In the last of a three-part series, we will see how a court with jurisdiction over Mississippi interprets the Uniformed Services Employment and Re-employment Restoration Act. In the first two parts of the series, the employment, restoration of employment, and benefits sections of USERRA were covered.
A recent case from the United States Court of Appeals for the Fifth Circuit, Bradberry v. Jefferson County, Texas, involved allegations by a former employee, Joe Bradberry, of a county sheriffs department that after he completed his two-week training obligation with the United States Army Reserve, he was terminated. Bradberry claimed his termination violated USERRA, as well as a Texas state statute. (Mississippi has a similar statute which gives, among other protections, employment rights to employees of Mississippi governmental entities who serve in Reserves.)
The facts showed that Bradberry was ordered to report for his annual Reserve training for a two-week period. Bradberry gave a copy of the orders to the county before he reported for military duty. Bradberry did not return to work until three days after his orders indicated that he would. According to Bradberry, because of Hurricane Ike in September 2008, Bradberrys commanding officer orally extended his military duty for a few days.
Bradberry called the county on the day before he was initially scheduled to return to work to advise the county about the new military orders. The next scheduled work day after Bradberry was released from military duty, he returned to work for the county.
When the county demanded Bradberry provide documentation of the extended duty, he provided a memorandum from his commanding officers, but this was not the type of documentation requested by the county. Thus, the county initiated an internal investigation and terminated Bradberry in December 2008. The documentation concerning the termination stated that Bradberry had been discharged from county employment for an administrative violation of truthfulness or insubordination, to the Fifth Circuit opinion.
In the administrative process, Bradberry was entitled to under Texas statutes about his termination, a state administrative judge ordered the county to amend the termination report to show that Bradberry had been terminated for a disagreement over military leave. Bradberry also filed a complaint with the United Stated Department of Labor, alleging the county violated USERRA when it terminated him. An administrative official found that the county had unintentionally violated USERRA by discriminating against Bradberry due to his military service.
Eventually, Bradberry also filed suit against the county in federal court, alleging violations of USERRA and the Texas statute giving certain employment protections to employees of public entities who serve in the Reserves. Although the federal district court did not rule in favor of Bradberry, on appeal to the Fifth Circuit, he prevailed. The official reason for the Fifth Circuits ruling was that once the state administrative process had been completed, with the outcome in favor of Bradberry, the county could not relitigate that result, that he had been terminated for a dispute over military leave, in federal court.
The discussion by the Fifth Circuit of the provisions of USERRA that protected Bradberry is of interest to both public and private employers in Mississippi. As noted in the earlier parts of this series on USERRA, that law prohibits discrimination on the basis of military service, and mandates prompt reemployment of someone whose absence from a position of employment is necessitated by military service. Such re-employment includes a return to a civilian job after even a brief interruption for military duty.
As the Court noted, the purposes of USERRA were to (1) encourage noncareer service in the military, (2) minimize disruption to the lives of those performing such service, and (3) prohibit discrimination because of such service. As to Bradberry, the re-employment rights provisions of USERRA applied. The perquisites to such re-employment include that the employee (or appropriate military official) has given advance notice of the military service to his or her employer, notice which may be written or oral. Further, the cumulative length of the absence does not exceed five years and finally, the employee reports to or submits an application for re-employment to the civilian employer.
The facts suggest that Bradberry had met the prerequisites and thus was entitled to prompt re-employment following a return from military service, although the Court did not reach this point because of the fact that the case was before it as an intermediate step in the litigation. On the other hand, the Court did state that even if the county could rightfully request documentation of the need for the absence, it could not delay or deny reemployment by demanding documentation that does not exist, according to regulations promulgated by DOL under USERRA. Further, the Court determined that the anti-discrimination section of USERRA did not apply, thus, whether the county had a discriminatory intent when it failed to re-employ Bradberry was irrelevant. As a consequence, even an unintentional violation of re-employment rights could give rise to a legitimate claim under USERRA.
Because of the posture of the case before the Fifth Circuit, the effect of its ruling was that Bradberrys claim of violation of his re-employment rights would have to proceed to trial before a judicial determination could be made on that claim. The lesson for employers from this case is that extended and expensive litigation can proceed from a decision to terminate someone who returns from military service. Thus, a deliberative, careful look at each situation is warranted before a potentially actionable decision is made.
Ann Bowden-Hollis is a senior attorney with Butler Snow LLP, a law firm with offices in Gulfport, Bay St. Louis and other cities and states. She is a member of the Government Relations and Labor and Employment Practice Groups, is a project manager in the Long Term Workforce Housing Program, and has been practicing law for more than 32 years.