Seyfarth Synopsis: The Third Circuit held that, in a failure-to-promote USERRA case, plaintiffs need not plead or prove that they are objectively qualified for the position sought in order to meet their initial burden of proof.
Last week, in Carroll v. Delaware River Port Authority (link), the Third Circuit affirmed the District of New Jersey's denial of summary judgment to the Port Authority in a case alleging violations of the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), a federal statute protecting employees from employment bias because of their military service. In so holding, the Third Circuit clarified the employee's burden of proof for a USERRA claim.
Background
In Carroll, Plaintiff was employed by the Port Authority as a Police Officer beginning in 1989. Between 1989 and 2009, he served as a U.S. Navy Corpsman for six years and spent ten years as a member of the Pennsylvania National Guard. When he was not on active duty, Plaintiff maintained his employment with the Port Authority, eventually reaching the rank of Corporal. In 2009, Plaintiff was deployed to Iraq where he sustained several serious injuries, and has been unable to work for the Port Authority ever since.
While the Plaintiff was on active duty, but in rehabilitation, he twice applied to the Port Authority for a promotion to the rank of Sergeant, but was passed over on both occasions. Plaintiff then filed a claim under USERRA against the Port Authority.
The Port Authority moved for summary judgment, arguing that Plaintiff could not satisfy his initial burden of proof because he could not show that he was objectively qualified for a promotion to Sergeant. In short, the Port Authority argued that Plaintiff was "physically incapable of performing a Sergeant's duties due to his injuries and was therefore unqualified for the [promotion]."
Decision
The Third Circuit affirmed the district court's denial of summary judgment, and held that a plaintiff in a failure-to-promote USERRA case does not need to show that he or she was objectively qualified to the promotion. Rather, the Court applied the two-step burden shifting framework utilized in NLRB v. Transportation Management Corp., which held that a plaintiff needs to show "by a preponderance of evidence that the employee's military service was a 'substantial or motivating factor' in the adverse employment action." Once the plaintiff meets this requirement, the employer must show, "by a preponderance of the evidence, that the employer would have taken the adverse action anyway, for a valid reason." Accordingly, to the extent that the plaintiff's fitness for the promotion is relevant, it can be used by the employer to support their non-discriminatory reason for denying Plaintiff the promotion (i.e., lack of qualifications).
Outlook
The Third Circuit's decision in Carroll illustrates one of the critical differences between defending a USERRA claim, as opposed to a claim under Title VII of the Civil Rights Act of 1964 ("Title VII"). Unlike the two-step burden shifting framework of a USERRA claim, a Title VII claims is governed by a three-step burden shifting framework, known as the "McDonnell Douglas Test," whereby an employee bears the initial burden of showing that he or she was qualified for the position in question.
Given the increase in military veterans returning to the workforce over the next few years, and the relaxed evidentiary standard under USERRA, employers should take proactive measures to prevent military bias claims. Accordingly, employers should ensure that their anti-discrimination and anti-retaliation policies reflect military bias, and conduct periodic training for supervisors.
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