Sixth Circuit revives servicemember’s wrongful termination case
July 25, 2019 - Kate Halloran
A servicemember who sued his employer for wrongful termination based on his military service obligations can proceed with his case, the Sixth Circuit has ruled. The court reversed summary judgment for the defendant, finding that the lower court did not properly weigh the direct and circumstantial evidence of discrimination the plaintiff had presented that his termination violated the Uniformed Services Employment and Reemployment Act (USERRA). (Hickle v. Am. Multi-Cinema, Inc., 927 F.3d 945 (6th Cir. June 20, 2019).)
Jared Hickle had worked for America Multi-Cinema (AMC) for more than 10 years, since high school. Four years after starting with AMC, he joined the Ohio National Guard. During his tenure at AMC, he served one year in Afghanistan and would sometimes need time off for military training. Although AMC did not prevent Hickle from fulfilling his military obligations, the plaintiff alleged that it expressed disapproval—his supervisors made negative comments about how frustrating it was and that it disrupted the theater. After explaining that he would need six months’ leave for training, Hickle claimed that he had been passed over for a promotion and that a supervisor, Jacqueline Adler, said that Hickle needed to be fired.
In April 2015, when Hickle reminded Adler about taking a weekend off for military training, Adler told him that he would be fired if he didn’t show up for work. When Hickle explained that this would violate USERRA, the supervisor responded that AMC would “find something else to terminate you on.”
After an incident involving a dispute with employees about taking home leftover food from the theater’s kitchen at the end of the day, Hickle was told by a colleague that upper management was looking for a basis to fire him. AMC’s corporate parent’s compliance officer investigated Hickle for misconduct, and he was suspended pending the outcome. When the investigation was complete, the compliance officer notified Hickle’s supervisors that some of the facts related to “unprofessional behavior” had been substantiated. He was then fired.
Hickle sued AMC for violating USERRA and Ohio law, arguing that the conduct investigation was merely pretext and that he was fired for his military obligations. The district court granted summary judgment, and the plaintiff appealed. The Sixth Circuit followed a two-step test to analyze the plaintiff’s USERRA claim: whether he had made a prima facie case of discrimination “by showing, by a preponderance of the evidence, that his protected status was a substantial or motivating factor in the adverse employment action.” Once the prima facie case is established, the employer must rebut the evidence to demonstrate that it would have taken the adverse employment action regardless of the employee’s military service and that it had a valid reason for doing so.
Plaintiffs may prove a prima facie case of discrimination through direct or circumstantial evidence. The court first reviewed Hickle’s direct evidence. It found fault with the district court’s conclusion that because the supervisor who made negative comments about the plaintiff’s military obligations did not have the authority to fire him, those comments were not relevant. Rather, those comments affected other management employees who could fire the plaintiff because they were aware of the comments and an alleged campaign to induce the plaintiff to act in ways that would lead to his termination.
The court also considered the “highly stratified” nature of the corporate workplace structure laid out in Staub v. Proctor Hospital (562 U.S. 411 (2011)). In that case, the Supreme Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.” Rejecting the district court’s reasoning that the plaintiff could not meet this bar because there was no direct evidence of the supervisor’s intent to cause Hickle’s termination by his comments, the Sixth Circuit found that the plaintiff had provided sufficient evidence of a persistent pattern of antimilitary comments from the supervisor and a “plot” to get him fired. The court noted that “in stratified workplaces . . . biased direct supervisors who lack firing authority can easily influence those who have such authority to take adverse actions.” This evidence should have been construed in the light most favorable to the plaintiff and was enough for a reasonable fact-finder to conclude that the supervisor proximately caused the plaintiff’s termination.
The court also found that the plaintiff had offered adequate circumstantial evidence that the defendant was motivated by antimilitary animus and was not persuaded that simply because the defendant had never denied the plaintiff time off for his military service that it also could not be seeking an opportunity to fire him because of the leave he needed to take to fulfill his National Guard obligations.
Columbus, Ohio, attorney Peter Friedmann, who represents the plaintiff, said, “Hickle was terminated within one month of Adler threatening his job because of his military duty. A reasonable jury could conclude that Adler’s discriminatory animus against Hickle’s military obligations was a motivating factor in Hickle’s termination. AMC’s alleged reasons for Hickle’s termination are pretextual based on Adler’s discriminatory comments, multiple inconsistent statements, and the temporal proximity between Hickle’s protected activity and his termination.”