Individual Employees Cannot Be Sued In State Court For Military Discrimination

Posted by Morin Jacob on January 03, 2012

iStock_000013304337Large_72dpi.jpgCalifornia’s Military and Veterans Code contains protections against discrimination for members of the armed forces.  Recently, the issue of whether an individual can be held personally liable for discrimination was addressed. 

In Haligowski v. Superior Court of Los Angeles County, the Court of Appeal held that employees who are members of the armed forces may only hold employers, but not individual supervisors or other employees, personally liable for employment discrimination against armed forces members in violation of California Military and Veterans Code section 394, even though the statute expressly states that “no person” can discriminate against a member of the armed forces. 

In Haligowski, Lieutenant Mario Pantuso was called to active duty with the Navy while working at Safway Services.  He served a six month deployment in Iraq, and sought to return to work to his prior position upon his return.  Instead of being returned to work, his supervisor and the regional manager told Lt. Pantuso that he was terminated.  Pantuso sued Safway, his supervisor and the regional manager for discrimination and retaliation under the California Military and Veterans Code. 

Section 394 prohibits any “person any “person, employer, or officer or agent of any company” from discriminating against military members because of that membership. The Court reviewed the body of case law holding that individuals cannot be liable for discrimination or retaliation under the California Fair Employment and Housing Act (FEHA). Following that reasoning, the Court found that discrimination claims against individuals that arise out of necessary personnel management duties, and decisions that are an inherent and an unavoidable part of the supervisory function, cannot be the basis of a discrimination claim against an individual.  The Court found that a supervisory employee cannot refrain from the type of conduct which could later give rise to a discrimination claim.  In contrast, however, harassment is conduct that is not necessary for the performance of a supervisory job.  Thus, individual employees can be held liable for harassment on the basis of membership in the armed forces.

It is noteworthy that this case does not change the ability of an employee to sue an individual for employment discrimination under federal law.  Under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), an employee can sue an individual employee for employment discrimination based on their membership in the military.

This decision does not change the ability of an employee to sue an individual for employment discrimination under federal law.  Under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), an employee can sue an individual employee for employment discrimination based on their membership in the military. 

The Haligowski decision establishes new precedent under Section 394 in that it prohibits individual supervisor liability for employment discrimination against members of the military.  Regardless, public employers should train its supervisors and employees that it is unlawful to discriminate on the basis of an employee's military service or membership.  This is especially important since, under federal law, plaintiffs can seek to hold individual employees liable for employment discrimination based on their military membership.  Plus, employees can be held liable for harassment on the basis of military membership under state law.  Finally, in this context, the public agency itself can be held liable for discrimination, retaliation, and harassment under state and federal law, thereby making it important to train all employees on how to prevent liability for such claims.   

Employer Had "Reasonable Cause" For Termination Based On Job Abandonment And Did Not Discriminate Based On Employee's Previous Military Leave

Posted by Frances Rogers on September 06, 2011

It seems every employer has dealt with an employee who is chronically absent and fails to keep the employer informed of his or her absence.  Employers wonder “is this job abandonment?” “When is enough, enough?” and “What if the employee is not on a protected leave now, but was previously?  Does that look suspect if I terminate now?”

One U.S. Court of Appeal assuaged employer’s concerns when it held that an employer had “reasonable cause” to terminate an employee who violated the employer’s job abandonment policy. In so holding the Court found there was no evidence that the employer’s reason for terminating the employee was unlawfully motivated by the employee’s previous extended military leave.

In the case of To v. U.S. Bancorp, Jordan To (“To”) was an employee of U.S. Bancorp (“U.S. Bank”) when he received orders to attend training with the National Guard for 103 days.  On the day To was due to return, August 4, 2008, To called-in sick and was told to provide a doctor’s note.

For the next three work days, To called each day and spoke to his supervisor indicating he was still sick.  To later produced a doctor’s note indicating he could not return to work until August 11.  To did not report to work on August 11, but called his supervisor and said he was ill.  To’s doctor sent a note to U.S. Bank stating that To would be out until August 18.  To did not show for work on August 18, 19, and 20 and did not call any supervisor.  To claimed that his doctor was supposed to fax a note keeping him out for another week to U.S. Bank, but U.S. Bank denied ever receiving the note.

U.S. Bank had an employee manual which required employees to report every day of absence to his or her supervisor and that notifying HR or leaving messages were not sufficient.  U.S. Bank also had a job abandonment policy that stated that any employee who remained absent for two consecutive work days without reporting the absence to the supervisor, absent extenuating circumstances, was assumed to have voluntarily abandoned their job.  The manual was given to each employee and available on U.S. Bank’s intranet.

On August 20, U.S. Bank mailed a letter to To stating he was terminated for job abandonment.  To called HR a few days later and stated his doctor was supposed to send a note to them for the week of August 15th. HR asked To to send them the note and it would “reevaluate his situation.”  To failed to do so.  To filed an action against U.S. Bank for, among other things, termination in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA).  The trial court granted summary judgment in favor of U.S. Bank.  To appealed and the Eighth Circuit Court of Appeal affirmed.

