On March 1, 2011, the Supreme Court reversed the Seventh Circuit’s grant of judgment as a matter of law for the employer in a Uniformed Services Employment and Reemployment Rights Act (USERRA) case (131 S. Ct. 1186 (2011)), where a jury found the company liable for discrimination under that act. In an unpublished coda, the Seventh Circuit remands the case for a new trial, and along the way tweaks the high court’s opinion a bit.
Staub v. Proctor Hospital, No. 08‐1316 (7th Cir. May 23, 2011): The record at trial established that Staub’s most immediate supervisors (named Mulally and Korenchuk) were resentful of plaintiff’s Army reservist duties, and the strain that such duties supposedly placed on the scheduling of shifts. Damningly, according to trial testimony, Korenchuk referred to Staub’s military service as “‘a b[u]nch of smoking and joking and [a] waste of taxpayers[‘] money.'”
Eventually, Staub was terminated by another agent of the hospital named Buck – the VP of human resources – on the ground that Staub left his desk without informing hospital personnel (although there was evidence that the jury could have believed showing that this reason was false).
The hospital defended the case on the ground that Buck – the person who made the termination decision – had no animus against Staub, while the agents who arguably did harbor animosity were not decision-makers and did not exercise “singular control” over Buck’s decision to fire Staub. The hospital lost the trial, but won judgment as a matter of law on appeal.
The Supreme Court, as noted, reversed the Seventh Circuit (opinion here). It held that Buck’s ignorance of Mulally and Korenchuk’s anti-reservist bias was not determinative of USERRA liability, because the violation was founded on the latter pair’s actions to set Staub up for termination, i.e., by giving (supposedly) false information to Buck about Staub’s absence in order to prompt his termination.
The Court majority opinion (Justice Scalia, writing for six justices) restated the liability standard as follows:
“We therefore hold that 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.” [Emphasis in original, footnotes omitted.]
On remand, the Seventh Circuit faced the issue of whether the employer – having lost the judgment as a matter of law – was at least entitled to a new trial due to instructional error. Plaintiff Staub argued that no new trial was needed: that, having already prevailed at trial under a tougher instruction than the Supreme Court would now require, he simply should have judgment reinstated in his favor.
The Seventh Circuit holds, instead, that it will remand the case for a new trial. It holds that the original jury charge was no longer a correct statement of the law, and was not harmless error. Principally, “[t]he [Supreme] Court’s rule makes no mention of the actual decision maker (Buck). The jury instruction, however, made the decision maker-and how she was influenced – the primary focus.”
The panel finds three material differences between the rule set out in the Staub decision and the actual jury charge: (1) “the Court’s rule requires that Mulally or Korenchuk ‘perform an act motivated by antimilitary animus'”; (2) “the Court’s rule requires that Mulally or Korenchuk perform the act ‘intend[ing] . . . to cause an adverse employment action'”; and (3) “the Court’s rule requires that the act be ‘a proximate cause of the ultimate employment action.'” The panel notes, a bit slyly, that “[w]hether the latter [rule from the Court] is a more demanding test is debatable, but the fact remains that a different showing is required.”
And notably, the panel declines to apply Circuit Rule 36 to the remand. In the Seventh Circuit, under that rule, “[whenever a case tried in a district court is remanded by this court for a new trial, it shall be reassigned by the district court for trial before a judge other than the judge who heard the prior trial unless the remand order directs or all parties request that the same judge retry the case.” While Proctor Hospital did not consent to the same judge, the remand order nevertheless specifies that the same judge will retry the case.