Court Rejects Worker's Military Discrimination Claim

Finds Termination Was Based On His Poor Work Performance

A federal appellate court has rejected a lawsuit brought by a member of the U.S. Air Force Reserve who was fired from a temporary job for incompetent performance. According to the court, any discriminatory motive on the employer's behalf would have had no consequence in light of the employee's poor work record and resume fraud. Madden v. Rolls Royce Corporation, No. 08-1923, Seventh Circuit Court of Appeals (April 29, 2009).

Factual Background

Rick Madden was hired by Rolls Royce for a temporary position as a process engineer. Madden's immediate supervisor, Robin Savin, was a graduate of Purdue's engineering program and was impressed when Madden told him that he had a degree in aeronautical engineering from Purdue.

At the end of the 90-day trial period, Savin decided to terminate Madden's employment rather than offer him a permanent position or terminate another temp employee (who had outperformed Madden). Madden, who is a member of the U.S. Air Force Reserve, alleged that during his termination meeting Savin told him that he was selected because he would soon be called for active duty.

Madden later was rejected for an engineering job with Data Systems and Solutions (DS&S), a supplier owned by Rolls Royce. Madden claimed that the hiring officer referred to his military obligations in denying him the job.

Madden sued Rolls Royce and DS&S for refusing to offer him a permanent job and for refusing to hire him, respectively. The trial judge dismissed the case and Madden appealed.

Legal Analysis

The Seventh Circuit Court of Appeals first noted that the Uniformed Services Employment and Reemployment Rights Act (USERRA) forbids discrimination in employment based on military service. The court found, however, that if an employer has two reasons for taking an adverse action against an employee, only one of which is forbidden under USERRA, and the employer can show that it would have taken the adverse action even absent the forbidden reason, the worker loses.

In this case, the Seventh Circuit took into consideration that Madden had falsely represented that he was a Purdue graduate (he had actually flunked out) and ruled that Madden's performance "was dangerously incompetent." The court also found that even had DS&S been inclined to hire Madden, human resources would have discovered his poor work record and resume fraud and he would not have been hired. "Allowing someone who is not an engineer to do engineering work on aircraft parts, when he had lied about his credentials and confirmed the lie by his poor performance of the job for which he had been hired but was not qualified," the court found, "would be the height of irresponsibility and could get the employer into serious trouble." Thus, the court affirmed the trial judge's decision to dismiss the case.

Practical Impact

According to Brandon Shelton, a shareholder in Ogletree Deakins' Indianapolis office who represented Rolls Royce and DS&S in this case: "This is an important case for several reasons. First, even when dealing with temporary employees it is important to provide documented feedback of poor performance. Second, employers should take every reasonable effort to routinely conduct thorough background checks before hiring or promoting employees. Third, individuals who make employment decisions should be trained to avoid making comments that could be (mis)interpreted as discriminatory. Finally, for attorneys, this case is a unique example of after-acquired evidence being used to avoid liability (as opposed to just limiting damages)."