How to Establish A Discriminatory Motive

1. How to Establish A Discriminatory Motive

2. Prima Facie Case • To establish a claim of discrimination under USERRA, the evidence must show that his/her military status or protected activity was a substantial or motivating factor in the employer’s decision to take an adverse action against the claimant.

3. Discriminatory Motive • Evidence of discriminatory motive is the most important element of establishing a prima facie case. • It may be shown by direct or circumstantial evidence.

4. Motivating Factor • A “motivating factor,” is not necessarily the sole cause of the action, but rather it is one of the factors that “a truthful employer would list if asked for the reasons for its decision.” Brandsasse v. City of Suffolk, Va., 72 F. Supp.2d 608, 617 (E.D.Va. 1999) (quotingKelley v. Maine Eye Care Associates, P.A., 37 F. Supp.2d 47, 54 (D.Me. 1999)). • “Military status is a motivating factor if the defendant relied on, took into account, considered, or conditioned its decision on that consideration.” Robinson v. Morris-Moore Chevrolet-Buick, Inc., 974 F. Supp. 571, 576 (E.D. Texas 1997).

5. Elements to Establish Discriminatory Motive • Knowledge of Claimant’s military or protected activity. • Proximity in time between Claimant’s military or protected activity and the adverse action. • Employer’s expressed hostility towards military members or military duty. • Disparate treatment toward the Claimant compared to other employees with similar work records or offenses. • Inconsistencies between the proffered reason and other actions of Employer.

6. Proximity in Time • Establish a timeline containing the dates of all important events • Employer learns of military obligations • Adverse action or denial of benefits • Intervening event(s) • Event(s) that occurred shortly before notice or after adverse action • What is proximate (close in time)? • Depends on the circumstances

7. Employer’s Expressed Hostility • Obtain all relevant facts relating to the alleged expression of hostility. • In what manner and context was the alleged hostility expressed? How often? • Are there witnesses who can corroborate the alleged hostility? • Who expressed the alleged hostility? • Is that person involved in the adverse action in any way?

8. Disparate Treatment • How were similarly situated employees treated? • Who was similarly situated? • Compare the treatment of Claimant with that of similarly situated employees without military obligations • Look at source documents; do not rely on uncorroborated statements by Employer or Claimant • Review Employment files • Did Employer apply its policy in a uniform manner to all employees? • Did Employer apply the policy in an isolated manner in this case?

9. Documents to Obtain • Military Orders, press releases, news articles • Personnel files of Claimant and other similarly situated employees • Written warnings, reprimands, termination documents, performance appraisals, etc. • Employer’s handbook and written policies • Records relating to unemployment filings • Employer’s response and transcript of hearing • Email correspondence between Employer’s managers, and between Employer’s managers and Claimant • Notes from Manager’s meetings about the Claimant.

10. Inconsistencies in Employer’s Stated Reasons • Obtain from Employer all reasons for actions taken, in writing if possible • Get details, ask follow-up questions • What reasons did the Employer provide to the Claimant when the adverse action occurred? • Written Notice of the Adverse Action • Unemployment Compensation Claim • Seek evidence through interviews and document review that • Contradicts Employer’s stated reasons • Corroborates Employer’s stated reasons

11. On June 3, George notified his immediate supervisor that he was going to be gone for two-weeks of annual military training from July 8 to July 22. His supervisor slammed his fist on the desk, stammered a couple of expletives, reminded George that July was the plant’s busy period and that two co-workers were out – one on maternity leave and one on worker’s comp. George’s supervisor asked George if he could reschedule the training. George refused. Hypothetical

12. On October 22, George’s immediate supervisor told him to report to the Human Resources office at the end of his shift. The Plant-Wide Production Manager and the Director of Human Resources were in the meeting. George’s immediate supervisor was not present. The HR Director explained to George that his performance was substandard because he had only met 67% of his performance goal for the third quarter. George disagreed, saying that he did better than that and explained that he had been out for two weeks. The Production Manager told George that he needed to achieve at least 80% of his goal during the PIP or he would be terminated. The next day, his immediate supervisor asked George how the meeting went and commented: “I heard that they were going to start cracking down around here.”

13. DIDN’T SEE THAT COMING On December 23, George was terminated. The Termination Notice stated that the reason was for substandard performance. George admitted that he only met 78% of his goal at the completion of the 60-day PIP. He explained that his immediate supervisor kept giving him ancillary tasks each week that prevented him from meeting 80% of his goal.

14. Questions • Can George prove discrimination? • Was there knowledge of George’s military / protected activity? • What is the Time Line for this case? • Was anyone hostile toward George’s military duty? • How do we determine whether there was disparate treatment? • What additional evidence do we need to determine whether George’s termination is legitimate? • Does the available evidence support your conclusion? • What do you do if the Employer will not speak to you?