WASHINGTON – The Department of Justice has filed a lawsuit on behalf of Jon Fultz, a U.S. Marine Corps reservist, against the city of Winchester, Va., alleging that it violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) by failing to properly reemploy Fultz in September 2009 when he returned from military service during which he sustained a knee injury.
Subject to certain conditions, USERRA requires employers to promptly reemploy returning service members in the position they would have held had their employment been not interrupted by military service, or in a position of like seniority, status and pay.
According to the department’s complaint, filed in the U.S. District Court for the Western District of Virginia in Harrisonburg, Va., the city violated USERRA by not reemploying Fultz in his previous pre-service permanent position as a community resource officer assigned to manage its police department’s fleet of motor vehicles. When Fultz returned to work in September 2009, after performing military service where he injured his knee, the city assigned him fleet manager duties. However, the city placed Fultz in a lesser “light duty” status that he did not request, and which subjected him to removal from his job. For the next five months, Fultz satisfactorily performed his fleet manager duties, which were the same as his pre-service duties despite the “light duty” label. During that period, Fultz did not have any workplace problems with his knee that would have caused concern about his job performance, safety or health.
In February 2010, the city, without prior notice, removed Fultz from his position and stopped paying him wages. Although the city told Fultz that its sudden action was due to supposed safety concerns, it did not explain the nature of those concerns or give any factual basis for them. Even when Fultz provided medical information requested by the city to permit his return to work, the city refused to reinstate him, or to identify an alternate city position for which he qualified or could become qualified. The city ultimately terminated Fultz’s employment in October 2010. In its lawsuit, the Justice Department seeks the lost wages and benefits that he would have received if he had been properly reemployed in his pre-service status as a permanent full-duty community resource officer.
“Employers have a legal obligation to reemploy our uniformed service members in the correct position and status after they return from military duty,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “The Civil Rights Division is committed to protecting the rights of those who, through their bravery and sacrifice, secure the rights of all Americans.”
“When the men and women who serve our country in the armed forces return from deployments overseas, they deserve their jobs back,” said Timothy J. Heaphy, U.S. Attorney for the Western District of Virginia. “When employers deprive our servicemen of this important right, the Department of Justice will intervene and enforce the USERRA statute.”
The Labor Department’s Veterans’ Employment and Training Service investigated and attempted to resolve Fultz’s USERRA complaint before referring it to the Justice Department for litigation.
“Our two agencies work closely together to ensure that our service members are treated right when they return from service” said Ray Jefferson, Assistant Secretary of Labor for Veterans’ Employment and Training.