677 F. App'x 902
5th Cir.2017Background
- Hernandez, a U.S. Army Reserve officer, missed work after weekend reserve duty when a service-related aggravation of a pre-existing back injury left him unable to report on Monday, July 15, 2013.
- He sought military medical treatment during the drill weekend, was released from duty about 7:30 p.m. on July 14, drove home, slept through a 4:30 a.m. alarm, and went to the ER on July 15; a physician excused him from work until July 16.
- Hernandez texted his supervisor at 7:28 a.m. on July 15 notifying he could not report because he was seeking treatment; he reported in person on Tuesday, July 16 and was later fired that day.
- Results relied on a July 14 telephone call between Hernandez and his supervisor (before Hernandez was released from duty) and its no-call/no-show policy as bases for termination, and the district court found Results prevailed on USERRA claims and awarded costs.
- The Fifth Circuit reviewed de novo legal issues and for clear error factual findings, and concluded Hernandez qualified for reemployment under USERRA § 4312(e)(2)(A)’s convalescence provision and that Results failed to reemploy him in good faith.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hernandez timely "reported" under USERRA § 4312(e)(2)(A) (convalescence) after service-related injury | Hernandez: his service-aggravated injury required convalescence until July 16, so reporting on July 16 satisfied § 4312(e)(2)(A) | Results: Hernandez failed to report on July 15 as required and thus is not entitled to reemployment | Held: Hernandez qualified under the convalescence provision; reporting on July 16 was timely |
| Whether a July 14 phone call satisfied § 4312’s reporting requirement | Hernandez: could not report while still on duty; a pre-release phone call is not reporting under § 4312(e)(1) | Results: the July 14 call constituted reporting, making convalescence provision irrelevant | Held: July 14 call occurred before release from service and did not satisfy the statute’s reporting requirement |
| Whether Results validly reemployed Hernandez and could terminate him the same day | Hernandez: even if he reported July 16, Results never truly reemployed him in good faith because decision to terminate was made July 15 | Results: employer reemployed on July 16 and law permits termination later that day | Held: Results’ decision to terminate was made on July 15; the July 16 "reemployment" was a sham and violated § 4312 |
| Award of costs to Results | Hernandez: statutory bar on taxing costs under USERRA means he cannot be charged costs | Results: district court awarded costs to employer after judgment for Results | Held: reversal for Hernandez vacates award of costs; USERRA bars taxing costs against claimants in any event |
Key Cases Cited
- Bd. of Trs. New Orleans Emp’rs Int’l Longshoremen’s Ass’n v. Gabriel, Roeder, Smith & Co., 529 F.3d 506 (5th Cir. 2008) (bench-trial standard: fact findings for clear error, legal questions de novo)
- Water Craft Mgmt., LLC v. Mercury Marine, 457 F.3d 484 (5th Cir. 2006) (bench-trial review standard)
- New Orleans Depot Servs., Inc. v. Dir., Office of Worker’s Comp. Programs, 718 F.3d 384 (5th Cir. 2013) (respect plain statutory language)
- Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299 (4th Cir. 2006) (§ 4312 entitles immediate reemployment but not immunity from later termination)
- Petty v. Metro. Gov’t of Nashville & Davidson Cty., 687 F.3d 710 (6th Cir. 2012) (employer must truly reemploy in good faith under § 4312)
- Chance v. Dallas Cty. Hosp. Dist., 176 F.3d 294 (5th Cir. 1999) (USERRA bars taxing costs against claimants)
- Vahey v. Gen. Motors Co., 985 F. Supp. 2d 51 (D.D.C. 2013) (discussing good-faith reemployment and possibility of continued employment)