Helping to Serve Our American Heroes Returning Home: Filing a Reemployment Suit for a Disabled Military Veteran by Christina Pasquali: Cases for Disabled Veterans Claim

To establish claim under Uniformed Services Employment and Reemployment Rights Act (USERRA), employee must show

1.) employer relied on, took into account, considered or conditioned termination of his employment to fact that he is a soldier

2.) whether employee's military service was motivating or substantial factor on which employer based its alleged improper actions

3.) if employee can make this showing, burden then shifts to employer to prove, by a preponderance of the evidence, that the action would have been taken despite the protected status.

The antidiscrimination provision of USERRA, 38 U.S.C.A. § 4311(a), and the Act's retaliation provision, 38 U.S.C.A. § 4311(b), define “adverse action” in different ways, although in practice the results are very similar. Section § 4311(a) lists five different types of adverse employment actions prohibited:
denial of initial employment (failure to hire)

denial of reemployment

denial of retention of employment (discharge)

denial of promotion

denial of “any benefit of employment”

38 U.S.C.A. § 4311(a). Section 4311(b), on the other hand, provides only that an employer “may not discriminate in employment” or “take any adverse employment action” in order to retaliate against a person helping to exercise rights under the Act. 38 U.S.C.A. § 4311(b).
Under either standard, an adverse employment action must rise to the level of materiality in order to be actionable.

Protected status of military service is a motivating factor, as required to prove violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA), if a truthful employer would list it, if asked, as one of the reasons for its decision.

Failure to hire a person because of the person's association with a uniformed service is a violation of USERRA, as is the failure to hire a person who asserted or assisted in the assertion of a right under the Act. 38 U.S.C.A. § 4311(a) and (b). It is not enough to show that the potential employer knew of the plaintiff's military service and that the plaintiff did not get hired; the plaintiff must prove that the employer's knowledge was a motivating factor in its failure to hire.

The intolerability of the working conditions, for purposes of a claim under Uniformed Services Employment and Reemployment Rights Act (USERRA), is judged by an objective standard; conditions are considered intolerable if a reasonable employee would find them as such.

An anti-discrimination claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA) requires a plaintiff to prove his or her “membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor in the employer's action”; the employer is then required, if it has asserted the affirmative defense, to prove “the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service.” 38 U.S.C.A. § 4311.

Bobo v. United Parcel Service, Inc., 665 F.3d 741, (6th Cir. 2012).

five different types of adverse employment actions prohibited:
• denial of initial employment (failure to hire)
• denial of reemployment
• denial of retention of employment (discharge)
• denial of promotion
• denial of “any benefit of employment”

Erickson v. U.S. Postal Service, 571 F.3d 1364, (Fed. Cir. 2009).