Can a civilian employer harass a service member based upon military status? The answer to this question can affect the 500,000 Reservists and National Guard members who have deployed to Iraq and Afghanistan since late 2001. The Penn State Law Civil Rights Appellate Clinic as part of an expert legal team from across the country filed a Petition for Certiorari with the U.S. Supreme Court in Carder v. Continental Airlines, 2009 WL 4342477 (S.D. Texas, Nov. 30, 2009).
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) protects civilian job rights and benefits for veterans and members of Reserve components. The purpose of the law is to prohibit discrimination against people “because of their service in the uniformed services.”
Lead plaintiff Derek Carder, a Lieutenant Commander in the United States Naval Reserve, filed a suit in the U.S. District Court for the Southern District of California against Continental Airlines alleging harassment based on military service. The case was transferred to the U.S. District Court of the Southern District of Texas. While many trial courts recognize a cause of action for a hostile work environment based on military service, the Southern District of Texas decided that the USERRA did not create a cause of action for harassment, absent the deprivation of contractual benefits. The Plaintiffs appealed and the Fifth Circuit agreed.
Most of the plaintiffs are pilots in the Reserves. In their complaint they asserted that Continental Airlines: 1) placed onerous restrictions on taking military leave and arbitrarily tried to cancel military leave; 2) disapproved and denied military leave notices; and 3) called pilots’ homes while off duty in order to question pilots about their military leave. Plaintiffs also reported harassing comments from managers, detailed in the Petition for Certiorari.
“This is a dispute about the scope of the USERRA. The act says that an employer cannot deny a member of the Reserves any benefit of employment because of his or her military status,” explained Professor Michael Foreman, counsel of record on the case and director of the Penn State Law Civil Rights Appellate Clinic. “When our citizens answer the call to serve our country though military service we think that a law enacted to prohibit discrimination based upon military service should prohibit harassment based upon military service.”
“We hope that the Supreme Court will take on the task of clarifying the latent ambiguities presented by the lower federal courts' differing interpretations of USERRA,” said Melody Mahla, a second-year clinic student who helped write the petition. “As these brave men and women return home from serving our country, they must be afforded the protections they deserve.” Mahla’s parents served in the U.S. Army Medical Corps.
The Petition for Certiorari was a joint effort among lead counsel Brian J. Lawler, who is a former F-18 pilot and presently a Lieutenant Colonel in the U.S. Marine Corps Reserves, Alexandra G. Taylor, Charles M. Billy PSU '90 a former F-18 pilot and presently a Commander in the Navy Reserve, Gene J. Stonebarger and the Penn State Law Civil Rights Appellate Clinic.
"We find it disappointing that any employer would actually support the notion that it's OK to harass and discriminate against those who serve our country and defend our freedom," said Billy. "Unfortunately that is the position taken by Continental Airlines and upheld by the Fifth Circuit. We're hopeful the Supreme Court will protect those who do so much to protect us."
About the Clinic
The Penn State Law Civil Rights Appellate Clinic provides intensive training in appellate advocacy by involving students in noncriminal civil rights cases before the state appellate courts, federal courts of appeal, and the U.S. Supreme Court. Students conduct research, draft briefs, assist in case selection, develop substantive legal positions, and plan appellate strategy.