From Wolters Kluwer Employment Blog
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Army reserve member’s USERRA claims against Wyeth partially reinstated
Finding an army reserve member raised sufficient evidence that his performance improvement plan was improperly extended due to his military leave, the First Circuit reversed in part a district court’s dismissal of his USERRA claims against his employer, Wyeth Pharmaceuticals (Vega-Colon v Wyeth Pharm, 1stCir, October 28, 2010, Thompson, OR). The direct court properly granted summary judgment to the pharmaceutical company on the reserve member’s numerous other USERRA discrimination and retaliation claims, however, the appeals court ruled.
Background. The reserve member, a package equipment supervisor who worked for Wyeth in Puerto Rico, alternated between active and inactive status during his employment with the company. The first assertedly actionable incident was a poor performance evaluation, allegedly his first. Shortly thereafter, he was denied a reliability engineer position that he applied for, and he filed a discrimination complaint with the DOL’s Veterans' Employment and Training Service (VETS). VETS initially found no merit to his claim and denied the complaint, but it was later reinstated when the employee presented additional evidence. At any rate, the employee eventually voluntarily withdrew his VETS complaint.
After his negative performance evaluation, the employee had requested that Wyeth conduct a formal investigation. At a meeting to discuss the investigation, the employer alleged that the employee made a threatening comment, suggesting to the facility’s site director that he “made it easy for one to understand why massacres like the one at Virginia Tech take place.” After this comment — which the employee denied — his access to the plant was restricted, although he continued to receive his salary and benefits. At some point, he returned from military leave with his access to the plant restored. Next, he was placed on a performance improvement plan (PIP) pursuant to a Wyeth policy in which all employees who receive low performance evaluations are placed on a PIP. He timely completed the objectives established under the PIP within the required 90 days, yet he was informed nonetheless that the PIP would be extended for other reasons until he returned from military service. His reserve unit was mobilized that month.
The employee filed suit, alleging several claims of discrimination and retaliation based on his military service under USERRA and Puerto Rico law. He claimed the discriminatory and retaliatory actions taken by Wyeth were the result of his decision to return to active duty. The district court granted summary judgment in favor of Wyeth on all claims, and the employee appealed.
USERRA coverage. Wyeth argued that because he did not return to active duty until February 2007, the employee was not protected under USERRA until this date. However, the appeals court held the employee “applied to perform” active duty service, for purposes of USERRA, once he informed his supervisors. “While informing a supervisor of one's intent to return to service is not strictly speaking an application for service; it is only logical that USERRA coverage would be triggered at the point in time in which an employer has information about an employee on which it could base discriminatory treatment,” the appeals court wrote. “To deny an employee who has expressed such a definite intention the protection of USERRA until his literal application for service is signed and delivered would be contrary to the stated purposes of USERRA. This conclusion is further supported by the principle that USERRA should be broadly construed in favor of military service members as its purpose is to protect such members.”
Because his April 2006 application for the reliability engineer position was the earliest action related to his claims, any alleged improper conduct by Wyeth necessarily took place after USERRA was triggered, the court reasoned.
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