IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-20105

DEREK CARDER, an Individual, on behalf of himself and all others similarly

situated; MARK BOLLETER, an Individual, on behalf of himself and all

others similarly situated; DREW DAUGHERTY, an Individual, on behalf of

himself and all others similarly situated; ANDREW KISSINGER, an

Individual, on behalf of himself and all others similarly situated,

Plaintiffs-Appellants

v.

CONTINENTAL AIRLINES, INC., a Delaware Corporation,

Defendant-Appellee

Appeal from the United States District Court

for the District of Texas, Houston

Before DAVIS, WIENER, and BENAVIDES, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge.

Appellants, members of the United States Armed Forces Reserves and Air

National Guard, are currently employed as pilots by Appellee Continental

Airlines, Inc. (“Continental”). Appellants filed a class-action complaint in the

district court purportedly on behalf of all similarly situated employees at

Continental. The complaint raises a number of claims against Continental

under the Uniformed Services Employment and Reemployment Rights Act

(“USERRA”), a statute adopted to prohibit civilian employers from

United States Court of Appeals

Fifth Circuit

F I L E D

March 22, 2011

Lyle W. Cayce

Clerk

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discriminating against their employees because of their military service.

Appellants filed this interlocutory appeal from the district court’s partial grant

of Continental’s motion to dismiss under Federal Rule of Procedure 12(b)(6). The

district court held that Appellants failed to state a claim for a hostile work

environment because USERRA does not provide for such a claim. We granted

permission to appeal and for the following reasons, we affirm.

I.

Appellants’ class complaint asserts several claims against Continental

under USERRA. The complaint which is the focus of this appeal alleges that

Continental has created a hostile work environment through “harassing,

discriminatory, and degrading comments and conduct relating to and arising out

of” Appellants’ military service and service obligations. This count of the

complaint cites a “continuous pattern of harassment in which Continental has

repeatedly chided and derided plaintiffs for their military service through the

use of discriminatory conduct and derogatory comments regarding their military

service and military leave obligations.” The factual content of this count is based

primarily on Appellants’ allegations that Continental management has (1)

placed onerous restrictions on taking military leave and arbitrarily attempting

to cancel military leave; (2) made derisive and derogatory comments to pilots

about their military service. Examples of these alleged derisive comments

include comments by Continental managers such as the following: “If you guys

take more than three or four days a month in military leave, you’re just taking

advantage of the system.”; “I used to be a guard guy, so I know the scams you

guys are running.”; “Your commander can wait. You work full time for me.

Part-time for him. I need to speak with you, in person, to discuss your

responsibilities here at Continental Airlines.”; “Continental is your big boss, the

Guard is your little boss.”; “It’s getting really difficult to hire you military guys

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because you’re taking so much military leave.”; “You need to choose between

CAL and the Navy.”

Continental moved for dismissal of this hostile work environment claim

under Federal Rule of Civil Procedure 12(b)(6). Continental argued that

USERRA does not prohibit harassment of military members nor otherwise

contemplate a hostile work environment action. The district court agreed. The

district court held that the plain meaning of the phrase prohibiting the denial

of any “benefit of employment” to a member of the uniformed services based on

such membership or the performance of service, 38 U.S.C. § 4311(a), does not

include a cause of action based on a hostile work environment.

Some of Appellants’ other claims were not dismissed. The district court

1

granted certification and this court granted Appellants permission to pursue this

interlocutory appeal of the district court’s order dismissing the hostile work

environment claim pursuant to 28 U.S.C. § 1292.

II.

“We review the district court’s dismissal for failure to state a claim de

novo.” Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir. 2008).

“The court accepts all well-pleaded facts as true, viewing them in the light most

favorable to the plaintiff.” Id. Questions of statutory interpretation are, of

course, reviewed de novo. United States v. Clayton, 613 F.3d 592, 595 (5th Cir.

2010).

III.

The issue in this case is whether USERRA, which was adopted to prohibit

discrimination against members of the armed forces because of that service,

These claims include (1) the claim that Continental violated USERRA by depriving 1

class members employment benefits through discriminatory practices in the underpayment

of retirement contributions, and (2) the claim that Continental denied employment to Plaintiff

Andrew Kissinger and subclass members based on their military service.

