Q. I didn't get selected for a promotion at my civilian job. How can I prove that management didn't promote me because they don't like the fact that I serve in the reserves?

A. An employer cannot simply decide to pass over National Guardsmen or reservists for promotions due to concerns over how their military obligations have impacted or will impact their attendance. While some employers usually view past or anticipated absenteeism as a valid reason for denying a candidate a promotion, such reasoning can be a problem when the prior or expected absences are military-related.

The Uniformed Services Employment and Reemployment Rights Act of 1994 prohibits employers from discriminating against service members "on the basis of that membership, application for membership, performance of service, application for service, or obligation." The law states that employers cannot refuse to hire, reemploy, retain or promote or deny any benefits of employment because of an individual's military duty.

In failure-to-promote cases, candidates must show that they were qualified for the position they didn't get, and that their military duty was a "motivating factor" for not being chosen. A motivating factor "is not necessarily the sole cause of the action, but rather ... one of the factors that 'a truthful employer would list if asked for the reasons for its decision,' " the U.S. District Court for the Eastern District of New York said in the 2001 case Fink v. City of New York.

"Military status is a motivating factor if the defendant relied on, took into account, considered, or conditioned its decision on that consideration," the court wrote.

Fink was a fire marshal whose employer denied him the opportunity to take a makeup promotion exam after his military duties kept him from taking that test when it was first offered. The court found that a personnel director's hostility toward Fink and toward veterans in general, in addition to the employer's refusal to grant the request for the makeup exam could lead to the conclusion "that Fink's veteran status motivated or contributed to the decision not to allow him to take a makeup exam."

Similarly, in the 2010 case Mullins v. Goodman Distribution Inc., Mullins claimed he was passed over for a promotion because of his service in Iraq with the Ohio National Guard. The U.S. District Court for the Southern District of Ohio found that the employer's decision not to promote Mullins to branch manager because he "was gone so long" in Iraq demonstrated "the existence of a genuine issue of material fact on the question" of whether Mullins' military service was a motivating factor in his employer's promotion decision.

Employees who think they were passed over for promotion because of their military duty should immediately consult with a military law attorney. Depending on the circumstances, the attorney could show that the employee's military duty was a motivating factor behind the adverse personnel action and in violation of USERRA.

Matthew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.

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