Labor & Employment Law Daily Wrap Up, USERRA, VETERANS—E.D. Va.: Former Boeing analyst laid off in RIF due to performance, not prior service in U.S. Army Reserve, (Oct 14, 2025)

By Marjorie Johnson, J.D.

The record demonstrated that Boeing would have taken the same actions with respect to all the challenged decisions regardless of the employee’s service obligation or military affiliation.

Boeing won’t face trial on a former Boeing fleet planning analyst’s USERRA and VEVRAA claims alleging that a senior sales VP removed him from a particular airline account in 2017 due to his Reserve Service, and that subsequent actions—including his manager’s decision to terminate him as part of a companywide RIF seven years later—were the result of his discriminatory removal from that account. Dismissing his claims on summary judgment, a federal court held that VEVRAA did not allow a private action despite the employee’s attempt to attach it to his USERRA claim, and his USERRA claim failed on the merits since the removal from the assignment did not constitute an adverse employment action and was not discriminatory, and there was no evidence that his inclusion in the RIF—two years after he retired from military service—was based on his service and not his subpar performance (Robertson v. The Boeing Company, No. 1:24-cv-1923 (E.D. Va. Oct. 1, 2025)).

In 2015, Boeing hired the employee as a network & fleet planning (NFP) analyst. The hiring managers, one of whom became his direct supervisor, were fully aware that he served and planned to continue to serve in the U.S. Army Reserve. His core responsibilities included analyzing the revenue and operational performance of Boeing aircraft, developing traffic and revenue forecasts, and using optimization models to demonstrate Boeing’s financial advantages.

2017 removal from account. After he was hired, he was assigned to support Boeing’s Hawaiian Airlines account as part of a campaign focusing on the sale of 787-9s and 787-10s. In September 2017, a sales VP met with the team to review the account, and during the slideshow questioned why the NFP portion incorrectly focused on the sale of 787-8s. Afterwards, the VP decided to remove the employee from the account due to his performance shortcomings that were misaligned with the needs of the customer and overall account.

Retires from military in 2022. The employee retired from the military in May 2022. Prior to his retirement, he took the following intermittent, short-term military leave: 12 days in 2016, 21 days in 2017, 17 days in 2018, 5 days in 2019, 12 days in 2020, and 3 days in 2021. In total, he took 70 total military leave days over the course of his nearly 9-year tenure of employment.

Laid off in RIF in 2024. In 2024, Boeing conducted a Reduction in Force (RIF) due to the company's financial position and performance. As part of the RIF, the manager who took over the NFP department in July 2022 was tasked with selecting one NFP analyst for layoff. The manager selected the employee because he was the bottom performer. In particular, the manager had previously removed him from two accounts due to his failure to meet deadlines, lackluster work product, and negative feedback.

No private action under VEVRAA. The employee sued, alleging that Boeing violated USERRA or VEVRAA by removing him from assignments, denying him desirable travel opportunities, failing to promote him, and ultimately terminating him. At the outset, the court tossed his VEVRAA claims, explaining that the Fourth Circuit has found that VEVRAA does not recognize a private right of action, and the employee could not circumvent that limitation by anchoring the claim to USERRA.

Removal from account not adverse. Turning to the merits of his USERRA claim, the court found that he did not suffer an adverse employment action when he was removed from the Hawaiian account or with regard to any subsequent account assignments. Notably, Boeing also removed other team members from the Hawaiian account who were not service members. Moreover, his workload largely remained the same during his tenure, with a mix of types of accounts, and there was no evidence suggesting that certain analysts had more “prestigious accounts” than anyone else, or that any of those who he identified as purported comparators received a bonus or promotions because of account size or tier designation.

Not entitled to desirable travel. He also failed to demonstrate that he suffered an adverse employment action with regard to travel opportunities. He conceded that travel was limited for all NFP analysts due to the COVID pandemic, and there was no evidence he was denied travel during non-COVID years. The court also rejected his subjective preference as to “desirable locations” since work-related travel was not intended as a vacation, and USERRA does not require employers to consider an employee’s individual travel preferences.

No inference of bias. The employee’s theory of his case was that Boeing was motivated by his Reserve service in deciding to remove him from the Hawaiian Account in 2017, and that the remaining ancillary actions—including his termination 7 years later—were the result of his removal from that account. Therefore, by his own admission, if Boeing’s decision to remove him from the Hawaiian account was not motivated by his service, then all his other claims must fail.

But he failed to dispute that his removal from the Hawaiian account was the result of his focus on the sale of 787-8s, despite the expectation for the campaign to focus on 787-9s and 787-10s. Moreover, his testimony that the VP tried to find faults and criticisms of his work were not indicative of discriminatory intent and was unrelated to his Reserve service. Indeed, he admitted that he had only met the VP once, and he never made remarks about his service.

Coworkers’ stray remarks. The employee’s reliance on the stray remarks by two coworkers who were not decisionmakers were insufficient to establish discriminatory intent. Specifically, he alleged that before his removal from the Hawaiian account, a coworker who was also later removed from that account remarked that he was “never around.” He alleged a separate coworker complained that he had to cover for him one weekend when he admittedly may have been on vacation and not on military duty. Neither of these remarks were sufficient to raise an inference of bias since they were not sufficiently egregious, made by a supervisor or someone involved in the decisional process, or proximately connected to an adverse employment action.

No causal connection. He also failed to demonstrate any causal connection between his service and the remaining events he challenged. Indeed, he had no service obligations after he retired from the military in May 2022. Moreover, no reasonable factfinder could conclude that Boeing denied him his vaguely alleged promotional opportunities or terminated his employment because of a mere 20 days of military service over a three-year period, particularly given that the service commitment ended altogether 2 years before his termination.

As to the layoff decision, he failed to refute that the decisionmaker had previously removed him from two airline accounts due to his failure to meet crucial internal deadlines and to produce work product that would help “move the needle forward.” The manager also undisputedly received a complaint about his work from a regional marketing director. Finally, having retired in May of 2022, he had no military obligations as of the date the new manager took over the team or when the performance issues that contributed to the layoff decision occurred in 2023.

The case is No. 1:24-cv-1923.

Judge: Hilton, C.

Attorneys: Joseph Wilkinson, II (Tully Rinckey) for James Robertson. Ashlee Williams (Ogletree Deakins) for The Boeing Co.

Companies: The Boeing Co.

Cases: USERRAVeterans Discrimination Discharge VirginiaNews