Labor and Employment - W. Christopher Arbery and Valerie N. Njiiri

• Publication year: 2010

Labor and Employmentby W. Christopher Arbery^* and Valerie N. Njiiri^**

The trial and appellate courts within the Eleventh Circuit handed down a number of important opinions affecting labor and employment law during the survey period of January 1, 2009 to December 31, 2009.¹ These included a ruling on a question of first impression in the Eleventh Circuit regarding whether harassment claims are cognizable under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)² and notable decisions involving the Employee Retirement Income Security Act of 1974 (ERISA)³ and the Fair Labor Standards Act (FLSA).⁴

I. Uniformed Services Employment and Reemployment Rights Act

A. Dees v. Hyundai Motor Manufacturing Alabama, LLC

In Dees v. Hyundai Motor Manufacturing Alabama, LLC,⁵ the United States District Court for the Middle District of Alabama, on a motion for reconsideration, held that the defendants, Hyundai Motor Manufacturing Alabama, LLC (HMMA) and Hyundai Motor America, Inc. (HMA), were entitled to summary judgment on the plaintiff's claims under USERRA⁶ because the plaintiff lacked standing to assert a claim for harassment and did not have sufficient evidence to support his claim for termina-tion.⁷ Most significantly, however, the court addressed a question of first impression in the Eleventh Circuit when it ruled that claims for harassment are valid under USERRA.⁸

The plaintiff, Jerry Leon Dees Jr., began working for HMMA in November 2005 as a maintenance technician in the Stamping Maintenance Department. Dees was a staff sergeant and combat MP in the Alabama National Guard during this time and previously served two tours in Iraq. Dees alleged that his supervisors, Greg Prater and Kevin Hughes, started harassing him when they learned of his military service.⁹

Prater allegedly required Dees to provide military orders for his monthly Guard weekend training, forbade Dees from missing work to attend Guard training, made derogatory comments about the Guard in the presence of Dees and others, and attempted to convince Dees's coworkers to make false statements that Dees violated company policies and procedures. Dees also alleged that Prater and Hughes assigned him more frequently to difficult and dangerous work compared to other employees. Dees had the sergeant of his Guard unit submit a letter to HMMA's Human Resources Department explaining that military orders were not required for the Guard's monthly weekend training procedures in the hopes that this would quell the harassment by Prater and Hughes. The sergeant also offered to confirm Dees's presence at his Guard unit's weekend training. Dees asserted that the sergeant's letter did not quell the harassment and that, instead, the harassment escalated.¹⁰

In February 2007 a production stamping manager for HMMA allegedly accused Dees of sleeping on the job. Based on this incident, an HMMA committee decided to terminate Dees's employment. Dees filed a lawsuit against the defendants for allegedly terminating his employment because of his Guard membership, for creating an environment of harassment in violation of USERRA, and for claims of outrage and conversion under state law. In May 2008 the district court granted the defendants' motion for summary judgment on Dees's USERRA termination claim, outrage claim, and all claims against HMA, but not on Dees's USERRA harassment and conversion claims against HMMA. Dees and HMMA filed motions for reconsideration.¹¹

USERRA prohibits employers from discriminating against an employee who serves in a "uniformed service" in the terms and conditions of employment because of the employee's service.¹² The district court determined that before it could reach the merits of Dees's USERRA claims, it first had to examine whether HMMA and HMA were employers under USERRA or whether only HMMA was Dees's employ-er.¹³ USERRA defines an employer as "any person, institution, organization, or other entity that pays salary or wages for work performed or that has control over employment opportunities, including . . . a person, institution, organization, or other entity to whom the employer has delegated the performance of employment-related responsibilities."¹⁴ The district court believed that USERRA's focus is on the individual or entity that carries out "employment-related responsibilities" and not on the entity or individual that controls the overall enterprise.¹⁵

The district court noted that HMMA was the manufacturer ofHyundai vehicles in the United States, and HMA was the distributor, marketer, and seller of these vehicles in the United States. Hyundai Motor

