A Tennessee police officer was also a member of the Army National Guard, and he was sent to serve in Kuwait and Iraq. He got into a bit of a scrape in the army, narrowly escaped a court martial, resigned, and was given an honorable discharge. But his employer, it turned out, punished him for getting into the scrape. Was that legal?
What happened. “Perry” was hired by the Nashville and Davidson County police department—part of the Metropolitan Government (Metro)—in 1991 and was promoted to patrol sergeant in 2002. He also worked as a security guard at two local restaurants. In 2003, he was deployed, returning about 2 years later.
In Iraq, however, he had been caught brewing homemade wine and sharing it with another officer—a military no-no. To avoid a court-martial, he resigned and was allowed a proper discharge. Then he applied for reinstatement under the Uniformed Services Employment and Reemployment Rights Act (USERRA), but Metro subjected him to the same return-to-work process it required of all employees returning from extended leave. That involved a personal-history-update questionnaire that included this question: “During your absence, were you arrested, charged, detained, or a suspect in any … military disciplinary action?”
Perry answered affirmatively but refused to provide details. In April 2005, Metro charged him with dishonesty, refused him his sergeant’s position and permission to resume his security guard duties, and put him in an office answering phones. Perry sued, charging violation of his USERRA rights.
Metro conducted a second investigation of his service record and, as a result, fired him in 2007. Meanwhile, a federal district court judge ruled entirely in the department’s favor, and Perry appealed to the 6th Circuit, which covers Kentucky, Michigan, Ohio, and Tennessee.
What the court said. Appellate judges actually considered Perry’s case twice. The first time, they ruled that asking him to submit to the department’s return-to-work process violated his USERRA rights, and they sent the case back to the district court to determine what damages he was owed. Metro still refused to reinstate him, and the district court awarded him back pay and other damages.
Both sides appealed, but appellate judges upheld the department’s violation and the damages awards. Petty v. Metropolitan Government of Nashville & Davidson County, U.S. Court of Appeals for the 6th Circuit, No. 10-6013 (2012).
Point to remember: Judges pointed out that, “Though USERRA may permit Metro to terminate Perry for dishonesty after reemploying him, Metro never restored Perry to his position as patrol sergeant.”