LAW REVIEW 1122
Supreme Court Reverses 7th
Circuit in USERRA Case
By Captain Samuel F. Wright, JAGC, USN
10.1—Supreme Court cases on reemployment statute
Staub v. Proctor Hospital, 562 U.S. ____ (March 1, 2011).
In an 8-0 decision
the United States Supreme Court reversed the unfavorable decision of the United
States Court of Appeals for the Seventh Circuit: Staub
v. Proctor Hospital, 560 F.3d 647 (7th Cir. 2009). The Court of Appeals decision is discussed in
detail in Law Review 0922 (June 2009).
Staub is the
17th United States Supreme Court decision
applying the veterans’ reemployment statute, which was originally enacted in
1940 and substantially rewritten in 1994, as the Uniformed Services Employment
and Reemployment Rights Act (USERRA).
The most recent case was in December 1991,
almost 20 years ago, so this really is a big deal.
Vincent Staub was a member of
the United States Army Reserve until his recent retirement. As a civilian, he worked for Proctor Hospital (Peoria, Illinois) until he was fired in 2004.
As originally conceived in
1940, the reemployment statute was for a once-in-a-lifetime experience. An individual holding a civilian job
was drafted or voluntarily enlisted and served “for the duration.” When the war was over and the individual
honorably discharged, he or she returned to the civilian job and was treated,
for seniority and pension purposes, as if he or she had remained continuously
employed in the civilian job during the time that he or she was away from work
for military service. The employer might
be annoyed with the inconvenience and expense of accommodating the returning
veteran, perhaps at the expense of a replacement employee, but the employer had
no incentive to discriminate against the veteran, because it was unlikely that
the veteran would again leave the civilian job for military service.
In 1955 and 1960, Congress
expanded the reemployment statute to include initial active duty training,
active duty for training, and inactive duty training performed by Reserve and
National Guard personnel. Thus, the
absences from work for military service were transformed from a once-in-a-lifetime
experience to a recurring experience.
Employers were tempted to rid themselves of the inconvenience by firing
or discriminating against the Guard or Reserve member. Accordingly, in 1968 Congress made it
unlawful for an employer to fire an individual or to discriminate in promotions
and benefits because of obligations as a member of a Reserve Component of the
armed forces. In 1986, Congress expanded
the provision to outlaw initial hiring discrimination as well.
provision of the reemployment statute is an important concomitant to the
reemployment provision. Without the
anti-discrimination provision, an employer could avoid the reemployment
obligation, and its attendant burdens, by the simple expedient of firing
Reserve Component members or refusing to hire them in the first place.
When Congress enacted USERRA
in 1994, it substantially expanded and strengthened the anti-discrimination
provision, which now reads as follows:
(a) A person who is a member of, applies to be a member
of, performs, has performed, applies to perform, or has an obligation to
perform service in a uniformed service shall not be denied initial employment,
reemployment, retention in employment, promotion, or any benefit of employment
by an employer on the basis of that membership, application for membership,
performance of service, application for service, or obligation.
(b) An employer may not discriminate in employment
against or take any adverse employment action against any person because such
(1) has taken an action to enforce a protection
afforded any person under this chapter,
(2) has testified or otherwise made a statement in or
in connection with any proceeding under this chapter,
(3) has assisted or otherwise participated in an
investigation under this chapter, or
(4) has exercised a right provided for in this chapter.
The prohibition in this subsection shall apply with respect to a person
regardless of whether that person has performed service in the uniformed
(c) An employer shall be considered to have engaged in
(1) under subsection (a), if the person’s membership,
application for membership, service, application for service, or obligation for
service in the uniformed services is a motivating factor in the employer’s
action, unless the employer can prove that the action would have been taken in
the absence of such membership, application for membership, service,
application for service, or obligation for service; or
(2) under subsection (b), if the person’s
(A) action to enforce a protection afforded any person
under this chapter,
(B) testimony or making of a statement in or in
connection with any proceeding under this chapter,
(C) assistance or other participation in an
investigation under this chapter, or
(D) exercise of a right provided for in this chapter,
is a motivating factor in the employer’s action, unless the employer can prove
that the action would have been taken in the absence of such person’s
enforcement action, testimony, statement, assistance, participation, or
exercise of a right.
(d) The prohibitions in subsections (a) and (b) shall
apply to any position of employment, including a position that is described in
section 4312 (d)(1)(C) of this title.
38 U.S.C. 4311.
While employed by
Proctor Hospital, Vincent Staub was required to attend one drill weekend per
month and two or three weeks of full-time training per year. Because the angiography department of the
hospital required weekend staffing, Staub’s military obligations imposed some
burden on the hospital.
Mulally, Staub’s immediate supervisor, and Michael Korenchuk, Mulally’s
supervisor, were hostile to Staub’s military obligations. Mulally scheduled Staub for additional shifts
without notice so that he would have to “pay back the department for everyone
else having to bend over backward to cover his schedule for the Reserves.” She also informed Staub’s co-worker (Leslie
Swedeborg) that Staub’s “military duty has been a strain on the department” and
she asked Swedeborg to help her “get rid of” Staub. Korenchuk referred to Staub’s military
obligations as “a bunch of smoking and joking and a waste of the taxpayers’
money” and he stated that he was aware that Mulally was “out to get” Staub.
