Serricchio v. Wachovia Sec. LLC - 658 F.3d 169 (2d Cir. 2011)

Rule:

The Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C.S. § 4301 et seq., guarantees service members a position of like seniority, status, and pay upon their return from active duty. 38 U.S.C.S. § 4313(a)(2)(A). 

Facts:

Michael Serricchio, a member of the United States Air Force Reserve, was employed by Wachovia Securities LLC ("Wachovia") as a financial advisor. In the wake of September 11, 2001, Serricchio was called to active duty. After serving his country, Serricchio requested reemployment at Wachovia, as he was entitled to do under USERRA. Wachovia failed to reemploy Serricchio for a term of nearly four months after he requested reinstatement and ultimately offered Serricchio a reemployment position that set his compensation at the commission rate he had received prior to activation but without regard to the sizable book of business he had established in the months before his military service. A jury found that Wachovia's actions violated USERRA, because the bank failed to reemploy Serricchio "promptly" and because the reemployment position offered to Serricchio was not of equivalent "seniority, status and pay" to his pre-service position. The district court held a separate bench trial on damages, after which it ordered Wachovia to reinstate Serricchio with a fixed salary for three months during which time he was to undergo training to regain his broker's licenses. The district court later denied Wachovia's post-trial motions, and Wachovia appealed.

Issue:

Does USERRA require an employer, who compensated a servicemember on a commission basis prior to his activation, to consider the size of the servicemember's pre-activation book of business in determining the appropriate post-service reemployment position?

Answer:

Yes

Conclusion:

The court held that the fact that Serricchio’s letter requesting reinstatement complained about other actions taken by Wachovia did not negate the fact that it clearly included a demand for reinstatement, triggering USERRA's protections and precluding summary judgment. The evidence supported the jury's finding that Wachovia was not offered reinstatement to a position with the same status and opportunities that he would have had but for his military service. There was likewise ample circumstantial evidence to support the jury's liability finding on the constructive discharge claim. There was no error in the district court's instructions to the jury which accurately iterated the law. There was no error in the district court's findings of willfulness as to the prompt reinstatement claim, and the constructive discharge and the comparable position claims. The district court properly awarded liquidated damages based upon Wachovia’s willful failures to comply with USERRA, and given the broad equitable authority provided by 38 U.S.C.S. § 4323(e) and the liberal construction applied to the USERRA, it did not abuse its discretion in awarding a standard salary to Serricchio as a component of his reinstatement.