The Officer May/June 2012 : Page 14

Service MeMberS Law center Capt Samuel F. Wright, JagC, uSN (ret.) • DireCtor, Service MeMberS Law center HigH-water MarkS Court support of USERRA was a boost in 2011. n such a busy 2011, perhaps the most important development last year occurred March 1, 2011, when the Supreme Court released its opinion in Staub v. Proctor Hospital , 131 S. Ct. 1186 (2011). Tis was the first Supreme Court case on the reemployment statute for military personnel in almost 20 years. Vincent Staub was an enlisted member of the Army Reserve until his recent retirement. As a civilian, he worked for Proctor Hospital in Peoria, Ill., as an angiography technologist for 14 years, until he was fired in 2004. During his employment at Proctor, his Army Reserve activities caused frequent friction with his supervisors—especially the director and assistant director of the angiography department. When Mr. Staub was scheduled to drill with his Reserve unit on a weekend, he could not simultaneously work at the hospital. As a result, other angiography technologists had to cover for Mr. Staub at the hospital on those weekends. Over a period of years, the director and assistant director of the angiography department harassed him, referring to his drill weekends as “a bunch of smoking and joking and a waste of the taxpayers’ money.” Te director and assistant director went to great lengths to try to get rid of Mr. Staub, even to the point of trying to recruit other employees to lie about him in order to get him fired. Mr. Staub established this abuse, to the satisfaction of a jury, when he sued Proctor. In early 2004, the director and assistant director put Mr. Staub on a “performance improvement plan” (PIP) and required him (unlike other employees) to account for his location within the hospital on a moment-by-moment basis. In April of that year, they claimed that he had violated the terms of the PIP and recommended that he be fired. Mr. Staub vehemently denied that the PIP was justified, and he also denied having violated the PIP. As is almost always the case with all but the smallest employer, the human resources vice president made the decision to fire USERRA outlaws employer harassment of employees based on their service. Mr. Staub, and she did a cursory review of the direct supervisors’ report and Mr. Staub’s personnel record at the hospital before approving his dismissal. While evidence of antimilitary animus against Mr. Staub by the two direct supervisors existed, there was no evidence of any antimilitary statements by human resources. Shortly afer he was fired, Mr. Staub sued the hospital in the U.S. District Court for the Central District of Illinois, claiming that the firing violated section 4311 of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Afer a lengthy trial and instructions from the judge, the jury found Mr. Staub had proved by a preponderance of the evidence that the firing was motivated, at least in part, by his service, and that the employer had not proved that Mr. Staub would have been fired anyway, even if he had not been in the Army Reserve. Te judge denied the hospital’s motion for new trial and motion for judgment notwithstanding the verdict. Te hospital appealed to the U.S. Court of Appeals for the 7th Circuit. Te 7th Circuit held that under the “cat’s paw doctrine,” Mr. Staub was required to prove that the two intermediate supervisors who recommended that he be fired had a “singular influence” over human resources, and that the evidence did not support such a claim. Tus, the 7th Circuit reversed the district court and rendered judgment for the hospital. (Te “cat’s paw” is a reference to one of Aesop’s Fables, dating from about 500 B.C. Te clever monkey persuaded the cat to put chestnuts in the fire and then pull them out when they were roasted. Te monkey ends up with roasted chestnuts, and the cat is lef only with burned paws.) Te Supreme Court granted certiorari (discretionary review) to review the 7th Circuit decision. ROA filed an amicus curiae (friend of the court) brief urging the Supreme Court to overturn the 7th Circuit. Te oral argument was held Nov. 2, 2010. In an 8-0 decision written by Justice Antonin Scalia, the court reversed the 7th Circuit. Te Supreme Court held that the 14 the O fficer / M ay –J une 2012

