On August 18, 2008, the Sixth Circuit articulated the legal standards to be applied to claims brought under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"). In Petty v. Metro. Gov't of Nashville-Davidson County, ­­538 F.3d 431 (6th Cir. 2008), the Court held that once a plaintiff satisfied the four prerequisites to reemployment under USERRA, a defendant was not permitted to delay or otherwise limit his reemployment rights in any way, including requiring him to comply with its more stringent return-to-work process. Additionally, the Court determined the District Court failed to properly weigh and balance all of the evidence related to Petty's discrimination claim.

Designed to provide statutory protection for armed services members, USERRA performs four key functions. First, it guarantees returning veterans a right of reemployment after military service. Second, it prescribes the position to which veterans are entitled upon their return. Third, it prevents employers from discriminating against returning veterans on account of their military service. Fourth, it prevents employers from firing without cause any returning veterans within one year of reemployment. 38 U.S.C. §§ 4312 - 4316.

In Petty v. Metro Gov't of Nashville-Davidson County, the plaintiff, Brian Petty, worked as a police officer for defendant before being notified by the Army that he was being mobilized for service in Kuwait. At the time he was called to active duty, Petty had been promoted to Sergeant, was patrolling the West sector of Nashville, and was supervising other officers. Petty also had been permitted by defendant to obtain two off-duty security guard positions.

While in Kuwait, the military discovered that Petty was in possession of materials used to make homemade wine and that he gave alcohol to and drank with an enlisted female solider. Petty was charged under the Uniform Code of Military Justice, but was later permitted to resign his commission "for the good of the service". His discharge was characterized as "under honorable conditions (general)."

Upon his return from service, Petty requested reinstatement by Metro on February 28, 2005. Metro requires all officers who have been away from the department for an extended period of time to submit to the standard return-to work-process that required Petty, among other things to execute an authorization for Metro to obtain his military records. Petty completed this process, which indeed provided information that he had faced military charges in Kuwait. Petty did not elaborate on the charges or disclose that they involved manufacturing alcohol. Metro returned Petty to work on March 21, 2005, but did not return him to his original position or a substantially similar position. He was assigned to an office job and was not compensated from the time he requested reinstatement to when he was officially returned. Thereafter, Metro initiated investigations into whether Petty had been truthful when completing his return-to-work paperwork and whether documentation Petty submitted had been altered. After Metro denied Petty's request to return to his off-duty security jobs, he filed suit against Metro for violation of his USERRA reemployment rights and for discrimination in violation of USERRA.

USERRA Trumps Defendant's Return-To-Work Policy

In its opinion, the Sixth Circuit identified the four requirements that qualify a service member for reemployment: (1) the veteran must notify his employer in advance that he would be leaving for military service; (2) the cumulative length, which is subject to some exceptions, must be less than five years; (3) the veteran must upon his return, request reemployment within the time frames and submit proper documentation set forth by statute; and (4) the veteran's separation from service must have been under "honorable conditions."

Once Petty secured his reemployment rights by satisfying these four requirements, Metro was not permitted to delay or otherwise limit his reemployment rights in any way. The Sixth Circuit held that by requiring Petty to submit to the return-to-work process, Metro delayed his reemployment and limited and withheld benefits to which Petty was entitled, including his right to be returned to the position in which he would have been employed if continuous employment had not been interrupted by military service. This latter right is known as the "escalator" clause.

Reversing the District Court's ruling and entering summary judgment for Petty, the Sixth Circuit rejected Metro's argument that it was obligated to ensure that each of its officers were still physically, emotionally, and temperamentally qualified after being absent from work. Instead, the Court held the intent of Congress is that a returning veteran's reemployment rights take precedence over such concerns. USERRA "supersedes any 'policy, plan, [or] practice' that 'reduces, limits, or eliminates in any manner any right or benefit' provided … 'including' but not limited to, 'the establishment of additional procedures." Petty, 538 F.3d at 442 (citing 38 U.S.C. § 4302(b)).

The Sixth Circuit then examined Petty's discrimination claims and found that the District Court erred in its legal analysis as well as its finding that no evidence in the record supported his claim. In doing so, the Court stressed that Petty's military service only had to be a motivating factor and did not have to be the sole cause for the employment action. "Military status is a motivating factor if the defendant relied on, took into account, or conditioned its decision on that consideration." Id. at 446.

Practical Impact

As stated by the Sixth Circuit, an employer's neutral policy relating to return-to-work requirements does not trump USERRA's guarantee of reemployment rights once the service member complies with the basic requirements of USERRA. Similarly, an employer's policy that is more stringent than USERRA's requirements and which has the effect of limiting a service member's reemployment right violates USERRA. This case also suggests that if an employer has concerns regarding a service member's ability or fitness for duty, the service member should be first reemployed (normally within two weeks) while those concerns are addressed.