If you’re back from active duty, USERRA may be your best weapon.

Baylor v. Comprehensive Pain Management Centers, Inc., et al. No. 7:09cv00472, 2011 U.S. Dist. LEXIS 37699 (W.D. Va. Apr. 6, 2011). Dr. George Baylor, a pain management physician, signed an employment agreement with Comprehensive Pain Management Centers, Inc. (“CPMC”) on April 4, 2004, and later extended his contract through December 31, 2005. In late November of 2005, Dr. Baylor, a U.S. Army reservist, received the call to active duty. Dr. Baylor reported for duty on January 2, 2006, and, though his contract with CPMC had ended, CPMC stated that it would hold open his position.

Dr. Baylor returned to CPMC on April 10, 2006. It was, by all accounts, a rocky return. On May 1, 2006, Dr. Baylor and the owner of CPMC got into a heated argument, during which Dr. Baylor uttered an expletive. He was fired on the spot. Dr. Baylor brought several claims against CPMC, among them that his termination violated the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). Dr. Baylor claimed that he was terminated without cause within 180 days of his return to work and that he was discriminated against for asserting his rights under USERRA and because he engaged in military service. CPMC filed its Motion for Summary Judgment, and the Court denied the Motion with regard to Dr. Baylor’s USERRA claims.

Under USERRA, an employee who is called up for military duty for a period between 30 and 181 days may not be terminated within 180 days of his return to employment, except for cause. Dr. Baylor asserted that CMPC fired him without cause, and instead that its stated reason for termination—the expletive—was pretext. CMPC, on the other hand, asserted the Dr. Baylor was terminated for unprofessional conduct, which culminated in the argument. Under USERRA, when an employer claims that a protected person was discharged based on his or her conduct, the employer bears the burden of proving the following: (1) that it was reasonable to terminate the employee for the conduct, and (2) that the employee had notice, whether express or implied, that the conduct would constitute cause for termination. The court decided that, because the employer had the burden of showing its actions had been reasonable, whether Dr. Baylor was terminated for cause is a question of fact for the jury that could not be resolved on summary judgment.

USERRA also prohibits discrimination. The Act makes it unlawful for an employer to base an adverse employment action, such as a termination, on an employee’s military service or to retaliate against him for exercising his rights under USERRA. The employee does not have to show that his military service was the sole reason for the adverse employment action; rather, he must only show that it was a substantial or motivating factor in the decision. If the employee meets that requirement, then the burden shifts to the employer, who must then show that it would have terminated the employee anyway, for another, legal reason. The Court decided that whether Dr. Baylor had been discriminated against under USERRA was also an issue for a jury, and denied summary judgment on that count.

After the Court’s ruling, this case will proceed to trial, or, more likely, settle. In denying summary judgment on both USERRA counts, the Court illustrated just how protective USERRA is of servicemembers. USERRA differs from Title VII cases in that the ultimate burden of proof rests on the employer, rather than the employee. Accordingly, employers are far less likely to win at the summary judgment stage. For this reason USERRA is perhaps the most powerful weapon in a servicemember’s legal armory.

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