USERRA “Reasonable Certainty” Test Applies To Discretionary Promotions

Kollman & Saucier
Kollman & Saucier
10/09/2013

In a recent opinion, the First Circuit recognized that the Uniformed Services Employment and Reemployment Rights Act’s (USERRA) escalator principle applies when a promotion is discretionary.  Rivera-Melendez v. Pfizer Pharm., LLC, No. 12-1023 (1st Cir. Sept. 20, 2013).

Luis Rivera-Melendez began working for Pfizer in 1994.  He received several promotions over the next decade, and by 2004, held an hourly, non-exempt position as an active pharmaceutical ingredient (API) group leader.

In October 2008, Rivera-Melendez was called to active duty by the Navy.  While deployed in Iraq, Pfizer eliminated the API group leader position, replacing it with both a team leader and service coordinator position.

Group leaders working at Rivera-Melendez’s Pfizer plant in Puerto Rico were told they could apply to become team leaders, however, if not selected the employees could either apply to be service coordinators, accept a demotion, or participate in a voluntary separation program.  Six of the team leader positions were filled with group leaders.  The seventh team leader position was filled by a senior operator.

Upon return from active duty, Rivera-Melendez contacted Pfizer regarding reinstatement and was informed that he would be reinstated to the group leader position, but that he would perform “special tasks” because the group leader position had been eliminated.

Rivera-Melendez filed suit alleging that Pfizer reduced his job responsibilities (including taking away his supervisory duties).  Rivera-Melendez received the same compensation and benefits as before and was eventually transferred to a service coordinator position.

The district court granted summary judgment to Pfizer, reasoning that Rivera-Melendez could not prove that the team leader position was the appropriate “escalator position” because the promotion was discretionary.  Under USERRA, 38 U.S.C. § 4313(a)(2)(A), a service member who is returning to work from active duty must be reemployed to an “escalator position,” which is “the position of employment in which [he] would have been employed if the employment . . . had not been interrupted by such service, or a position of like seniority status and pay, the duties of which the person is qualified to perform.”

Department of Labor (note: because of the shutdown, the DOL website is not being updated) guidance and regulations state that “the employee is entitled to reemployment in the job position that he or she would have attained with reasonable certainty.”  On appeal, the First Circuit held that the test for determining whether a returning service member is reinstated to the proper position (for both discretionary and automatic promotions) is whether there is reasonable certainty as to whether the promotion would have occurred absent the employee’s period of military service.  Concluding that the district court’s analysis “was premised on its fundamental misapprehension of the correct legal standard,” the First Circuit remanded the case for further analysis under the “reasonable certainty” standard.

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