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provides a service member with a cause of action against his employer for a

hostile work environment. This dispute narrows to an interpretation of

USERRA’s prohibition against denial of a “benefit of employment” on the basis

of military service, as stated in § 4311(a) and further defined in § 4303(2).

We have little direct authority to guide us. “Neither the Supreme Court

nor any court of appeals has decided whether a hostile work environment claim

is cognizable under USERRA.” Vega-Colon v. Wyeth Pharms., 625 F.3d 22, 32

(1st Cir. 2010). Several circuit courts have assumed without deciding that

USERRA does provide for such a claim while disposing of the claim on other

grounds. Id. at n.9 (citing Dees v. Hyundai Motor Mfg. Alabama, LLC, 368 F.

App’x 49, 53 (11th Cir. 2010); Church v. City of Reno, 168 F.3d 498 (9th Cir. Feb.

9, 1999)); Miller v. City of Indianapolis, 281 F.3d 648 (7th Cir. 2002). A number

of district courts have reached differing conclusions on the merits. Thus, we are

2

the first circuit court to consider whether the statute creates a cause of action

for hostile work environment.

A.

Statutory interpretation begins with the statute’s plain language.

Waggoner v. Gonzales, 488 F.3d 632, 636 (5th Cir. 2007). The plain language of

USERRA is as follows.

Section 4311(a) of the statute (entitled “Discrimination against persons

who serve in the uniformed services and acts of reprisal prohibited”) states the

following:

See, e.g., Dees v. Hyundai Motor Mfg. Alabama, LLC, 605 F. Supp. 2d 1220, 1228 2

(M.D. Ala. 2009) (holding that a USERRA harassment claim is cognizable under USERRA);

Vickers v. City of Memphis, 368 F. Supp. 2d 842, 845 (W.D. Tenn. 2005) (holding that a

USERRA harassment is cognizable if based on a company employment policy); contra BaergaCastro v. Wyeth Pharm., No. 08-1014, 2009 WL 2871148, at *12 (D.P.R. Sept. 3 2009) (holding

that a USERRA harassment claim is not cognizable).

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A person who is a member of, applies to be a member of, performs,

has performed, applies to perform, or has an obligation to perform

service in a uniformed service shall not be denied initial

employment, reemployment, retention in employment, promotion,

or any benefit of employment by an employer on the basis of that

membership, application for membership, performance of service,

application for service, or obligation.

(emphasis added).

In a separate definitions section, the statute defines “benefit of

employment”:

The term “benefit”, “benefit of employment”, or “rights and benefits”

means any advantage, profit, privilege, gain, status, account, or

interest (including wages or salary for work performed) that accrues

by reason of an employment contract or agreement or an employer

policy, plan, or practice and includes rights and benefits under a

pension plan, a health plan, an employee stock ownership plan,

insurance coverage and awards, bonuses, severance pay,

supplemental unemployment benefits, vacations, and the

opportunity to select work hours or location of employment.

38 U.S.C. § 4303(2).

A different section of the statute states the purposes of USERRA:

(1) to encourage noncareer service in the uniformed services by

eliminating or minimizing the disadvantages to civilian careers and

employment which can result from such service;

(2) to minimize the disruption to the lives of persons performing

service in the uniformed services as well as to their employers, their

fellow employees, and their communities, by providing for the

prompt reemployment of such persons upon their completion of such

service; and

(3) to prohibit discrimination against persons because of their

service in the uniformed services.

Id. § 4301(a)(1)-(3)

From the plain language of § 4301(3), it is clear that one of the purposes

of USERRA is to prohibit discrimination and acts of reprisal against service

members because of their service. Section 4311(a) defines this discrimination

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to include the denial of any “benefit of employment.” The language of § 4303(2)

defining the word “benefit” and the phrase “benefit of employment” includes the

long list of terms “advantage, profit, privilege, gain, status, account, or interest.”

But § 4303(2) does not refer to harassment, hostility, insults, derision,

derogatory comments, or any other similar words. Thus, the express language

of the statute does not provide for a hostile work environment claim.

Given the statute’s express prohibition of discrimination against service

members, however, we must also consider the statute’s legislative history and

its underlying policy objectives in an attempt to gain insight into whether

Congress intended to create a cause of action under USERRA for harassment of

service members. See Rogers v. City of San Antonio, 392 F.3d 758, 762 (5th Cir.

