Military: Uniformed
Services Employment and Reemployment Rights Act of 1994 (USERRA); Staub sued
Proctor under the Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA), which forbids an employer to deny “employment, reemployment,
retention in employment, promotion, or any benefit of employment” based on a
person’s “membership” in or “obligation to perform service in a uniformed
service,” 38 U. S. C. §4311(a), and provides that
liability is established “if the person’s membership . . . is a motivating
factor in the employer’s action,” §4311(c); if a supervisor performs an
act motivated by antimilitary animus that is intended by the supervisor to
cause an adverse employment action, and if that act is a proximate cause of the
ultimate employment action, then the employer is liable under USERRA. In construing
the phrase “motivating factor in the employer’s action,” this Court starts from
the premise that when Congress creates a federal tort it adopts the background
of general tort law. See, e.g., Burlington N. & S. F. R. Co. v. United
States, 556 U. S. ___, ___. Intentional torts such as the one here
“generally require that the actor intend ‘the consequences’ of an act,’ not
simply ‘the act itself.’ ” Kawaauhau Geiger, 523 U. S. 57, 61–62.
However, Proctor errs in contending that an employer is not liable unless the de
facto decisionmaker is motivated by discriminatory animus. So long as the
earlier agent intended, for discriminatory reasons, that the adverse action
occur, he has the scienter required for USERRA liability. Moreover, it is
axiomatic under tort law that the decisionmaker’s exercise of judgment does not
prevent the earlier agent’s action from being the proximate cause of the harm.
See Hemi Group, LLC v. City of New York, 559 S. 1, ___. Nor can
the ultimate decisionmaker’s judgment be deemed a superseding cause of the
harm. See Exxon Co., U. S. A. v. Sofec, Inc., 517 U. S. 830, 837.
Proctor’s approach would have an improbable consequence: if an employer
isolates a personnel official from its supervisors, vests the decision to take
adverse employment actions in that official, and asks that official to review
the employee’s personnel file before taking the adverse action, then the
employer will be effectively shielded from discriminatory acts and
recommendations of supervisors that were designed and intended to produce the
adverse action. Proctor also errs in arguing that a decisionmaker’s independent
investigation, and rejection, of an employee’s discriminatory animus
allegations should negate the effect of the prior discrimination (U.S.S.Ct., 01.03.11,
Staub v. Proctor Hospital, J. Scalia).
Tuesday, March 1, 2011
Staub v. Proctor Hospital
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