In January 2004, Proctor Hospital issued Staub a
“corrective action” disciplinary warning for purportedly violating a company
rule requiring him to stay in his work area whenever he was not working with a
patient. In April 2004, Proctor Hospital
fired Staub for allegedly violating the corrective action. Staub contended that both the corrective
action and the allegation that he had violated it were invented by Mulally and
Korenchuk based on their animus against him because of his Army Reserve
Proctor Hospital contended that the decision to
fire Staub was made by Linda Buck, the hospital’s human relations director, and
that Buck was not infected by any of the anti-military animus that Korenchuk
and Mulally had exhibited. But Korenchuk
and Mulally clearly initiated the process that led to the firing of Staub, and
Buck must have relied primarily on adverse reports about Staub’s work
performance that she received from Korenchuk and Mulally.
Staub sued the hospital in
the United States District Court for the Central District of Illinois, claiming
that the firing violated section 4311 of USERRA, 38 U.S.C. 4311. The case was tried before a jury, and Staub
prevailed. After hearing the evidence in
multi-day trial, and after hearing the District Judge’s instructions, the jury
found that Staub had proved, by a preponderance of the evidence, that his Army
Reserve service was a motivating factor in Proctor Hospital’s decision to
terminate his employment, and that the hospital had not proved that it would
have fired him anyway, for lawful reasons, in the absence of his membership in
the Army Reserve, his performance of uniformed service, and his obligation to
perform future service.
The District Judge denied Proctor’s motion for new
trial and motion for judgment notwithstanding the verdict. Proctor then appealed to the United States
Court of Appeals for the 7th Circuit. A three-judge panel of the 7th
Circuit reversed the District Court verdict for Staub, holding that under the
“cat’s paw doctrine”
Proctor Hospital could not be held liable for discrimination by Korenchuk and
Mulally unless Staub proved that Buck was “singularly influenced” by the two
Staub applied to the 7th Circuit for
rehearing en banc,but
that motion was denied. Staub applied to
the Supreme Court for certiorari (discretionary
review), which was granted. Briefs for the parties and friends of the
court (including ROA) were filed in July and August 2010. The oral argument was held on November 2, 2010, and the decision came down March 1, 2011.
Justice Antonin Scalia wrote the majority decision,
and his opinion was joined by Chief Justice John Roberts, Justice Anthony
Kennedy, Justice Ruth Bader Ginsburg, Justice Stephen Breyer, and Justice Sonia
Sotomayor. The majority decision relied
on principles of agency law and tort law and found that the employer (Proctor
Hospital) was liable for the discriminatory actions of supervisory employees
Korenchuk and Mulally and that requiring Staub to prove that Buck was
“singularly influenced” by the two immediate supervisors was inconsistent with
Justice Samuel Alito, joined by Justice Clarence
Thomas, wrote a concurring decision, agreeing with the result (reversal of the
7th Circuit) but relying on the text of USERRA rather than general
principles of agency law and tort law.
Justice Elena Kagan did not participate.
This case is not necessarily over. Justice Scalia wrote: “The jury instruction did not hew precisely
to the rule we adopt today; it required only that the jury find that ‘military
status was a motivating factor in [Proctor’s] decision to discharge him.’ App. 68a.
Whether the variance between the instruction and our rule was harmless
error or should mandate a new trial is a matter the Seventh Circuit may
consider in the first instance.” We will
keep the readers informed of any further developments in this most important
Justice Elena Kagan recused herself from participation in this case, because
when she was the Solicitor General of the United States (prior to her
nomination to the Supreme Court) she filed a brief suggesting that the Supreme
Court should grant certiorari (discretionary
review), which the Court did.
Please go to www.roa.org/law_review. You will find more than 800 articles about
the Uniformed Services Employment and Reemployment Rights Act (USERRA), the
Servicemembers Civil Relief Act (SCRA), the Uniformed and Overseas Citizens
Absentee Voting Act (UOCAVA), and other laws that are particularly 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 very specific topics.
Please see Category 10.1 in the Law Review Subject Index for a case note about
each of the 16 Supreme Court decisions.
King v. St. Vincent’s Hospital, 502
U.S. 215 (1991). Please see Law Review
0929 for a discussion of the King case.
ROA filed an amicus curiae (friend of
the court) brief in the Supreme Court, urging the Court to reverse the 7th
Circuit, which the Court has now done.
You can read our brief at http://www.roa.org/staub_brief.
The reemployment statute has applied to the Federal Government and to private
employers since 1940. In 1974, Congress
expanded the law to cover state and local governments as well.
These facts come directly from the Court’s decision, written by Justice Antonin
Scalia. At the outset, Justice Scalia
wrote: “Staub and Proctor hotly dispute
the facts surrounding the firing, but because a jury found for Staub in his
claim of employment discrimination against Proctor, we describe the facts view
in the light most favorable to him.”
The 7th Circuit is the federal appellate court that sits in Chicago
and hears appeals from district courts in Illinois, Indiana, and Wisconsin.
The “cat’s paw” reference is to a fable written by Aesop about 25 centuries ago
and put into verse by LaFontaine in 1679.
In the fable, a clever monkey induces a cat by flattery to extract
roasting chestnuts from the fire. After
the cat has done so, burning its paws in the process, the monkey makes off with
the chestnuts and leaves the cat with nothing.
Please see footnote 1 of the majority decision.
If the motion for rehearing en banc had
been granted, the case would have been reargued and decided by all the active
judges of the 7th Circuit.
Granting certiorari requires the
affirmative vote of four of the nine justices.
This discretionary review is denied in the vast majority of cases, and
denial of certiorari makes the Court
of Appeals decision final.
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