USERRA "Escalator Principle" and "Reasonable Certainty" Test Clarified: First Circuit | Practical Law

USERRA "Escalator Principle" and "Reasonable Certainty" Test Clarified: First Circuit | Practical Law

In Rivera-Melendez v. Pfizer Pharmaceuticals, LLC, the US Court of Appeals for the First Circuit vacated the district court's judgment, holding that the "escalator principle" and "reasonable certainty" test governing reinstatement claims under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) apply to non-automatic, "discretionary" promotions.

USERRA "Escalator Principle" and "Reasonable Certainty" Test Clarified: First Circuit

by Practical Law Labor & Employment
Published on 24 Sep 2013 • USA (National/Federal)
In Rivera-Melendez v. Pfizer Pharmaceuticals, LLC, the US Court of Appeals for the First Circuit vacated the district court's judgment, holding that the "escalator principle" and "reasonable certainty" test governing reinstatement claims under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) apply to non-automatic, "discretionary" promotions.
On September 20, 2013, the US Court of Appeals for the First Circuit issued an opinion in Rivera-Melendez v. Pfizer Pharmaceuticals, LLC, vacating the district court's judgment and holding that the "escalator principle" and "reasonable certainty" test governing reinstatement claims under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) apply to non-automatic, "discretionary" promotions.
Luis Rivera-Melendez (Rivera) had worked for Pfizer in Puerto Rico since 1994, and was promoted to a group leader position in 2004. A member of the US Naval Reserve, Rivera contacted Pfizer to request reinstatement after an active duty tour. Rivera was reinstated to group leader, but that position had effectively been eliminated by the time Rivera returned to work. Therefore, Rivera was assigned to a "special tasks" role with the same salary and benefits, but reduced job responsibilities. Pfizer subsequently appointed him to a service coordinator position with the same salary and benefits, but again fewer responsibilities. He and his wife sued, alleging:
  • Violations of USERRA's anti-discrimination and reinstatement provisions.
  • That Rivera was entitled to be rehired to a supervisory position on his return from active military service.
In August 2011, Pfizer moved for summary judgment. The district court granted Pfizer's motion for nearly all of Rivera's USERRA claims. Specifically, the district court held that Rivera was not entitled under USERRA to be reinstated to a more senior supervisory position on his return from active duty because that position was not:
  • His "escalator position."
  • An "automatic promotion," but instead involved employer discretion.
The district court denied Rivera's motion for reconsideration. Rivera appealed to the First Circuit, requesting that the First Circuit vacate the district court's grant of summary judgment on his USERRA reinstatement claim. On appeal Rivera argued:
  • The district court erred when it held that USERRA's escalator principle and the reasonable certainty test apply only to automatic promotions.
  • That there are genuine issues of material fact regarding the reasonable certainty of his attaining a more senior position if not for the active duty period.
The US filed an amicus brief, also arguing that:
  • The district court's grant of summary judgment must be vacated.
  • The escalator principle and reasonable certainty test apply to both automatic and non-automatic promotions.
  • The proper inquiry should be whether it was reasonably certain that Rivera would have applied for and received the promotion if not for the active duty.
On September 20, 2013, the First Circuit held that the district court:
  • Erred in finding that the escalator principle and the reasonable certainty test apply only to automatic promotions, and because the court did not apply those tests to Rivera's claim, the grant of summary judgment cannot stand.
  • Applied the wrong legal standard, which compromised its view of the evidence.
The First Circuit remanded the motion to the district court for consideration in light of the correct legal standard.
Court documents: