Labor & Employment Law Daily Wrap Up, USERRA, VETERANS—N.D. Ill.: Returning servicemember’s failure-to-accommodate disability claim may proceed to trial, (Apr 3, 2025)

By Nadine E. Roddy, J.D.

A reasonable jury could conclude that the servicemember’s new position was not equivalent to his former one in seniority, status, and pay.

A servicemember returning to employment raised material fact questions concerning whether his employer reasonably accommodated his service-related disability as required by the USERRA, a federal district court in Illinois has ruled. However, his USERRA reemployment and retaliation claims were insufficiently supported (Washington v. Cook County, No. 1:23-cv-01842 (N.D. Ill. Mar. 31, 2025)).

Military leaves of absence. An employee of a county hospital who had served in the Army Reserves for more than a decade brought suit against the county, asserting claims of failure to reinstate, failure to accommodate a disability, and retaliation under the USERRA and parallel Illinois law. He had taken leave for active military service a number of times during his employment until a service-related disability forced him to retire from the military.

Return to work. Since his initial hiring by the county, the employee had worked as a Dietitian IV at pay grade 20 in the food services department of one of the county’s hospitals. His job responsibilities included developing menus and managing subordinate supervisors, cooks, and food service workers. When he returned to work after his final military leave, which lasted three years, he had a serious medical condition resulting from a “botched heart procedure” he received while on duty in Kuwait. His medical provider submitted a list of work restrictions to the hospital, and a supervisor approved his return to work in his former position subject to those restrictions.

Accommodation request. After several months, the employee complained that his job had not been modified to fit his restrictions, as he was required to spend more than two hours a day on his feet and to perform other tasks that exceeded his limitations. He also claimed that he was facing “hostilities and retaliation” for making the complaint, and he requested a job transfer. The employee’s supervisor attempted to accommodate him further by offering him an office closer to the kitchen. Subsequently, after his physical condition worsened, his doctor submitted a new list of temporary restrictions, limiting the employee to “desk work mostly.” The director of the employee’s department replied that the restrictions could not be accommodated in the employee’s position as Dietitian IV.

New job. After going through the interactive process, the employee was offered and accepted a new position at a higher pay grade as an Administrative Analyst III at a different county hospital. As a probationary employee, he lost his career service status because of the job change. He was also no longer eligible for overtime wages. He filed suit against the county one month after starting the new job. Following discovery, the county moved for summary judgment.

Failure to reinstate. The court noted that under USERRA a servicemember is entitled to reemployment in the position the servicemember would have occupied if their work had not been interrupted by military service (the “escalator position”). If a returning servicemember has a service-related disability that renders them unqualified for the escalator position, they may be employed in any other position that is equivalent (or the nearest approximation) in seniority, status, and pay, the duties of which the person is or could become qualified to perform.

In this case, the summary judgment evidence showed that the employee would likely have remained a Dietitian IV even if he had not left for active-duty service, as that position was the top of the hierarchy for that role. Thus, he had been returned to the escalator position, despite some minor changes in his job responsibilities.

Failure to accommodate. The court then found that the hospital staff had made reasonable efforts to accommodate the employee’s reduced physical capacity upon his return to the Dietitian IV position. The employee’s evidence supporting his assertion that his medical restrictions were not accommodated at all was inadmissible hearsay. In contrast, the county’s evidence showed that the employee had been offered an office closer to the kitchen as an accommodation. The only conclusion to be drawn from the record was that, despite reasonable efforts to accommodate him, the employee was simply not qualified to perform the duties of a Dietitian IV after his return from military service.

The employee then argued that the Administrative Analyst III position was not equivalent (or the nearest approximation) in seniority, status, and pay because he had lost the career-service status that he held as a Dietitian IV—a union position. His new role was probationary for the first year, meaning that he was an at-will employee without seniority and lay-off bumping rights. This difference was enough to raise a material fact question on the issue of equivalence of positions.

Retaliation. The employee argued that the hospital staff had subjected him to a hostile work environment (HWE) in retaliation for his accommodation-related complaints. The court determined, however, that he had not shown harassment that came anywhere close to being actionable as an HWE. Requirements that he punch a time clock, write a memo, and alleged incidents of eye-rolling and door-slamming by his supervisor, were plainly insufficient.

For these reasons, the court granted summary judgment for the county on the reemployment and retaliation claims but denied it on the failure-to-accommodate claim.

The case is No. 1:23-cv-01842.

Judge: Seeger, S.

Attorneys: Peter T. Manikowski (Manikowski Law Office) for Justin Washington. William Yung, Cook County State’s Attorney's Office, for Cook County.

Companies: Cook County

Cases: USERRAVeterans Discrimination DisabilityDiscrimination Retaliation IllinoisNews