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When Johnny Comes Marching Home; Military Veterans Return To Work Rights (Part 2 of 2)

Posted by Guest Author on July 12, 2011

This guest post was authored by Timothy Owen


This is the second installment of a 2-part series on military leave law.  Part 1 discussed basic principles.  This installment explains why the position to which a returning veteran is reinstated depends on whether advancement in that particular job classification is based on seniority or merit.

 

Reinstatement: Which Position?

USERRA provides that returning service members are to be reemployed in the job that they would have attained had they not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits determined by seniority.  This policy is known as the "escalator" principle, a term coined by the U.S. Supreme Court in 1946 in Fishgold v. Sullivan Drydock Repair Corp.   

The escalator principle provides that the returning service member is not reinstated at the point where he or she got off the escalator to take military leave, but rather higher up, as if the person had never gotten off.  The escalator principle is most easily applied where promotion depends solely on seniority, or longevity on the job.  In those instances, invariably the returning service member is reinstated as if he or she had stayed on the escalator.

No doubt the escalator principle is a key concept in determining where a veteran is reinstated, but what if advancement in a particular job classification is not based solely on seniority, but rather is discretionary and dependent on meritorious job performance, e.g., promotion of a public safety officer?  In this situation, does the escalator principle require an employer to reinstate the returning service member at a rank higher than the one held when military leave commenced? 

According to the Supreme Court, the short answer is, no.  “A veteran is not entitled to demand that he be assigned a position higher than he formerly held when promotion to such a position depends, not simply on seniority or some other form of automatic progression, but on the exercise of discretion on the part of the employer.”  U.S. Department of Labor regulations are in agreement: the returning service member is entitled to reinstatement at a higher rank only if it is “reasonably certain” that, had the person remained continuously employed (stayed on the escalator), he or she would have been promoted.  

In determining “reasonable certainty,” of overriding importance is the existence of a defined, well-established policy regarding discretionary promotions.  Equally important is the employer’s consistent adherence to the policy.  A policy that is not followed regularly is of little help to an employer in a dispute over reinstatement.

Bear in mind that the escalator does not always move upward.  Unfavorable business conditions may cause the escalator to shift into reverse, resulting in reinstatement at a lower level than the one previously held, a different job, or conceivably a layoff.  

When Johnny Comes Marching Home; Military Veterans Return To Work Rights

Posted by Guest Author on June 28, 2011

Gettysburg Drummer

This guest post was authored by Timothy Owen

 

When Johnny comes marching home again,

Hurrah! Hurrah!

We'll give him a hearty welcome then

Hurrah! Hurrah!

 

This is part 1 of a 2-part series.  Part 1 discusses basic aspects of military leave law.  Part 2 focuses on the “escalator principle” and selecting the right position for a returning veteran.

 

Federal, state, and even local laws guarantee returning veterans job reinstatement and other employment rights and benefits.  In most instances, the law spells out the position to which a qualifying veteran should be reinstated, making the employer’s decision relatively easy.  There are job classifications, though, that do not lend themselves to an easy determination regarding reinstatement, typically classifications where advancement is discretionary and depends on a formal evaluation of job performance, such as law enforcement.

The public policy behind military leave law seeks to ensure that a veteran returning from military duty is not disadvantaged in the civilian workplace as a result of taking military leave.  This is accomplished by guaranteeing reemployment for the veteran.  The law covers persons who perform duty, voluntarily or involuntarily, in the "uniformed services," which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services.  

The federal military leave statute, USERRA, covers nearly all employees, including part-time and probationary employees, and applies to virtually all U.S. employers, regardless of size.  An employer must reinstate service members returning from service in the uniformed services who meet five criteria:

  1. The person was absent because of military service;
  2. The person gave advance notice of taking military leave;
  3. The person took no more than 5 years of military service leave, cumulatively, while employed by the employer;
  4. The person was honorably released from military service; and
  5. The person reported back to the civilian job in a timely manner.  

Seniority, Rights, and Benefits:  Generally, reemployed service members are entitled to the seniority, and all rights and benefits based on seniority, that they would have attained with reasonable certainty had they remained continuously employed. Service members must be treated as if they are on a leave of absence, and are entitled to rights and benefits not based on seniority that are available to employees on nonmilitary leaves of absence. 

Salary:  Under California’s Military & Veterans Code, public employees employed for a period of “not less than one year” are entitled to pay for the first 30 days of military leave.  A National Guard member on active duty is entitled to receive his or her salary for the first 30 days regardless of his or her length of service with the public employer.  Private employees are entitled to a temporary leave of absence not to exceed 17 days, without pay, for military training.

Pension Rights:  A returning veteran is treated as not having incurred a break in service with the employer maintaining a pension plan.  The employer is liable for funding plan contributions.

Health Coverage:  An employee on military leave for less than 31 days may not be required to pay more than the employee’s share, if any, for health insurance coverage.  For longer periods, the employer is not required to provide health insurance benefits, but must give the employee the option to continue coverage.

Sick Leave and Vacation Accrual: Subject to an employer’s own policies, public employees on active duty are not entitled to sick leave or vacation accrual.  Under certain conditions, employees on temporary military leave continue to accrue the same vacation, sick leave, and holiday privileges for up to a maximum period of 180 days.  There are special rules for National Guard members.

 

The next installment in this series will address reinstatement of a returning veteran.