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September 06, 2006
Fired for Military Service or Bad Behavior?

A computer consultant for a Virginia firm was also a Naval Reserve officer who was deployed for active duty from March to August 2003. Things did not go well for her at work after her return, and she sued, charging that her employer punished her for performing military service.

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What happened. Cheryl Francis joined consulting firm Booz Allen & Hamilton (BAH) in 1996 and was later placed with the Environmental Protection Agency (EPA), a BAH client. Consultants like Francis performed various levels of work for EPA, with the degree of complexity rising from 1 to 3. However, consultants' salaries and job titles did not vary based on how much work they performed at each level. (Apparently, consultants preferred more complex work.)

When Francis returned from active duty, she found that almost no level 3 work was available. Worse, her shift was changed permanently from 8 a.m.--4:30 p.m. to 10 a.m.--6:30 p.m., a later schedule to which she had been assigned only occasionally. Although the new shift could have conflicted with her evening classes, Francis got colleagues and supervisors to fill in for her. But she charged BAH with violating her rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

Meanwhile, misconduct for which she had been disciplined several times in 2002 continued after her return. She sometimes left her office early without authorization and allegedly was rude to customers, slamming down the phone. This behavior violated BAH's "Core Values." In November, she was put on probation and told she would be fired if she did not improve. But she again left without permission and was fired in mid-December.

She sued BAH for violating USERRA, but a federal district judge dismissed her claims. She appealed to the 4th Circuit, which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

What the court said. Francis had charged that the shift change and loss of level 3 work were adverse steps prohibited by USERRA, that BAH couldn't fire her, and that it had retaliated against her for invoking USERRA. Judges found that EPA had given level 3 work to another vendor and that the agency needed more service on the later shift, neither a change under BAH's control. Further, Francis had been warned about her misconduct, and there was no evidence of employer bias against her active duty. Francis v. Booz Allen & Hamilton, U.S. Court of Appeals for the 4th Circuit, No. 05-1523 (6/22/06).

Point to remember: Rules of at-will employment must be temporarily suspended for those returning from military service­unless the employer has "cause" to demote or terminate a returning worker.

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