LAW REVIEW 1141
Army Reserve Dentist Loses USERRA Case
By Captain Samuel F. Wright, JAGC, USN
18.104.22.168—Special Protection Against Discharge, Except
Hart v. Family Dental Group PC, No.
10-1008-cv (2nd Cir. May 31, 2011).
Major Evan Hart, USAR is a
life member of ROA and a dentist, both in civilian life and in the Army
Reserve. He was already in the Army
Reserve when he was hired by the Family Dental Group (FDG) in 2001. While employed by FDG, he was called to the
colors twice. He served on active duty
from March to September 2003, serving in North Carolina (Fort Bragg) and Texas
(Fort Sam Houston). He was promptly
reemployed upon returning from this period of active duty.
Dr. Hart was again called to
active duty in July 2004, and he served in Iraq until released in December
2004. He promptly applied for
reemployment and returned to work on January 17, 2005. Just three days later, Dr. Kenneth Epstein
(FDG President) notified Dr. Hart by letter that his employment would be
terminated in 60 days.
Dr. Hart questioned the
lawfulness of the termination, asserting that it violated the Uniformed Services
Employment and Reemployment Rights Act (USERRA). Dr. Epstein responded by reducing the notice
of termination from 60 days to 30 days. Dr. Hart filed a complaint with the Veterans’
Employment and Training Service of the United States Department of Labor
(DOL-VETS), and that agency prevailed on FDG to retain Dr. Hart for at least
180 days. Dr. Hart remained on the FDG
payroll until July 20, 2005, when he was terminated.
It was clear and not disputed
that Dr. Hart met the USERRA eligibility criteria for reemployment for both the
2004 and 2005 active duty periods. In
each instance, he left his position of employment for the purpose of performing
uniformed service, and he gave the employer prior notice. He was released from the period of service
without having exceeded the cumulative five-year limit on the duration of
service and without having received a punitive or other-than-honorable
discharge that would disqualify him under section 4304 of USERRA, and he made a
timely application for reemployment after release from service.
Section 4316(c) of USERRA
provides as follows: “A person who is
reemployed by an employer under this chapter shall not be discharged from such
employment, except for cause—(1) within one year after the date of such
reemployment, if the period of service before the reemployment was more than
180 days; or (2) within 180 days after the date of such reemployment, if the
person’s period of service before the reemployment was more than 30 days but
less than 181 days.” 38 U.S.C.
Congress enacted USERRA
(Public Law 103-353) in 1994, as a long-overdue rewrite of the Veterans’
Reemployment Rights Act (VRRA), which dates back to 1940. In enacting USERRA, Congress continued the
VRRA’s provision about a period of special protection against discharge,
following reemployment, but tinkered with the computation of the duration of
the special protection.
USERRA’s legislative history
contains three paragraphs about the purpose and operation of the special
“Section 4315(d) [later
renumbered 4316(c)] would relate the period of special protection against
discharge without cause to the length, and not the type, of military service or
training. Under current law, there is a
one year period of special protection against discharge without cause after
return from active duty and six months protection after return from initial
active duty training. There is no
explicit protection [under the VRRA] for employees returning from active duty
for training or inactive duty training regardless of length. Under
this provision, the protection would begin only upon proper and complete
reinstatement. See O’Mara v. Peterson
Sand & Gravel Co., 498 F.2d 896, 898 (7th Cir. 1974).
The purpose of this special protection period is to
ensure that the returning serviceperson has a reasonable time to regain
civilian skills and to guard against a bad faith or pro forma reinstatement. As
expressed in Carter v. United States, 407
F.2d 1238, 1244 (D.C. Cir. 1968), ‘cause’ must meet two criteria: (1) it is reasonable to discharge employees
because of certain conduct; and (2) the employee had notice expressed or fairly
implied that such conduct would be notice [grounds] for discharge. The burden of proof to show that the
discharge was for cause is on the employer.
See Simmons v. Didario, 796 F.
Supp. 166, 172 (E.D. Pa. 1992).
The limitation upon the
duration of the period of special protection should not be considered to be a
limitation upon the duration of other rights under chapter 43 [USERRA]. See
Oakley v. Louisville and Nashville R. Co., 338 U.S. 278, 284-85
(1949). Similarly, the expiration of the
period of special protection does not end the protection against discrimination
contained in proposed section 4311. It
is to be understood, however, that good cause exists if the ‘escalator’
principle would have eliminated a person’s job or placed that person on layoff
in the normal course.”
House Report No. 103-65, 1994
United States Code Congressional &
Administrative News 2449, 2468 (emphasis supplied).
Section 4311(a) of USERRA
provides: “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.” 38 U.S.C. 4311(a).
After he was terminated by
FDG in July 2005, Dr. Hart renewed his complaint to DOL-VETS. After that complaint did not result in
resolution of his case, Dr. Hart retained private counsel and sued FDG and Dr.
Epstein in the United States District Court for the District of
Connecticut. In an eight-count
complaint, he alleged that FDG and Dr. Epstein violated multiple sections of
A jury trial was held on Dr.
Hart’s claims in February 2010. After
Dr. Hart rested his case, the District Court granted judgment as a matter of
law in favor of FDG and Dr. Epstein on Dr. Hart’s claims under section 4311(b),
4312(a), and 4316(a) and (c). Dr. Hart’s
claims under section 4311(a) were submitted to the jury, which found in favor
of FDG and Dr. Epstein.
After losing in the District
Court, Dr. Hart appealed to the United States Court of Appeals for the Second
Circuit. On appeal, Dr. Hart challenged the District
Court’s grant of judgment as a matter of law in favor of FDG and Dr. Epstein on
his claims under section 4312(a) of USERRA.
He did not challenge the jury verdict or the District Court’s grant of
judgment as a matter of law on his other claims.
Section 4312(a) of USERRA
provides: “Subject to subsections (b),
(c), and (d) and to section 4304, any person whose absence from a position of
employment is necessitated by reason of service in the uniformed services shall
be entitled to the reemployment rights and benefits and other employment
benefits of this chapter if—[the person meets the USERRA eligibility criteria
as to prior notice, the limit on the duration of the period or periods of
service, and a timely application for reemployment].” 38 U.S.C. 4312(a).
The District Court held and
the Court of Appeals affirmed that FDG met its responsibilities to Dr. Hart
when it reemployed him on January 17, 2005.
The decision to terminate his employment, communicated to him just three
days after he returned to work, implicated sections 4311(a) and 4316(c), not
If I had represented Dr. Hart
in this case, I would have adopted a different strategy. Instead of relying on section 4312(a), I
would have relied on section 4316(c). I
would have cited the legislative history (quoted above), and I would have cited
Omara v. Peterson Sand & Gravel Co. [cited
in the legislative history]. I would
have argued that Dr. Hart was not properly and completely reinstated on January
17, 2005, because the employer clearly was already preparing to terminate his
employment as soon as possible. I would
have argued that the 180-day special protection period had not started running,
because Dr. Hart was not properly and completely reinstated, and thus when his
employment was terminated on July 20, 2005 the special protection period had
not ended. Perhaps the result might have
The 2001 employment contract provided that Dr. Hart could be terminated without
cause, so long as he was given 30 days of notice.
Under the VRRA, the special protection period was one year after active duty
(regardless of duration) and six months after initial active duty training.
The 2nd Circuit is the federal appellate court that sits in New York
City and hears appeals from district courts in Connecticut, New York, and
I express no criticism of Dr. Hart’s attorney.
Clearly, in expressing these opinions I have the great advantage of
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