There is no indication in the record that Patton, the managing director who made the termination decision, had knowledge of either Savage's service or complaints. Savage asserts that the company's statements, policies, and practices reveal FedEx's hostility toward service members who exercised their rights under USERRA. However, the power to suspend employees pending an investigation has come under close scrutiny over the last number of years in a number of high profile cases. I was suspended without pay for three weeks while my employer had to "investigate" my situation. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. Anderson, 477 U.S. at 255. It is important to note that the corporation has its internal grievance procedures to use as a guide . 1. Bolin v. NLRB, 70 F.3d 863, 871 (6th Cir. Enforced compensatory or enforced annual leave cannot be used for this 260-hour period. R. Civ. Title: Suspension Pending Investigation Outcome or Termination Replaces: ACA: N/A Statutes: N/A Effective Date: 1/1/15 Page: 1 of 5 PRS.11.11, 4/1/12 . They try to get you to share sensitive personal account information or send payment. However, simply because FedEx might have used a method of calculation more favorable to Savage, does not mean that it failed to comply with USERRA. Savage alleges that by terminating him for violating the reduced-rate shipping policy, FedEx discriminated against him for performing his military service and retaliated against him for complaining about the calculation of his pension benefits. An employee is suspended when they are temporarily excused from their duties and are not required to attend work during the suspension period. FedEx argues that the conduct leading to Savage's termination occurred well before he contacted the retirement center, and that Savage's intervening complaint may not shield him from the consequences of earlier misconduct. FedEx did not dispute that Savage's hours were not reasonably certain and therefore employed a 12-month look-back method. Employer's Valid Reason for the Adverse Action. Savage also argues that his long period of leadership within the mechanic group in raising USERRA-related issues made him a target for an adverse employment action, and is another factor that could lead a jury to infer that his termination was motivated by discrimination and retaliation. This would be the default position for many employers where there is an allegation against an employee and an investigation is to be carried out to look at the merits of the allegations. Hanson, however, merely discusses when compensation is not reasonably certain, and Hanson's employer did not provide evidence challenging Hanson's pension contribution calculations. 2009). Wash. 2014) (granting summary judgment to the plaintiff on his USERRA pension claim where his compensation was not reasonably certain and he offered unchallenged evidence of his earnings for the 12 month period before his deployment to calculate the appropriate amount of pension contributions instead of the defendant's estimation based on the number of hours his position was approved to work); Arocho v. Cent. Suspension with pay shall not be deemed disciplinary action and shall not be subject to appeal. The Deputy Head may extend the suspension for an additional 30 days if further investigation is necessary. Based on the 33 days between Savage's protected activity and his suspension, and the 41 days between his activity and his termination, we find that temporal proximity raises an inference that the adverse action was motivated by Savage's protected activity. Lott passed on the results of Williams's investigation, which recommended termination, to Patton, who followed this recommendation. FedEx also argues that Savage's last complaints were made to Mercer employees at the retirement benefits center, and so the inquiries cannot be attributed to FedEx. 4318(b)(3). The employer contacted their advisers who took the view that this was gross misconduct and, as such, a suspension pending investigation was warranted. As an initial matter, FedEx argues that Savage presents a new theory on appeal that was not raised before the district court and is therefore waived. 2. Criminal charges were brought against the Plaintiff but were ultimately dismissed. Savage was terminated on September 20, 42 days after completing military service and a little over a month after he contacted the FedEx Retirement Center about his benefits. The total period of suspension pending investigation may not exceed 60 days. 4311(c); cf. I concur with the majority's opinion regarding Savage's discrimination and retaliation claims under USERRA. States, Se. If your interaction with the website resulted in financial loss, you should contact your bank immediately. 2009). FedEx responds with evidence that it accommodated Savage's military leave and training multiple times over his employment without issue, including allowing him to train at work and to use FedEx planes to go to military service. A number of factors can create an inference of discrimination or retaliation, including: proximity in time between the employee's military activity and the adverse employment action, inconsistencies between the proffered reason and other actions of the employer, an employer's expressed hostility towards members protected by the statute together with knowledge of the employee's military activity, and disparate treatment of certain employees compared to other employees with similar work records or offenses. When the employee returned, she was suspended on full pay pending an investigation into her misconduct, namely, failing to comply with management instructions and a period of absence in July 2017 . 4318. What kind of leave is an employee on while on suspension pending investigation? I was placed on suspension without pay pending the investigation. To the extent that FedEx could anticipate that Savage would be on military service leave for shifts where he was scheduled to receive differential pay or overtime pay, Savage's rate of pay would not be uncertain and FedEx may not need to employ a 12-month lookback to determine Savage's average rate of compensation. Cir. 4311(c); Hance, 571 F.3d at 518. Hance, 571 F.3d at 518 (quoting Sheehan v. Dep't of Navy, 240 F.3d 1009, 1014 (Fed. For the foregoing reasons, we AFFIRM in part and REVERSE in part the district court's grant of summary judgment to the defendants. