The First Circuit Court of Appeals held that an employer may have discriminated against an employee by not giving him a discretionary promotion upon his return from a military deployment in Rivera-Melendez v. Pfizer Pharm., LLC, No. 12-1023 (1st. Cir 2013).

Under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), employers must ensure employees that take a military leave of absence are reemployed to the position in which it is “reasonably certain” they would have been employed if the “continuous employment … had not been interrupted by such service.”  These requirements were clearly understood to mean that covered employees are entitled to automatic promotions and pay raises that would have been received during their leave; however, the recent First Circuit opinion illustrates that a careful analysis must be applied in the case of discretionary promotions as well.

The case concerned Rivera-Melendez: a Navy Reservist employed full time as an “API Group Leader” at Pfizer Pharmaceuticals.  The employee was called up to active duty in 2008 to serve in Iraq. Meanwhile, Pfizer made some organizational changes to Rivera-Mendez’s department, redefining the employee’s old position and creating several new “API Team Leader” positions.  The Team Leader positions would have represented a promotion for Rivera-Melendez, but because they were posted and filled during Rivera-Melendez’s deployment, he was not given an opportunity to apply for them.

Rivera-Melendez returned from Iraq and resumed employment with Pfizer under the same rate of pay and rank.   Believing he should have received one of the Team Leader promotions, the employee brought suit against Pfizer alleging discrimination under USERRA.  The trial court rejected his claim, finding that since the team leader promotion was not an ”automatic promotion,” Rivera-Melendez could not, as a matter of law, show it was “reasonably certain” that he would have been promoted.

The First Circuit Court of Appeals overturned the lower court’s decision, holding that the “reasonably certain” test is not limited to automatic promotions.  The  Court held that even when promotions are discretionary, an employer must inquire as to “whether it was reasonably certain that the returning servicemember would have attained the higher position but for his absence due to military service.”

Rivera-Melendez and USERRA require employers to scrutinize all promotions – discretionary or automatic – given while a servicemember is deployed.  In addition to accounting for any automatic promotions the employee would have received, employers should thoroughly analyze discretionary promotions that are made during a military employee’s absence, and determine whether it is “reasonably certain” that the servicemember would have received the promotion if he or she were not deployed.

A copy of the First Circuit’s decision in Rivera-Melendez can be found here.