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| Crossover Law Enforcement |
By Nicole A. Killoran
Today’s case, an employment dispute that came out a few years ago, is a fact-specific look at one soon-to-be-deployed National Guardsman’s time as a temporary correctional officer (TCO). The majority offers us a window into servicemen employment protections. The dissent gives us a peek into evidentiary infighting among the SCOV’s esteemed justices.
Plaintiff Brown was a TCO at the Department of Corrections’ (employer’s) Southern State Correctional Facility in Springfield. If you noticed the “was” there, you’ll recognize that this is a dispute that arose when plaintiff was fired. And fired he was, as well as passed over for promotion, just a few months after he was tagged for deployment to Afghanistan. Therein lies the dispute.
TCOs are at-will, non-union employees that fill in where necessary for regular correctional officers (COs). Plaintiff started working as a TCO with employer at the end of 2008, and did some training at the Vermont Corrections Academy in early 2009 with generally good marks (and a few bad ones). Shortly after returning from the Academy, employer learned that plaintiff would be one of several officers at the facility that would be deployed to Afghanistan.
Not long after that announcement, plaintiff went through a review for promotion to one of three full CO positions that had become available. Three panelists interviewed all eight applicants in the pool with pre-set questions, scored their responses, ranked them, and gave the results to the superintendent to make a decision. I know this will come as a huge surprise to our readers, but plaintiff was not one of the three who got the promotion.
After being passed over, plaintiff’s employment at the facility went downhill. Inmates started complaining about him, he got some warnings about tardiness and behavior, and an officer assigned to work with him reported that plaintiff had some work to do in the realms of compassion and cooperation. In the end, the proverbial straw that broke employer’s back was an incident where plaintiff, against orders, allowed an inmate to leave his cell during a headcount. Plaintiff was sacked the next day.
Plaintif sued a couple months later for relief under the Uniform Servicemembers Employment and Reemployment Rights Act (USERRA), taking issue with employer’s decision to not promote him, and then to fire him. Plaintiff subsequently lost on a motion for summary judgment, and appealed that decision to the SCOV, arguing that a jury should have heard his case because the facts were in dispute.
On appeal, Plaintiff claims that enough evidence exists to create a genuine issue for a jury to decide whether his service status was a motivating factor in employer’s non-promotion and firing decisions. He also argues that employer didn’t prove that it would have made these decisions even if he hadn’t been about to be deployed.
USERRA sets up a burden-shifting dance between employee and employer familiar to anyone who’s litigated an employment matter, but with a military flavor. It protects servicemembers from certain employment decisions made on the basis of military status or obligations. It’s possible to prove a violation of USERRA if the employee can show that his military status was a “motivating factor” in the employer’s action (e.g., that the offered reason is a pretext), and the employer subsequently can’t prove that it would have done it anyway. A servicemember can prove discriminatory motive with circumstantial evidence. “Motivating factor” evidence can include things like proximity in time, inconsistent justifications, hostility toward servicemembers, knowledge of deployment status, and treating servicemembers differently than others with a similar employment record.
There were a number of events that took place after employer learned plaintiff was about to go off to war that plaintiff has a problem with, and that make it into the majority’s opinion. They deserve a closer look, particularly because this is such a fact-specific case.
When it comes to the guys who got promoted when plaintiff was passed over, none of them was in the military. In the interview score rankings, they were in first, second, and fifth places. They all had more experience than plaintiff, and/or prior training or education in the corrections field. Meanwhile, plaintiff scored the lowest of all eight applicants, and had no prior training, experience, or education in corrections, aside from his time at the Academy.
There were also a couple of conversations that stick out. After plaintiff lost the promotion, the training and recruitment supervisor (Beckwith) told him “they’re not going to give me a full-time benefit slot if I’m leaving in eight months.” Another supervisor (Woods) remarked to one of the other military members who didn’t get the promotion that it was “common knowledge” his deployment was the reason he lost out. And, one of the three interview panelists (Patanos) joked (or so he claimed) with Beckwith about the difficulty of scheduling with military members in the mix and supposedly called plaintiff’s time-off request to participate in a Memorial Day parade “stupid.”
