Military Employment Law Doesn't Protect Temp Worker

An Air Force reservist who was fired from his temporary job at Rolls-Royce Corp. cannot sue the company for discrimination under a federal military employment law because it applies only to permanent employees, an Indiana federal judge has ruled.

U.S. District Judge Larry McKinney also found ample evidence that Rolls-Royce would have fired plaintiff Rick Madden for poor performance anyway.

In 2003 Madden applied for an engineering position through CDI Corp., which provided contract staffing services to Rolls-Royce, the opinion says. The companies' agreement specifically stated that CDI was an independent contractor and not an agent of or joint employer with Rolls-Royce.

According to the opinion, the automaker hired Madden as a process engineer and told him that the position was for 90 days only and would not became permanent unless the company still needed such services after three months.

Rolls-Royce decided to fire Madden after receiving multiple complaints about his performance, Judge McKinney said. However, before it could notify CDI of its decision, Madden was called up for military duty in May 2003.

Madden claimed that Rolls-Royce never said his performance was lacking and instead told him he would be fired because he was leaving the company anyway to fulfill active duty, the opinion says.

When Madden returned from military duty in July 2003 he asked CDI if he could return to Rolls-Royce. Because CDI's contract with Rolls-Royce was set to expire soon, the company said it could not help him, the opinion says.

According to the opinion, Madden subsequently applied for several jobs at Rolls-Royce but the company declined to rehire him.

Madden sued Rolls-Royce in the U.S. District Court for the Southern District of Indiana, alleging violation of the Uniformed Services Employment and Reemployment Rights Act.

USERRA aims to prohibit discrimination against people because of their military service.

He alleged that Rolls-Royce unlawfully failed to reinstate him to his previous position when he returned from duty in July 2003 and failed to re-employ him in any of the positions he applied for when he returned.

Judge McKinney granted Rolls-Royce's motion for summary judgment.

He said Madden could not "reasonably believe" that he was a permanent employee, the only type covered under USERRA.

The judge also found no evidence that Madden was laid off because of his military status. Rather, the evidence showed that he was fired for poor job performance.

Even if Madden had established a prima facie case of discrimination under USERRA, Rolls-Royce provided sufficient evidence to suggest that it would have fired him regardless of his military activation, according to the judge.

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Madden was represented by Mark Waterfill and William O'Connor of Dann Pecar Newman & Kleiman in Indianapolis.Counsel for Rolls-Royce was Brandon Shelton, Brian McDermott and Todd Kaiser of Ogletree, Deakins, Nash, Smoak & Stewart in Indianapolis and Tracy Miller of the firm's Phoenix office.