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Law Review 1275

August 2012

 

Sixth Circuit Holds that Nashville-Davidson County Willfully Violated USERRA and Must Pay Liquidated Damages

 

By Captain Samuel F. Wright, JAGC, USN (Ret.)

 

1.1.1.7—Application of USERRA to State and Local Governments

1.2—Discrimination Prohibited

1.3.1.2—Character and Duration of Service

1.4—USERRA Enforcement

1.8—Relationship between USERRA and other Laws/Policies

Petty v. Metropolitan Government of Nashville-Davidson County, 538 F.3d 431 (6th Cir. 2008), cert. denied, 556 U.S. 1165 (2009) (Petty I).

Petty v. Metropolitan Government of Nashville & Davidson County, 687 F.3d 710 (6th Cir. 2012) (Petty 2).

 

This case has been ongoing for almost eight years and has been to the United States Court of Appeals for the Sixth Circuit1 twice. The first appellate decision is addressed in Law Review 864 (December 2008).2

 

Brian Petty was a captain in the Army Reserve and a sergeant in the police department of the Metro Government of Nashville-Davidson County (Metro). The Army called him to active duty in January 2004. He and the unit he commanded were deployed to Camp Navistar, Kuwait. He was charged with violations of the Uniform Code of Military Justice, for having manufactured, possessed, and consumed alcohol (in violation of a lawful general order applicable to military personnel in Southwest Asia) and for having provided alcohol to a female enlisted Soldier under his command.

 

CPT Petty appeared before a military judge for arraignment on these charges, and then he agreed to resign his commission “for the good of the service” in lieu of court martial. He  received a general discharge under honorable conditions, and he was sent home, his military career over.

 

After returning home to Nashville, he made a timely application for reemployment with the Metro police department. Mr. Petty met the five eligibility criteria for reemployment under the Uniformed Services Employment and Reemployment Rights Act (USERRA). He left his civilian job for the purpose of performing uniformed service, and he gave the employer prior oral or written notice. He did not exceed the cumulative five-year limit on the duration of the period or periods of uniformed service relating to his employer relationship with Metro. Since his service was involuntary, it did not count toward his five-year limit. He made a timely application for reemployment after the general discharge.

 

Section 4304 of USERRA provides as follows: “A person’s entitlement to the benefits of this chapter by reason of the service of such person in one of the uniformed services terminates upon the occurrence of any of the following events: (1) A separation of such person from such uniformed service with a dishonorable or bad conduct discharge. (2) A separation of such person from such uniformed service under other than honorable conditions, as characterized pursuant to regulations prescribed by the secretary concerned [service secretary, like the Secretary of the Army]. (3) A dismissal of such person permitted under section 1161(a) of title 10.” 38 U.S.C. 4304.

 

Mr. Petty’s conduct during his active duty in Kuwait notwithstanding, he did not receive one of  the four disqualifying items mentioned in section 4304. The legal maxim expressio unius est exclusio alterius clearly applies here. That maxim has been defined as follows: “Expression of one thing is the exclusion of another. … Mention of one thing implies exclusion of another. …When certain persons or things are specified in a law, contract, or will, an intention to exclude all others from its operation may be inferred.” Black’s Law Dictionary, Revised Fourth Edition,

page 692 (internal citations omitted).

 

In section 4304 of USERRA, four specified events (relating to unsatisfactory performance of military service) disqualify the individual from the right to reemployment. It is thus clear that no other events (including a general discharge after a resignation in lieu of court martial) can disqualify the individual from the right to reemployment. This case strongly supports this interpretation. Petty 1, 538 F.3d at 443.

 

When Mr. Petty applied for reemployment after his general discharge, the Metro police department leadership suspected that something untoward had happened during the time that he was away from work for military service, although they were not initially familiar with the details of what had happened in Kuwait. The department delayed reinstating Mr. Petty into the position of employment that he left and almost certainly would have continued to hold if he had not been called to the colors. The department applied its “return to work policy” to Mr. Petty and subjected him to a lengthy internal affairs investigation.

 

Section 4302(b) of USERRA provides: “This chapter supersedes any state law (including any local law or ordinance), contract, agreement, policy, plan, practice, or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter, including the establishment of additional prerequisites to the exercise of such right or the receipt of any such benefit.” 38 U.S.C. 4302(b) (emphasis supplied).

