Labor & Employment Law Daily Police officer’s ostracism from bomb squad wasn’t adverse action under USERRA
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Tuesday, August 6, 2019

Police officer’s ostracism from bomb squad wasn’t adverse action under USERRA

By Kathleen Kapusta, J.D.

While the treatment he received from fellow officers was unwarranted and inappropriate, it didn’t cost him pay, rank, or job duties.

Although a police officer was embarrassed, humiliated, and frustrated at the treatment he received from fellow officers when he was placed on the bomb squad after complaining to federal agencies that his department had excluded him from consideration due to his continued military service, it wasn’t a violation of USERRA. Nor could he proceed to trial on his claim that his military service kept him from advancing in the sergeant selection process, said a federal district court in Indiana, granting summary judgment against his USERRA claims (Hackett v. City of South Bend, July 24, 2019, Miller, R., Jr.).

The officer, who had served in the armed forces since 1997, worked for the South Bend, Indiana, police force from 2006 until 2017. During that time, he was a member of the Air Force National Guard. When the city posted openings in May 2014 for several hazardous device technician positions on the department’s bomb squad, the officer was told that while he qualified on paper—he was an ordinance technician in the National Guard—he would not be considered because he would miss necessary training and call outs due to his continued military service and periodic deployments. After he complained to the EEOC and the DOL, he was placed on the squad.

Short straw loses. Because members had already been selected for the squad, however, the division chief told the two newest members that one of them would have to leave to make room for the officer and that they needed to decide between themselves. This purportedly caused the squad members to resent the officer as one of the newest members referred to him in a Facebook post as “Blue Falcon”—military slang for “Buddy F****r.”

Ostracized. The officer was also allegedly excluded from practice, never given keys to the bomb squad room, and never given a brochure explaining the prerequisites for enrolling in the FBI’s hazardous device school, which was required for becoming a certified technician. When he complained, he was told not to report for bomb squad practices until after HR investigated. Before the investigation was completed, the head of the squad limited practices to certified technicians, which effectively excluded the officer.

One thing leads to another. Suing under USERRA, the officer argued that had he not been in the National Guard, he would not have been eliminated from assignment to the bomb squad, which in turn led to the investigation by the DOL and the EEOC, which then led to his being assigned to the squad after the positions had been filled, which led to the division chief’s directive to the two newest squad members to sort out for themselves who would be leaving the squad, which led to the ostracism that kept him from participating and advancing in the squad.

No adverse action. Finding that the officer did not experience an adverse action pursuant to USERRA, the court noted that he was placed on the squad after he complained. While participation on the squad might be desirable or prestigious, it wouldn’t have changed his rank, changed his shift to something more desirable, or increased his pay. And while he pointed to opportunities he would have had after becoming a certified technician, there was no evidence he would have completed the requirements for becoming a certified technician.

There can be little doubt he was embarrassed, humiliated, and frustrated at his treatment, said the court, but the ostracism didn’t cost him pay, rank, or job duties. And while the treatment was unwarranted and inappropriate, it wasn’t a violation of USERRA.

Late. He also claimed that he applied for a patrol sergeant’s position in 2015 but he was deployed during the period when applicants were interviewed and rated. While the department delayed the process to accommodate him, applicants had to submit a police report they considered to be their “best work.” Because he had no chance before his interview to select his best work, he turned it in after the other applicants had already been ranked and he was in fifth place. Were his points for his report added to his pre-submission score, he contended, he would have been in second or third place and thus, he argued, his military service kept him from advancing in the selection process.

While he assumed that his score reflected his interview but not his “best work,” and that his “best work” score of 6.5 should have been, but wasn’t, added in, there was testimony that his score might have been included the “best work” score. Regardless, said the court, no reasonable jury could infer that he lost out on the promotion because some antimilitary or anti-deployment feeling motivated the city. At best, someone in the grading process messed up and the rankings didn’t reflect the officer’s “best work” score, said the court, pointing out that USERRA protects servicemembers against adverse actions motivated (at least in part) by negative feelings about their service or deployments, not against simple human errors.

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