Refusal To Hire Police Officer Violates USERRA

In May 1999, Thomas McLain passed a Massachusetts civil service examination to become a police patrol officer. On January 5, 2000, he enlisted in the United States Army for a term of service that was to last until January 4, 2002.

As is required under Massachusetts law to institute the civil service hiring process, on October 12, 2000, the City of Somerville notified the Massachusetts Human Resources Division (HRD) that it was seeking to hire five police officers. HRD sent the City a certified eligible list of persons the City could lawfully consider to fill the five vacancies. McLain’s name was fourth on the list.

The City did not actually hire any police officers immediately; rather, over the next several months, HRD granted requests by Somerville to increase the number of authorized appointments. By August 31, 2001, the City had 11 vacancies to fill.

Also in August 2001, the City’s personnel director spoke to McLain by telephone and informed him that he had been selected as a patrol officer, subject to his availability to attend the required police academy training session to begin on October 1, 2001. McLain told the personnel director that he would still be on active duty on that date, and that, although he expected he could get an early release, he would not be available until at least several weeks after the October 1 start date of the training session. The City thereafter notified McLain that it would not hire him because he would not be released from the army in time to attend the training session.

McLain then sued the City, claiming the failure by the City to hire him violated the Uniformed Services Employment and Reemployment Rights Act (USERRA). A federal court judge agreed with McLain.

The City first argued that it did not discriminate against McLain because of his membership in the uniformed services, but rather because of his unavailability to begin police work at the time of the assigned police academy. The Court dealt with this argument in short order, noting that the plain language of USERRA prohibits discrimination not only on a person’s status as a member of the uniformed service, but also on the service member’s “obligation to perform service.” As the Court observed, “McLain was not available on October 1, 2001 because he had an obligation to perform military service on that day.”

The City next argued that as a matter of public policy, it needed to be able to hire the number of police officers it found necessary at the time it deemed necessary. The Court was unimpressed, observing that “the slowness with which the City progressed in filling these 11 vacancies belies this claim. Furthermore, there is nothing to suggest that the City was precluded from hiring a temporary officer to be replaced by McLain when McLain becomes available.”

McLain v. City of Somerville, 2006 WL 845820 (D.Mass. 2006).

This article appears in the May 2006 issue