velázquez offered sufficient evidence to allow a jury to determine whether Horizon fired him because of his service. The court also held that the trial court incorrectly required Velázquez to prove that Horizon's stated reason for termination was pretextual.
Employers should note the distinction between the burden of proof for claims under USERRA and Title VII (where the employee bears the burden to prove that the employer's proffered reason is pretextual).