Returning Vet Can’t Seek Punitive Damages in Employment Suit

June 30, 2011 – In The News
The Legal Intelligencer

A federal judge ruled that a soldier returning from Iraq who sued his employer under the federal Uniform Services Employment and Reemployment Rights Act (USERRA) cannot pursue punitive damages under a separate state tort claim for wrongful discharge.

The plaintiff, who worked for Independence Blue Cross (IBC) and was terminated nearly eight months after his return from duty, alleged he was discriminated against on the basis of his military service.

Senior U.S. District Judge Ronald L. Buckwalter said the plaintiff's membership in the U.S. Army Reserve "entitled him to statutory protection against termination without just cause for a designated period of time." As a result, Buckwalter found that he "does not fall within the class of employees Pennsylvania Supreme Court aimed to protect in creating the public policy exemption."

Defense attorney for IBC Howard Flaxman has won the first round of litigation by successfully arguing for dismissal of the second count in the plaintiff's suit.

In his brief, Flaxman stated the plaintiff's employment status was converted "from at-will to one in which he was protected from discharge for a certain period of time except for cause."

As a result, they argued, he cannot also pursue a state law claim for wrongful discharge in violation of public policy because the courts have strictly limited those claims to at-will employees.