Wednesday, November 07, 2012

employment - ex-military - USERRA

Murphy v. Radnor Twp – ED Pa.  – November 2012




The Uniformed Services Employment and Reemployment Rights Act (“USERRA”)

provides, in relevant part, as follows:


A person who is a member of ... 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…or obligation.  38 U.S.C. § 4311(a).


It elaborates further: “An employer shall be considered to have engaged in

actions prohibited ... under subsection (a), if the person's membership ... is a motivating factor in

the employer's action, unless the employer can prove that the action would have been taken in

the absence of such membership.” Id. at § 4311(c) (emphasis). Thus the statute, by its terms,

prohibits discriminatory actions where a person’s military status is simply a motivating factor,

not the sole motivating factor.

public housing - eviction - criminal conduct that preceded lease

In addition to the Wellston Housing Authority case, below, see 66 FR 28776, at 28781 (5/24/01), which states the following, on the timing of the illegal activity:

" ...

 For public housing, the 1937 Act (section 6(l)(6)), 42 U.S.C.
1437d(l)(6)) requires that a PHA use leases that ``provide that any
criminal activity that threatens the health, safety, or right to
peaceful enjoyment of the premises by other tenants or any drug-related
criminal activity on or off such premises, engaged in by a [covered
person] shall be cause for termination of tenancy.'' Thus, the illegal
drug use criterion of section 577 of the 1998 Act adds little regarding
eviction of illegal drug users for the public housing program, but adds
a provision on alcohol abuse. None of the statutes explicitly addresses
the timing of the offending activity. The final rule does not include
the phrase ``during the term of the lease'' that would have been added
by the proposed rule, since that phrase is unnecessary. Activity
occurring only prior to the time the leaseholder signed the lease, or
the household member or guest joined the household or became a guest,
would not be a basis for termination of tenancy
. The provision on
consideration of rehabilitation is not included in the eviction
provision itself but is included in the regulatory provisions that
address generally the authority of a responsible entity in making
admission and termination decisions (see Secs. 5.852, 960.203, 966.4,
982.310, and 982.552).   "  [emphasis added]




131 S.W.3d 378 (2004)

Marilyn MURPHY, Defendant/Respondent.

Missouri Court of Appeals, Eastern District, Division Three.

March 23, 2004.,39