2004). We will also compare the language of USERRA to language from other

federal anti-discrimination statutes from which courts have inferred a cause of

action for hostile work environment.

B.

Appellants have pointed to segments of USERRA’s legislative history

stating that the statute was intended to be “broadly construed” and given an

“expansive interpretation” in favor of service members. The Appellants couple

this “broadly construed” language with USERRA’s third express purpose—to

“prohibit discrimination against persons because of their service in the

uniformed services”—to argue that USERRA must be broadly construed as

encompassing a hostile work environment claim in order to carry out the

purpose of prohibiting discrimination against service members.

An administrative decision of the Merit Systems Protection Board

(“MSPB”), Petersen v. Department of Interior, 71 M.S.P.R. 227 (1996), put heavy

emphasis on Congress’s intent that the statute should be broadly construed in

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reaching the conclusion that USERRA allows a hostile work environment claim.

3

Some district courts have followed Petersen and its reliance on this legislative

history to conclude that workplace harassment is actionable under USERRA.

See, e.g., Dees, 605 F. Supp. 2d at 1227; Vickers, 368 F. Supp. 2d at 845.

Continental argues that even considering this legislative history, the

conclusion does not necessarily follow that the term “benefits” of employment

can be interpreted to include a hostile work environment claim. Continental

contends that the term “benefits” cannot be construed beyond all reasonable

textual meaning.

We agree with Appellants that we cannot ignore the Congressional

mandate that the statute be broadly construed to prevent discrimination of

service members. But we are not satisfied that this carries the day for them.

We believe the analysis most likely to provide a more accurate assessment of

Congress’s intent on the narrow question presented to us lies in examination of

the case law interpreting other anti-discrimination statutes.

C.

1.

Hostile work environment claims were first recognized in discrimination

cases decided under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq. (“Title VII”). In originally permitting a plaintiff to assert a hostile work

environment claim in a Title VII case, the Supreme Court relied heavily on Title

VII’s language prohibiting discrimination with respect to the “terms, conditions,

The MSPB has jurisdiction to hear appeals of various federal agency personnel 3

decisions. See 5 U.S.C. §§ 1204, 7701. Appellants have argued that the MSPB’s interpretation

of USERRA is not binding on this court, but merely persuasive. Because Appellants have not

argued for a higher level of deference or directed us to any authority suggesting that Congress

delegated authority to the MSPB to interpret USERRA through decisions having “the force of

law,” especially with regard to private employment, we defer to Petersen based only on that

decision’s “power to persuade.” See United States v. Mead Corp., 533 U.S. 218, 231-32, 121 S.

Ct. 2164, 2173-74 (2001).

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or privileges of employment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,

63-66, 106 S. Ct. 2399, 2404-05 (1986). The Court stated that “‘[t]he phrase

terms, conditions, or privileges of employment in Title VII is an expansive

concept which sweeps within its protective ambit the practice of creating a

working environment heavily charged with ethnic or racial discrimination.’” Id.

at 66 (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)). The Court

4

further held that this broad phrase “evinces a congressional intent to strike at

the entire spectrum of men and women in employment.” Id. at 64, 106 S. Ct. at

2404 (internal quotes and citation omitted).

The Meritor opinion makes clear it is the word “conditions,” in particular,

that the Court relied on in inferring a claim for hostile work environment under

Title VII. For instance, the opinion states that “[f]or sexual harassment to be

actionable, it must be sufficiently severe or pervasive to alter the conditions of

the victim’s employment and create an abusive working environment.” Id. at 67,

106 S. Ct. at 2405 (internal quotes and citation omitted) (emphasis added). The

Court added: “mere utterance of an ethnic or racial epithet which engenders

offensive feelings in an employee would not affect the conditions of employment

to sufficiently significant degree to violate Title VII.” Id. (internal quotes and

citation omitted) (emphasis added).

The Supreme Court has consistently applied this standard: “‘When the

workplace is permeated with discriminatory intimidation, ridicule, and insult

that is sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment, Title VII is violated.’”

