The USERRA Supersedes Employer’s “Fitness For Duty” Procedures

The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted to protect the rights of veterans and members of the uniformed services, and is broadly construed in favor of those individuals.  The Act specifically states that a returning veteran must be “promptly reemployed” after an honorable discharge from military service and requires that, in most cases, reinstatement is made to the position which the individual would have held had he or she not left for military leave.  The 6th U.S. Circuit Court of Appeals has held that a police department’s delay in re-employing a returning Army reservist violated the USERRA, even though the delay was based upon the employee’s suspected dishonesty.  Petty v. Metropolitan Govt. of Nashville-Davidson County, 6th Cir., No. 07-5649, Aug. 18, 2008.

Brian Petty was a member of the Army Reserve with the Army National Guard.  In 1991, Petty was hired by the Metropolitan Government of Nashville-Davidson County (“Metro”) as a police officer.  In October of 2003, Petty’s unit was called up to active duty in Operation Iraqi Freedom.  Petty was assigned to Camp Navistar in Kuwait, where he was in charge of running a section of that camp.  In mid-2004, an inspector discovered a five-gallon container of homemade wine during an inspection of Petty’s quarters.  Although Petty claimed that his supervisor asked him to manufacture the wine, he ultimately admitted some personal use and also admitted sharing some alcohol with a female enlisted soldier, both of which were against the Military Code of Justice.  After his arraignment, Petty submitted a request to resign his commission. Upon his resignation, the charges against him were dismissed and Petty was discharged “under honorable conditions (general)” on February 1, 2005.

On February 28, 2005, Petty visited Metro to request re-instatement to his position.  On that date, the Police Department instituted a return-to-work process, which was applied to all officers returning from an extended leave, regardless of the reason for that absence.  As part of that process, Petty provided to Metro an incomplete copy of his discharge form DD-214 (minus the language related to the specifics of the charges against him), but signed a form which would have allowed Metro to obtain all of his military paperwork. 

During the three weeks of the return-to-work process, Petty did not receive any salary or benefits.  Upon his return to work in March, Petty was assigned to an office job, and not to his original position.  At that point, Metro initiated a formal investigation centering on a charge that Petty was untruthful in his return-to-work paperwork.  In spite of the fact that Metro determined the charge to be “unfounded” and returned Petty to work, the head of the Police Department’s Office of Professional Accountability (OPA), Kennetha Sawyers, continued to look into the issue, and ultimately obtained a complete copy of the DD-214, which indicated the reason for Petty’s resignation from the Army to be “in lieu of trial by court martial.”  Sawyers then began a second investigation, and Petty continued his desk-job assignment.

Petty filed a lawsuit alleging that Metro delayed his rehiring and then did not properly reinstate him, both in violation of the USERRA.  When the lower court granted summary judgment in favor of Metro, Petty appealed.  The Sixth Circuit reversed, finding in favor of Petty.  The appellate court based its decision on the fact that Petty had fulfilled the criteria for reinstatement – his request for reemployment was timely, and his discharge was “honorable” – but that Metro did not comply with the Act’s requirement to promptly reinstate Petty to his former position.  When Metro raised Petty’s possible dishonesty as a defense, the Court responded by reminding Metro that the USERRA allows an employer to terminate a former serviceman for “cause” after reemployment, but does not allow an employer to use that same “cause” as an excuse not to reinstate that individual at all.

This decision was based upon the amount of time it took to reemploy Petty and the fact that he never was re-placed into his former position, in spite of the lack of evidence that he was able to do that job.  Although Metro isn’t ruling out further action in this matter (it could ask for a hearing of the entire Court, since this matter was decided by a single judge), the decision that USERRA does not permit a delay in reinstatement is noteworthy.  While the argument that a police department should be able to “screen” returning employees for safety reasons has some intuitive logic, the Court’s language was clear and uncompromising: “Metro was not permitted to limit or delay Petty’s reemployment by requiring him to comply with its return-to-work process.”  Employers should be aware that the language of the USERRA expressly states that the Act supersedes any policy, plan, or practice that limits the rights or benefits accorded to returning military personnel.