Guardsman May Sue Employer Over Firing

Wednesday, January 23, 2002

Page 3

Guardsman May Sue Employer Over Firing—Ninth Circuit

By a MetNews Staff Writer

An Oregon man who claims he was fired from his regular job because of his activities as a member of the National Guard may sue his employer for wrongful termination, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court reinstated a portion of John Leisek’s suit against Brightwood Corporation, a wood products firm from which Leisek was fired in 1996 after more than four years of employment.

At the time of his termination, Leisek was a quality assurance inspector. He was a member of the Oregon National Guard at all times while working for Brightwood, and owned and operated a hot-air balloon that he took to various events in order to promote the National Guard.

In 1996, Leisek received several orders to report for temporary active duty at various ballooning events and requested a leave from the company for the summer. Brightwood, which had granted a similar leave the previous year, said it could not spare a worker in Leisek’s position and said it would not approve another lengthy leave.

The company did agree to grant two one-week leaves for events for which Leisek produced orders from the National Guard, but said it would not authorize additional leaves connected with the balloon project. One of the authorized leaves was for an event in Boise, Idaho; the other was for a Wisconsin event beginning one week after the conclusion of the Boise event.

Leisek did not return from Boise, going on to a Colorado event instead. That event was on a list that Leisek had given the company when he requested a leave for the summer, but was not covered by any orders.

Brightwood terminated Leisek for abandoning his duties, and Leisek sued under the Uniformed Services Employment and Reemployment Rights Act of 1994.

The statute prohibits employment discrimination against service members. It provides that a violation occurs whenever service membership “is a motivating factor” in an adverse employment action, unless the employer can show that it would have taken the action even if the employee were not a member of the service.

It also generally requires an employer to reinstate an employee “whose absence from a position of employment is necessitated by reason of service in the uniformed services.”

U.S. District Judge Ancer L. Haggerty granted summary judgment, rejecting Leisek’s anti-discrimination and reemployment claims for failure to establish a prima facie USERRA cause of action.

But Judge A. Wallace Tashima, writing for the Ninth Circuit, concluded that Leisek is entitled to a trial on the anti-discrimination claim.

“Here, the evidence supports an inference that Leisek’s military status was a ‘motivating factor’ in Brightwood’s decision to terminate his employment due to its concern regarding the significant number of absences from work that Leisek’s participation in the [balloon] program required,” the judge wrote.

Under the motivating-factor test, Tashima explained, the plaintiff can prevail even though the employer was justified in terminating him for being absent without leave.

“...Brightwood has not established as an uncontroverted fact that it would have terminated Leisek even if he had not been active in the...program,” the judge wrote. He cited a recent Federal Circuit case holding that a USERRA violation may be established by showing a disparity between the treatment of a service member and that of a similarly situated employee who was not a service member.

Tashima did, however, agree with the district judge that Leisek has no claim for reinstatement. Since his attendance at the Colorado event was not required by military orders, the judge explained, his absence from work was not “necessitated by service in the uniformed services” and did not trigger USERRA reemployment rights.

The case is Leisek v. Brightwood Corporation, 00-35672.