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 368 (1993)

The Meritor opinion cited extensively this court’s opinion in Rogers, which was one

4

of the first circuit court opinions to recognize a hostile work environment claim under Title VII

and which relied on the statute’s use of the phrase ‘terms, conditions, or privileges” of

employment. See Meritor, 477 U.S. at 65-66, 106 S. Ct. at 2405.

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(quoting Meritor, 477 U.S. at 67, 106 S. Ct. at 2405) (emphasis added); see also

Penn. State Police v. Suders, 542 U.S. 129, 133, 124 S. Ct. 2342, 2347 (2004) (“To

establish hostile work environment, plaintiffs like Suder must show harassing

behavior ‘sufficiently severe or pervasive to alter the conditions of their

employment.’”) (internal citations omitted) (emphasis added); Oncale v.

Sundowner Offshore Servs., 523 U.S. 75, 81, 118 S. Ct. 998, 1003 (1998) (Title

VII’s prohibition of harassment “forbids only behavior so objectively offensive as

to alter the ‘conditions’ of the victim’s employment.”) (internal citation omitted)

(emphasis added).

We have relied on the same phrase “terms, conditions, or privileges of

employment” in other anti-discrimination statutes such as the American with

Disabilities Act (“ADA”) to infer a cause of action for hostile work environment.

For example, in a statutory question of first impression like this one, this court

interpreted the phrase “terms, conditions, or privileges of employment” used in

the ADA as encompassing a claim for hostile work environment, or “disabilitybased harassment.” Flowers v. S. Reg’l Physician Servs., 247 F.3d 229, 233-35

(5th Cir. 2001). Flowers drew heavily from the Meritor opinion and the fact that

the ADA used the same language as Title VII. Flowers concluded that “the

language of Title VII and the ADA dictates a consistent reading of the two

statutes” and that “[t]herefore, following the Supreme Court’s interpretation of

the language contained in Title VII, we interpret the phrase ‘terms, conditions,

or privileges of employment’ as it is used in the ADA to ‘strike at’ harassment in

the workplace.” Id. at 233 (quoting Meritor, 477 U.S. at 64, 106 S. Ct. at 2404).

Notably, Congress passed the ADA after Meritor. Thus, Congress’s choice

to include the same phrase in the ADA that the Court relied on in Meritor

supports the view that Congress intended to make harassment actionable under

the ADA to the same extent as Title VII. See Merrill Lynch, Pierce, Fenner &

Smith Inc. v. Dabit, 547 U.S. 71, 85-86, 126 S. Ct. 1503, 1513 (2006) (“[W]hen

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‘judicial interpretations have settled the meaning of an existing statutory

provision, repetition of the same language in a new statute indicates, as a

general mater, the intent to incorporate its judicial interpretations as well.’”)

(quoting Bragdon v. Abbott, 524 U.S. 624, 645, 118 S. Ct. 2196, 2208 (1998)).

Other anti-harassment statutes passed by Congress after Meritor have included

the same or similar language from Title VII. See, e.g., 18 U.S.C. § 1514A(a)

(regarding civil actions to protect against retaliation in fraud cases) (“[N]o

covered entity or individual may discharge, demote, suspend, threaten, harass,

or in any other manner discriminate against an employee in the terms and

conditions of employment because of any lawful act done by the employee . . . .”).

(emphasis added).

5

Congress initially passed USERRA in 1994, years after Meritor was

announced. Accordingly, Congress’s choice to not include the phrase “terms,

conditions, or privileges of employment” or similar wording in USERRA weighs

in favor of the conclusion that USERRA was not intended to provide for a hostile

work environment claim to the same extent as Title VII and other antidiscrimination statutes containing that phrase. The significance that the

Supreme Court has placed on this phrase—and particularly on the specific word

“conditions”—cannot be ignored. If Congress had intended to create an

actionable right to challenge harassment on the basis of military service under

USERRA, Congress could easily have expressed that intent by using the phrase

“terms, conditions, or privileges of employment” interpreted previously by the

Supreme Court. See Merrill Lynch, 547 U.S. at 85-86, 126 S. Ct. at 1513. The

fact that Congress did not do so, even though USERRA was passed after the

The Age Discrimination in Employment Act of 1967 (“ADEA”) includes the phrase 5

“terms, conditions, or benefits.” However, “[w]e have never held that the ADEA contemplates

hostile work environment claims.” Mitchell v. Snow, 326 F. App’x 852, 854 n.2 (5th Cir. 2009). 

