LAW REVIEW 1106
Important New Case on USERRA
By Captain Samuel F. Wright, JAGC, USN
1.8—Relationship Between USERRA and other
Vega-Colon v. Wyeth Pharmaceuticals, 2010 U.S.
App. LEXIS 22277 (1st Cir. Oct. 28, 2010).
This is an important new case
on the application of section 4311 of the Uniformed Services Employment and
Reemployment Rights Act (USERRA). This
case was decided by the United States Court of Appeals for the First
Circuit. This is the federal appellate
court that sits in Boston and hears appeals from Federal District Courts in
Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.
Angel A. Vega-Colon sued
Wyeth Pharmaceuticals in the United States District Court for the District of
Puerto Rico. The District Court case is Colon v. Wyeth Pharmaceuticals, 611 F.
Supp. 2d 110 (D.P.R. 2009). District
Judge Francisco A. Bosesa granted Wyeth’s motion for summary judgment, and
Vega-Colon appealed. The First Circuit
affirmed in part and reversed in part.
The Federal Rules of Civil
Procedure (FRCP) provide for a period of discovery, prior to trial. During the discovery period, each party has
the opportunity to obtain information, testimony, records, etc. from the other
party by means of interrogatories, depositions, requests for admissions,
etc. Rule 56 of the FRCP provides for
either party to file a motion for summary judgment after the discovery process
has been completed and before the trial has started.
The purpose of Rule 56 is to
weed out cases that do not require further expenditure of the court’s precious
time, because the federal court dockets are crowded and it can take years to
get a federal civil case to trial. The
party seeking summary judgment (usually the party that does not have the burden
of proof) must show (based on the information from the discovery process) that
there is no material issue of fact remaining and that the moving party is
entitled to judgment as a matter of law.
When the plaintiff’s complaint contains multiple counts (separate
allegations as to how the law was violated), the court can grant summary
judgment for some counts and deny it as to other counts.
When the district court
grants summary judgment, the non-moving party can appeal to the Court of
Appeals. If the Court of Appeals finds
that there was a material issue of fact and that the District Court should not
have granted summary judgment as to that count, the Court of Appeals remands
the case back to the District Court for a trial. That is what happened here, as to one count
of Vega-Colon’s complaint.
The facts in this article
come from the Court of Appeals decision.
The First Circuit wrote: “We
recite the facts in the light most favorable to Vega, the non-moving party,
drawing all reasonable inferences in his favor.” That is the practice of an appellate court in
reviewing a summary judgment.
In 2002, Wyeth (a
pharmaceutical company located in Puerto Rico) hired Vega-Colon as a packaging
equipment supervisor. Vega-Colon was an
active member of the Army Reserve when hired, and until 2004, when he went to
an inactive status in the Army Reserve.
In February 2007, Vega-Colon returned to an active status
and was promoted to Captain. He took
several short military leaves of absence from Wyeth during the 2002-04 period
and after he returned to active status in February 2007. Vega-Colon and his unit were called to active
duty in November 2007.
In April 2006, the
“reliability engineer” position at Wyeth became available, and Vega-Colon
applied, along with several other internal candidates. Wyeth chose an outside candidate
instead. Vega-Colon filed a complaint
with the Veterans’ Employment and Training Service of the U.S. Department of
Labor (DOL-VETS) about his non-selection for the reliability engineer
position. Vega-Colon alleged that the
non-selection was motivated by his Army Reserve affiliation and activities. DOL-VETS found no merit to the claim.
In February 2007, Vega-Colon
received his Wyeth performance evaluation for the 2006 year. Wyeth ranks employees on a 1-5 scale, with 5
being the most favorable rating.
Although Vega-Colon had received a 3 (“solid performer”) in prior years,
his rating for 2006 was 2 (“needs improvement”). In accordance with Wyeth policy, Vega-Colon
was placed on the Performance Improvement Plan (PIP) because he had received an
evaluation lower than 3. Vega-Colon
successfully completed the PIP, but the PIP was extended as it was scheduled to
end in November 2007, when Vega-Colon was called to active duty.
On May 7, 2007, Vega-Colon
met with Wyeth’s employee relations director and site director. Wyeth contends that the meeting was called to
discuss the results of Wyeth’s internal investigation of Vega-Colon’s
allegation that his 2006 performance evaluation was improperly downgraded, but
Vega-Colon denied that any such discussion occurred at the meeting. Wyeth also alleged that during the meeting
Vega-Colon made a threatening remark to the effect that Wyeth’s site director
made it easy for one to understand why massacres like the one at Virginia Tech
take place. Vega-Colon denied having said any such thing.
