Service Members Option: Quit

Appeals Court says “No” to Hostile Environment Claim

New Orleans, LA –   The U.S. Court of Appeals for the Fifth Circuit has ruled that members of the armed services cannot file a lawsuit under the Uniformed Services Employment and Reemployment Rights Act (USERRA) against a civilian employer for creating a “hostile work environment” through harassment.

The appeal came in the case of Derek Carder, et al v. Continental Airlines, Inc., a class action suit filed by pilots employed by Continental Airlines, Inc. who are members of the United States Armed Forces Reserves and Air National Guard.

The jurisdiction of the 5th circuit court includes Texas, Louisiana and Mississippi.

The pilots alleged that management at Continental created a “hostile work environment”  that discriminated against them because of their military service.  Continental argued that USERRA does not prohibit harassment of military members nor otherwise contemplate a hostile work environment action.

In a March 11, 2011 ruling, the appeals court sided with Continental and affirmed a lower court decision that dismissed the service members claim on the grounds that USERRA does not permit a claim for hostile work environment discrimination.

The pilots, the court said, may sue for constructive discharge if the alleged harassment becomes sufficiently severe that they are forced to quit their jobs.

According to the complaint, Continental has created a hostile work environment through  “harassing, discriminatory, and degrading comments and conduct relating to and arising out of Appellants’ military service and service obligations.” The complaint cites a “continuous pattern of harassment in which Continental has repeatedly chided and derided plaintiffs for their military service through the use of discriminatory conduct and derogatory comments regarding their military service and military leave obligations.”

Examples of these alleged derisive comments include comments by Continental managers such as the following:

  •  “If you guys take more than three or four days a month in military leave, you’re just taking advantage of the system.”;
  • “I used to be a guard guy, so I know the scams you guys are running.”;
  • “Your commander can wait. You work full time for me. Part-time for him. I need to speak with you, in person, to discuss your responsibilities here at Continental Airlines.”;
  •  “Continental is your big boss, the Guard is your little boss.”;
  •  “It’s getting really difficult to hire you military guys because you’re taking so much military leave.”;
  •  “You need to choose between CAL and the Navy.”

The pilot argued that they could file a “ hostile work environment” because a clause in Section 4311(a) of USERRA (entitled “Discrimination against persons who serve in the uniformed services and acts of reprisal prohibited”) prohibits denial of “any benefit of employment” to persons serving in the armed forces. However, the appeals court said the phrase is narrower than the language in other federal anti-discrimination laws and not intended by Congress to permit hostile work environment claims.

So what options do service members have?

“ If an employer makes service members’ employment so intolerable that they feel forced to quit, these service members could likely make a claim under USERRA for constructive discharge,” the appeal court states.

To make a claim of constructive discharge, the plaintiff must show that his or her working conditions became ‘so intolerable that a reasonable person would have felt compelled to resign.’”) (quoting Penn. State. Police, 542 U.S. at 147, 124 S. Ct. at 2354).

Still pending in the lawsuit is a separate count that the district court did not dismiss for denial of retirement benefits based upon Continental’s alleged denial of flight time to the Appellants and other class members because of their service obligations.

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