We have only assumed without deciding that it does. Id.

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Meritor opinion, but instead chose to use the narrower phrase “benefits of

employment,” indicates that Congress intended to create a somewhat more

circumscribed set of actionable rights under USERRA.

We are not persuaded that use of the word “privilege” as one of many

words defining “benefits of employment” in §4303(2), a separate definitions

section of USERRA, is sufficient to infer a cause of action for hostile work

environment. Cases interpreting Title VII have relied on that statute’s use of

the full phrase “terms, conditions, and privileges” or on the sole word

“conditions,” not on the word “privilege” alone. Neither are we persuaded by the

title of § 4311(a), which specifies that the section prohibits “acts of reprisal,”

because acts of reprisal are primarily relevant to a claim for retaliation. See,

e.g., Randel v. United States Dep’t of Navy, 157 F.3d 392, 395 (5th Cir. 1998)

(repeatedly describing a Title VII retaliation claim as a “reprisal claim.”); see

also, e.g., Dominguez v. Miami-Dade County, 669 F. Supp. 2d 1340, 1345 (S.D.

Fla. 2009) (plaintiff’s USERRA retaliation claim described as being based on

employer’s alleged “acts of reprisal.”). Department of Labor (“DOL”) regulations

implementing §4311(a) of USERRA frequently refer to retaliation in such a way

as to suggest the statute’s prohibition on acts of reprisal relates to a retaliation

cause of action. See 20 C.F.R. §§ 1002.18-1002.23.

6

The term “benefits of employment” does not reflect the same broad-based

Congressional intent to “strike at the heart” of all forms of harassment against

employees protected under USERRA as those protected by Title VII or the ADA.

This conclusion is further supported by consideration of the policies and

purposes underlying USERRA. As the Seventh Circuit has noted, the primary

purpose of USERRA is to “encourage people to join the reserves.” Velasquez v.

Frapwell, 160 F.3d 389, 392 (7th Cir. 1998) (Posner, J.), vacated in part, 165

DOL regulations implementing USERRA with regard to private employment are 6

further discussed below in Section C.3.

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F.3d 593 (7th Cir. 2009). Unlike other anti-discrimination statutes which are

designed in part to prevent “invidious and irrational” discrimination and

harassment of “historically disadvantaged” minorities considered in need of

special protections, we find nothing to indicate that Congress passed USERRA

to combat this type of discrimination against military members. Id. There is

simply “little evidence that employers harbor a negative stereotype about

military service or that Congress believes they do.” Id. Appellants have not

directed this court to anything in the legislative history of USERRA that would

suggest Congress believed invidious and irrational harassment of members of

the military in the workplace comparable to harassment addressed by Title VII

is a widespread social problem in need of a remedy. Thus, based on the distinct

7

text of USERRA, its legislative history, and its policies and purposes, we decline

to infer a cause of action for hostile work environment under USERRA.

2.

We are not persuaded by the Appellants’ reliance on the reasoning of the

Petersen administrative opinion and similar district court opinions, which as

noted above construed USERRA broadly to provide for hostile work environment

claims. Petersen drew comparisons to Title IX of the Education Amendments of

1972 and the Rehabilitation Act of 1974. These are the only two federal statutes

identified by the parties on appeal that lack the phrase “terms, conditions, or

privileges of employment” but have been interpreted to provide for hostile work

environment causes of action. Both of these statutes use the word “benefits,”

8

as in USERRA. Title IX states that no person “shall, on the basis of sex, be

At oral argument, counsel for Appellants stated his belief that Continental is the only 7

airline engaging in the complained-of, alleged harassment of military reservist pilots. This

statement provides further support for our conclusion that workplace harassment of military

members is not a widespread problem that Congress intended to address with USERRA.

Congress passed both statutes before the Supreme Court issued the Meritor opinion. 8

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excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving Federal

financial assistance.” 20 U.S.C. § 1681 (emphasis added). The Rehabilitation

Act states that “[n]o otherwise qualified individual with a disability in the

United States . . . shall, solely by reason of her or his disability, be excluded from

the participation in, or be denied the benefits of, or be subjected to discrimination

under any program or activity receiving Federal financial assistance . . . .” 29

U.S.C. § 794(a) (emphasis added).

