A Section 1292(b) Appeal on an Employment Discrimination Issue

Carroll v. Delaware River Port Authority, 843 F.3d 129 (3d Cir. 2016).  28 U.S.C. §1292(b) permits a District Court to certify a question of law to a Court of Appeals for resolution.  The Court of Appeals must consent to decide the issue.  Today, the Third Circuit issued an opinion in such a case, which does not happen often.  Judge Fuentes wrote the panel’s opinion.

This was an employment discrimination case that arose under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. §4301 et seq. (“USERRA”).  Plaintiff, a police officer employed by the defendant Port Authority, alleged that defendant unlawfully discriminated against him by declining to promote him to sergeant due to the fact that plaintiff had served in the United States military in Iraq.  Plaintiff had been in the National Guard and was twice summoned to active duty.

Both sides filed summary judgment motions (plaintiff’s was a partial summary judgment motion).  The District Court denied both motions.  The Port Authority then sought section 1292(b) review of a question that Judge Fuentes found to be “straightforward:  in a failure-to-promote discrimination suit, under USERRA, must a plaintiff plead and prove that he or she was objectively qualified for the position sought?”  The panel found the answer “equally straightforward: no.”

Judge Fuentes observed that the USERRA was adopted (among other reasons) to “encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service.”  Cases under the USERRA have employed a two-step burden-shifting framework, drawn from NLRB v. Transportation Management Corp., 462 U.S. 393 (1983),  that has not expressly included a demonstration that the plaintiff is qualified for the position sought.  Plaintiff here contended that “a plaintiff’s objective qualifications are certainly relevant, but they are an affirmative defense to be advanced by the employer, not an additional hurdle to be cleared by USERRA plaintiffs.”

Judge Fuentes agreed.  “The statute is clear that an employer violates USERRA if a plaintiff’s ‘membership … in the uniformed services is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership.'”  All Courts of Appeal had ruled that a USERRA plaintiff meets his or her initial burden by proving that military service was a “substantial or motivating factor” in the adverse employment decision.  The Third Circuit too had reached that result in non-precedential opinions.

The “clear implication” of those rulings was that USERRA plaintiffs need not show objective qualification as part of their initial burden.  Rather, that burden falls on the employer once the employee has carried his or her initial burden.  That result not only comported with the statute’s plain language and the rulings of Courts of Appeal, but also advanced the intent of Congress to “strengthen the [previous] veterans’ employment and reemployment rights provisions.”

The Port Authority pointed to other anti-discrimination statutes that “require an initial showing that the plaintiff is objectively qualified for the position sought.”  But those cases used the somewhat different framework of McDonnell Douglas v. Green, 411 U.S. 792 (1973), rather than that of Transportation Management, as is the test under the USERRA.  There was thus no basis to transfer the “objectively qualified” prong from McDonnell Douglas into the USERRA context, and the case was remanded to the District Court for further proceedings.

Leave a Reply