Douglas Milhauser v. Minco Products, Inc.

701 F.3d 268, 2012 WL 6028050, 194 L.R.R.M. (BNA) 2801, 2012 U.S. App. LEXIS 24938
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 5, 2012
Docket12-1756
StatusPublished
Cited by8 cases

This text of 701 F.3d 268 (Douglas Milhauser v. Minco Products, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Douglas Milhauser v. Minco Products, Inc., 701 F.3d 268, 2012 WL 6028050, 194 L.R.R.M. (BNA) 2801, 2012 U.S. App. LEXIS 24938 (8th Cir. 2012).

Opinions

MURPHY, Circuit Judge.

After Douglas Milhauser’s employment was terminated by Mineo Products, Inc. (Mineo) as part of a reduction in force, he brought this action under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et seq., a statute requiring that returning veterans be reemployed in an appropriate position. The case was tried to a jury which found for Mineo. Milhauser then moved for judgment as a matter of law, arguing that there was not a legally sufficient basis for the verdict because termination is not a valid reemployment position [270]*270under the statute. The district court1 denied his motion and granted judgment to Mineo, and Milhauser appeals. We affirm.

I.

Milhauser started work as a maintenance technician at Mineo in 2006. Between 2007 and 2009 he took three military leaves of absence, the last one beginning in March 2009. His last deployment concluded prematurely after he was hospitalized by a severe reaction to a vaccine, ending his military service. Milhauser was cleared to return to civilian employment in May and reported to Mineo on June 3, 2009. We review the evidence received at trial in the light most favorable to the verdict. Fair Isaac Corp. v. Experian Information Solutions, Inc., 650 F.3d 1139, 1148 (8th Cir.2011).

During his time working for Mineo, Milhauser’s performance was considered to be inconsistent and sometimes poor. Other employees expressed concern about his attitude and the quality of his work, and he received one written reprimand from his supervisors. Upon return from his first deployment, some of Milhauser’s duties were handed off to other maintenance technicians and replaced with menial tasks.

In 2008 Mineo began experiencing a decline in customer orders. At the end of the year the company posted its first ever annual loss, and customer orders continued to decline in 2009. As a result Mineo began a series of actions to cut costs, including delaying new equipment purchases, reducing overtime, and making pay cuts. Despite these measures, in March of 2009 Mineo decided it had to reduce its workforce. That month it eliminated 18 jobs, which proved to be insufficient so it planned to cut 32 more in June.

As part of this second round of cuts, Milhauser’s supervisor was asked to name four employees of the thirteen he supervised to be considered for termination. Nominations were based on job duties, technical expertise, and subjective factors such as attitude and work ethic. Seniority was not an important factor. In contrast to some of his fellow employees who possessed unique skill sets, Milhauser’s supervisor believed that his areas of specialization duplicated those of other employees and thus could more easily be absorbed by the remaining maintenance technicians. Milhauser was one of the names recommended for termination, and he was dismissed as part of Minco’s second round of job cuts when he reported for work on June 3.

Milhauser brought this action against Mineo, originally consisting of two claims: discrimination on the basis of military service, 38 U.S.C. § 4311, and failure to provide reemployment as required by USERRA. 38 U.S.C. § 4312. His appeal concerns only the second claim. USER-RA guarantees that returning service-members be reemployed in the position they would have occupied had their employment not been interrupted by their military commitment. 38 U.S.C. § 4313(a). In response to Milhauser’s complaint, Mineo asserted that changed circumstances had made reemploying him impossible or unreasonable, an affirmative defense under the statute. 38 U.S.C. § 4312(d)(1)(A). Mineo argued in the alternative that it had not failed to place Milhauser in the proper reemployment position because he would have been ter[271]*271minated even if he had not left for service.

Under USERRA employees returning from military leave shall be reemployed in the “position of employment in which they would have been employed” had their continuous employment not been interrupted by military service. 38 U.S.C. § 4313(a)(1)(A). That position of employment is known as the escalator position.2 It should place the returning employee in the position he or she would have occupied “with reasonable certainty” had employment not been interrupted by military service. 20 C.F.R. § 1002.191. According to Mineo, Milhauser’s position of employment would have been termination in light of the workforce cuts it had been in the process of making at the time.

At trial Mineo presented evidence that Milhauser had been a poor employee and that difficult economic conditions had prompted its reductions in force. The company felt it necessary to cut 32 jobs which included 4 in Milhauser’s department. After considering the productivity of all the workers, Milhauser’s supervisor recommended that he be among those terminated.

After trial but before the case was sent to the jury, Milhauser moved for judgment as a matter of law on his reemployment claim. He argued that Minco’s economic difficulties and subsequent reductions in force were legally insufficient to find that employing him would have been impossible or unreasonable and that he was absolutely entitled to reemployment if the company had no affirmative defense. The court denied Milhauser’s motion.

Following the trial the jury was instructed on the meaning of the escalator principle:

USERRA requires reemployment in the position that [Milhauser] would, with reasonable certainty, have been in had his employment not been interrupted by military service. This is called the escalator position. The principle is that the employee should be in the same position he would have been in had he not taken military leave, no better and no worse.
Depending on what happened during the employee’s absence, the escalator position might be a promotion, demotion, transfer, layoff or termination.

During its deliberations, the jury asked for clarification on whether layoff or termination was a valid “position of employment” under the escalator principle. Milhauser urged the court to instruct the jury that layoff and termination were not possible reemployment positions. He argued that termination was only permissible under USERRA after a finding that reemployment was impossible or unreasonable, not through application of the escalator principle. Mineo argued that in Milhauser’s case, layoff and termination were valid reemployment positions because his position would have been eliminated in its reduction in force regardless of his military service. In answer to the jury’s request for clarification, the court directed it to its earlier instruction on the escalator principle.

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Bluebook (online)
701 F.3d 268, 2012 WL 6028050, 194 L.R.R.M. (BNA) 2801, 2012 U.S. App. LEXIS 24938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/douglas-milhauser-v-minco-products-inc-ca8-2012.