Service Member's Law Center Director, Captain Samuel F. Wright, JAGC, USN (Ret.) discusses recent developments in Staub v. Proctor Hospital, the first USERRA case ever heard by the Supreme Court:
In Law Review 1122, I discussed in detail the case of Staub v. Proctor Hospital, decided by the United States Supreme Court on March 1, 2011. The Supreme Court decision is great, and it establishes a great precedent that will help other Reserve and National Guard personnel for many decades to come, but the case is not over.
Vincent Staub worked for Proctor Hospital as an angiography technologist for many years, until he was fired in April 2004. While he worked for the hospital, his two direct supervisors (Mr. Korenchuk and Ms. Mullaly) harassed him continually about his Army Reserve activities and the impact that those activities unavoidably had on the Angiography Department of the hospital. The harassment even extended to trying to persuade other employees to lie about Staub, in an attempt to get him fired. This harassment is clearly shown in the testimony at the trial, testimony that was believed by the jury.
When the hospital finally fired Staub in 2004, Korenchuk and Mullaly provided input, but the firing decision was made by Ms. Buck, the hospital’s Vice President for Human Relations. Staub sued Proctor Hospital in the United States District Court for the Central District of Illinois (Peoria), claiming that the firing violated section 4311 of the Uniformed Services Employment and Reemployment Rights Act (USERRA). That section makes it unlawful for an employer to deny a person retention in employment, initial employment, or a promotion or benefit of employment on the basis of the person’s membership in a uniformed service, performance of service, or application or obligation to perform service.
The case proceeded to a jury trial in 2007. In accordance with the Federal Rules of Civil Procedure, the judge instructed the jury about the applicable law and then propounded a series of questions to the jury. The jury found, by a preponderance of the evidence, that Staub had proven that the firing was motivated, at least in part, by his Army Reserve activities and that the hospital had not proved that it would have fired Staub anyway, even if he had not been a member of the Army Reserve. The judge denied the defendant employer’s motions for new trial and for judgment notwithstanding the verdict.
Proctor Hospital appealed to the United States Court of Appeals for the 7th Circuit, the federal appellate court that sits in Chicago and hears appeals from district courts in Illinois, Indiana, and Wisconsin. The 7th Circuit reversed the judgment for Staub and entered judgment for Proctor Hospital. According to the appellate court, Staub was required to prove that the ultimate decision-maker on the firing (Buck) was “singularly influenced” by the two intermediate supervisors (Korenchuk and Mullaly) who had expressed anti-military animus against Staub, based on his Army Reserve service.
The kind of “singular influence” that the 7th Circuit required was akin to the influence that the clever monkey exercised over the dull cat in one of Aesop’s Fables, written 25 centuries ago. The monkey persuaded the cat to put the chestnuts in the fire and then withdraw them. The monkey was rewarded with roasted chestnuts, and the cat was left with nothing except burned paws. With this tough standard, it would be almost impossible for any Reservist or National Guard member to prevail in a section 4311 case.
Staub applied to the United States Supreme Court for a writ of certiorari (discretionary review). Four of the nine justices must affirmatively vote for certiorari, and this writ is denied almost 99% of the time. When certiorari is denied, the decision of the Court of Appeals becomes final and the case is over.
The Supreme Court granted certiorari, and the case was set for briefing and oral arguments. ROA filed an amicus curiae brief, urging the Court to overturn the 7th Circuit and rule for Staub. Many other organizations filed such briefs, some supporting Staub and some supporting the employer. Oral argument was conducted on November 2, 2010, and I assisted Staub’s attorney in his preparation. I am very pleased with the Court’s 8-0 ruling in favor of Staub and reversing the 7th Circuit.
In its decision, the Supreme Court established a much more realistic standard for deciding cases of this nature, where there is evidence that an intermediate supervisor was motivated by unlawful animus against the plaintiff but there was no direct evidence of unlawful animus by the ultimate decision-maker (Buck in this case). The rule established by the Supreme Court makes it much easier for a reservist like Staub to prevail in a section 4311 case.
The rule of law established by the Supreme Court in 2011 was not identical to the district judge’s instructions to the jury in 2007. The Supreme Court remanded the case to the 7th Circuit to determine if the variance between the 2011 Supreme Court rule and the 2007 instructions was harmless error or reversible error. The 7th Circuit has now determined that the variance was reversible error. That means that Staub and the hospital are back in district court in Peoria, for a whole new trial. Of course, it is entirely possible that the parties will now reach a settlement, and that the whole case will then quietly go away.
The further proceedings in this case are obviously important to Vincent Staub and his attorney—they have not yet collected their back pay and attorney fees. But nothing in these follow-up proceedings can undo the great precedent that the Supreme Court established on March 1. That precedent is now cast in stone as a published decision of our nation’s highest court.