Milhauser v. Minco Products, Inc., 855 F. Supp. 2d 885

Milhauser, a USERRA plaintiff, alleged Mineo discriminated and failed to reemploy after military leave.
Milhauser returned from his third leave in June 2009 and was terminated immediately.
Mineo faced severe 2008-2009 economic decline and implemented reductions in force.
Toohey selected four Maintenance Department employees for termination based on versatility and performance; Milhauser was one of them.
Mineo argued the escalator position could include termination; Milhauser argued termination could not be a reemployment position; the jury found no discrimination or improper reemployment against Milhauser.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether termination can be an escalator reemployment position under USERRA	Milhauser argues termination cannot be a reemployment position	Mineo argues termination may be a permissible escalator position	Termination may be a possible escalator position under USERRA
Whether employer's reduction in force can support impossibility/unreasonable defense	Milhauser contends reduction in force cannot excuse reemployment	Mineo contends reductions can make reemployment impossible or unreasonable	Employer may rely on reductions in force to prove impossibility or unreasonableness
Whether jury instructions properly instructed escalator and defenses	Milhauser contends instruction allowed improper elevation of termination	Mineo argues instructions were fair and encompassed escalator concept	Jury instructions fairly stated law; trial record supports verdict
Whether, given the evidence, Milhauser would have been terminated in the reduction in force	Milhauser asserts he would not have been terminated	Mineo shows Milhauser would have been terminated	Evidence supports Milhauser would have been terminated as part of the RIF; verdict correct

Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275 (Supreme Court, 1946) (escalator principle; veteran not guaranteed automatic promotion; protections against loss of position)
McKinney v. Missouri-Kansas-Texas R. Co., 357 U.S. 265 (Supreme Court, 1958) (automatic promotions/benefits must be inevitable by continued employment; discretion matters)
Goggin v. Lincoln St. Louis, 702 F.2d 698 (8th Cir. 1983) (escalator applies when automatic, not discretionary, promotions)
Levine v. Berman, 178 F.2d 440 (7th Cir. 1949) (adverse consequences possible without seniority; impacts on commissions/pay)
Kay v. Gen. Cable Corp., 144 F.2d 653 (5th Cir. 1944) (reinstatement considerations where position altered by seniority or other factors)