Additional Reason for Failure to Promote is not Indicative of Pretext for Discrimination

A member of the Air Force was denied four promotions to Battalion Chief and Assistant Chief of Administration during a four-year period and sued his employer fire department alleging that these decisions violated the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). While there was sufficient evidence that the employee’s military service was a motivating factor in the promotion decisions, the employee’s claims were denied. As a rule, liability will not occur under USERRA if the employer would not have promoted a service member absent the individual’s membership in the military.To this point, the fire department’s decision-maker testified that the employee was trustworthy, made good decisions, exercised good judgment, and could work with others. The employee argued that this additional reason, first offered at litigation, was unbelievable. It was different than the reason offered at the time of the decisions, his skill level was lower than that of the employees selected for promotion.

The 11th Circuit Court of Appeals disagreed. Although this assessment of the employee’s personal qualities was not expressly shared with the employee at the time of the decisions, it was consistent with the skill-based reason initially offered. The evidence showed that management believed these personal qualities were important aspects of the positions sought and considered them when it evaluated the candidate's skill sets for the positions.The differences in the reasons offered thus did not represent a shift in reasoning that would support a finding of pretext or lack of credence due to the employer. 

For employers, this is a favorable decision that recognizes the failure to share with an employee a specific reason for an employment decision at the time the decision was made does not necessarily prevent the employer from later relying on the previously undisclosed reason during a legal action as a legitimate, non-discriminatory reason for the decision. For more information read Landolfi v. Melbourne, No. 12-14295 (7th Cir. Apr. 5, 2013).

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