Articles Posted in Military Service

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This week a federal court in Massachusetts held that a jury could reasonably find that the Town of Sandwich discriminated against police officer and military reservist Timothy Kane because of his military service. Kane alleges that the Sandwich Police Department passed him over for promotions because of the fact that he had to take leave from the police department when he was called up for duty with the U.S. Air Force Reserve. For example, in 2011 the police department passed over Kane for a promotion to sergeant shortly after he notified the department that he was going to be deployed to Iraq even though he scored higher on the sergeant exam than any other candidate.

According to the court’s decision, the Sandwich Chief of Police, Peter Wack, had a history of publicly complaining to the media about police officers serving in the National Guard and Reserves because he believed that their service contributed to the police department’s budgetary problems. Kane also presented evidence that other police officers said that Kane pulled “the military flag” whenever it would benefit him and that his use of military leave was a “scam.” One of the officers who allegedly made these statements served on the panel of officers who passed over Kane for the promotion to sergeant.

Kane brought this lawsuit under Massachusetts law and a federal law known as the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA protects the jobs of military servicemembers when they have to take leave from those jobs in order to serve in the military. USERRA serves the important purpose of ensuring, among other things, that military reservists do not have to choose between a stable job and defending our country.

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Earlier this month, a jury in California reportedly found that Orange County Sheriff’s Department violated the Uniformed Services Employment and Re-employment Rights Act (USERRA) when it discriminated against a deputy sheriff because of his service as a Marine in the Iraq war. The veteran, Scott Montoya, won the Navy Cross for his actions during the 2003 Battle of Baghdad.

According to news accounts of the case, Montoya’s attorneys presented evidence that, among other things, Montoya’s co-workers and superiors in the Orange County Sheriff’s Department repeatedly mocked his combat heroics, spread false rumors about him, sabotaged his locker, encouraged citizens to file complaints against him, suggested that they would not back him up on dangerous patrol calls, and subjected him to surveillance while he was off duty. Montoya developed post-traumatic stress disorder–not from his time serving as a Marine but–from this campaign of harassment that he experienced at the Orange County Sheriff’s Department.

Despite the jury’s verdict, the attorney for the Orange County Sheriff’s Department is reportedly arguing that Montoya is entitled to no monetary compensation for the hostile work environment he endured. This is because USERRA, unlike some employment discrimination statutes, does not allow plaintiffs to recover money for non-economic harms, such as anxiety, humiliation, and psychological trauma. Instead, to recover monetary compensation, a plaintiff must have lost pay as a result of the discrimination. Montoya’s attorneys have argued that Montoya did lose pay as a result of the discrimination because the Orange County Sheriff’s Department fired him. However, the Orange County Sheriff’s Department claims it fired Montoya for valid reasons.

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Yesterday, the House and Senate Veterans’ affairs committees held a hearing regarding the problem of employment discrimination against National Guard and military Reserve members. The President of the National Guard Association of the United States, Ret. Army Maj. Gen. Gus Hargett, told the members of the committees that he believes employers routinely decide not to hire members of the National Guard and military Reservists, in violation of federal law. He said that employers “find subtle ways to avoid hiring a serving member of the Guard or Reserve in order to avoid disruptions to the workplace from deployment-related absences.” The unemployment rate for National Guard and Reserve members is reportedly 20%, twice as high as the rate for post 9/11 veterans who have left military service.

Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), employers may not discriminate against members of the National Guard or military Reserve units. Employers must permit these servicemembers to take leave from work to undergo training and go on military deployments. If you are in the National Guard or Reserves, and your employer is discriminating against you or not permitting you to take leave for training or a deployment, you should contact an experienced employment lawyer to learn more about your rights.