By: Jim Cline and Jordan L. Jones
In Bello v. Village. of Skokie, the U.S. District Court, Northern District of Illinois denied the employers motion to dismiss a police officer and reserve marine’s suit under the Uniformed Services Employment and Reemployment Rights Act (USERRA. The court held that the officer had stated a valid claim of discrimination and retaliation under USERRA warranting a trial.
The officer had joined the police department in 2006. The officer also served as a reserve staff sergeant in the United States Marine Corps. As part of his duties as a reserve staff sergeant, the officer was required to attend training at least one weekend per month. Prior to September 2012, the employer regularly approved the officer’s requests for military leave to attend his monthly training in addition to requests for his nine regularly scheduled days off (RDO). Military leave, sick leave, funeral leave, jury leave, and other forms of paid leave were provided for in the collective bargaining agreement along with the RDOs.
However, around September 12, 2012, the employer “met with . . . [the officer] to discuss a proposed policy requiring military members to use their RDOs to fulfill any military obligations rather than giving them separate military leave.” The officer subsequently raised concerns and filed a grievance with the department challenging the policy, stating that it violated Illinois and federal law. The policy was eventually implemented by the department and the officer was later suspended for insubordination.
The officer sued the employer asserting claims of discrimination and retaliation under USERRA. The court pointed out that the officer “does not allege that he is guaranteed separate RDOs and military leave; rather, he alleges that in scheduling RDOs, defendants are treating military leave different from other forms of leave guaranteed by the CBA.”
In response to the suit, the employer made a motion to dismiss the officer’s action alleging that it failed to state a claim. Specifically, the employer contended that their “‘scheduling policy’ is not a benefit under USERRA.” The employer also argued that the officer had not “adequately alleged they disciplined him due to his complaint and grievance” and therefore they did retaliate against the officer.
In regards to the discrimination claim, the court noted that “Section 4311(a) of USERRA prohibits discrimination ‘against persons who serve in the uniformed services’ through the denial of ‘any benefit of employment by an employer on the basis of that membership.’” The court found that the employer’s argument lacked merit that the “scheduling policy” was not a benefit under USERRA.
Section 4303(2) of USERRA defines a “benefit of employment” as the “terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account or interest . . . that accrues by reason of an employment contact . . . or an employer policy, plan . . . and includes . . . the opportunity to select work hours . . . .” Thus the statute expressly recognizes the opportunity to select one’s work hours as a benefit of employment that may not be denied on the basis of military membership.
The court also found that the officer had alleged a valid claim of retaliation under USERRA to survive a motion to dismiss. The court stated that the officer “is not required to prove causation at this point in the litigation . . . . Rather, all he is required to do is allege it plausibly.” The court stated that “[i]t is perhaps true that if . . . [the officer] ends up with nothing more to establish causation than an argument about temporal proximity, he will lose on summary judgment . . . .”
The court held that the officer had stated a valid claim of discrimination and retaliation under USERRA sufficient to take to trial and denied the employer’s motion to dismiss.
This case poses an interesting issue. USERRA does not provide a substantive guarantee of using specific forms of paid leave for reserve duty (State laws, including Washington State often do so though.) What USERRA does prohibit is discrimination. So if an employer allows leave for certain purposes it cannot generally prohibit use of that leave for USERRA.
The clear cut aspect of this case is retaliation. The officer challenged the new restrictive policy and then was disciplined for insubordination. It is harder to find a clearer basis for a retaliation claim than that.
USERRA rights are clear and strong. We still find it amazing that there are employers who don’t know they can’t retaliate against members of the military for their service.
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