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The 5th U.S. Circuit Court of Appeals has ruled that a Marine Corps Reserves officer who alleged that he was fired from his job because he had been called up for duty in Iraq cannot avoid an arbitration hearing. Michael T. Garrett v. Circuit City Stores Inc., No. 04-11360. Michael T. Garrett was hired by Circuit City Stores Inc. in 1994 while he was a member of the Marine Corps Reserves. In 1995, Circuit City adopted an Associate Issue Resolution Program consisting of a nationwide policy for resolving employment disputes. Garrett acknowledged that he had received the new policy information, and he did not opt out of the arbitration provision of the policy. Garrett alleged that between December 2002 and March 2003, as U.S. military forces were preparing for combat in Iraq, he began to receive unjustified discipline from his supervisors. He alleged that he was fired in March 2003 solely because he was a Marine Reserves officer. Garrett sued under the Uniformed Services Employment and Re-employment Rights Act (USERRA), which protects the employment rights of members of the armed forces. Garrett sought to have a trial court hear his case rather than an arbitrator. A Texas federal court ruled that Section 4302(b) of USERRA overrides enforcement of Garrett’s arbitration agreement with Circuit City. The 5th Circuit reversed, holding that Garrett’s having his dispute resolved through arbitration rather than by a trial court didn’t violate his substantive rights under USERRA. Writing on behalf of the court, Chief Judge Edith Jones said that it isn’t evident from the statutory language of USERRA that Congress intended to preclude arbitration by simply granting the possibility of a federal judicial forum. The purpose of Section 4302(b), she explained, is to protect the rights of soldiers and reservists to re-employment, to leaves of absence, to protection against discrimination and to health and pension plan benefits. These are substantive rights pertaining to compensation and working conditions, not to the affording of a particular forum for dispute resolution. An exclusive judicial forum does not fall within the scope of Section 4302(b). An agreement to arbitrate is a forum-selection clause, not a waiver of substantive rights. According to Jones, the district court overlooked the key distinction between procedural and substantive rights. She quoted from the U.S. Supreme Court’s 1985 ruling in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc.: “[B]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum . . . .[I]f Congress intended the substantive protection afforded by a given statute to include protection against waiver of the right to a judicial forum, that intention would be deducible from text or legislative history.” According to Jones, there was nothing in USERRA that precludes arbitration. USERRA “neither guarantees a right to a federal court trial nor forbids arbitration as an alternate forum. On the contrary, USERRA provides several means for the resolution of disputes, and there is no guarantee of a federal forum for aggrieved employees.”

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