Labor & Employment Law Daily Wrap Up, USERRA, VETERANS—N.D. Okla.: Employer’s changed circumstances precluded employee from exercising USERRA reemployment rights, (Aug 6, 2025)

By Ronald Miller, J.D.

The employer has shown that it did not have to reemploy the employee because its circumstances had changed such that his reemployment would have been “impossible or unreasonable.”

An employer was entitled to summary judgment against an employee’s claim that it terminated him and offered a severance package, rather than reemploy him, in violation of USERRA, ruled a federal district court in Oklahoma. Against the backdrop of a declining oil industry, the employer’s multiple layoffs, and pay cuts to remaining staff, the court concluded that the employer’s refusal to reemploy the employee did not violate USERRA (Collins v. Staghorn Petroleum II, LLC, No. 22-203 (JDR) (N.D. Okla. July 30, 2025)).

Active duty. The employer is an Oklahoma-based oil and gas company. The employee began working for the employer as a geologist in August 2016, and continued working until September 2019, when he was involuntarily recalled into active duty by the U.S. Navy.

On February 28, 2020, while the employee was still on active duty, the employer notified him that his position within the company had been eliminated. The employee was one of at least five employees laid off during this period out of an 18-person employee roster.

Salary reductions. While the employee was deployed, the employer voluntarily paid him the difference between his salary and his military pay until March 1, 2020. However, in January 2020, the employer implemented a 17 percent salary reduction for all employees, followed by an 18 percent reduction in April 2020.

Reemployment request denied. The employee detached from the Navy in September 2020 and requested reinstatement at the employer in October 2020 pursuant to USERRA. On November 5, 2020, the employer denied his request, asserting that it was due to a companywide reduction in force. The employee was offered a severance package.

USERRA claims. The employee asserted that the employer had positions available “for which Plaintiff was qualified to perform the essential duties and for which Plaintiff had [the] vested right to bump the employee(s) serving in the position(s).” He alleged the employer discriminated against him because of his military service and violated USERRA by terminating him and allowing other employees to remain in roles that he could have filled.

The employee filed suit against the employer on May 6, 2022, bringing two USERRA claims: (i) denial of reemployment in violation of 38 U.S.C. §§ 4311-4312, and (ii) discrimination in violation of 38 U.S.C. § 4311.

On January 23, 2023, the employer moved for summary judgment, arguing that there is no evidence that the employee was denied reemployment or terminated due to his military service, particularly as the events giving rise to this case occurred “during one of the worst economic crises in oil and gas history.”

Discrimination. Section 4311 prohibits discrimination and acts of reprisal against members of the uniformed forces. An employee bringing a Section 4311 claim “must establish a genuine issue of material fact as to whether his military status was a motivating factor in the adverse employment action to survive summary judgment.”

Reemployment. Section 4312 details the reemployment rights of persons who serve in the uniformed services. An employee seeking reemployment must satisfy the following requirements: (i) the employee’s “absence from a position of employment” must have been “necessitated by reason of service in the uniform services”; (ii) the employee provided “advance written or verbal notice” of his service” to the employer; (iii) the cumulative length of the employee’s service-related absences does not exceed five years; (iv) absent certain exceptions, the employee submits an application for reemployment to the employer; and (v) the employee “must not have been separated from service with a disqualifying discharge or under other than honorable conditions.”

USERRA incorporates the “escalator principle” for reemployment, which provides that an employer shall promptly place a returning service member in “the position he would have held had he remained continuously in his civilian employment.” Under this principle, an employee must “be reemployed in a position that reflects with reasonable certainty the pay, benefits, seniority, and other job prerequisites, that he or she would have attained if not for the period of service.”

Change in circumstances. However, an employer is not required to reemploy a person if: (i) “the employer’s circumstances have so changed as to make such reemployment impossible or unreasonable”; (ii) reemployment under certain provisions of § 4313 (none of which apply here) would pose an undue hardship on the employer; or (iii) the employment was for a “brief, nonrecurrent period” with no reasonable expectation that it would continue indefinitely or for a significant period.

Here, the court granted the employer’s motion for summary judgment because the employee failed to show that a genuine dispute of material fact existed as to whether the employer was motivated by his military status when choosing to terminate his employment and deny him reemployment.

USERRA § 4311. As a preliminary matter, the parties did not dispute that the employee qualified for USERRA’s protections under Sections 4311 and 4312.

Employer’s motivation. Although the employee was terminated while deployed with the Navy, this did not mean he was terminated because he was with the Navy. His termination and denial of reemployment occurred in the context of various cost-saving measures taken by the employer during 2019 and 2020, and the employee did not establish that the employer was motivated by his military service to any degree when taking these actions.

Adverse employment action. Additionally, there was no genuine dispute of material fact that the employer would have taken its adverse employment actions regardless of the employee’s military status.

The facts established that the oil and gas industry, including the employer, were in dire economic straits throughout 2019 and 2020. Both the employee and his direct supervisor were terminated alongside 28 percent of the employer’s workforce. In addition to the reductions in force, employees underwent two salary cuts in 2020. Further, the employee’s department was merged with another department.

Against the backdrop of a declining industry, the employer’s multiple layoffs, and pay cuts to remaining staff, a reasonable jury would find, according to the court, that the employer had a legitimate basis for its employment actions and would have terminated and declined to reemploy the employee regardless of his miliary status.

USERRA § 4312. Normally, the employer would have been obliged to place the employee in the same position “he would have held had he remained continuously in his civilian employment.” However, the employer had shown that it did not have to reemploy the employee because its circumstances had changed such that his reemployment would have been “impossible or unreasonable.”

The case is No. 22-203 (JDR).

Judge: Arias-Marxuach, R.

Attorneys: Mark Allen Smith (Caruso & Smith) for Adam Collins. Jason Alan McVicker (Jayne Peters McVicker Burke Askew & Parker) for Staghorn Petroleum II, LLC.

Companies: Staghorn Petroleum II, LLC

Cases: USERRAVeterans Discrimination Discharge OklahomaNews