Labor & Employment Law Daily Wrap Up, USERRA, VETERANS—S.D.N.Y.: Employer granted dismissal of employee’s USERRA claims for discrimination and retaliation, (Feb 26, 2025)

By Ronald Miller, J.D.

The employee failed to state a claim for discrimination on the basis of his military status because he either failed to plausibly allege an adverse employment action or failed to allege sufficient facts to establish that his military status was a motivating factor in any adverse action.

An employer was granted its motion to dismiss an employee’s claims it discriminated against him on the basis of his military status and retaliated against him under USERRA and New York Military Law. The employee was discharged for failing to report domestic violence incidents involving his wife. The federal court in New York found the employee failed to allege that his military status was a “motivating factor” for a negative performance evaluation in 2009 and the denial of overtime opportunities. Further, his retaliation claims under USERRA also fell short. Thus, the employee’s discrimination and retaliation claims under USERRA were dismissed (Hansen v. City of New York, No. 24-CV-2808 (JMF) (S.D.N.Y. Feb. 24, 2025)).

In July 2004, the employee joined the New York City police department as a police officer. At that time, he was a member of the U.S. Armed Forces. He continued to serve in the military throughout his employment with the NYPD in accordance with procedures laid out in the NYPD Patrol Guide.

Negative performance evaluation. The employee alleged that his military and police duties posed no conflict for his employer until 2009, when he returned from a stint with the Air National Guard and received a negative performance evaluation. Because he refused to “accept and sign” the negative evaluation, his immediate supervisors refused to prepare performance evaluations for 2010 or 2011. The lack of performance evaluations for those years rendered the employee ineligible for promotions.

Further, the employee alleged that one of his supervisors waged “a campaign of harassment” against him due to his military status, including changing his mealtime to the earliest possible time, ordering him to take out the precinct garbage, and assigning him to a fixed post, which reduced his ability to satisfy productivity metrics.

Additionally, the employee alleged that when he left for certain periods of active military duty, his supervisors claimed that they thought he was pretending to be on military service and contacted his military supervisors to confirm that he was under military orders.

Transfer requests. After the employee returned from military leave in May 2012, he applied to work in the Intelligence Division, but his application was denied “based on his lack of performance evaluations for 2010 and 2011.” He also requested a transfer to a different precinct or to change his tour of duty; these requests were denied as well.

The employee alleged that he was also “regularly denied overtime opportunities... due to his being ‘absent’ too often.” Finally, he alleged that, in November 2012, while on active military duty in connection with Hurricane Sandy, a supervisor marked him as Absent Without Official Leave (AWOL). The AWOL designation was later rescinded.

Domestic violence reports. Between 2015 and 2018, the employee and his wife had altercations on three separate occasions. The wife filed Domestic Incident Reports with the police. In June 2018, the employee was arrested and charged. He received an Adjournment in Contemplation of Dismissal in August 2018, and was transferred to the Quartermaster Section where he remained while the employer explored disciplinary charges against him due to his arrest. While on modified duty status, the employee was ineligible for overtime or promotion opportunities.

In April 2021, the employer held a disciplinary trial in connection with the three domestic incidents and the employee’s alleged failure to notify the NYPD about them. In July 2021, the employee was terminated for engaging in domestic incidents, which included physical violence; three counts of failing to notify the NYPD that he had been involved in those domestic incidents; and one count of damage to property.

USERRA claim. The employer contended that the employee failed to state a claim for military service discrimination, retaliation, or hostile work environment under USERRA. Courts in the Second Circuit have held that a two-step burden shifting analysis applies to discrimination claims under USERRA. At step one, the employee has the burden of showing, by a preponderance of evidence, that his protected status was “a substantial or motivating factor in the adverse employment action.” “Military status is a motivating factor if the defendant relied on, took into account, considered, or conditioned its decision on that consideration.” The employer may escape liability” at step two “by showing, as an affirmative defense, that it would have made the same decision without regard to the employee’s protected status.”

In this case, the candidates for USERRA discrimination included (1) the negative performance evaluation in 2009 and associated lost opportunities; (2) the denial of overtime opportunities; (3) the denial of requested transfer and shift changes; and (4) derogatory remarks, being marked AWOL, and “petty harassment.”

Negative review. First, the negative performance review in 2009 did not support a claim because USERRA does not cover the making of “an unfavorable entry on [a] plaintiff’s personnel record.” Even assuming arguendo that the 2009 review was a “proximate cause” of his supervisors declining to prepare performance reviews for him in 2010 and 2011, which in turn made him ineligible for promotions, the employee did not allege that his military status was a “motivating factor” in his supervisors’ entry of the 2009 negative performance review.

Further, the employee’s claim regarding the denial of overtime opportunities suffered from the same fatal defect. The denial of overtime opportunities due to attendance issues cannot, without more, give rise to a discrimination claim under USERRA. The employee’s claim based on his denied requests for a precinct or shift change fared no better. He alleged that the employer denied these requests based on his military-related absences. “[C]ourts have consistently held that a change in schedule, without more, is not an adverse employment action for purposes of a discrimination claim.” Thus, the employee’s allegations surrounding the denial of his transfer requests did not state a discrimination claim.

Finally, the court examined whether the employee’s myriad allegations regarding derogatory remarks, “petty harassment,” and receipt of an AWOL designation constituted a discrimination claim under USERRA. None of the claimed violations involved the denial of “a benefit of employment.” Although the employee alleged that an AWOL designation may have negative consequences, his complaint did not allege that he actually suffered any such consequences as a result of his AWOL designation, which was rescinded.

The employee failed to state a claim for discrimination on the basis of his military status in violation of USERRA because he either failed to plausibly allege an adverse employment action or to allege sufficient facts to establish that his military status was a motivating factor in any adverse action.

Retaliation in violation of USERRA. The employee’s retaliation claims under USERRA fell short as well. A service member claiming retaliation under Section 4311(b) must show that he suffered a “materially adverse” employment action “such as termination, demotion accompanied by a loss of pay, or a material loss of benefits or responsibilities that significantly alters the terms [or] conditions of his employment.” He also “must demonstrate that [his] exercise of [his] USERRA rights was a motivating factor in [the defendant’s] action.

Here, there was no dispute that the employee’s allegations satisfied the first and second elements of a prima facie case of retaliation. He alleged that he submitted two EEO complaints and that the employer was aware of his protected activity. However, his claims failed on the third and fourth elements of the prima facie case requirement.

His alleged acts of retaliation either did not qualify as adverse employment actions or he failed to allege a causal connection between the protected activity and the acts. Specifically, nine of the alleged acts concerned actions taken by the employer in relation to the employee’s domestic altercations. Accordingly, the events surrounding the employee’s domestic altercations and his eventual termination plainly did not state a claim for retaliation under USERRA.

The case is No. 24-CV-2808 (JMF).

Judge: Furman, J.

Attorneys: Maryam Hadden (Parlatore Law Group) for Kenneth Hansen. Amit Parab, New York City Law Department, for City of New York.

Cases: USERRAVeterans Discharge StateLawClaims Retaliation NewYorkNews