LAW REVIEW 1110
USERRA Section 4302 Does Not Bar
Settlement of USERRA Claim
By Captain Samuel F. Wright, JAGC, USN
22.214.171.124—USERRA, Affirmative Defenses
126.96.36.199—Training or Retraining
188.8.131.52—Special Protection Against Discharge, Except
1.8—Relationship Between USERRA and other
Wysocki v. International Business
Machines Corp., 607 F.3d 1102 (6th Cir. 2010), cert. denied, 79 U.S.L.W. 3401 (2011).
“Nothing in this chapter [USERRA] shall supersede,
nullify or diminish any Federal or State law (including any local law or
ordinance), contract, agreement, policy,
plan, practice, or other matter that establishes a right or benefit that is more beneficial than or is in
addition to a right or benefit provided such person under this chapter.”
38 U.S.C. 4302(a) (emphasis supplied).
“This chapter supersedes any State law (including any
local law or ordinance), contract,
agreement, policy, plan, practice, or other matter that reduces, limits, or eliminates in any
manner any right or benefit provided by this chapter, including the establishment of additional prerequisites to the
exercise of any such right or the enjoyment of any such benefit.”
38 U.S.C. 4302(b) (emphasis supplied).
George Wysocki worked for
International Business Machines (IBM) as a data administrator when he was
called to active duty and deployed to Afghanistan. He returned from active duty in July 2007 and
met the eligibility criteria for reemployment under the Uniformed Services
Employment and Reemployment Rights Act (USERRA). He returned to work shortly thereafter, but
IBM terminated his employment on Oct. 15, 2007.
requires the employer to make “reasonable efforts … to qualify” the returning
veteran who is eligible for reemployment under USERRA. 38 U.S.C. 4313(a)(2)(B). This obligation is particularly important in
a fast-changing career field like information technology. In such a field, even a few months away from
the field (while serving in combat in Afghanistan) can render the returning
veteran’s civilian job skills rusty and irrelevant.
This was not Wysocki’s first
call to the colors. After previous
active duty periods, IBM provided Wysocki shadowing and assistance from other
employees to enable him to reintegrate into the civilian workforce, which had
changed somewhat during his absence.
When Wysocki returned to work in July 2007, he notified his IBM
supervisor that his skills had diminished while he had been on active duty and
that he would need time to update his knowledge of IBM’s programs, software,
and technology. Wysocki alleged that,
contrary to past practice, IBM refused to provide reintegration assistance to
Wysocki and terminated his employment, without cause, on Oct. 15, 2007.
In accordance with its
standard practice, IBM offered Wysocki severance pay of $6023 as part of an
Individual Separation Allowance Plan. As
a condition precedent to receiving the severance pay, Wysocki signed a general
release drafted by IBM. IBM gave Wysocki
a 21-day period to consider the offer and a 7-day period, after signing, to
revoke his signature. Wysocki signed the
agreement and did not revoke his signature during the 7-day revocation
period. He received the $6023 and spent
it. The release form specifically
instructed Wysocki to consult with an attorney before signing, but he did not
take that advice. The form did not
specifically mention USERRA, but it did mention that the release included claims
of discrimination based upon “veteran status.”
Months passed before Wysocki
retained an attorney. On May 12, 2008,
he sued IBM in the United States District Court for the Western District of
Kentucky. The case was soon transferred
to the Eastern District of Kentucky. IBM
filed a motion for summary judgment, based upon the release that Wysocki had
signed in exchange for the severance pay.
The District Court granted the employer’s summary judgment motion, and
Wysocki appealed to the United States Court of Appeals for the 6th Circuit.
The 6th Circuit
affirmed the District Court on June 6, 2010, and Wysocki applied to the Supreme
Court for certiorari (discretionary
review). The Supreme Court denied certiorari on January 10, 2011, which
made the case final. The denial of certiorari does not make this a Supreme
Court precedent, but it does add somewhat to the precedential value of the 6th
The losing party in the Court
of Appeals can apply for certiorari and
file a brief explaining why the case is so important that the Supreme Court
should agree to decide it. If four or
more Justices vote to grant certiorari the
case is added to the Supreme Court docket and set for briefing on the merits
and oral argument. If three or fewer
Justices vote for certiorari then it
is denied and the Court of Appeals case becomes final. In federal civil cases certiorari is denied about 99% of the time.
In his District Court
complaint, Wysocki alleged that IBM violated section 4313(a)(2)(B) when it
refused to make reasonable efforts to assist Wysocki in requalifying for his
IBM position after returning from active duty.
He also alleged that IBM violated section 4316(c)(1), when it fired him,
without cause, within one year after his reemployment following uniformed
service. Wysocki might well have
prevailed on these claims, but for the release that he had signed.
When IBM filed the motion for
summary judgment, based on the release, Wysocki argued, through counsel, that
section 4302(b) of USERRA (quoted above) overrode the release. The District Court rejected this argument,
and the 6th Circuit affirmed this determination. I agree that section 4302(b) does not render
unenforceable a release of this kind.
USERRA’s legislative history
contains an instructive paragraph about the purpose and effect of section
4302: “The Committee [House Committee on
Veterans’ Affairs] wishes to stress that rights under chapter 43 [USERRA]
belong to the claimant, and he or she may waive those rights, either explicitly
or impliedly, through conduct. Because
of the remedial purposes of chapter 43, any waiver must, however, be clear,
convincing, specific, unequivocal, and not under duress. Moreover, only known rights which are already
in existence may be waived. See Leonard v. United Airlines, Inc., 972
F.2d 155, 159 (7th Cir. 1992).
An express waiver of future statutory rights, such as one that an
employer might wish to require as a condition of employment, would be contrary
to the public policy embodied in the Committee bill and would be void.” House Rep. No. 103-65, 1994 United States Code Congressional &
Administrative News 2449, 2453.
I think that the 6th
Circuit got it right in this case.
Moreover, this scenario is very common.
If your employer discharges you or lays you off, the employer will
likely offer you something by way of severance pay. The employer will require you to sign a
general release in exchange for the severance pay—the employer wants “legal
peace.” You are an adult, and you are
responsible for what you sign. If you
sign the release, it almost certainly extinguishes any USERRA claim or other
claim that you may have. You cannot have
your cake and eat it too.
Before you sign the release,
you need to find out if you have a viable claim to make, and you need to decide
whether you want to initiate a lawsuit.
If you have no viable claim, or if you do not wish to bring a lawsuit,
take the severance pay offered and sign the release. But remember that your decision is probably
irreversible. You should seek legal
advice to help you make this important decision.
Mr. Wysocki left his IBM job for the purpose of performing uniformed service,
and he gave IBM prior oral or written notice.
He was released from the period of service without a punitive or
other-than-honorable discharge and without having exceeded the cumulative
five-year limit on the duration of the periods of service, relating to
IBM. He made a timely application for
reemployment after release from service.
The 6th Circuit is the federal appellate court that hears appeals
from Kentucky, Michigan, Ohio, and Tennessee.
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