Q. I did not get selected for a promotion at my civilian job. How can I prove management did not promote me because they did not like the fact that I serve in the reserves?
A. An employer cannot simply decide to pass over National Guardsmen or reservists for promotions due to concerns over how their military obligations have affected or will affect their attendance. While some employers view past or anticipated absenteeism as a valid reason for denying a candidate a promotion, such reasoning is problematic when the absences are military-related.
The Uniformed Services Employment and Reemployment Rights Act of 1994, known as USERRA, prohibits employers from discriminating against service members "on the basis of that membership, application for membership, performance of service, application for service, or obligation." Employers cannot refuse to hire, re-employ, retain or promote, or deny any benefits of employment because of a person's military duty.
In failure-to-promote cases, candidates must show they were qualified for the position to which they were not promoted and that their military duty was a "motivating factor" for the nonselection. A motivating factor "is not necessarily the sole cause of the action, but rather it is one of the factors that 'a truthful employer would list if asked for the reasons for its decision,' " the U.S. District Court for the Eastern District of New York said in Fink v. City of New York (2001). "Military status is a motivating factor if the defendant relied on, took into account, considered, or conditioned its decision on that consideration."
For example, the plaintiff in Fink was a fire marshal whose employer denied him the opportunity to take a makeup promotion exam after his military duties prevented him from taking that test when it was initially offered. The court found that a personnel director's hostility toward the plaintiff and toward veterans, in addition to the employer's refusal to grant the request for the makeup exam, among other reasons, could lead to the reasonable conclusion "that Fink's veteran status motivated or contributed to the decision not to allow him to take a makeup exam."
Similarly, the plaintiff in Mullins v. Goodman Distribution Inc. (2010) claimed he was passed over for a promotion because of his service with the Ohio National Guard in Iraq. The U.S. District Court for the Southern District of Ohio found that the employer's decision not to promote the plaintiff to a branch manager position because he "was gone so long [in Iraq] ... demonstrate[d] the existence of a genuine issue of material fact on the question of whether Plaintiff's military service was a motivating factor in Defendant's promotion decision."
Employees who believe their employer failed to promote them because of their military duty should immediately consult with a military law attorney. Depending on the circumstances, the attorney could show that the employee's military duty was a motivating factor behind the adverse personnel action and in violation of USERRA.
Mathew B. Tully is a veteran of the Iraq and Afghanistan wars and a founding partner of Tully Rinckey PLLC. Email askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.
