Justia Military Law Opinion SummariesArticles Posted in U.S. Court of Appeals for the Sixth Circuit
Harkness v. Secretary of Navy
Harkness was commissioned as a Navy Chaplain Corps officer in 1987, endorsed by a non-liturgical Christian church. Harkness left active duty in 1995 and took reserve status. In 2000, Harkness and other non-liturgical chaplains sued the Navy, alleging systemic denominational prejudice in its promotion procedures. That suit is still pending. In 2007, Harkness was denied promotion by a reserve officer promotion board. Harkness requested a special selection board (SSB). The petition was denied. Harkness filed suit in 2010, challenging (10 U.S.C. 14502(h)(1)) the SSB denial and the promotion procedures. The Sixth Circuit affirmed dismissal of the constitutional claim for failure to exhaust administrative remedies. In 2012, the Secretary convened an SSB to reconsider the 2007 decision. It did not select Harkness for promotion; Harkness unsuccessfully requested a second SSB. In 2013, Harkness was again denied promotion and unsuccessfully requested an SSB, alleging that procedures employed by promotion boards produced denominational preferences and challenging the delegation of governmental authority to chaplains serving on promotion boards without effective guarantees that the power would be exercised in a neutral, secular manner. In filing suit, Harkness added a First Amendment retaliation claim. The Sixth Circuit affirmed dismissal of all claims. the 2013 promotion board was not constitutionally infirm; the denial of Harkness’s 2013 SSB request was not arbitrary, capricious, or otherwise contrary to law under section 14502(h)(1). View "Harkness v. Secretary of Navy" on Justia Law
Savage v. Federal Express Corp.
Member of Naval Reserve, terminated by private employer, established a prima facie case under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Savage worked as an aviation mechanic for FedEx, 2001-2012, simultaneously serving as a lieutenant in the Naval Reserve. He was terminated by FedEx for violating its reduced-rate shipping policy and acceptable conduct policy. He had never been disciplined before his termination; he claims he was unaware of a change in policy that prohibited use of an employee discount for shipping items sold on eBay. FedEx had accommodated his military duties and employs other members of the military. Savage had complained, to a third-party administrator, about a miscalculation in his pension benefits. Savage claimed discrimination, retaliation, and improper benefit calculations under USERRA, 38 U.S.C. 431. The district court granted FedEx summary judgment. The Sixth Circuit reversed in part, finding that Savage provided evidence of a genuine dispute of material fact as to whether FedEx correctly calculated his pension contributions under section 4318. Savage also provided evidence of disparate treatment, motivated by his protected status, with respect to misuse of the shipping discount, sufficient to survive summary judgment. The court concluded that Savage had not been targeted for investigation. View "Savage v. Federal Express Corp." on Justia Law
Slusher v. Shelbyville Hosp. Corp.
Slusher, an orthopedic surgeon and military reservist, worked at Heritage, a small hospital in Shelbyville, Tennessee, through a staffing service, on 30-day assignments beginning on July 20, 2010. Slusher was offered, but did not accept, a permanent position. He agreed to a one-year contract in January 2011, which could be terminated by either party for any reason upon 90 days’ notice or by Heritage, effective immediately, with 90 days’ pay instead of notice. It did not provide for renewal or extension. Heritage knew that he could be called up for deployment. On May 4, 2011, Slusher received orders. Before Slusher’s deployment, Heritage informed him that it had interviewed another physician for the orthopedic surgeon position. Heritage granted Slusher military leave. He reported for active duty on June 10. While he was in Iraq, Heritage informed Slusher that it was nearing a contract with Mosley. Slusher later signed a termination agreement, specifying that his employment would end on October 26. Slusher returned to Heritage, where Mosley had begun working, on October 3, and worked there until October 26, 2011. Slusher filed a complaint with the Veterans’ Employment and Training Service. After the Department of Labor closed its investigation, Slusher filed suit, claiming discrimination under and violation of the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301-35 and breach of contract. The Sixth Circuit affirmed summary judgment in favor of the defendants on each claim. View "Slusher v. Shelbyville Hosp. Corp." on Justia Law