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T. Thomas Metier
T. Thomas Metier
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When Can an Employee in the Military Reserve Be Terminated for Violating the Employer’s Attendance Policy?

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In Starr v. QuikTrip Corporation, Inc., No. 17-5024 (10th Cir. March 1, 2018), the United States Court of Appeals for the Tenth Circuit Affirmed the lower court’s ruling.

Paul Starr (“Starr”) was a QuikTrip Corporation (“QuikTrip”) employee who also served in the Oklahoma National Guard. During his service, Starr left QuikTrip temporarily for two deployments. Shortly after returning from his second deployment—a nine-month tour in Afghanistan—QuikTrip fired Starr for repeatedly violating a company attendance policy.  Starr sued QuikTrip for discriminatory termination and premature termination. The district court granted summary judgment in favor of QuikTrip on both claims.

The premature termination portion of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) prohibits employers from discharging a reemployed service member except for cause within one year after the date of such reemployment, if the person’s period of service before the reemployment was more than 180 days. There was no dispute that QuikTrip fired Starr within a year after returning from a deployment longer than 180 days, so the only question was whether QuikTrip had the requisite cause to terminate him. This required QuikTrip to show it was reasonable to fire Starr based on his conduct and Starr had express or implied notice the conduct in question would give QuikTrip cause to fire him. The trial court found that QuikTrip fulfilled the requirements. Starr appealed.

Starr argues the district court erred by excluding evidence of his military service, including critical military documents that stated the many decorations and citations he had received defending this country. This Court disagreed, saying the district court had admitted much of the evidence around Starr’s military service.

Secondly, Starr disliked closing arguments made by QuikTrip. Starr does not argue it rose to the level of plain error and makes no effort to show it satisfies the plain error standard. The Court rejects Starr’s request to reverse on this ground. Starr has not shown there was any reversible error, so the ruling is affirmed.