It’s often easy for employees to prove retaliation than whatever alleged bias may have preceded the retaliation. For cases involving employees who are also members of the armed forces, it’s even easier.
They’re protected by the Uniformed Services Employment and Reemployment Rights Act (USERRA).
Under USERRA, once an employee has shown he engaged in protected activity that was a motivating factor in an adverse employment action, the burden shifts to the employer to prove it would have taken the same action whether or not the employee complained in the first place.
Recent case: William Bunting worked as a police sergeant when he was called to active duty in the Coast Guard for an 18-month tour. While Bunting was away, he missed out on a promotion. He claimed he had never been notified about the opportunity, and complained to the mayor and the U.S. Department of Labor (DOL).
Bunting was then passed over for several other promotions. Managers said he had been disloyal by going outside the chain of command.
When Bunting sued, the court said his complaints to the mayor and the DOL were protected activity under USERRA. Once Bunting showed that his complaints had been viewed negatively, the burden shifted to the police department to show it would have passed him over even if he had never complained.
Given its use of his complaint as a factor in denying promotion opportunities, that wasn’t possible. (Bunting v. Ocean City, No. 10-1140, 4th Cir., 2011)
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