Although courts have permitted plaintiffs to assert hostile work

environment claims under these two statutes, these statutes are distinguishable

from USERRA. An examination of the intent and purposes of Title IX and the

Rehabilitation Act reveals that Congress intended these statutes to combat

harassment of women and the disabled, respectively. The courts have

interpreted each statute so as to harmonize it with a companion statute that

does contain the phrase “terms, conditions, or privileges.” Based on its

legislative history, this court has interpreted Title IX as being intended to

prohibit a wide spectrum of discrimination against women in the same manner

as Title VII. See, e.g., Lakoski v. James, 66 F.3d 751, 757 (5th Cir. 1995) (“Title

IX’s proscription of sex discrimination, when applied in the employment context,

does not differ from Title VII’s.”); see also, e.g., Brown v. Hot, Sexy & Safer

Prods., 68 F.3d 525, 540 (1st Cir. 1995) (“Title VII, and thus Title IX, ‘strike at

the entire spectrum of disparate treatment of men and women,’ including

conduct having the purpose or effect of unreasonably interfering with an

individual’s performance or creating an intimidating, hostile or offensive

environment.”) (quoting Meritor, 477 U.S. at 57, 106 S. Ct. at 2404), superseded

on other grounds, County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708

(1998). Of course, as discussed extensively above, the Supreme Court inferred

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Title VII’s proscription of harassment against women from the words “terms,

conditions, or privileges of employment.”

Similarly, we have read the Rehabilitation Act together with the ADA in

allowing a harassment claim under the Rehabilitation Act. See Soledad v.

United States Dep’t of Treasury, 304 F.3d 500, 506-07 (5th Cir. 2002). In

Soledad, we recognized that Congress amended the Rehabilitation Act in 1992

to include “a provision that explicitly incorporates the ADA’s standards

governing complaints alleging employment discrimination.” Id. at 503. As

explained, the ADA includes the words “terms, conditions, or privileges of

employment.”

These cases construing Title IX and the Rehabilitation Act are not

inconsistent with the substantial authority discussed above that premise the

inference of Congress’s intent to create a harassment or hostile work

environment cause of action from use of the broad phrase “terms, conditions, or

privileges of employment.” We are also influenced by the fact that the

beneficiaries of Title IX and the Rehabilitation Act, like the beneficiaries of Title

VII, are members of historically disadvantaged minorities. Members of the

military do not fall within such a group. This supports our conclusion that

Congress’s decision not to extend the broad protection to military service

members against discrimination in the “terms, conditions, or privileges of

employment” was not an oversight and should be given effect.

3.

As noted above, the DOL has issued regulations implementing USERRA

with regard to private employers and employees. See 20 C.F.R. § 1002 et seq.

USERRA provides the DOL with this authority. 38 U.S.C. § 4331(a). The DOL

issued these regulations after a notice and comment period. See

www.dol.gov/vets/regs/fedreg/final/2005023961.htm (last visited March 16,

2011). “Subpart B [of the regulations] describes USERRA’s anti-discrimination

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and anti-retaliation provisions.” 20 C.F.R. § 1002.1. The regulations in Subpart

B explain in detail the DOL’s informed opinion about the elements of USERRA

discrimination and retaliation claims. Id. §§1002.18-1002.23. These DOL

regulations make no mention whatsoever of employer harassment on the basis

of military service, creation of a hostile work environment, or any other type of

comparable claim.

This stands in sharp contrast to the guidelines issued by the Equal

Employment Opportunity Commission expressly defining sexual harassment as

a form of discrimination prohibited by Title VII to which the Supreme Court

looked for guidance in Meritor. See Meritor, 477 U.S. at 65, 106 S. Ct. at 2404.

The complete lack of similar DOL regulations referring to harassment or a

hostile work environment as an actionable form of discrimination under

USERRA serves as additional support for our conclusion that USERRA should

not be interpreted to provide for such a cause of action.

9

D.

