Return-To-Work Policy Amounts To Illegal Military Discrimination

By 2002, Brian Petty had reached the rank of sergeant with the Metropolitan Government of Nashville-Davidson County. To supplement his income as a police officer, Petty also moonlighted as a security guard at two local restaurants.

In addition to these two positions, Petty served as a member of the Army National Guard. He joined in 1986 and opted into the Army reserve in 1989. In 2003, the Army deployed Petty for service in Operation Iraqi Freedom. Petty’s military commitments forced him to stop working at Metro in November 2003, and the Army transferred Petty and his unit to Kuwait around February 2004.

After he arrived in Kuwait, Petty’s commanding officer caught him brewing homemade wine and sharing it with another soldier in violation of military rules. Petty offered an innocent explanation for the wine, but ultimately resigned his commission to avoid facing court-martial proceedings. In January 2005, following Petty’s resignation, the Army dismissed its charges against him and relieved him of his command. The Army issued Petty a DD-214, a document issued to soldiers upon discharge, indicating that his separation from the military was under honorable conditions. A separate box on the form, however, described Petty’s reason for separation as “in lieu of trial by court martial.”

In February 2005, Petty requested reinstatement as a police officer with Metro. As it did all police officers returning from an extended leave of absence, Metro subjected Petty to its return-to-work process. This included, among other things, a drug screening, a personal-history-update questionnaire, and a meeting with a Police Department psychologist. In his answers to the questionnaire, Petty indicated that he had faced military charges in Kuwait, but did not reveal the details of his abrupt exit from the military.

The Department launched an investigation into the veracity with which Petty completed his return-to-work paperwork. The investigation revealed that Petty had submitted an incomplete DD-214 to Metro. Petty had enlarged the form that he provided to Metro on a copy machine, cutting off several boxes – including one describing his discharge from the military as “in lieu of trial by court martial.” Metro’s discovery sparked a second investigation into Petty’s truthfulness, this one focusing on whether Petty intentionally altered his DD-214.

Metro never returned Petty to his pre-deployment position of patrol sergeant. Beginning in October 2005, Metro assigned Petty to the “bubble,” where it primarily tasked him with answering telephone calls from the public. In December 2005, Metro denied Petty’s request to resume moonlighting as a security guard.

Petty sued, alleging violations of the reemployment and antidiscrimination provisions of the Uniformed Services Employment and Reemployment Rights Act (USERRA). A federal court of appeals recently agreed with Petty that the Department’s return-to-work process violated USERRA.

In an early decision in the case, the Court held that USERRA’s reemployment provisions barred Metro from requiring Petty to comply with its return-to-work procedures. The Court held that Metro’s delay of Petty’s reemployment during its investigation – which examined his alleged dishonesty during Metro’s return-to-work process – violated USERRA’s reemployment provision. Because Petty qualified for reemployment, the Court held that USERRA required Metro to fully reemploy Petty, regardless of any honesty issues arising from Metro’s return-to-work process.

In its most recent ruling, the Court addressed Metro’s argument that a trial court erred in awarding back pay and reinstatement as a remedy for Petty’s termination under his reemployment claim. Because Metro terminated Petty long after reemploying him, Metro argued, Petty could not show that his termination violated USERRA’s anti-discrimination provision, because Metro terminated him for dishonesty during its return-to-work process – not for any reason related to his protected status as a veteran.

The Court disagreed, finding that “at the point at which Petty was entitled to reemployment under USERRA, Metro had no basis on which to question his qualifications. Metro’s attempt to impose additional prerequisites through its return-to-work process was wholly impermissible. The process, then, including Petty’s alleged dishonesty therein, cannot serve as a basis for delaying or otherwise limiting Petty’s right to reemployment.

“USERRA prohibits employers from placing ‘additional prerequisites’ on returning veterans seeking to exercise their reemployment rights. We have found that rescreening employees before reemploying them constituted such an ‘additional prerequisite,’ and concluded that Metro’s additional investigation violated this prohibition. Though USERRA may permit Metro to terminate Petty for dishonesty after reemploying him, Metro never restored Petty to his position as patrol sergeant. We hold that the trial court properly exercised its discretion in awarding Petty back pay and reinstatement under his reemployment claim.”

Petty v. Metropolitan Government of Nashville & Davidson County, 687 F.3d 710 (6th Cir. 2012).