August 19, 2016 Practice Points

Notice Required for Termination under USERRA

Human resources representatives and supervisors need to be aware that when it comes to terminating reemployed veterans, neither non-discrimination nor good cause is sufficient.

By Trish Higgins – August 19, 2016

In the recent case of Starr v. QuickTrip Corp., No. 15-5079, 2016 U.S. App. LEXIS 12972 (10th Cir. July 13, 2016), the Tenth Circuit reinforced that an employer’s obligation toward reemployed veterans extends far beyond non-discrimination. For certain reemployed veterans, the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301–35, requires not only good cause for termination, but also that the employee have notice that the conduct in question would give the employer cause to terminate him or her.

Plaintiff Starr, a reservist in the Oklahoma National Guard, returned to his employment at QuickTrip in June 2012 following a nine-month tour in Afghanistan. The plaintiff claimed that his supervisor, a former marine, made two comments showing an anti-military animus—specifically, that he asked Starr if he had “got all of his killing done” and that he told him “you ought to just go back into the military since you like it so much.”

In August 2012, just two months after Starr returned to work, QuickTrip fired him for violating its written “no call/no show” policy three times. That policy provided that an employee who arrived to work more than two hours late and who had not called to notify his supervisor is subject to a written warning for a first offense and termination for the second offense. When Starr first violated the policy in July 2012, QuickTrip chose not to give him a written warning in light of his recent military service. When Starr violated the policy a second time less than a week later, QuickTrip gave him a written warning that advised him that his next violation would result in further discipline including termination. Despite the written warning, Starr testified that the personnel manager told him that he would “be okay” if he missed a shift as long as he called his supervisor before the next working day. That alleged comment was denied by the personnel manager. In late August, Starr failed to report to work or call within two hours of his start time, and he was fired for his violations of the no call/no show policy.

Starr brought claims under two distinct provisions of USERRA. Starr’s “discriminatory termination” claim was brought under 38 U.S.C. § 4311(a), which prohibits employers from taking adverse employment action against service members based on their membership in or obligations to the armed services. The Tenth Circuit affirmed the grant of summary judgment in favor of QuickTrip on the discriminatory-termination claim. The court explained that “while Starr’s supervisor’s comments may be insensitive, they do not unambiguously express an anti-military sentiment—especially in this context, where the supervisor is a former service-member himself.”

While Starr’s discriminatory-termination claim failed as a matter of law, his claim for “premature termination” under 38 U.S.C. § 4316(c)(1) did not. Under that provision, a reemployed service member may not be discharged except for cause within either six months (if his or her employment prior to reemployment was 30–180 days) or one year (if his or her employment prior to reemployment was greater than 180 days) of his or her reemployment. To prove cause, an employer must show both that (1) it was reasonable to terminate the employee based on his or her conduct and (2) the employee had notice that the conduct in question would give the employer cause to terminate him or her. 20 C.F.R. § 1002.248(a).

Starr did not dispute that he had violated the no call/no show policy and that his violations were good cause for termination. Rather, he claimed that he did not have notice that he would be fired for violating the written two-hour policy because the company made exceptions for him in the past and because the personnel manager had told him that he would be okay as long as he called his supervisor before the next day. The district court rejected these arguments and granted summary judgment for QuickTrip on Starr’s premature-termination claim.

The Tenth Circuit reversed the grant of summary judgment on the premature-termination claim. The court agreed with the district court that QuickTrip’s willingness to excuse Starr’s prior violations did not bar it from enforcing its written policy based on continuing violations. However, the court disagreed with the district court’s conclusion that, even if the personnel manager made the alleged (and disputed) comment, no reasonable jury could conclude that Starr relied on that comment in light of the written policy and the written final warning. As the court explained: “Especially given QuickTrip’s willingness to deviate from its policy in the past, a rational jury could find that Starr reasonably relied on the personnel manager’s assurance that he would be given similar leeway in the future.”

Human resources representatives and supervisors need to be aware that when it comes to terminating reemployed veterans, non-discrimination is not sufficient. Even good cause is not sufficient. In addition, they need to ensure that the veteran had prior notice that the conduct at issue would be cause for termination.


Trish Higgins is of counsel at Orrick Herrington & Sutcliffe in Sacramento, California.


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Trish Higgins – August 19, 2016