Mr. Petty argued (through attorney Michael J. Wall of Nashville) that Metro’s return-to- work policy was an “additional prerequisite” to the right to reemployment and that section 4302(b) precluded Metro from applying that additional prerequisite to Mr. Petty. The District Court rejected that argument and granted Metro’s summary judgment motion. On appeal, the Court of Appeals accepted the argument and overturned the summary judgment for the defendant Metro, and then granted summary judgment for the plaintiff, Mr. Petty.

 

“The district court determined that Metro’s return-to-work procedures could be applied to Petty, finding that because they are applicable to all individuals regardless of military service, these procedures did not constitute ‘additional prerequisites.’ In this, the district court erred. First, section 4302(b) does not limit its superseding effect only to ‘additional prerequisites.’ It supersedes any ‘policy, plan, [or] practice’ that ‘reduces, limits, or eliminates in any manner any right or benefit’ provided by USERRA, ‘including,’ but not necessarily limited to, ‘the establishment of additional prerequisites.’ Second, Metro’s return-to-work procedures do constitute ‘additional prerequisites’ for returning veterans, because the procedures are in addition to the requirements Congress specified for the exercise of USERRA’s reemployment rights. The district court apparently viewed the term ‘additional prerequisites’ as ‘additional to the employer’s existing prerequisites’ and concluded that Metro’s procedures are not discriminatory because they apply to all individuals returning to the department. But this analysis is not appropriate for a claim brought under section 4312, and the superseding effect of section 4302(b) is not so limited; Metro’s return-to-work procedures are indeed superseded by USERRA’s reemployment provisions.” Petty 1, 538 F.3d at 442 (emphasis in original).3

 

“It is important to note that Petty was not required to make any showing of discrimination in  order to sustain either of his reemployment claims. The district court incorrectly characterized part of Petty’s reemployment claim—that part dealing with the position to which he was reinstated̍—as being part of his discrimination claims and therefore held that it required a showing of discrimination. The district court did not state its authority for this, but Metro finds support for the court’s view in the following language from this Circuit’s decision in Curby v. Auchon: ‘A person seeking relief under section 4312 must also meet the discrimination requirement contained in section 4311.’ 216 F.3d at 557. However, this language from Curby was merely dicta and is therefore not binding precedent. See Wrigglesworth, 121 F. Supp. 2d at 1137 (characterizing this part of Curby as dicta). Jordan v. Air Prods. & Chems. Inc., 225 F. Supp. 2d 1206, 1208 (C.D. Cal. 2002 (same). Furthermore, subsequent to Curby, the Department of Labor specified that ‘the employee is not required to prove that the employer discriminated against him or her because of the employee’s uniformed service in order to be entitled to reemployment.’ 20 C.F.R. 1002.33; accord Francis, 452 F.3d at 303 … Finally, the imposition of section 4311’s discrimination requirement on a reemployment under section 4312 is not consistent with the plain language of sections 4312 and 4313. Section 4313 states that any ‘person entitled to reemployment under section 4312’—which we have found Petty to be—‘shall be promptly reemployed in a position of employment in accordance with the’ order of priority set forth in section 4313(a)(2). Thus, the express terms of section 4313 make its application contingent only on the prerequisites of section 4312, none of which include a showing of discrimination.” Petty 1, 538 F.3d at 442. 

 

In its opinion, the court cited the Department of Labor USERRA regulation that requires that, “absent unusual circumstances, reemployment must occur within two weeks of the employee’s application for reemployment.” 20  C.F.R. 1002.181. “Because of its return-to-work process, Metro took three weeks to ‘rehire’ Petty, and even then it did not place Petty in the correct position as outlined in section 4313. Metro cannot justify these delays; neither a return-to-work process that has been superseded by statute nor any investigations resulting from that process that has been superseded by statute nor any investigations resulting from that process constitute the ‘unusual circumstances’ that the Department of Labor has specified may justify a less timely reinstatement. 20 C.F.R.  1002.181. … In any event, the burden of proving that a returning veteran is not qualified under section 4313 falls on the employer, not the employee. McCoy v. Olin Mathieson Chem. Corp., 360 F. Supp. 1336, 1339 (S.D. Ill. 1973̖).” Petty 1, 538 F.3d at 444.

