Labor & Employment Law Daily Wrap Up, USERRA, VETERANS—W.D. Tenn.: Employer denied JMOL in challenge to court’s finding that it violated USERRA, (Apr 10, 2025)

By Ronald Miller, J.D.

The right to reinstatement under USERRA requires that the employment offered be equivalent in terms of proper seniority, position, status, pay, and lost benefits.

In a suit brought by a servicemember alleging that his employer violated provisions of USERRA based on criminal charges levied against him following a time audit, a federal district court in Tennessee denied the employer’s Motion for Judgment as a Matter of Law, or in the alternative a new trial. The criminal charges against the employee were dismissed, but he was terminated after an administrative hearing. Eventually, he was offered reinstatement but declined. After he filed suit under USERRA, a jury returned a verdict in his favor. The court determined that because the employee’s testimony provided a ground for reasonable minds to support the jury’s verdict, the employer was not entitled to JMOL (Ward v. Shelby County, No. 2:20-cv-02407-JPM-cgc (W.D. Tenn. Apr. 9, 2025)).

Misuse of leave. The employee began working for the Shelby County Jail in 1998 while serving in the U.S. Army Reserve. In 2013, the employer performed an audit of the Shelby County Sheriff’s Office (SCSO) Jail Division due to performance issues within the Jail’s Human Resources Office. The audit found instances of alleged misuse of sick leave, FMLA leave and paid military leave. Based on the report, a detective pursued a criminal investigation, which ended in a charge of felony theft of property against the employee.

On November 4, 2014, a grand jury indicted the employee for felony theft of property valued at over $1,000. On December 4, 2015, the charge against the employee was dropped.

On or about October 10, 2014, a detective began an administrative investigation into the employee’s alleged violations of SCSO employment policies, including those relating to leave-time requests, and personal conduct, among other issues. It was concluded that the employee violated SCSO policies. On January 27, 2015, an Administrative Pre-Disciplinary Hearing was held with the employee regarding the allegations of SCSO policy violations. The employee received a Notice of Termination and was dismissed from his employment on April 7, 2015.

USERRA rights. On August 3, 2016, the employee executed an Agreement and General Release regarding his return to work at the SCSO effective September 16, 2016. He was to be paid the equivalent of three weeks of back wages. On September 7, 2016, the employee declined to return to work with the SCSO.

Procedural history. The employee brought this action against the employer asserting violations of USERRA. From April 11 to 13, 2022, the court held an initial trial in this matter. The jury in the initial trial returned a verdict in favor of the employee. Following the verdict, the employer filed a Motion for Judgment as a Matter of Law or new trial. The court denied those motions.

On November 29, 2022, the employer filed an appeal with the Sixth Circuit. In vacating and remanding the case, the Sixth Circuit specifically held that the “issue [of] whether [Plaintiff] believed benefits from the settlement agreement outweighed his USERRA claim is... one for a jury to decide.”

On September 18, 2024, following remand, the trial court agreed with the employee and clarified that the employer bore the burden of proof and “must prove by a preponderance of evidence that, under the totality of the circumstances, ‘[Plaintiff] believed benefits from the [Agreement] outweighed his USERRA claim.’”

From February 4 to February 5, 2025, the court held a trial on the single issue. At the close of proof, the employer made a motion for JMOL. The jury then returned a verdict for the employee.

On February 5, 2025, the court entered a judgment, finding that the employer did not prove by a preponderance of the evidence that, at the time the employee signed the Agreement and General Release, he believed the benefits from the Agreement and General Release outweighed his USERRA rights.

On February 27, 2025, the employer filed a renewed motion for three forms of relief: JMOL; alteration of the judgment in the employer’s favor; or for a new trial.

Limited versus general remand. As an initial matter, the employer argued that the district court erred when it treated the Sixth Circuit’s remand as a limited, rather than general, remand. The court found the employer’s arguments unavailing. The employer cited U.S. v. Moore, 131 F.3d 595 (6th Cir. 1997), for the proposition that “[i]n the absence of an explicit limitation, the remand order is presumptively a general one.” However, the court noted that Moore only established a presumption for a general remand. Here, the court found that the language of the Sixth Circuit’s decision overcame the presumption of general remand in setting out its summary on the issue of the scope of the remand. Thus, the employer had not shown a serious or clear error in the scope of remand to justify a new trial, or amendment of the judgment.

JMOL. The court also found that the employer was not entitled to JMOL on this issue, because it stated no reasons why an error in the scope of remand would warrant JMOL specifically. JMOL is warranted when “a reasonable jury would not have a legally sufficient evidentiary basis” for its finding. There is no weighing of evidence in determining the scope of remand—it is not the province of the jury. Thus, the court did not grant the employer’s JMOL on the legal question of scope of remand.

Burden of proof. Next, the employer argued that the court erred when it determined that it had the burden of proof on the affirmative defense of facially valid and signed waiver. The court found the employer’s arguments unavailing. Because the court found no error of law in its previous analysis, it concluded that the employer had not shown a serious or clear error in the court’s decision on the burden of proof to justify a new trial, or amendment of judgment.

It also found that the employer was not entitled to JMOL on this issue. Again, the employer stated no reasons as to why any error in burden of proof would warrant JMOL specifically. Like the scope of remand, there is no weighing of evidence in determining the burden of proof—it is not the province of the jury.

Jury instruction. Further, the employer argued a new trial is warranted because the court erred in issuing a jury instruction entitled “USERRA Employment Right.” The instruction stated that the right to reinstatement under USERRA requires that the employment offered be equivalent in terms of proper seniority, position, status, pay, and lost benefits. Under USERRA, [Plaintiff] was not obligated to accept an inferior position.

The employer argued that the jury instruction prejudiced it by setting out an objective standard by which the jury could value the agreement and determine personally whether the Agreement provided rights more beneficial than those under USERRA.

The court noted that a new trial is warranted only where the instruction as a whole is “confusing, misleading, and prejudicial.” Here, the court found the employer’s arguments unavailing. First, the jury instruction did not set out an “objective standard” on how the jury may value the Agreement. Rather, it specifically focused on what the employee believed and how the jury may consider his belief. Second, the jury instruction did not include “irrelevant language” regarding reinstatement rights. Thus, the court found that the jury instruction was not prejudicial such that a new trial was warranted, nor was there clear error to justify altering the judgment.

The case is No. 2:20-cv-02407-JPM-cgc.

Judge: McCalla, J.

Attorneys: SaraEllen McCay Hutchison (Law Office of SaraEllen Hutchison) for Sedric Ward. Robert Joseph Leibovich, Shelby County Attorney's Office, for Shelby County.

Cases: USERRAVeterans Retaliation Discrimination Procedure TennesseeNews