Company (HMC) was the parent company for both HMA and HMMA.¹⁶

The court found that HMMA was the only entity that carried out employment-related responsibilities because there were no HMA employees working in Alabama, any Korean expatriate individuals on loan from HMC to HMMA were employed by HMC, and the committee members that made the decision regarding Dees's separation were all HMMA employees.¹⁷ Moreover, all the personnel decisions regarding Dees's employment—his hiring, training, and separation—were undertaken by HMMA's Human Resources Department without any involvement by HMA.¹⁸ While the court believed HMA and HMMA definitely were linked companies, the court determined this was insufficient to consider HMA an employer under USERRA because it did not handle any employment-related duties.¹⁹ Accordingly, the district court found that HMA was entitled to summary judgment on all of Dees's USERRA claims because it was not his employer.²⁰

As for Dees's USERRA claims against HMMA, the district court noted that an employer discriminates against an employee in violation of USERRA "if the employee's membership in the armed services 'is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such member-ship.'"²¹ The court found that discriminatory animus could be inferred from Prater's actions and remarks; however, this discrimination could not be imputed to HMMA because Prater had no role in Dees's termination.²² The court opined that "[d]iscriminatory remark[s] by [a] non-decisionmaker [are] insufficient to satisfy a plaintiff's burden under USERRA to show [an] employer's discriminatory motive."²³

While Dees alleged that a supervisor who harassed him because of his Guard membership also recommended his termination and attended the termination committee meeting, the court determined that Dees failed to provide any evidence that his protected status actually played a part in the termination decision.²⁴ The court found that HMMA considered intentional sleeping on the job a terminable offense.²⁵ The supervisor that discovered Dees sleeping on the job believed it was intentional because Dees was found sleeping in an isolated area that appeared set up to avoid detection.²⁶ The supervisor reported Dees's misconduct; however, a committee ultimately made the decision to terminate Dees's employment based solely on the supervisor's allegations.²⁷ The court found that Dees did not present any evidence that either the supervisor or the committee harbored any bias towards those who served in the military.²⁸ In addition, even assuming that there was any truth to Dees's contentions that the supervisor fabricated the allegations against him, the court determined that Dees did not present any evidence that the committee was not acting in good faith.²⁹ Moreover, on the slim chance that Dees could show that his military status was a motivating factor in the committee's decision to terminate his employment, the district court held that the committee would have made the same decision without regard to Dees's military service because it considered intentionally sleeping on the job a terminable offense.³⁰ Accordingly, the court concluded that the defendants were entitled to summary judgment on the plaintiff's USERRA termination claim.³¹

The district court observed that courts have not yet resolved whether a harassment claim is valid under USERRA, nor had the United States Court of Appeals for the Eleventh Circuit addressed this question.³² However, in reliance on a decision from a federal agency,³³ the district court determined that a claim for harassment because of an individual's military service is a valid claim under USERRA.³⁴ The court opined that other federal anti-discrimination statutes recognize harassment claims.³⁵ In addition, because the legislature intended USERRA to be construed broadly for the benefit of returning veterans, it would be consistent with that mandate to extend USERRA's protections to claims for harassment.³⁶ The court believed that one purpose of USERRA was to encourage military service by assuring individuals that their jobs would not be at risk if they chose to join the military.³⁷ The court determined that "[a]n assurance that employees cannot be fired on account of their military service is meaningless without assurance that the work environment will not be so intolerable that they will feel forced to quit."³⁸ The court believed this protection was especially necessary in the current environment because almost half of the individuals in the active military are non-career service members of the National Guard and Reserves.³⁹ Accordingly, the court held that Dees's USERRA harassment claim was valid.⁴⁰

The court next examined Dees's harassment claim using the severe and pervasive standard established by the United States Supreme Court to analyze Title VII⁴¹ harassment claims.⁴² The district court found that the following conduct Dees alleged met the standard for severe or pervasive: Prater's frequent derogatory comments about his Guard service, Prater's insistence that Dees produce military orders for every Guard training weekend, Prater's insistence that Dees put his job with HMMA above his military service, and Prater's frequently assigning Dees to work that was more dangerous.⁴³...