National Guardsman Wins USERRA Case

USERRA prohibits discrimination against persons because of their service in the uniformed services.  USERRA provides that a person who is a member of 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 membership in a military service. 

USERRA is violated where a complaining soldier or veteran demonstrates that his or her military service was a motivating factor for their termination.  The soldier or veteran is not required to show that his military service was the sole reason for the discharge.  Proof that a discharge was motivated by wrongful intent can come from a number of factors including proximity of time between the employee's military activity and the termination, inconsistencies between the reason offered for the discharge and other actions by the employer, the employer's expressed hostility towards members of the military, and different treatment of employee's with military obligations as compared with others. 

Kelly Hance proved his USERRA case against Norfolk Southern by evidence that he was fired shortly after he returned from a two-week leave for military service and a decisionmaker's statement that he was taking "too much time off for the military." 
The Sixth Circuit upheld a jury's verdict awarding $300,000 plus in damages recently in Hance v Norfolk Southern, No 07-5475 (July 1, 2009).