Posted on January 26, 2011
An Air Force reservist who claimed that he was denied the right to “reclaim” his civilian job after returning from a deployment to Pakistan was recently awarded the right to pursue punitive damages under a state tort claim for wrongful discharge by the U.S. District Court for the Western District of Pennsylvania. The decision expands the scope of wrongful discharge claims in Pennsylvania and creates a new public policy exception to the Pennsylvania “employment at-will” doctrine.
In Hamovitz v. Santa Barbara Applied Research Inc., 2010 WL 4117270 (W.D. Pa. Oct. 19, 2010), the Plaintiff, Arnold Hamovitz, was working as a civilian airfield manager for the 911th Airlift Wing in Moon Township when he was sent to Pakistan in September 2005. Upon returning home four months later, Hamovitz found that a new company had taken over management of the facility and given his job to someone else. He then filed a federal lawsuit under the Uniform Services Employment and Reemployment Rights Act (USERRA) and the Pennsylvania Military Affairs Act (PMAA) arguing he had been denied the right to reclaim his job after returning.
USERRA, which applies to all U.S. employers regardless of size, guarantees job reinstatement to employees who have informed their employer of their deployment notice prior to taking military leave, have served under honorable conditions, and have timely requested reemployment. Pennsylvania employers must also comply with the requirements of PMAA, which does not require an employee to provide notice before taking leave. If the PMAA conditions are satisfied by the employee, an employer is required to reemploy the individual upon his or her return, unless the employer can show that changed circumstances have made it impossible or unreasonable to do so.
While USERRA entitles successful plaintiffs to reinstatement and lost pay and benefits, PMAA does not provide for economic recovery. Furthermore, neither USERRA nor PMAA entitle the plaintiff to recover for noneconomic or punitive damages such as the emotional distress, humiliation, and embarrassment that Hamovitz claimed he suffered when the Defendants failed to rehire him. For that reason, U.S. District Judge Terrence F. McVerry ruled that the Plaintiff was permitted to pursue punitive damages under a common law wrongful discharge claim while concurrently pursuing claims under USERRA and PMAA.
In his own words, Judge McVerry held that “[a]lthough plaintiff could be reinstated and recover lost pay and benefits if he successfully proves his USERRA claims, there does not appear to be any statutory basis to compensate plaintiff for any noneconomic damages and emotional losses which may have resulted from defendants’ alleged wrongful refusal to hire him or for a full range of punitive damages.” He then added that “in light of the plain language of USERRA, the court finds and rules that plaintiff’s remedies under USERRA do not appear to be exclusive.”
The general rule in Pennsylvania has been that an at-will employee has no cause of action against an employer for termination of employment or “wrongful discharge.” Over the years, however, a number of exceptions to this rule have been recognized, but only in the most limited of circumstances where discharges of at-will employees would threaten clear mandates of public policy. Clay v. Advanced Computer Applications, Inc., 559 A.2d 917, 918 (Pa. Super. 1989). By permitting the Plaintiff in Hamovitz to pursue concurrent claims under USERRA and a common law wrongful discharge claim, Judge McVerry and the U.S. District Court for the Western District of Pennsylvania appear to have carved out a new exception to the Pennsylvania at-will doctrine involving an employer’s refusal to reinstate an employee returning from military leave.
In light of this decision, Pennsylvania employers should be aware that the scope of the common law wrongful discharge claim has been expanded to include claims for “failure to hire” with respect to an employee returning home from military leave. Furthermore, the potential recovery amount has substantially increased for an employee claiming that his or her rights under USERRA and/or PMAAhave been violated.
Article written by Joseph V. Balestrino.