USERRA and the “Cat’s Paw” theory

The Uniformed Services Employment and Reemployment Rights Act provides in relevant part:

“A person who is a member of… or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership,… or obligation.” 38 U. S. C. §4311(a).

It elaborates further:

“An employer shall be considered to have engaged in actions prohibited… under subsection (a), if the person’s membership… is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership.”

The central difficulty in many USERRA cases is the “motivating factor in the employer’s action.”  When the company official who makes the decision to take an adverse employment action is personally acting out of hostility to the employee’s membership in or obligation to a uniformed service, a motivating factor obviously exists.  In Staub v. Proctor Hosp., 131 S.Ct. 1186 (2011), the Plaintiff sought to hold the employer responsible for the discriminatory actions of his agents.  The Supreme court ultimately held, “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action,  and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”