The United States Court of Appeals for the First Circuit recently held that an employee could proceed on his Uniformed Services Employment and Reemployment Rights Act ("USERRA") claim after being denied the opportunity to apply for a new, promoted position that was created and filled while he was on active duty.

The employee worked as an Active Pharmaceutical Ingredient ("API") Group Leader prior to being called to active duty. While he was away, the company restructured and replaced his positions with two classifications ? API Team Leader and API Service Coordinator. All available API Team Leader positions, which constituted a promotion, were filled by other API Group Leaders who were promoted prior to the plaintiff's return from active duty. Upon his return, the plaintiff was initially assigned to a "special tasks" position and reassigned to the new API Service Coordinator position, which had the same salary and different job responsibilities. The employee filed suit alleging that the company violated USERRA in part by failing to allow him to apply and be considered for one of the API Team Leader positions. The district court concluded that summary judgment in favor of the employer was proper on this claim because the API Team Leader was not an "automatic promotion" to which the plaintiff was entitled. The First Circuit disagreed on appeal, relying in part on the Department of Labor's explicit rejection of this interpretation of the escalator principle in agency regulations and commentary as well as precedent suggesting that "the appropriate inquiry in determining the proper reemployment position for a returning servicemember is not whether an advancement or promotion was automatic, but rather whether it was reasonably certain that the returning servicemember would have attained the higher position but for his absence due to military service." The court reversed the decision and remanded the case to the district court for reconsideration. Rivera-Melendez v. Pfizer Pharmaceuticals, LLC