Serricchio v. WACHOVIA SECURITIES LLC
2011 U.S. App. LEXIS 18868
| 2d Cir. | 2011Background
- Serricchio, an Air Force Reserve member, worked as a financial advisor for Wachovia with a commission-based pay structure.
- Upon 9/11-era activation, Serricchio was deployed; after service he sought reemployment under USERRA.
- Wachovia delayed reinstatement for about four months and offered a reemployment package with a fixed $2,000 monthly draw and limited accounts.
- Jury found Wachovia violated USERRA by failing to reinstate promptly and by offering a non-equivalent position in seniority, status, and pay.
- District court then ordered reinstatement with a fixed salary for three months for licensing and a nine-month $12,300 draw, plus liquidated damages; Wachovia appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| USERRA demand for reinstatement was unconditional | Serricchio’s December 1, 2003 letter demanding reinstatement was unconditional. | Wachovia contends the letter was not an unconditional demand for reinstatement. | No error; letter constituted an adequate reinstatement demand. |
| Whether the offered reemployment was of like seniority, status, and pay | The offered position did not provide same opportunities or pay as pre-service. | USERRA only requires equivalent rate of pay and seniority, not identical workload. | The district court did not err in denying judgment as a matter of law; no complete evidence absence. |
| Pay adequacy and interpretation of 'pay' under USERRA | Pay includes all compensation, not just commission rate; should reflect pre-service earnings potential. | Only the rate of pay matters if the position provides like status. | USERRA pay includes total compensation; district court’s interpretation correct. |
| Constructive discharge as USERRA violation | Wachovia’s actions created intolerable conditions forcing resignation. | Evidence showed external factors; no intentional plan to render conditions intolerable. | District court’s constructive discharge finding affirmed; willfulness supported by record. |
Key Cases Cited
- Fishgold v. Sullivan Drydock & Repair Co., 328 U.S. 275 (1946) (liberal construction of reemployment rights for veterans)
- Martin v. Roosevelt Hosp., 426 F.2d 155 (2d Cir.1970) (ambiguous reinstatement requests do not defeat rights)
- Loeb v. Kivo, 169 F.2d 346 (2d Cir.1948) (pay/seniority considerations for reemployment)
- Dacey v. Trusteed Funds, Inc., 160 F.2d 413 (1st Cir.1947) (veteran’s reinstatement rights beyond mere title change)
- Knowles v. Citicorp Mortgage, Inc., 142 F.3d 1082 (8th Cir.1998) (evidence of intent in USERRA context)
- Major v. Phillips-Jones Corp., 192 F.2d 186 (2d Cir.1951) (constructive discharge considerations)