You cannot retaliate against employees because of their military commitments. The governing law is the Uniformed Services Employment & Reemployment Rights Act, or USERRA. We treat these cases like employment discrimination claims, in that plaintiff must make out a prima facie case and show the employer's articulated reason for the negative decision was a pretext for retaliation. This plaintiff has a trial-worthy case.
The case is Dilfanian v. New York City Dept. of Education, a summary order issued on June 13. The district court dismissed the case, but the Court of Appeals (Jacobs, Parker and Livingston) brings it back, though it deems this a "close call."
On the prima facie case, it looks like management (in the form of a supervisor named Goldfarb) was simply frustrated that plaintiff was deployed to Afghanistan. When she saw the deployment letter, Goldfarb threw it on her desk and asked, "You're going to leave a broken department behind. How can you do that to me? I am stuck with cleaning up ... the mess." As a jury may think Goldfarb had personalized the deployment as something plaintiff was doing to her, that's evidence of retaliatory intent. As well, when plaintiff missed work for a pre-deployment obligation, Goldfarb filed a disciplinary letter (threatening termination) over plaintiff's inadvertent absence from a meeting seven weeks earlier. This unusual timing is further evidence of bad intent. Similarly, while plaintiff got good reviews for three years as an assistant principal, in the eight months after he notified defendant of the deployment, you would have thought plaintiff had thrown in the towel as defendant issued him an unsatisfactory rating and issued three disciplinary letters and was fired.
Additional evidence of discriminatory intent: Plaintiff was the only assistant principal who got a negative performance review during Goldfarb's six year tenure. What is more, after plaintiff got the deployment letter, Goldfarb "stopped being friendly and ceased informal communications with him." And, at a high school cabinet meeting, Goldfarb said she was "cleaning house" and stared and pointed a wand at plaintiff and said, "poof, be gone." You read that right: "poof, be gone." Finally, Goldfarb did not get around to signing a form that would have allowed plaintiff to receive training to become a principal.
This does not look like a "close call" to me, but it's enough for the Second Circuit to hold plaintiff satisfied his minimal prima facie burden. So what is the defense here? Defendant says that, in the end, plaintiff did not deploy to Afghanistan after all. But that does not negate the evidence that Goldfarb was upset that she thought that plaintiff was going to deploy. Defendants also claim plaintiff was not a good worker no matter what his deployment plans were, and it cites three incidents to back up this claim in an effort to refute any inference of discrimination. This includes plaintiff's failure to attend a meeting in Goldfarb's office and plaintiff's failure to notice that the state had sent the wrong examination booklets for a test while preparing for an an Advanced Placement English test.
Defendant further says plaintiff did not provide adequate guidance to teachers on a number of occasions (an allegation that plaintiff refuted "in a detailed and thoughtful response" and that plaintiff had missed school, when he was to play a key role in a professional development session) because he received military orders to report to Fort Dix. For that incident, plaintiff made arrangements with his military superior to get together on a Friday so plaintiff would not miss work on a Thursday. But plaintiff did not notify the school of his Friday absence until that Friday morning because a one-star general told him to give a briefing on Friday morning, too late to reschedule the professional development session at the school, "which had to be reorganized in Dilfanian's absence."
The school regarded these derelictions as misconduct, justifying plaintiff's termination. But the Court of Appeals sees it differently, concluding "these alleged performance problems were not so egregious that a rational juror must conclude that his termination would have occurred regardless of his military service." This holding is buried at the last page of the opinion, but it is actually remarkable. Defendants will often claim the plaintiff cannot win a wrongful discharge claim because of some performance deficiency or other. Rarely do I see the Court of Appeals say that, even if the deficiencies are true, they are not serious enough to force a jury to hold the termination was justified.. The Court says so in this case, however. While that is good news for plaintiffs, since this ruling is a summary order, its precedential value is limited. Still, you are allowed to cite summary orders, so if you need it, use it.