Labor & Employment Law Daily Wrap Up, USERRA, VETERANS—D. Colo.: Contemporaneous records undercut employer’s reasons for firing Guard member physician, retaliation and reemployment claims advance, (Sep 3, 2026)

By Mandavi Singh, LL.M.

Board records referenced ongoing litigation and failed settlement efforts, rather than the financial and behavioral problems the orthopedic practice later cited to justify the physician’s termination.

A physician and Air National Guard member may proceed with claims that an orthopedic and spine practice terminated him in retaliation for asserting his USERRA rights and unlawfully failed to reemploy him following military leave. Denying the employer’s partial summary judgment motion, a federal district court in Colorado found factual disputes over whether a series of actions culminating in termination reflected retaliatory motive and whether the practice would have fired him regardless of his protected activity (Peace v. Panorama Orthopedics and Spine Center, Inc., No. 1:23-cv-01027-PAB-TPO (D. Colo. Aug. 31, 2026)).

Military obligations. The physician joined the Air National Guard in 2011 and informed the orthopedic practice of his military obligations when he began working there. As an employee-shareholder, his compensation was governed by a plan factoring in practice revenue and expenses, and he was required to contribute toward overhead.

Between 2021 and September 2024, the physician repeatedly asserted that requiring him to contribute toward overhead while on military leave violated USERRA. He sued the practice in April 2023. The court previously allowed his remaining USERRA discrimination claim to proceed while granting the practice summary judgment on certain earlier claims and its breach-of-contract counterclaim.

The physician also accepted a part-time executive medical director position with CommonSpirit Health after the practice encouraged its physicians to apply. The practice nevertheless required him to meet his full overhead obligations. In November 2023, it discontinued evening clinics, which he used to offset revenue lost to military service and CommonSpirit work, and reassigned a physician assistant who had worked extensively with him. Staffing disputes continued into 2024, during which he repeatedly accused the practice of retaliation.

After the physician notified the practice that he would begin prolonged military leave on October 1, 2024, its board discussed his termination the following day. The meeting notes referenced failed settlement efforts and ongoing litigation but not financial performance or behavioral concerns. The practice terminated him on December 2, prompting him to add USERRA retaliation and failure-to-reemploy claims.

Retaliatory motive. Under 38 U.S.C. § 4311(b), an employer may not take adverse action because an employee exercised USERRA rights. Applying Porter v. Trans States Holdings, Inc., 2025 WL 3772561 (10th Cir. Dec. 31, 2025), the court explained that the physician initially had to show his protected activity was a motivating factor in the adverse action. The practice then had to prove it would have taken the same action absent that activity.

The physician argued that another doctor’s alleged access to his patients’ medical charts was itself an adverse action, but the court disagreed. He offered only speculation that such access was intended to develop grounds for his termination and failed to show that it affected a term or condition of employment.

His termination, however, unquestionably qualified as an adverse action, and the practice did not dispute that his lawsuit and repeated USERRA complaints were protected activity. Although the employer argued that insufficient temporal proximity defeated an inference of retaliation, the physician pointed to an alleged continuing pattern of retaliatory conduct while his lawsuit remained pending.

Citing Hinds v. Sprint/United Management Co., 523 F.3d 1187 (10th Cir. 2008), the court observed that a pattern of retaliatory conduct beginning after protected activity and culminating later in discharge can support retaliatory motive. Here, the practice declined to reduce the physician’s overhead after he accepted the CommonSpirit position, eliminated evening clinics he used to offset lost revenue, and reassigned his longtime physician assistant. Most significantly, the board discussed terminating him after his military leave began, with contemporaneous notes referring to litigation and failed settlement efforts rather than the financial and behavioral concerns the practice later asserted. A jury could find the series of actions demonstrated retaliatory motive culminating in termination.

Same-action defense. Because the physician satisfied his initial burden, the practice had to establish that it would have terminated him even absent his protected activity. Under USERRA, Porter explained, both the burden of production and persuasion shift to the employer, requiring the practice to establish as an uncontroverted fact that it would have taken the same action.

The employer asserted poor financial performance and behavioral problems. The physician had accumulated a substantial negative salary because his generated revenue failed to cover his compensation and allocated overhead. But a jury could find the practice’s own challenged actions contributed to that financial condition. Although it encouraged physicians to seek the CommonSpirit position, the practice did not reduce his overhead after he accepted it and later eliminated the evening clinics he used to generate additional income.

The practice did establish that its physician-assistant staffing decisions would have occurred regardless of the protected activity. His preferred assistant wanted a more consistent schedule, the practice faced staffing shortages, and the physician rejected alternative staffing arrangements.

But the practice failed to establish behavioral problems as an independent reason for termination conclusively. It characterized the physician’s accusations of retaliation as threatening remarks prohibited by its conduct standards, but a jury could view them instead as appropriate responses to conduct he considered suspicious.

The contemporaneous documentation also raised questions. Board minutes discussing termination referred to litigation and settlement problems rather than financial or behavioral concerns. His termination letter gave no reason, he had received no prior reprimands or warnings concerning his behavior, and there was no record that the practice found him to have violated its conduct standards. A jury therefore could find the employer’s asserted reasons pretextual.

Reemployment claim. The physician’s claim under 38 U.S.C. § 4312 also survived summary judgment. The practice conceded that he otherwise qualified for reemployment but invoked the defense applicable when changed circumstances make reemployment impossible or unreasonable.

The court questioned whether that defense applied because it is primarily directed toward structural workforce changes, such as layoffs. The employer instead relied on the physician’s alleged financial and behavioral problems. Even assuming the defense could apply, factual disputes remained over whether those reasons actually motivated his termination. A jury instead could find that the practice fired him because he exercised his USERRA rights. The court therefore denied the employer’s partial summary judgment motion on both claims.

The case is 1:23-cv-01027-PAB-TPO.

Judge: Brimmer, P.

Attorneys: Jonathan Perrone (Centre Law Group) for William J. Peace. Julian G.G. Wolfson (Littler Mendelson) for Panorama Orthopedics and Spine Center, Inc. d/b/a Panorama Orthopedics & Spine Center, P.C.

Companies: Panorama Orthopedics and Spine Center, Inc.; Panorama Orthopedics & Spine Center, P.C.

Cases: USERRAVeterans Discharge Retaliation ColoradoNews