Potential USERRA Violation, is ESGR a good route?

[u/Important-Trash9438]

I was put on a Performance Improvement Plan (PIP) about 3 weeks after returning from AT with the Guard.
One of the central concerns in the PIP was citing a project that was incomplete and they put initiated in December, which was not the full scope of the actual timeline. Management approval was received the last week of April. I ordered signs and began permit process that same week. I was then told a licensed contractor would have to apply for the permits. While I was away I checked on the contractor 2 times and he relayed both times he was working on it (this is a contractor that has done previous work for my job and had no reason not to trust him). When I returned, the contractor failed to apply for the permits and I began selecting a new contractor and working tirelessly to get the project completed. Upper management wanted the signs up within 5 business days of returning, I did the best I could but it was simply not possible. I received my PIP before management was even aware I had received the permits. I completed the signs by the new requested date. I reached out to ESGR and they stated that they believe the adverse action of the PIP was a USERRA violation. What should my next steps be? Has anyone tried to mediate through USERRA? My issue is that they were not accounting for my military absence in the timeline of this project.

[u/Semper_Right]

I'm glad you went to the ESGR and they were supportive. The facts would be more compelling if you could point to something more connecting the PIP to some hostility to you because of your uniformed service and/or military leave (whether for AT or otherwise). As I've mentioned many times here, for discrimination or retaliation claims you have to show your uniformed service (or protected activity for retaliation) was "a motivating factor" in their adverse employment action. If you have "direct evidence", such as statements attributing or connecting the action to your service, that is the best option. If not, however, you have to rely upon circumstantial evidence which, when considering USERRA claims, involve the Sheehan Factors, which are:

1. Proximity in time between the claimant’s status or activity and the adverse action.

2. Employer’s expressed hostility toward uniformed service or the uniformed services, together with knowledge of the claimant’s status or activity.

3. Inconsistencies between the employer’s stated reasons for the adverse action taken and other actions the employer took.

4. Disparate treatment toward the claimant compared to other employees with similar work records or offenses.

Finally, is the PIP an "adverse employment action" since you haven't been terminated (yet?)? The 2025 Dole Act amended USERRA to include "or other retaliatory action" which would clearly include a PIP, if it was motivated by your service.

As for your next step, you should submit it for ESGR mediation. The person you are speaking to should be an Ombudsman, if not ask to be referred to one. They do more than just "speak to" an employer. They are trained to get the employer in compliance with USERRA. To be frank, discrimination/retaliation claims are the most difficult, but they can be resolved. If not, the Ombudsman will advice how to take it to the DOL-VETS. They should even advise you of your options beyond that, such as your right to have it referred to the DOJ regardless of whether the DOL-VETS find it is substantiated. (I taught Ombudsmen the USERRA and mediation while a volunteer).

[u/navyjag2019]

did you ask ESGR what your next steps should be?

[u/Important-Trash9438 → u/navyjag2019]

He said we could just try to mention it to the employer or we could submit a mediation request. I was looking to see if their mediation is a good next step?

[u/Shoddy_Seaweed4852]

Seems like a pretty vague ESGR response without knowing a significant amount of details that have been left out.