Fact Issue Exists As To Whether Returning Service Member Resigned and Properly Applied For Reemployment Under USERRA

Scudder v. Dolgencorp, LLC - Eighth Circuit Court of Appeals

Facts:  Samuel Scudder ("Scudder") worked at a Dollar General store in Arkansas and was later promoted to store manager.  (Dollar General is a d/b/a of Dolgencorp, LLC).  In April 2014, he was deployed to Afghanistan as part of the Arkansas National Guard.  He coordinated his military leave through Dollar General's third party leave coordinator, Matrix Absence Management ("Matrix").  After being wounded in Afghanistan, Scudder was assigned to a unit in Missouri from December 2014 to February 2016.  While in Missouri, Scudder provided notice to Matrix of his continued military leave and was approved for leave through April 1, 2016.

On March 31, 2016, Scudder spoke with a Matrix claims examiner.  Scudder apparently told the claims examiner that he could not get a return phone call as to whether he needed to return to work and did not know if he needed to put in his two weeks notice because of his inability to return to work.  The claims examiner understood this to be Scudder's resignation and e-mailed notice of this resignation to Dollar General.  Concluding that Scudder was resigning, Dollar General processed his separation of employment effective April 5, 2016 and sent him an exit survey.  Scudder responded that had been injured while on active duty, had been unable to reach anyone at Dollar General (to talk about his military leave), and indicated that he would have liked to been able to continue working at Dollar General.

On April 24, 2016, Scudder applied for another store manager position and indicated in his application that he had previously worked for Dollar General but was let go after returning from Afghanistan and no one would ever call him back.  Scudder was not hired for the position.

Thereafter, Scudder filed suit on the grounds that he had been improperly denied reemployment under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA").  The district court granted summary judgment against him on the grounds that because he had not applied for reemployment, no violation of USERRA had occurred.  Scudder subsequently appealed.

Holding:  USERRA, broadly speaking, protects returning veterans and requires reemployment in either the same position "or a position of like seniority, status and pay, the duties of which the person is qualified to perform."  The returning service member bears the burden of proving that he has satisfied the statutory requirements of USERRA and is entitled to receive reemployment rights.  Under USERRA, a service member can waive their rights to reemployment by "clearly and unequivocally" resigning.

Dollar General "Resignation"

Based upon the facts in the record, the Court of Appeals found that there was a genuine issue of material fact as to whether Scudder actually resigned.  While Dollar General claimed that Scudder resigned, Scudder countered by pointing to his phone call with the claims examiner where he stated he needed to talk with someone at Dollar General about what he needed to do to maintain his job.  Based upon this dispute, the Court held that a trier of fact could find that Scudder did not "clearly and unequivocally" resign.

Dollar General Application

USERRA does not require that an application be in a particular form (or even in writing), but the application for reemployment "should indicate that the employee is a former employee returning from service in the uniformed services and that he or she seeks reemployment with the pre-service employer."  While no bright line test exists, the standard applied in this situation is whether a "reasonable employer would be put on notice that the applicant is a returning veteran who seeks reemployment."  In this instance, the Court held that when viewing the evidence in the light most favorable to Scudder, it could be found that his application for the store manager position at the new store was sufficient notice to give a reasonable employer adequate notice that Scudder was a returning service member seeking reemployment.  The argument by Dollar General that Scudder should have sought reemployment through Matrix fell on deaf ears here.  USERRA requires only that the returning service member submit an application for reemployment the the pre-service employer.  In this instance, Dollar General, not Matrix, was Scudder's pre-service employer.

Judgment:  The Sixth Circuit Court of Appeals reversed a granting of summary judgment in favor of the employer on the grounds that the employee did not resign while he was out on military leave and evidence existed which could support the employee's claim that he properly applied for reemployment as required by USERRA.

The Takeaway:  I caution readers here that the Sixth Circuit did not definitively decide in favor of the employee.  Rather, the Court held that sufficient evidence existed in the record to create a fact issue, thus negating any ruling of summary judgment in favor of the employer.

With that being said, I call attention to the fact that there is no bright line test under USERRA to establish whether an employee properly applied for reemployment.  As the Court noted, and readers should draw from this opinion, what constitutes adequate notice (in regard to whether an employer is on notice that a returning veteran is seeking reemployment) should be analyzed on a case by case basis.  With that in mind, the next time you, as an employer or employee, face a similar USERRA issue, remember that no bright line test applies.

Majority Opinion Judge:  Judge Shepherd

Date:  August 17, 2018

Opinion:  http://hr.cch.com/ELD/ScudderDolgencorp081718.pdf