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at . These are: An allegation of gross misconduct. Use secure payment methods that can assist with identifying and disputing fraudulent activity. Savage states that FedEx should have calculated his earnings (his compensation) for pension purposes using only the average of all of his earnings from the 12 months before each period of military service. However, an employer can impose an . Kenneth Savage worked as a Senior Aircraft Mechanic at FedEx's Memphis hub from August 2001 to September 2012. Though his name was generated from an additional pull of the top shippers, the record reflects that new list was made because many of the employees on the original list were already being investigated. Workplace risk to an expectant mother. In further compliance with the Code of Conduct, the Grand Chief is suspended with pay pending the outcome of this investigation and/or direction of NAN Chiefs. Savage therefore asserts that FedEx should have completed an additional step, determining Savage's average work hours, before multiplying Savage's average rate of pay by his average work hours. As discussed at oral argument, FedEx determined the number of leave hours by relying on work schedules that were created in advance of Savage's military service leave. The evidence presented is close on whether Savage has met his initial burden to show by a preponderance that his protected status was a motivating factor in the adverse action taken against him, but we find that he has offered sufficient circumstantial evidence to draw an inference that satisfies his burden at the prima facie stage. The focus of our inquiry in a USERRA claim is whether the plaintiff and his proposed comparators engaged in acts of comparable seriousness, and whether their different treatment gives rise to a reasonable inference of discriminatory motivation. 4311 and a claim under USERRA's pension provision, 38 U.S.C. Learn more about FindLaws newsletters, including our terms of use and privacy policy. Suspension with full pay. See 38 U.S.C. There are three main reasons why you might suspend an employee from work. 431 et seq. 2008).2. From: BillingOnline@fedex.com To: Subject: Pay your Fedex invoice online. Your parcel has arrived at the post office an November 19. The spoofing email may request unauthorized access to confidential data. Informing the employee. Below are tips to help keep you safe. A. USERRA Discrimination and Retaliation Claims. The general statement that the employee will be suspended with/without pay. In phone phishing, you may receive a message asking you to call a number. On appeal, Savage refers to warning letters sent by FedEx to three employees accused of violating the discounted shipping policy in a similar time frame, none of whom were terminated. FedEx responds that Savage was only disciplined after he admitted to repeatedly violating the reduced-rate shipping and acceptable conduct policies, and that the investigation into his actions began only after his name appeared on an automatically generated quarterly audit list. Our postrider was unable to deliver the parcel to your. Though Lott and Turnipseed testified that they were not aware of an employee who had not been terminated for violation of the shipping policy, termination under the policy is discretionary. 1002.267 (interpreting 4318 to state that [w]here the rate of pay the employee would have received is not reasonably certain the average rate of compensation during the 12-month period prior to the end of uniformed service must be used) (emphasis added). A High Court decision from April, 2015 provides helpful clarification about suspending an employee as a precautionary measure pending an investigation. Savage was told that he violated the shipping policy numerous times, though he contends he was never informed how many shipments were improper. All rights reserved. We have not considered any specific ceiling on the period of time that a court will consider sufficient to show temporal proximity. Id. Allowing FedEx to calculate his earnings based on its estimate of his hours worked during a current leave is thus at odds with the look-back rule in 4318. FedEx used two steps to calculate his pension benefit contributions: (1) estimating Savage's hourly rate of pay from the 12-month look-back period; and (2) estimating his imputed earnings by multiplying this rate of pay by the number of hours FedEx estimated Savage would have worked each day he was on military leave. 4311(b). If anything this company is smart and their HR knows whats what. Please do not reply to this message. FedEx then calculated Savage's imputed earnings using the equation (Average Rate of Pay multiplied by Imputed Hours of Work Missed for Military Service) = Imputed Earnings, and determined that he had earned a total of $92,463.50 for the periods he was on military leave. Co., 571 F.3d 511, 518 (6th Cir. They'll do it before if they need the employee's information and witness names before they can complete the investigation. He also raised the issue with the FedEx Retirement Center, which is not a FedEx entity but a specific group of Mercer employees. The suspension occurred 34 days after he had completed a period of military service, and less than a . Savage states that he continued to make complaints through July and August. He argues that FedEx's method erred with its second step because the calculation expressly relies on hours that FedEx estimated Savage would have worked during his current military leave. 38 U.S.C. Please note that this link will expire in 48 hours from the time of your e-mail address reset request. Once the plaintiff has established his prima facie case, the employer then has the opportunity to come forward with evidence to show, by a preponderance of the evidence, that the employer would have taken the adverse action anyway, for a valid reason. Hance v. Norfolk Southern Ry. Your Name. I agree that the court may consider Savage's claim, but I would hold that Savage has failed to demonstrate that FedEx's method of calculating his average rate of compensation, in order to determine the appropriate amount that FedEx should contribute to his pension, violates 38 U.S.C. In some cases, temporal proximity alone may be sufficient. The parties do not dispute that Savage's rate of compensation is not reasonably certain, because Savage was, at times, entitled to shift differential pay, overtime pay, and premium license pay during his tenure at FedEx.1 Instead, Savage criticizes FedEx for relying on his scheduled work hours in their rate-of-compensation calculation, arguing that he often worked more than his scheduled hours. Arocho, 2007 WL 2936216, at *7. As such, where a disciplinary allegation is raised, an employer should only suspend the employee where it is reasonably warranted. In order to be considered an exempt employee, one must earn a minimum of $455 per week or $23,660 per year. Hance, 571 F.3d at 518. If you receive any of these or similar communications, do not reply or cooperate with the sender. May request unauthorized access to confidential data you may receive a message asking you to share sensitive personal account or! The total period of military service, and less than a additional 30 if! 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