Hostile Work Environment Claims Held Cognizable Under USERRA

Court Finds Statute May Be Broadly Interpreted To Include Such Causes Of Action

A federal district court judge in Kentucky recently held that a former Marine could sue his employer for both discrimination and harassment under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA). Because the right to be free from a hostile work environment is a “benefit of employment,” the court held, the employee may proceed with his claim under USERRA. Steenken v. Campbell County, No. 04-224-DLB, U.S. District Court for the Eastern District of Kentucky (March 15, 2007).

Factual Background

Gregory Steenken was hired as a patrolman by the Campbell County Police Department (CCPD) in August 2000. At that time, he was also a reservist in the United States Marine Corps.

From the start of his employment, Steenken claimed, his supervisors criticized him for his military service. For example, when he arrived for his first day of duty with his uniform pressed and boots polished, Lieutenant Todd Straman told him “this isn’t the military.” During his pistol qualification, Lieutenant Straman allegedly stated, “I know you were in the Marines . . . this isn’t no machine gun” and “let’s see how good a shot Marines really are.” Throughout his first year, Steenken also claimed, he was ridiculed for the number of arrests he made, and Lieutenant Straman cursed at him in front of a fellow officer and an inmate.

In October 2001, Steenken was called into active duty for approximately six months (at the end of which he was honorably discharged). According to Steenken, the criticism about his military service and high rate of arrests intensified shortly after his return to CCPD. For instance, a poster bearing his picture and the following language was posted on the Department’s bulletin board, WANTED: Officer Greg Steenken aka Connie Cornflakes, last seen in Campbell County area. If located contact Tony the Tiger. Be advised use caution due to huge ego.” Based on the ongoing ridicule in his work environment, Steenken claimed, he was forced to resign on October 29, 2003.

Shortly thereafter, Steenken filed a lawsuit in federal court alleging that CCPD discriminated against him based on his military status in violation of USERRA (among other claims).

Legal Analysis

Enacted in 1994, USERRA makes it unlawful for an employer to refuse an employee’s military leave of absence, or to discriminate in employment or reemployment based on military service. Under USERRA, it is unlawful for an employer to deny “initial employment, reemployment, retention in employment, promotion, or any benefit of employment” based on their affiliation with the uniformed services. To establish a prima facie case of discrimination under USERRA, the employee must show that an employer used his or her military affiliation as a “motivating factor” in any adverse action taken against the employee. The employer may establish an affirmative defense, however, by proving it would have taken the same action notwithstanding the employee’s military affiliation.

Although USERRA “does not specifically prohibit an employer from subjecting an employee to harassment or a hostile work environment due to  an employee’s military status,” the court noted, the Act specifically prohibits the denial of “any benefit of employment by an employer” to members of uniformed service based on their membership and/or performance of service. According to the court, “[b]ecause the right to be free from a hostile work environment, broadly construed, is a benefit of employment,” Steenken may sue his employer for hostile work environment harassment under USERRA.

The court found that there was substantial evidence from which a reasonable jury could infer that Steenken’s military status or service was a “substantial or motivating factor” in CCPD’s actions. Moreover, the court held that considering the evidence in the light most favorable to Steenken, CCPD did not sustain its burden of proving that its conduct would have been the same but for his reservist status. Thus, the court denied CCPD’s motion for summary judgment and allowed Steenken’s USERRA claim to proceed to trial.
 
Practical Impact

According to Chuck Baldwin, a shareholder in the firm’s Indianapolis office: “The Steenken court significantly expands USERRA’s protections by broadening the definition of `benefits’ under the Act. The court specifically interpreted the right to be free from a hostile work environment as a `benefit of employment’; thereby, opening the door for employees to sue for harassment under the statute.”

Note: This article was published in the April/May 2007 issue of The Employment Law Authority.