Plaintiff also had mixed reviews when it came to his job performance. He had a performance evaluation before his deployment was announced to the effect that “his communication and ability to accept feedback was good,” so there’s that. Those same reviews, though, said he needed to work on his humanity and “rapport building” with inmates.
After the deployment announcement, plaintiff’s record is pretty sour. Inmates complained that he was confrontational and prone to profanity. He was given warnings for showing up late to work and not filing disciplinary reports. Eventually employer assigned a field training officer (Rowe) to babysit plaintiff. Rowe later reported that plaintiff needed to work on his awareness of safety issues, show compassion, not be such a hard-ass with inmates, and cooperate more with his supervisors. And, of course, there was the letting-the-inmate-leave-his-cell-during-headcount incident. Plaintiff was fired after a supervisor reported to the superintendent that he had explained why this was problematic, and plaintiff told him he wasn’t “having any problems” and tried to leave the room (“are we done here?”).
Finally, one of employer’s administrative assistants apparently was told that deployed TCOs had to resign and reapply when they came back from deployment. She admitted that at the time in question in this case, employer didn’t have much experience dealing with large-scale deployments, and she was later told she was wrong and deployed servicemembers were entitled to get their jobs back. Oops.
So, what does the SCOV make of all this and plaintiff’s claims that employer had it in for him because he was about to disappear overseas and serve his country? Sadly for plaintiff, the SCOV basically says, “Eh, so what?”
When it comes to the promotion decision, plaintiff has to point to evidence of discrimination other than the fact that he was passed over and happens to be in the military. The SCOV says plaintiff didn’t manage to do this. He didn’t show he had as good or better qualifications compared to those who got the promotion; in fact, plaintiff bombed the interview and didn’t have much on his resume to offer compared to his competitors. Just because the guys who got the promotion weren’t military doesn’t mean that plaintiff’s military status was a motivating factor. There really wasn’t enough here to justify giving it to a jury, says the SCOV.
But what about the discouraging remarks from Beckwith and Woods about deployment being the death knell of promotion at the facility? Well, according to employer, those two supervisors didn’t know what the heck they were talking about. And, the SCOV points out, they didn’t have any part in the interview or selection process. There’s no indication of “antimilitary animus” there, and even if there were it didn’t result in plaintiff’s losing the promotion.
The SCOV reaches the same conclusion about the dude who was on the interview panel, Potanas. He was the one who asked Beckwith why he was bringing him more military to complicate his schedule, and called plaintiff’s Memorial Day parade participation “stupid.” Doesn’t matter, says the SCOV. These are “stray remarks” with “marginal relevance” to the issue. They don’t get close to what plaintiff needs to prove.
And the fact that plaintiff got some positive/satisfactory performance evaluations before his deployment was announced, but not after? As you can imagine, the SCOV merely has to walk through the parade of poor marks plaintiff received during his short stint at the facility to conclude that this also is not an issue that should have made it to trial.
But, argues plaintiff, the secretary said she was told (erroneously) that employer’s policy was for servicemembers to resign and reapply when they get back from deployment! What of that? Well, says the SCOV, what of that? It’s not really clear what that says about the whole thing, and it doesn’t really create a dispute big enough to send this to a jury. Sorry, plaintiff.
The dissent, penned by the lovely, and ever-disagreeing, Justice Robinson, thinks the majority’s opinion sticks its thumb way too far into the evidentiary pie here. Factfinding is not the SCOV’s job, she reminds her colleagues, even though she admits she “might well find for defendants” if she was acting as the factfinder. Justice Robinson trots out a few facts the majority leaves out of its opinion to flesh out her argument that the majority didn’t wear its movant-colored glasses when it reviewed the trial court’s decision in this case. This could have actually been a pretty good trial, as it turns out.
