On Jan. 13, 2011, the U.S. Court of Appeals for the Fourth Circuit ruled in Bunting v. Ocean City that William Bunting, a former sergeant with the Ocean City Police Department (OCPD), may proceed to trial on his claim for retaliation under the Uniformed Services Employment and Reemployment Rights Act (USERRA). This decision was despite the fact that Bunting failed to prove that the alleged underlying discriminatory conduct complained of was motivated by his military service.
As a member of the Coast Guard reserve, Bunting was called to active duty from Feb. 2003 through Sept. 2004. During that time, the OCPD announced a lieutenant position vacancy and encouraged all sergeants to apply. The OCPD sent Bunting an email notifying him of the opportunity, but Bunting did not learn of the opening until his active duty service ended and the position had been filled. Bunting then complained to the Ocean City mayor and the Department of Labor’s Veterans’ Employment and Training Service (DOL-VETS) about his failure to receive the promotion.
Several months after Bunting’s complaints, another lieutenant position opened with the OCPD. As one of 11 candidates who applied, Bunting was not selected. In addition, Bunting was denied a lieutenant position for a third time in 2007. Bunting then sued Ocean City and the OCPD, alleging veteran’s discrimination and retaliation under USERRA.
Following discovery, the district court dismissed the case in whole on summary judgment before trial, finding that all promotional decisions made were related to concerns about Bunting’s loyalty to his supervisor’s command, which arose out of past personal disputes unrelated to Bunting’s military service.
On appeal, the 4th Circuit affirmed summary judgment on Bunting’s discrimination claim, citing an absence of evidence tying his military service to any promotional decisions. However, the court reversed the grant of summary judgment as to Bunting’s retaliation claim. In so ruling, the court noted that in the time period following Bunting’s complaints:
- The chief of police stated she was going to refer Bunting to internal affairs.
- Ocean City implied it was going to discipline Bunting for failing to follow OCPD policy in initially reporting his concerns to the mayor versus the chief.
- A senior officer stated that Bunting’s actions rendered him “unfit” for promotion.
According to the court, such evidence “clearly raise[d] the specter of retaliation” even though the initial promotional decision was not motivated by Bunting’s military service. This conclusion was further bolstered by the burden of proof USERRA places on employers. Unlike the familiar burden shifting analysis under McDonnell Douglas v. Green (which places only a burden of “production” on employers), USERRA requires employers to affirmatively demonstrate that their actions were not pretextual. As such, once an initial showing of unlawful motivation has been made, a USERRA defendant may only avoid liability by affirmatively proving that it would have taken the same action in the absence of any protected activity.
Take Away Points for Employers
- Keep active duty employees abreast of promotional and other benefit opportunities that may arise during the course of their military service and actively facilitate participation in such opportunities.
- Implement anti-retaliation policies and procedures that take all allegations of unlawful discrimination seriously, regardless of whether the complained of conduct is believed to be unlawful.
- Be conscious of USERRA’s heightened burden of proof and implement all policies and procedures in a way that enables them to show that any adverse action taken against a service member would have occurred even if the employee had not engaged in USERRA-protected conduct.
For further information regarding compliance with USERRA and how best to address related service member complaints if and when they arise, please contact the author or any other member of McGuireWoods’ Labor & Employment Team.