USERRA Coverage May Be Triggered Prior to Formal Military Orders

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) was enacted to encourage non-career military service and to prevent discrimination against military service members.  An employer may not discriminate against any person because such person has “taken an action to enforce a protection” afforded under USERRA.  Generally, protection begins when an employee is called to active duty or military training, and provides orders for such duty or training.  However, the 1st U.S. Circuit Court of Appeals recently held that an employee’s announcement to his employer that he intended to return to active duty after remaining inactive for multiple years was sufficient to trigger protection under the USERRA.  Vega-Colon v. Wyeth Pharmaceuticals, 1st Cir., No. 09-1861, October 28, 2010.

Angel Vega-Colon, a member of the Army Reserves, became employed by Wyeth Pharmaceuticals as a Packaging Equipment Supervisor in 2002.  From 2002 to February 2004, Vega was on active military status and took various leaves from Wyeth for military training.  From 2004 to 2007, Vega was on inactive status with the Army Reserves, and took no leaves.  However, in February 2006, he received an invitation to return to active duty as a captain, and informed his supervisor that he was going to return to active duty in the future, with a high probability that he would be mobilized.  Shortly after that, in April 2006, Vega applied for a promotion to Reliability Engineer, but was not chosen for the position. 

In February 2007, Vega was returned to active military status and was promoted to captain.  As a condition of that promotion, Vega was required to join an active military unit and participate in military exercises.  Also in February 2007, Vega received his 2006 job performance evaluation from Wyeth in which his performance rating declined from “solid performer,” which it had been from 2003 through 2005, to “needs improvement.”  Vega disagreed with this evaluation, and requested an investigation by the company.  In April 2007, he filed a discrimination complaint with the US Department of Labor’s Veterans’ Employment and Training Services (VETS), based on Wyeth’s failure to hire him for the Reliability Engineer position.  Vega ultimately withdrew that complaint.

On May 7, 2007, Vega met with Wyeth’s employee relations director and site director.  Although the content of the discussion is disputed, Wyeth alleges that Vega made a threatening remark during the meeting which caused Wyeth to restrict Vega’s access to the facility.  When Vega subsequently attempted to enter the plant to drop off military orders for a leave, he was told that he could not enter because the database listed him as terminated.  However, Vega never stopped receiving his salary and benefits, and ultimately returned from that particular leave with his plant access restored. 

In July 2007, Vega was placed on a Performance Improvement Plan (PIP) which required him to meet certain objectives within 90 days.  While he met that criteria, Vega was told in November 2007 that the PIP would be extended for “other reasons” until he returned from any upcoming military leave.  His military unit was mobilized later that month and has not yet returned from deployment.  Prior to being deployed, Vega filed a legal action against Wyeth, alleging certain violations of the USERRA, including failure to promote him in 2006, his lowered performance rating, and the extension of the PIP in spite of his completion of the objectives.  The lower court granted Wyeth’s motion for summary judgment on the claims, holding that the actions complained of by Vega took place before his deployment in 2007 and, therefore, that he was not protected by the USERRA at that point. 

The First Circuit reversed on appeal, finding that Vega’s February 2006 notification to his supervisor of his planned return to active duty and his possible deployment was sufficient to trigger the protections of the USERRA, and that once the company had notification that Vega might be called to active duty, the USERRA began to apply.  The Court held that to deny an employee the protections of the Act until a literal application for leave is signed and delivered would be contrary to the purpose of the USERRA.

Reviewing the merits of this case, the First Circuit upheld the dismissal of Vega’s claims related to the failure to promote him, his allegations of hostile environment, and his low performance rating.  However, the Court reversed the dismissal of Vega’s claim regarding the extension of his PIP during his military leave, citing wording in the PIP itself that it would be extended after Vega’s return from leave so that “positive behavior and work habits could be verified,” in spite of the fact that Vega has successfully met the criteria set forth in the original PIP.  Further, the PIP actually cited Vega’s authorized leave as one of the reasons for the extension – a clear indication that the action was taken “because of” his military status.

This case makes two important points for employers.  First, protection under the USERRA can be triggered at any point in time in which an employer has information about the employee’s military status on which discriminatory treatment may be based – and that formal military orders are not always required to trigger those protections. Second, the USERRA does not allow an employer to treat an individual differently because of his military leave, and extending a performance improvement plan simply to “make sure” that an individual retains his performance improvements until he or she returns form an authorized military leave can be viewed by the courts as a violation of that Act.