2d Circuit: Plaintiff Lacked Standing to Pursue USERRA Claim

In a recent decision, Lovell v. Consolidated Edison Company of New York, 2019 WL 1311128 (2d Cir. March 22, 2019) (Summary Order), the court held that the plaintiff lacked standing to pursue a federal claim of employment discrimination under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).

The court provides a summary of the underlying legal principle of “standing”:

“Article III, Section 2 of the Constitution limits the [subject matter] jurisdiction of the federal courts to the resolution of ‘cases’ and ‘controversies.’ ” Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012) (citation and internal quotation marks omitted). To establish standing to sue in an Article III court, a plaintiff must show (i) injury-in-fact, (ii) causation, and (iii) redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). Redressability requires that it “be likely, as opposed to merely speculative, that [Lovell’s] injury will be redressed by a favorable decision.”

It then proceeded to find that plaintiff lacked standing because he “has not alleged an injury that is redressable by USERRA.”


USERRA provides for three types of remedies: (1) injunctive relief requiring compliance with USERRA; (2) lost wages and benefits; and (3) for willful violations, liquidated damages doubling the lost wages and benefits. 38 U.S.C. § 4323(d). The statute also empowers courts to use their “full equity powers” to vindicate rights protected by the statute. Id. § 4323(e). Lovell claims that his supervisors “ostracized [him] by stating verbally that he (Mr. Lovell) was in the military and would task (him) with more work than other supervisors in the same role.” Appellant’s App’x 35. Lovell has not alleged lost wages or benefits attributable to Con Ed’s discriminatory treatment. Lovell no longer works at Con Ed, so any injury from his ostracism or disparate work assignments is not redressable by an injunction or the court’s equity powers. Lovell has not stated a claim for constructive termination because he has not plausibly alleged that his working conditions were “so difficult or unpleasant that a reasonable person in [his] shoes would have felt compelled to resign.” Serricchio v. Wachovia Sec. LLC, 658 F.3d 169, 185 (2d Cir. 2011). Accordingly, neither front pay nor reinstatement are available.

Based on this, the court affirmed the judgement of the district court.

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