Userra: When Does It Apply? Research Paper

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Petty v. Metropolitan Gov't of Nashville & Davidson County

Metropolitan Police Officer Brian Petty served in the army reserves. While deployed in Kuwait he was honorably discharged after brewing homemade wine although it was noted on his discharge form that he was dismissed "in lieu of trial by court martial" (Wright 2012). When he applied to be reinstated, his application was initially rejected as incomplete because Petty merely stated he faced "military charges" without any additional information when asked if he had been accused of a military crime (Wright 2012). However, the Metropolitan Police of Nashville and Davidson County ultimately rehired Petty after an investigation although Petty was only admitted at a lower rank. He was also prohibited from 'moonlighting' as a security guard, in contrast to before the rehiring and the investigation.

As a result of this "Petty sued Metro asserting that Metro had violated USERRA [Uniformed Services Employment and Reemployment Rights Act provisions] by: delaying his rehire; not reinstating him into his position; and denying his moonlighting request" (Wright 2012). Under the Act, officers should not be penalized with demotions for serving in the military. "USERRA provides that returning service-members must be promptly reemployed in the same position that they would have attained had they not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits determined by seniority" (USERRA information, 2013, DOL). Although technically Petty had not been demoted but had merely been rehired to a different position after being dismissed, Petty argued that this was clearly an attempt by the Metro to skirt the law and that he should not have been dismissed in the first place.

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While Petty appealed the decision through the court system, "Metro conducted a subsequent investigation that revealed that Petty had altered his discharge papers to exclude the 'court martial' reference and terminated his employment. This termination prompted a retaliation claim from Petty" (Wright 2012). Petty argued that the investigation into the discharge was in retaliation for his lawsuit and would not have been conducted had he not brought charges.

How the reemployment provisions of the USERRA were violated in this case

Despite Petty's dishonesty in altering the language on his discharge papers, the Court found that under the terms of USERRA: "to be reinstated a veteran was only required to show that: proper notice was given to the employer in advance of departure; the service period was less than five years; a timely request for re-employment was made with proper documentation; he or she was discharged under 'honorable conditions.' Petty met these criteria, and Metro's return-to-work policy was an impermissible 'additional prerequisite' that violated USERRA" (Wright 2012). This also meant that taking away Petty's ability to moonlight solely because of his deployment was….....

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