Userra: When Does it Apply?

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. 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 also a violation of USERRA. Although Petty's actions may not have been ethical regarding his alteration of his discharge papers, ultimately he did receive an honorable discharge and met all the other criteria to be reinstated under USERRA. Thus he was entitled to be made 'whole' in terms of all the benefits and privileges he was entitled to as an officer.

Why the court concludes that Petty has a claim for discrimination under USERRA Had Petty not served in Kuwait, he would not have lost his job or his ability to engage in additional work as a security guard. Petty was not required to explain why he was discharged; the fact that the discharge was not dishonorable was enough for the provisions of USERRA to protect his job under the law.

What the police department should have done differently Instead of denying the application as incomplete, the police department should have investigated the matter before a decision regarding the rehiring was made. Once it was determined that the offense was not serious (as was subsequently decided), Petty should have been reinstated to his former position with full benefits and under the same provisions as before the firing.

Or, if it was determined that the offense of brewing homemade wine in Kuwait made him unfit for duty, then he should have been dismissed altogether, with the (admittedly legally problematic) argument being made that the circumstances should not have been classified as a dishonorable discharge. But given the circumstances and the wording of the law, the police department would seem to have very little ground to stand upon, in terms of limiting Perry's readmission to his former position. Regardless,.