A plaintiff has survived summary judgment in a lawsuit brought under the Uniformed Service Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4311. Plaintiff was a reservist with the United States Marine Corps. In September 2012, the defendant employer promoted plaintiff to a supervisory position. Following his promotion plaintiff’s superiors made comments critical of his time off due to his military obligations, according to the deposition testimony of a co-plaintiff. At a meeting in December 2012 an upcoming layoff was discussed among managers. Plaintiff was chosen for layoff and his last day of employment was later in December. Plaintiff was on active reserve duty between the time of his promotion in September and his termination in December.
The court noted that in a USERRA case a plaintiff must demonstrate that military service was a motivating factor in the termination. In a reduction in force case a plaintiff must also come forward with additional direct, circumstantial or statistical evidence indicating that the employer singled him for discharge for impermissible reasons. The employer must then produce evidence to show that it would have made the decision anyway, for a valid reason. In this case the court found that plaintiff had met his initial burden of demonstrating that he was singled out for discharge based upon his military status, based on evidence that plaintiff’s work issues surfaced only after he had performed reservist duties. The court then determined that reasonable minds could differ on whether plaintiff was terminated for valid performance reasons or singled out because of his military status.