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USERRA Does NOT Provide a Cause of Action for Adverse Employment Actions Against a Military Spouse


Norris v. Glassdoor, Inc. - United States District Court, Southern District of Ohio, Eastern Division


Facts:  Stacy Norris ("Norris"), a U.S. Navy veteran, worked at Glassdoor after she received an honorable discharge.  (Her husband also served in the Navy during and after a few events that gave rise to this lawsuit.)  Norris's job was to monitor the Glassdoor website postings to flag, approve, or disapprove reviews as necessary.  To do her job, Norris was allowed to work remotely.  When her husband was deployed to Virginia Beach for two years, Norris planned to join him for the duration of the deployment.  When Norris notified Glassdoor about her plan to relocate and continue to work remotely, Glassdoor told her she would lose her job unless she maintained Ohio residency and would have to resign if she moved to Virginia.  In exchange for her resignation, Glassdoor agreed to rehire Norris for "a position she was qualified for" when she came back to Ohio.  Norris accepted this offer but characterized it as Glassdoor "forc[ing] [her] to resign."  As a result of her resignation, Norris lost the right to future performance based stock distributions.  However, at the time of her resignation, Glassdoor failed to tell her that she would forfeit the right to future stock distributions.

After her husband's deployment ended and Norris returned to Ohio, she contacted Glassdoor about her interest in returning to work there again.  After receiving no response and being unable to obtain employment there again, Norris proceeded with filing suit against Glassdoor.  She based her claim on discrimination under USERRA based upon her association with her husband and discrimination against her for her own past Navy service.  As well, she had two claims based upon Ohio law for breach of contract due to Glassdoor's failure to rehire her and fraud for Glassdoor's failure to disclose that she would lose the right to future stock options if she resigned.  Glassdoor proceeded to file a Motion to Dismiss.

Holding:  (Note, this case brief only analyzes the USERRA portions of the case).  The Uniform Services Employment and Reemployment Act of 1994 ("USERRA") provides that any person that is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that employee's membership, application for membership, performance of service, application for service, or obligation.  Consequently, USERRA protects past, current, and prospective members of the armed services from adverse employment actions on the basis of their own service.  The question, a matter of first impression in the Sixth Circuit (in which this District Court sits), is whether USERRA extends to claims based on spousal activity.

Spousal Protection Under USERRA

When parsing the language of USERRA, specifically subsection (b), the District Court noted that while its is meant to protect employees, Congress leaving out the same protection for the spouses of uniformed service members was a clear exclusion.  Looking at other courts, the District Court pointed out that those cases found "If Congress desired...to include spouses or widows of such persons, an additional phrase in the statue would have done the job.  That phrase is not here." and "Nowhere in the plain text of the statute does the USERRA prohibit discrimination against a spouse of a service member by the spouse's employer."  Consequently, the language of USERRA clarified that its protections did not extend to the spouse of a military service member.

USERRA Discrimination Based on Norris's Own Prior Service

In order to proceed on her USERRA claim based upon discrimination for her own service in the Navy, Norris was required to show that her service was a motivating factor that caused Glassdoor to ask her to resign and decline to rehire her.  In this instance, the Court pointed out that USERRA does not make actionable all adverse employment action against veterans.  Rather, the statute provides that a claimant's military history must be "the actual substantial or motivating factor for an adverse employment action."  In fact, an employer's knowledge that an employee is a veteran does not, in and of itself, render every adverse employment action by an employer actionable.  In this case, the Court found that Norris had failed to sufficiently plead a factual basis for discriminatory motivation, in order to proceed with this portion of her USERRA claim.  In fact, Norris had failed to allege any facts which showed that Glassdoor exhibited hostility toward veterans.

Judgment:  The District Court granted Glassdoor's Motion to Dismiss on the grounds that the employee's USERRA claim failed as she had not proven that her resignation and Glassdoor's failure to rehire her was a direct result of discrimination because of her military status and USERRA provided no cause of action for the spouse of a service member.

The Takeaway:  This was an interesting case, not with standing the fact that the matter apparently had not been addressed in the Sixth Circuit before.  I do call attention to the fact that while other circuits had considered similar instances before, it is important to always check the law in your jurisdiction.  While the District Court in this case found that no cause of action exists under USERRA for an adverse employment action against a military spouse, it is possible that another circuit or jurisdiction will find this is an actionable cause of action. 

With that being said, the Court's analysis of the language of USERRA (or the lack of language in the statute), led to a proper conclusion that Congress did not intend for the statute's protections to extend to the spouse's of service members.  I agree with the Court's reasoning (pointing to other circuits), that had Congress intended for the statute to be further reaching, Congress could have (and likely would have) included this language in USERRA.

Majority Opinion Judge:  Judge Marbley

Date:  July 13, 2018

Opinion:  http://hr.cch.com/ELD/NorrisGlassdorr071318.pdf

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