 

After losing Petty 1, Metro applied to the Supreme Court for certiorari4, which was denied. At that point, Metro should have reinstated Mr. Petty to his proper position, paid him back pay, and moved on, but the employer did not take that sensible course. Instead, Metro continued to fight Petty in court and defiantly refused to reinstate him to his former position as a patrol sergeant.5

 

On remand, the district court granted summary judgment in favor of Petty on his reemployment claims and ordered Metro to reinstate him to his former position as a patrol sergeant. After a bench trial6 the district court awarded Petty back pay and partial liquidated damages on his reemployment claims and ruled in his favor on his discrimination claim. Metro appealed, and Petty cross-appealed. In his cross-appeal, Petty contended that he should have received full rather than partial liquidated damages. The 6th Circuit affirmed the district court’s rulings. Petty 2.   

 

USERRA provides as follows concerning the remedies that a district court can award after finding a USERRA violation:  “In any action under this section, the court may award relief as follows: (A) The court may require the employer to comply with the provisions of this chapter. (B) The court may require the employer to compensate the person for any loss of wages or benefits suffered by reason of such employer’s failure to comply with the provisions of this chapter. (C) The court may require the employer to pay the person an amount equal to the amount referred to in subparagraph (B) as liquidated damages, if the court determines that the employer’s failure to comply with the provisions of this chapter was willful.”  38 U.S.C.  4323(d)(1).7

 

The district court, on remand, ordered Metro to reinstate Petty as a patrol sergeant and to pay him $2,500 in back pay for the initial three-week delay in reemploying him and $172,058.67 in back pay from the time of his firing (late 2007) until his court-ordered reinstatement.8 The district court also found that Metro discriminated against Petty by refusing to permit him to engage in extra-duty employment and awarded him an additional $4,500 in damages. Finally, the district court awarded Petty $120,116.43 in partial liquidated damages.

The $120,116.43 represents the pay that Petty lost after the 6th Circuit decided Petty 1. The district court held, and the 6th Circuit affirmed, that Metro’s continuing refusal to reinstate Petty after Petty 1 constituted a willful violation of USERRA, but prior to the initial appellate decision in Petty’s favor the violation was not willful.  Thus, the 6th Circuit rejected both Metro’s appeal and Petty’s cross-appeal..

 

This case is not over, but the end is near. Metro can petition the 6th Circuit for rehearing en banc9 and can petition the Supreme Court for certiorari.  Since the Supreme Court denied certiorari on Petty 1, I think that it is most unlikely that the Court will grant it on Petty 2. We will keep the readers informed of developments in this important case. I congratulate attorney Michael J. Wall of the Nashville firm Branstetter, Stranch & Jennings for his outstanding representation of Brian Petty.

 

1 The 6th Circuit is the federal appellate court that sits in Cincinnati and hears appeals from district courts in Kentucky, Michigan, Ohio, and Tennessee.

2 I invite the reader’s attention to www.servicemembers-lawcenter.org. You will find 775 articles about laws that are especially relevant to those who serve our nation in uniform, along with a detailed Subject Index and a search function, to facilitate finding articles about very specific topics.

3 I invite the reader’s attention to Law Review 61 (December 2002), titled “Not Necessary to Establish Discriminatory Intent under Section 4312.”  One of the central holdings of Petty 1 is entirely consistent with what I wrote in Law Review 61 almost a decade ago.

4 The losing party in the Court of Appeals can apply to the Supreme Court for certiorari, and certiorari is granted if four or more of the nine Justices vote to grant it.  When certiorari is denied, which happens more than 95% of the time, the decision of the Court of Appeals is final.

5 Metro never properly reinstated Petty, assigning him only to administrative duties typically assigned to an officer in a disciplinary status, and Metro fired Petty in late 2007.

6 A bench trial is a trial without a jury.  Petty could have demanded a jury trial but chose not to.

7 Section 4323(h)(2) of USERRA provides:  “In any action or proceeding to enforce a provision of this chapter by a  

person under subsection (a)(2) who obtained private counsel for such action or proceeding, the court may award any such person who prevails in such action or proceeding reasonable attorney fees, expert witness fees, and ̔ other litigation expenses.”  38 U.S.C. 4323(h)(2).  The attorney fees to be awarded in this case may be even greater than the back pay and liquidated damages awarded to Petty, and the total cost to Metro may approach $1 million.

8 It is unclear if Metro indeed reinstated Petty after the district court ordered it to do so.  Petty may be entitled to substantial additional back pay, and at this point he may be eligible to retire from the police department, since he began his police career in February 1991.

 9 If rehearing en banc is granted, there will be new briefs and a new oral argument, and the case will be decided by all of the active judges of the 6th Circuit.