U.S. High Court Finds Employer Liable For Bias That Influenced Firing

WASHINGTON, D.C. - (Mealey's) An employer is liable under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) for its management-level employee's antimilitary bias if that bias is intended to cause an adverse employment action and ultimately is a proximate cause of the adverse action, the U.S. Supreme Court ruled March 1 (Vincent E. Staub v. Proctor Hospital, No. 09-400, U.S. Sup.). 

"Proctor errs in contending that an employer is not liable unless the de facto decisionmaker is motivated by discriminatory animus," Justice Antonin Scalia wrote for the court, referring to employer Proctor Hospital.  "So long as the earlier agent intended, for discriminatory reasons, that the adverse action occur, he has the scienter required for USERRA liability.  Moreover, it is axiomatic under tort law that the decisionmaker's exercise of judgment does not prevent the earlier agent's action from being the proximate cause of the harm. . . .  Nor can the ultimate decisionmaker's judgment be deemed a superseding cause of harm." 

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor joined in the opinion. 

Justice Samuel Anthony Alito Jr. filed an opinion concurring in the judgment but noting that he would reverse the appellate court's opinion based on statutory text, not principles of agency and tort law.  Justice Clarence Thomas joined in that opinion.  Justice Elena Kagan took no part in the decision of the case.  

Vincent Staub worked for Proctor Hospital of Peoria, Ill., and also was an Army reservist.  Staub claimed that in 2000, 10 years after his employment with the hospital commenced, things became strained at work.  He claimed that Janice Mulally, second in command in the hospital's diagnostic imaging department, took over scheduling and gave Staub problems when his reservist schedule conflicted with his work schedule. 

Staub complained about the scheduling problems to department head Michael Korenchuk but alleged that Korenchuk did little to remedy the problem, while making disparaging comments about reservists. 

In February 2003, Staub was called up for active duty.  He ended up serving only 92 days but claimed that Mulally complained about the strain his absence put on the department.  On Jan. 27, 2004, a couple of weeks after Staub notified Korenchuk and Mulally that he would have to report for "soldier readiness processing" (a precursor to active deployment), Mulally gave Staub a written warning for failing to follow orders. 

Staub ran into further issues in April, and on April 20, 2004, he was fired. Vice President of Human Resources Linda Buck made the ultimate decision to terminate Staub but said she relied on Korenchuk's input.   

Staub sued Proctor Hospital in the U.S. District Court for the Central District of Illinois, alleging that his termination violated his rights under the USERRA.  Referencing the cat's paw theory (a theory by which the discriminatory animus of a nondecisionmaker is ascribed to the decisionmaker), Staub argued that Mulally's animus resulted in Buck receiving false information that led to Staub's termination.  The jury agreed with Staub and awarded him $57,640 in damages.  On appeal, the Seventh Circuit panel reversed and remanded with an order to enter judgment in favor of the hospital.  Staub then petitioned the high court. 

[Editor's Note:  Full coverage will be in the March issue of Mealey's Litigation Report: Employment Law.  In the meantime, the opinion is available at or by calling the Customer Support Department at 1-800-833-9844.  Document #73-110311-006Z.  For all of your legal news needs, please visit] 

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