Former National Guardsman prevails on reemployment claims against employer

November 7 , 2008

Excerpted from Tennessee Employment Law Letter written by attorneys at the law firm of Miller & Martin

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) provides, at its core, reemployment rights for employees returning from military service and protection from employment discrimination following reemployment. Last month, the U.S. Court of Appeals for the Sixth Circuit clarified that a qualified service member's reemployment rights can't be delayed or otherwise limited by an employer's "return-to-work" policies. In addition, the court said the right to be reemployed is not dependent on USERRA's provisions requiring a showing of discriminatory intent.

Patrol sergeant denied reinstatement
Brian Petty was a patrol sergeant for the Metro Police Department when his Army Reserve unit was mobilized in late 2003 for service in Operation Iraqi Freedom and eventually deployed to Kuwait. While serving in Kuwait, Petty was charged with misconduct in violation of the Uniform Code of Military Justice. Ultimately, to avoid court martial proceedings, he offered his resignation "for the good of the service." His resignation was approved in January 2005, and he was discharged "under honorable conditions (general)" with all charges against him formally dismissed.

The month after his discharge, Petty visited the police department and requested reinstatement to his former position. Rather than promptly reinstating him to a patrol sergeant position, the department required him to go through its "return-to- work" process, which was required of any officer who was away from work for an extended period of time. The stated purpose of the process is to "ensure that each and every individual entrusted with the responsibility of being a Metropolitan Police Officer is still physically, emotionally, and temperamentally qualified to be a police officer after having been absent from the Department."

As part of the return-to-work process, an officer must complete a personal history questionnaire and provide the department with authorization to obtain his medical and military records. One of the questions on the personal history update addressed criminal or military disciplinary action during the officer's absence. Although Petty answered "yes" to the question, he failed to provide the details of the disciplinary action.

Petty was eventually returned to work a month after he requested reinstatement, but not to his original job or a substantially similar position. In addition, the department initiated two successive investigations to determine whether he had been honest during the return-to-work process. Despite an initial finding in his favor, the ongoing second investigation prevented him from returning to his former position. Finally, the department denied his request to return to the same off-duty security jobs he had worked before his absence for military service.

Petty sued, claiming the police department violated his rights under USERRA by (1) delaying his return to work by subjecting him to the return-to-work process, (2) not properly rehiring him in the position to which he was entitled, and (3) impermissibly denying him the ability to work off-duty security jobs. The district court dismissed the first two claims and, after a bench trial, ruled in favor of the department on the third claim. Petty appealed to the Sixth Circuit.

USERRA's purposes are unique
The Sixth Circuit started out by identifying the four basic functions of USERRA:

1. 38 U.S.C. Section 4312 guarantees reemployment to returning veterans after military service;
2. Section 4313 prescribes the position to which veterans are entitled upon their return;
3. Section 4311 prevents employers from discriminating against returning veterans because of their military service; and
4. Section 4316 prevents employers from terminating returning veterans within one year of reemployment without "just cause."

The court also clarified that Section 4312 applies only when the service member seeks reemployment, and Section 4313 describes the position to which the veteran must be "promptly reemployed" if he satisfies the prerequisites outlined in Section 4312.

While recognizing the otherwise reasonable objectives of the police department's return-to-work process, the court concluded that the department couldn't delay or otherwise limit Petty's reemployment rights by requiring him to comply with the process. Nor could it interfere with his rights based on the results of ongoing investigations triggered by the improper application of the process. Congress intended that the rights of veterans outlined in USERRA trump any employer concerns that might interfere with the exercise of those rights.

The court also noted that Petty wasn't required to provide evidence of any discrimination to prevail on his first two reemployment claims. He merely had to show a discriminatory intent based on status or activity protected by USERRA to prevail on a claim under Section 4311. Simply put, any person entitled to reemployment under Section 4312, which Petty clearly was, "shall be promptly reemployed" as outlined in Section 4313, which he clearly was not.

Finally, the court sent Petty's third claim back to the district court, directing it to consider all of the available evidence of potential discrimination under Section 4311 before reaching its conclusion. Petty v. Metropolitan Government of Nashville-Davidson County, Case No. 07-5649.

Bottom line
This case demonstrates that veterans' reemployment rights following an absence for military service are relatively straightforward. Once the statutory prerequisites of Section 4312 are met, you must turn to the framework of Section 4313 to determine which position the employee should be returned to. The fact that you have additional requirements for return or assignment is immaterial, no matter how reasonable or well tailored to your specific needs they are.

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Copyright 2008 M. Lee Smith Publishers LLC. TENNESSEE EMPLOYMENT LAW LETTER. This newsletter does not attempt to offer solutions to individual problems but to provide information about current developments in Tennessee employment law. Questions about individual problems should be addressed to the attorney of your choice.

Related articles from the State Employment Law Letters
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HR Tools for USERRA

• HR Executive Special Report - You & USERRA: An Employer’s Guide to Military Leave
  (available for purchase by nonsubscribers)
• Sample Policy - Personal Leave Time
• Sample Policy - Paid Time Off
• Sample Policy - Military/Reserve Leave

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