Shortly after the May 7
meeting, Wyeth restricted Vega-Colon’s access to the facility. Vega-Colon was out on military leave at the
time and did not immediately learn of the restriction. He learned of the restriction several days
later when he tried to enter the plant to deliver a copy of his military
orders. A security guard denied him
entry and informed him that the Wyeth computer database showed that he had been
terminated. Vega-Colon never received a
termination letter and continued to receive his salary and benefits. Shortly thereafter, Vega-Colon returned to
work and the access restriction was lifted.
In his lawsuit, Vega-Colon
complained about the non-selection for the reliability engineer position, the
low performance rating for 2006, the resulting 2007 PIP, the extension of the
PIP, and the access denial resulting from the alleged Virginia Tech
remark. The District Court granted summary
judgment for the employer on all of these counts. The Court of Appeals affirmed on all counts
except the count involving the PIP extension.
Wyeth cited three reasons for extending the PIP, and one of the reasons
was Vega-Colon’s call to active duty just as the PIP was scheduled to end. The Court of Appeals found that Vega-Colon
was entitled to a trial on the question of whether the PIP would have been
extended anyway even if Vega-Colon had not been called to active duty.
The Court of Appeals found
that it need not resolve the factual dispute as to whether Vega-Colon made the
objectionable remark about the Virginia Tech massacre or whether that remark
justified the temporary facility access denial.
The appellate court found that Vega-Colon was not terminated or denied
retention in employment in violation of section 4311 of USERRA. The question of whether Vega-Colon made the
Virginia Tech remark is not material because the outcome of the case does not
depend upon the answer to that question.
Vega-Colon alleged that Wyeth
discriminated against him and took adverse actions against him because of his
service in the uniformed services, in violation of section 4311(a) of
USERRA. He also alleged that Wyeth violated
section 4311(b) by retaliating against him for having filed a complaint with
DOL-VETS. “Vega filed a VETS complaint
in March 2007. However, Wyeth presented
evidence, including an affidavit from its human resources director and the
entire VETS file, which established that it did not become aware of Vega’s VETS
complaint until September 2007. Vega has
offered no contradictory evidence. Thus
any retaliatory actions necessarily had to take place after this date.”
When DOL-VETS receives a
USERRA complaint from a veteran or Reserve Component member, one of the
agency’s first acts is normally to send an opening letter to the employer
against whom the complaint has been made.
In this case, it appears that DOL-VETS did not send the opening letter
until seven months after receiving Vega-Colon’s complaint. This tardiness is unsatisfactory.
In addition to his other
complaints, Vega-Colon alleged that he had been subjected to negative comments
and name-calling, related to his military service, dating back to October
2006. One supervisor expressed
disagreement with the wars in Iraq and Afghanistan. Two supervisors allegedly asked Vega-Colon
whether his Army training was similar to the “Rambo” movie. Two supervisors repeatedly referred to
Vega-Colon with monikers like “soldier,” “little soldier,” “sergeant,” and
“Rolandito.” Vega-Colon alleged that
these comments created a “hostile work environment” in violation of USERRA.
Neither the Supreme Court nor
any Court of Appeals has decided whether a hostile work environment claim is
cognizable under USERRA, and the First Circuit found it unnecessary to decide
that question here. There are several
Supreme Court decisions about “hostile work environment” in the sexual
harassment context, under Title VII of the Civil Rights Act of 1964. To be actionable under Title VII, the
harassing behavior must be severe and pervasive and alter the conditions of
employment. The Court of Appeals found
that, even accepting Vega-Colon’s allegations at face value, and even assuming
that “hostile work environment” is a cognizable claim under USERRA, the conduct
he alleged did not reach this high standard.
The appellate decision reflects some confusion about the difference between
returning to an active status in the Army Reserve (February 2007) and returning
to active duty (November 2007).
The appellate decision does not make clear when the November 2007 active duty
period ended, or whether Vega-Colon is still on active duty, or whether he has
returned to work for Wyeth.
Vega-Colon was in an inactive status in the Army Reserve between 2002 and
February 2007, so it would seem that his claim probably lacked merit.
On April 16, 2007, a lone gunman at Virginia Tech shot and killed 32 students
and faculty members.
For another case finding a USERRA violation in the extension of a performance
improvement plan, see Schmauch v. Honda
of America Manufacturing, Inc., 2003 U.S. Dist. LEXIS 24015 (S.D. Ohio
2003). Schmauch is discussed in detail in Law Review 128 (June 2004).
In 2008, Congress amended USERRA by enacting section 4322(f), which
provides: “Any action required by
subsections (d) and (e) [investigating the complaint and advising the
complainant of the results of the investigation] with respect to a complaint
submitted by a person to the Secretary [of Labor] under subsection (a) shall be
completed by the Secretary not later than 90 days after receipt of such
Title VII forbids employment discrimination on the basis of sex, race, color,
religion, or national origin.
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