Under the USERRA, the employee must be provided the opportunity to reenter the workplace with comparable earnings potential and a chance for advancement. Trial evidence established that in the year prior to his activation for military duty, Serricchio was personally responsible for servicing in excess of 200 accounts, was responsible for managing in excess of $9 million with his partner, and was earning $6,500 per month based on those assets.
If Serricchio had accepted Wachovia's reemployment offer, he would have been managing a handful of accounts, generating, according to Wachovia's own documents and expert, a small amount in monthly commissions that had to be repaid to Wachovia to offset his monthly draw. The employer argued that it provided the same draw and commission structure to the plaintiff and that this was sufficient to fulfill its reemployment obligations under Section 4316. The plaintiff contended that such an offer was a constructive discharge.] ARTERTON, J....
During the trial, the jury heard evidence of Wachovia's offer of reemployment-consisting of providing Serricchio with a small number of accounts, a modest monthly draw that would be offset by any commission earned, and opportunities for cold-calling clients- that supports a reasonable conclusion that that offer was not comparable to the terms of his employment before going on military leave. There was a "legally sufficient evidentiary basis" on which to conclude that, even accounting for the "escalator" principle, Wachovia's offer to reinstate Serricchio was to an inferior financial advisor position and thereby violated his reinstatement rights under USERRA. ...
Defendant's stone-walling and desultory efforts to set Serricchio back up at Wachovia upon his return were sufficient for the jury to conclude that Defendant was more than negligent in giving Serricchio a reinstatement offer that a reasonable person could regard as financially precarious and professionally degrading. This forms an adequate basis for the jury's finding Defendant liable for constructive discharge. ...
In determining that Wachovia acted willfully, the Court considered Gibbons' testimony at trial, which revealed that "Wachovia understood that Serricchio had a right to be reinstated to his previous position as if he had never left. But even though Wachovia had a military-leave policy which expressly included that provision, the company did not offer Serricchio a position comparable to the one he held before leaving for military service." Serricchio II, 606 F. Supp. 2d at 266. Based on evidence that Wachovia knew well its obligations to Serricchio under USERRA and knew he sought reinstatement, but nonetheless unreasonably failed to offer it to him timely or with more than minimal effort toward compliance, the Court determined Wachovia acted willfully. [The court upheld an award of $389,453 in back pay, $389,453 in liquidated damages, $830,107 in attorney fees and costs, and $36,567 in interest, for a total of $1.64 million.]
Case Questions
1. Did Wachovia offer Serricchio reemployment at terms comparable to the terms of his employment before going on military leave?
2. Did the court determine that Wachovia acted willfully and thus was responsible for liquidated damages or double back pay?