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Godfrey & Kahn Updates

Lest we forget: A reminder that employees currently in the military have certain leave rights

November 18, 2015

Last week, we celebrated Veteran’s Day and the contributions of veterans to our nation. Unfortunately, employers sometimes overlook their obligations related to employees who serve in the United States Armed Forces. A recent Seventh Circuit Court of Appeals decision serves as a good reminder of these obligations and of the impact that complaints made by supervisors about servicemember-employees can have when defending a discrimination claim.

In Arroyo v. Volvo Group North America, LLC, LuzMaria Arroyo, an Army Reservist and veteran, worked for Volvo Group North America from June 2005 until her termination in November 2011. Volvo claimed that it terminated Arroyo for attendance issues. Arroyo claimed that Volvo terminated her based on her military service and disability. Arroyo filed claims against Volvo under the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Americans with Disabilities Act (ADA).

During her employment with Volvo, Arroyo deployed to Iraq from 2006 to 2007 and to Kuwait from 2009 to 2010. She also took regular leave for weekend drills, training and other military obligations. When she returned from her second deployment, Arroyo was diagnosed and treated for post-traumatic stress disorder, or PTSD. She took disability leave and sought additional leave for therapy treatments.

In response to her requests, Arroyo’s supervisors complained through internal emails about the time she took off to drive to and from drills and the hardship her absences caused on Volvo. They lamented that there was “no recourse due to her military service.” Volvo also incorrectly asserted that Arroyo was not entitled to leave for travel time to and from her military drills.

Arroyo was eventually terminated for attendance issues unrelated to her military service. Volvo pointed to Arroyo’s tardiness, which was generally between 1-5 minutes, when it terminated her employment.

The district court granted summary judgment in favor of Volvo because the court did not believe that Arroyo’s membership in the Armed Forces was a motivating factor for her termination. The Seventh Circuit Court of Appeals disagreed and overturned the decision, stating that the district court “underestimates the strength of the emails as support for Arroyo’s case.” The Court went on to say that a reasonable jury could infer that Volvo was motivated by anti-military animus because the supervisors discussed disciplining her and denied her rights to which she was entitled (such as travel time).

Managers and supervisors need to understand that their statements (whether verbal or written) will play a role in employment litigation and can negatively impact an employer’s defenses. Employers should train managers and supervisors about employee protections, as well as the employer’s policies regarding those laws. Setting the correct tone can go a long way in discouraging negative discussions about employee leave requests. When necessary, employers should also seek legal counsel to ensure they are in compliance with applicable law.

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