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RIVERA-MELÉNDEZ v. PFIZER PHARMACEUTICALS, LLC

No. 12-1023.

730 F.3d 49 (2013)

Luis A. RIVERA-MELÉNDEZ; Wanda Otero-Rivera; Conjugal Partnership Rivera-Otero, Plaintiffs, Appellants, v. PFIZER PHARMACEUTICALS, LLC, Defendant, Appellee.

United States Court of Appeals, First Circuit.

September 20, 2013.

Attorney(s) appearing for the Case

Jos L. Barrios-Ramos , with whom Pirillo Hill González & Sánchez, PSC was on brief, for appellant.

Pedro J. Torres-Díaz , with whom Mariela M. Rexach-Rexach , Jos J. Sánchez-Vález , and Schuster Aguil LLP were on brief, for appellee.

Holly A. Thomas , Attorney, United States Department of Justice, with whom M. Patricia Smith , Solicitor of Labor, United States Department of Labor, Thomas E. Perez , Assistant Attorney General, Dennis J. Dimsey , Attorney, United States Department of Justice, and Erin Aslan , Attorney, United States Department of Justice, were on brief, for amicus curiae United States.

Before LYNCH, Chief Judge, TORRUELLA and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

This case requires us to determine whether the "escalator principle" and "reasonable certainty" test governing reinstatement claims under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA") apply to non-automatic, "discretionary" promotions. The district court found that they do not, and used this conclusion to reject plaintiff Luis Rivera-Meléndez's USERRA reinstatement claim pursuant to 38 U.S.C. §§...

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