Halunen & Associates

From: Minnesota Lawyer (www.minnlawyer.com)

By Barbara L. Jones

A Marine’s claim that he was fired for asserting his rights to miss work for medical treatment for illnesses incurred at least in part while on active duty in Iraq may go forward, a federal judge has ruled.

The case is one of a very few brought to date under the Uniformed Services Employment and Reemployment Act (USERRA) of 1994, which prohibits employment discrimination on the basis of military service, said the plaintiff’s attorney, Clayton D. Halunen of Minneapolis.

“The guy is a hero,” said Halunen. “Had the law not protected him then there would be no justice.” Halunen expects cases like this to increase as more and more service members return from Iraq and assert their rights under USERRA.

“We can’t wait to go to trial. This has to go forward for the benefit of the service,” said Halunen. Since the law is so seldom litigated, there are many questions about it, he said.

Minneapolis attorney Justin Cummins, who is vice-chair of the MSBA Labor and Employment Law section, agreed that USERRA claims are likely to become more prevalent, and advised any lawyer who represents a service member to consider the law.

“Talk about supporting our troops, this is the best way to support our troops. They don’t always get support from their employers when they return home,” observed Cummings.

The attorney for the employer, David Goldstein of Minneapolis, said that his client has acted in good faith and that there is genuine confusion about what USERRA means. “USERRA is a complicated statute and employers really struggle with it. Everybody wants to do the right thing but it’s complicated. This case is important because it clarifies what active duty means under the statute,” he said.

The plaintiff, Timothy Moore, served in Iraq as a weapons platoon sergeant and returned from Iraq to Eau Claire, Wis., in March 2005. Subsequent to his return, he was diagnosed with inflammatory bowel disease (Crohn’s/ulcerative colitis) and liver disease. These conditions were determined to be service related, and he was granted compensation benefits from the military.

Starting in July 2005, Moore worked for the defendant, Epperson Underwriting Company, as a loss prevention representative in territory that included Minnesota. He told the company he would have to report for reserve duty when necessary.

Moore took time off in late September for surgery, telling the company it was for a service-related medical condition. He missed more time in October and in November.

In a conversation with his supervisor, Moore said that he believed that the company violated USERRA when it deducted from his vacation time to cover his medical absences. He offered to have a represntative from the Guard and Reserve’s Employer Support explain the law’s requirementsto his supervisor.

Moore had another medical prcedure at the end of November. After he returned to work, he was terminated on Dec. 6.

Moore sued the company, alleging that it has discriminated against him in violation of USERRA by not letting him have time off work to get treatment for his service-related medical condition.

U.S. District Court Judge Ann Montgomery ruled against Moore on that claim, finding USERRA did not apply. While USERRA protects individuals against being discriminated against for performing military duties, going to treatment for service-related medical conditions did not constitute performance of military duties, the judge reasoned.

Halunen took exception to this conclusion, nothing that Moore was still a member of the National Guard when he was getting his medical care.

“It defeats the purpose of the law to say that the medical treatment must be on active duty,” he said.

But Montgomery did allow Moore’s USERRA-based retaliation claim to go forward. (Moore argued that the company had taken adverse employment action against him because he had made a report about the company’s conduct to the Guard.)

A retaliation claim requires a plaintiff to present sufficient evidence that his USERRA report was a substantial factor in the employer’s decision to invest him and ultimately fire him, Montgomery noted. The judge found that a genuine issue of material fact existed on whether the employer was motivated by the USERRA report to fire Moore.

This close timing of events, along with the allegation that his supervisor told Moore not to contact the Guard about any problems, raised an inference that the USERRA report was a motivating factor, said Montgomery.

Montgomery also allowed claims under the Minnesota Human Rights Act to go forward.

The 25-page decision is Moore v. Epperson Underwriting Company.