Third Circuit finds that plaintiffs are not required to plead and prove they are objectively qualified for a position in order to sustain failure to promote claim pursuant to Uniformed Services Employment and Reemployment Act.

The Third Circuit was tasked to decide a certified question from the district court, namely, “Must a plaintiff plead and prove that he or she was objectively qualified for the position sought” in a failure-to-promote discrimination suit under the USERRA? The plaintiff was hired as a police officer for the port authority in 1989 and obtained the rank of corporal in 2004. During this time period, the plaintiff was a member of the uniformed services in various capacities. In early 2009, the plaintiff sustained injuries while deployed in Iraq and was in rehabilitation until 2013. However, the plaintiff has not returned to work with the port authority. His lawsuit, though, alleged that while he was in rehabilitation, he applied for a promotion to sergeant with the port authority. While he was interviewed for the position, other individuals were hired for that position. As a result, he alleged a violation of the USERRA. In opposing the claim, the port authority asserted that the plaintiff failed to plead or prove an essential element of the claim, namely, that he was objectively qualified for the position. In particular, it was asserted that the plaintiff was not objectively qualified for the position because he was physically incapable of performing the job duties based upon his injuries. The Third Circuit, however, determined that plaintiffs do not need to establish an initial burden of proving objective qualifications in order to establish a USERRA claim. Rather, a plaintiff asserting the claim of discrimination “[b]ears the initial burden of showing by a preponderance of the evidence that the employee’s military service was ‘a substantial or motivating factor’ in the adverse employment action.” If a plaintiff can establish this initial burden, “[t]he employer then has the opportunity to come forward with evidence to show, by a preponderance of the evidence, that the employer would have taken the adverse action anyway, for a valid reason.” In so holding, the Third Circuit rejected the traditional burden shifting method propounded in other employment discrimination contexts, noting that the framework identified above has been consistently applied to analyze USERRA claims throughout other Courts of Appeals. The Third Circuit did note, however, that, “It is incumbent on employers to raise a plaintiff’s lack of qualifications at the second step of [the] USERRA framework.”

_{Case Law Alerts, 2^nd Quarter, April 2017}

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