Service Members Law Center

CAPT Samuel F. Wright

Capt Samuel F. Wright, JagC, uSN (ret.) • DireCtor, Service MeMberS Law center<br /> <br /> HigH-water MarkS<br /> <br /> Court support of USERRA was a boost in 2011.<br /> <br /> In such a busy 2011, perhaps the most important development last year occurred March 1, 2011, when the Supreme Court released its opinion in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011). Tis was the first Supreme Court case on the reemployment statute for military personnel in almost 20 years.<br /> <br /> Vincent Staub was an enlisted member of the Army Reserve until his recent retirement. As a civilian, he worked for Proctor Hospital in Peoria, Ill., as an angiography technologist for 14 years, until he was fired in 2004. During his employment at Proctor, his Army Reserve activities caused frequent friction with his supervisors—especially the director and assistant director of the angiography department. When Mr. Staub was scheduled to drill with his Reserve unit on a weekend, he could not simultaneously work at the hospital. As a result, other angiography technologists had to cover for Mr. Staub at the hospital on those weekends.<br /> <br /> Over a period of years, the director and assistant director of the angiography department harassed him, referring to his drill weekends as “a bunch of smoking and joking and a waste of the taxpayers’ money.” Te director and assistant director went to great lengths to try to get rid of Mr. Staub, even to the point of trying to recruit other employees to lie about him in order to get him fired. Mr. Staub established this abuse, to the satisfaction of a jury, when he sued Proctor.<br /> <br /> In early 2004, the director and assistant director put Mr. Staub on a “performance improvement plan” (PIP) and required him (unlike other employees) to account for his location within the hospital on a moment-by-moment basis. In April of that year, they claimed that he had violated the terms of the PIP and recommended that he be fired. Mr. Staub vehemently denied that the PIP was justified, and he also denied having violated the PIP.<br /> <br /> As is almost always the case with all but the smallest employer, the human resources vice president made the decision to fire Mr. Staub, and she did a cursory review of the direct supervisors’ report and Mr. Staub’s personnel record at the hospital before approving his dismissal. While evidence of antimilitary animus against Mr. Staub by the two direct supervisors existed, there was no evidence of any antimilitary statements by human resources.<br /> <br /> Shortly after he was fired, Mr. Staub sued the hospital in the U. S. District Court for the Central District of Illinois, claiming that the firing violated section 4311 of the Uniformed Services Employment and Reemployment Rights Act (USERRA). After a lengthy trial and instructions from the judge, the jury found Mr. Staub had proved by a preponderance of the evidence that the firing was motivated, at least in part, by his service, and that the employer had not proved that Mr. Staub would have been fired anyway, even if he had not been in the Army Reserve. Te judge denied the hospital’s motion for new trial and motion for judgment notwithstanding the verdict.<br /> <br /> The hospital appealed to the U.S. Court of Appeals for the 7th Circuit. Te 7th Circuit held that under the “cat’s paw doctrine,” Mr. Staub was required to prove that the two intermediate supervisors who recommended that he be fired had a “singular influence” over human resources, and that the evidence did not support such a claim. Thus, the 7th Circuit reversed the district court and rendered judgment for the hospital.<br /> <br /> (The “cat’s paw” is a reference to one of Aesop’s Fables, dating from about 500 B.C. Te clever monkey persuaded the cat to put chestnuts in the fire and then pull them out when they were roasted. The monkey ends up with roasted chestnuts, and the cat is left only with burned paws.)<br /> <br /> The Supreme Court granted certiorari (discretionary review) to review the 7th Circuit decision. ROA filed an amicus curiae (friend of the court) brief urging the Supreme Court to overturn the 7th Circuit. The oral argument was held Nov. 2, 2010. In an 8-0 decision written by Justice Antonin Scalia, the court reversed the 7th Circuit. The Supreme Court held that the 7th Circuit’s test was too onerous and that Mr. Staub’s proof of discrimination was sufficient. This was a great victory for USERRA enforcement.<br /> <br /> Other Accomplishments<br /> <br /> On Nov. 21, 2011, President Barack Obama signed into law Public Law 112-56. Section 251 of that Public Law amended USERRA in order to make it clear that USERRA outlaws employer harassment of employees based on their service in the National Guard or Reserve.<br /> <br /> During 2011, the Law Center added 112 new “Law Review” articles to the website, www.servicemembers-lawcenter.org, bringing the total to more than 800 articles about USERRA, the Servicemembers Civil Relief Act, the Uniformed and Overseas Citizens Absentee Voting Act, and other laws that are especially pertinent to those who serve our country in uniform. You will also find a detailed Subject Index and a search function, to facilitate finding articles about specific topics.<br /> <br /> I am here at ROA headquarters answering telephone calls and e-mails during regular business hours and also until 10 p.m. Eastern Time on Thursdays. Te point of staying late on Thursdays is to make it possible for Reserve Component personnel to call me from the privacy of their own homes, outside their civilian work hours. If the employer is annoyed with Joe Smith for “playing Soldier” in the Army Reserve, and if the employer is looking for an excuse to fire Smith (as is all too often the case), the last thing that Smith should do is to give the employer the excuse that he or she is seeking. Call me or e-mail me, but not from your employer’s telephone or computer. Te toll-free number is 800-809-9448, ext.730. Te e-mail is Swright@roa.org.

Previous Page  Next Page


Publication List
Using a screen reader? Click Here