Douglas Milhauser v. Minco Products, Inc.
2012 U.S. App. LEXIS 24938
| 8th Cir. | 2012Background
- Milhauser worked as a maintenance technician for Mineo; returned from military leave June 3, 2009 after a vaccine reaction
- His performance was inconsistent; he received one written reprimand and duties were sometimes reassigned to others
- Mineo implemented workforce reductions in 2009, eliminating 18 jobs in March and planning 32 more in June
- Milhauser was among those recommended for termination during the June round of cuts
- USERRA requires reemployment in the position the employee would have occupied absent the military leave (the escalator principle); Mineo asserted an affirmative defense that reemployment was impossible or unreasonable; disputed whether termination could be a valid escalator position
- Jury found for Mineo on both claims; Milhauser moved for JMOL arguing termination cannot be a reemployment position; district court denied; appellate review affirms
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination can be a reemployment position under USERRA | Milhauser argues termination is not a valid escalator position | Mineo argues termination can be a valid escalator position under USERRA | Yes; termination may be an escalator position under USERRA |
| Whether the escalator instruction properly allowed termination as a reemployment position | Milhauser contends the instruction improperly permitted termination as a reemployment position | Mineo contends the instruction correctly stated the escalator concept | Instruction permitted termination as a possible escalator position and supported by the record |
| Preservation of challenge to the instruction and alternative arguments | Milhauser argues there was a discretionary termination issue not preserved for appeal | Mineo argues postverdict grounds not properly preserved | Milhauser's preservation arguments are not addressed on appeal; court affirms without reaching automatic-termination issue |
Key Cases Cited
- Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275 (U.S. 1946) (established escalator principle; reemployment in the position would have occupied)
- Derepkowski v. Smith-Lee Co., 371 F. Supp. 1071 (E.D. Wis. 1974) (termination recognized as a possible escalator position)
- Mead Corp., 533 U.S. 218 (U.S. 2001) (Chevron-like deference to agency interpretations of USERRA regulations)
- Two Rivers Bank & Trust v. Atanasova, 686 F.3d 554 (8th Cir. 2012) (standard review for JMOL is de novo; pre-verdict preservation rule)
- Rockport Pharmacy v. Digital Simplistics, 53 F.3d 195 (8th Cir. 1995) (post-verdict grounds not preserved if not raised earlier)
- Conseco Fin. Servicing Corp. v. N. Am. Mortg. Co., 381 F.3d 811 (8th Cir. 2004) (preservation requirements for JMOL grounds)
- Derepkowski v. Smith-Lee Co., 371 F. Supp. 1071 (E.D. Wis. 1974) (termination as escalator position under USERRA)
- United States v. Mead Corp., 533 U.S. 218 (U.S. 2001) (treats agency interpretations with deference)