Appellants also argue that the express purposes and prohibitions of

USERRA may be circumvented by employers if we do not interpret the statute

as providing for a harassment cause of action. Appellants generally contend that

because USERRA expressly prohibits firing and other employment decisions on

the basis of military service, it would be patently inconsistent with the purpose

of the statute to permit employers to accomplish indirectly via harassment what

an employer cannot accomplish directly. As one district court put it, “[a]n

assurance that employees cannot be fired on account of their military service is

The lack of DOL regulations regarding harassment of private employees on the basis 9

of military service also supports our determination that we need not defer to the opinion of the

MSPB, which has authority only over federal employment. See supra n. 3. In fact, the MSPB

has authority to issue regulations under USERRA that grant “greater or additional rights” to

federal employees than DOL regulations governing private employees. 38 U.S.C. § 4331(a)-(b). 

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meaningless without assurance that the work environment will not be so

intolerable that they will feel forced to quit.” Dees, 605 F. Supp. 2d at 1227-28.

We are not persuaded by this argument. If an employer makes service

members’ employment so intolerable that they feel forced to quit, these service

members could likely make a claim under USERRA for constructive discharge.

Such claims are routinely brought under Title VII and other anti-discrimination

statutes. See, e.g., Hinojosa v. CCA Props. of Am., LLC, No. 10-40342, 2010 U.S.

App. LEXIS 22947, *5 (5th Cir. Nov. 4, 2010) (Under Title VII, “[t]o make out a

claim of constructive discharge, [a plaintiff] must show that his working

conditions became ‘so intolerable that a reasonable person would have felt

compelled to resign.’”) (quoting Penn. State. Police, 542 U.S. at 147, 124 S. Ct. at

2354). Claims for constructive discharge have, in fact, been recognized under

USERRA by other courts. See, e.g., Wallace v. City of San Diego, 479 F.3d 616,

624 (9th Cir. 2007). This type of claim would be based on USERRA’s clear

prohibition against firing service members based on their military service. The

availability of such relief would prevent an employer from circumventing the

express purposes of USERRA by engaging in some intolerable form of

harassment, but would not make actionable those lesser levels of harassment

that usually form the basis for hostile work environment claims such as

Continental’s allegedly derisive comments toward Appellants.

We also note that circumvention of USERRA is difficult given the express

definition of “benefits of employment” in the statute covering a wide range of

employment practices and policies. To repeat, a “benefit of employment” is

defined as “any advantage, profit, privilege, gain, status, account, or interest

(including wages or salary for work performed) that accrues by reason of an

employment contract or agreement or employer, policy, plan, or practice . . . .”

38 U.S.C. § 4303(2). As the Sixth Circuit held of USERRA’s predecessor statute,

this definition is “derivative” and “[i]t is intentionally framed in general terms

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No. 10-20105

to encompass the potentially limitless variations in benefits of employment that

are conferred by an untold number and variety of business concerns.” Monroe

v. Standard Oil Co., 613 F.2d 641, 645 (6th Cir. 1980). Thus, this definition of

“benefits of employment” covers all of the contractual benefits of Appellants’

employment with Continental.

These contractual benefits may bar or limit at least some of the actions by

Continental that Appellants attempt to characterize as harassment. For

example, Appellants complain that Continental has allegedly placed “onerous

restrictions” on military leave. If these allegedly “onerous restrictions” have

materially affected contractual benefits of Appellants’ employment, such as

Appellants’ opportunity to log flight hours toward participation in a retirement

fund, these restrictions could constitute independent, actionable benefit denials

under USERRA. Indeed, the claims that are still pending in this suit involve

these sorts of arguments by the Appellants. The complaint includes a separate

count that the district court did not dismiss for denial of retirement benefits.

This separate count is seemingly based in part on Continental’s alleged denial

of flight time to the Appellants and other class members because of their service

obligations. Thus, there is no reason for an additional, non-textual harassment

cause of action to remedy this purported benefit denial.

To be clear, nothing in this opinion alters the ability of service members

to sue under USERRA for the denial of contractual benefits of their employment

on the basis of military service as defined in the statute. All that we hold is that

service members may not bring a freestanding cause of action for hostile work

environment against their employers.

For all of the reasons stated above, we AFFIRM the district court’s order

dismissing the USERRA hostile work environment claim as a matter of law and

REMAND this case for further proceedings consistent with this opinion.

AFFIRMED and REMANDED.

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Case: 10-20105 Document: 00511419894 Page: 17 Date Filed: 03/22/2011