Beckwith told plaintiff that he was pretty much guaranteed automatic promotion to full CO within three to six months of hiring. True to that form, after about three months plaintiff was interviewed for a promotion, and he expected to receive one based on Beckwith’s statements.
Meanwhile, apparently there were some emails (there are always some emails) cc’ing the superintendent, expressing concern about the deployment plaintiff was part of, what that would do to the facility’s staffing, and how they could be “proactive” about it, whatever that means. Two weeks after those emails, plaintiff interviewed for and then lost the promotion he’d been told to expect.
After he lost the promotion, plaintiff had that conversation with Beckwith about not being promoted when you’re about to be deployed. Beckwith, Justice Robinson reminds us, was not just some “random co-worker,” but rather the officer in charge of recruiting and training at the facility, and the person who had told plaintiff he should expect an automatic promotion. And, Patanos, the guy on the interview panel, later complained to Beckwith that he had recruited “more military” to gum up the schedule.
Also, reasonable minds could conclude that the interview process itself was a bit skewed, says Justice Robinson. The three TCOs promoted were not facing deployment, and none of those facing deployment were promoted. And, the TCOs facing deployment got the three lowest subjective interview ratings.
On plaintiff’s claim that employer’s management started to pick on him after he lost the promotion, Justice Robinson points out a couple other facts. Plaintiff got stuck with a 3-2-1 schedule, which, coupled with a long commute, made for a hellish graveyard-swing-morning shift pattern to his week. Plaintiff was slapped on the wrist for being tardy, when other officers were allowed to get away with it. And, the incident that got plaintiff fired involved the inmate’s case worker asking that he be allowed to go to class, and plaintiff letting him go, after plaintiff’s on-the-job trainer told him it was ok and that he, the trainer, had done the same thing before.
Finally, even though the majority doesn’t know what to make of the legal assistant’s statements about employer’s policy regarding servicemembers, the dissent thinks they’re telling. Justice Robinson informs us that the legal assistant was in HR, and argues that at the very least those facts indicate that employer was “insensitive” to its obligations under USERRA.
All this evidence, if believed, could lead a reasonable jury to conclude that employer really did have plaintiff’s military status in mind when it didn’t promote him, and when it fired him. And it’s why Justice Robinson would have reversed summary judgment in this case. Instead of giving plaintiff the benefit of the doubt, the majority drew inferences adverse to the plaintiff. That’s a no no for summary judgment.
The dissent doesn’t rest here, though. Justice Robinson also chides the majority for collapsing the burden-shifting two-step USERRA analysis into a single step. Instead of shifting the burden to employer to prove that it wouldn’t have promoted plaintiff despite his military status, it decided that plaintiff had to show he was as qualified as those who got the promotion before shifting the burden. The dissent thinks plaintiff met his initial burden here, and that employer’s feet weren’t held to the evidentiary fire.
The majority responds to a couple of the dissent’s points and calls it “unpersuasive” (sick burn!).
So what if Beckwith told plaintiff he would be automatically promoted? That’s not the policy of the facility, and no one argued about this in the trial court. So it really doesn’t matter. And so what if Beckwith and Potanas said some stupid things about promotion and deployment, and then none of the soon-to-be-deployed applicants were promoted? They didn’t decide who got the promotion, and just because plaintiff wasn’t promoted doesn’t mean he suffered discrimination.
When it comes to the “collapsing” standard argument, the majority points out that lots of factors go into the discriminatory motivation question, including disparate treatment of employees with similar records. The court gets to take into account the employer’s explanation for its actions (e.g., the low interview rating plaintiff got).
Plaintiff lost the promotion, and his job, and the justices asked to decide whether that was okay under the USERRA had a good old fashioned row about the weight of evidence in summary judgment. All in all, a bad day for plaintiff when this decision came down. But just another day in the life of the SCOV.
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