Petty v. Metropolitan Gov’t of Nashville & Davidson County
Business Employment Law-HRM 510

May 11, 2014

Abstract
This paper addresses issues brought before the court in which Brian Petty, former police officer brought suit against the Metropolitan Government of Nashville and Davidson County for violations under the Uniformed Services Employment and Reemployment Rights Act (USERRA).
1. What were the legal issues in this case? The legal issues in Petty v. Metropolitan Gov’t of Nashville & Davidson County are that whether or not Brian Petty, the plaintiff and former police officer in this case, was truthful about the reason why he was discharged from the Army and why Metro delayed his re-employment after he returned from his mobilization with the Army, which were in violation of USERRA. First, Petty contends that Metro failed to restore him to his previous position of a patrol sergeant, which was in violation of the reemployment provisions of USERRA § 4312 and 4313. Second, Petty asserts that Metro discriminated against him because of his service with the Army, which was in violation of the discrimination provision of USERRA § 4311. In the first issue, § 4313 states the following in part: “in the case of a person whose period of service in the uniformed services was for more than 90 days - (A) in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service, or a position of like seniority, status and pay, the duties of which the person is qualified to perform; or (B) in the position of employment in which the person was employed on the date of the commencement of the service in the uniformed services, or a position of like seniority, status and pay, the duties of which the person is qualified to perform, only if the person is not qualified to perform the duties of a position referred to in subparagraph (A) after reasonable efforts by the employer to qualify the person.” Upon his return from mobilization with the Army, Petty requested reinstatement of his position with Metro. Petty filled out a questionnaire in accordance with Metro’s return-to-work policy. According to Petty, Metro returned him to work; however, they did not place him in his previous position as a patrol sergeant or in a similar position, but rather assigned him to work in an office answering telephones calls from the public. The reasoning behind Metro’s actions was because Metro investigated Petty because they did not feel he truthfully filled out his return-to-work questionnaire, in that it appeared that he submitted an altered discharge papers (DD-214), hiding the fact of why he was discharged from the Army. In the second issue, § 4311 states the following in part: “A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.” Petty requested to work off-duty as security officer. Petty contends that Metro denied this request based on his discharge from military service, for which he believes was a motivating factor in their decision. Being able to work an additional job to supplement income was a benefit to Petty for being a Metro police officer. Accordingly, if Metro denied Petty of this benefit because of his military service, they could be held liable of discrimination, in violation of § 4311 (Erickson, 2010) .
2. Explain how the reemployment provisions of the USERRA were violated in this case. The USERRA provides for “the rights of employees returning to work form uniformed service by entitling them to positions with their former, pre-service employers, complete with all of the seniority, status, pay and benefits that the service member would have accrued had he/she never entered the service on active duty. These provisions were violated when the Metro police department delayed Petty’s request for reinstatement to the department when they required him to go through their return-to-work process, which included “a personal history update questionnaire, a medical examination, a computer voice stress analysis, a drug screening, and a debriefing with a Police Department psychologist.” Additionally, there was a requirement for returning officers to complete a medical records authorization as well as authorization from those returning from military duty to obtain military records. The issues surround the answers that Petty provided on his questionnaire where it relates to his conduct and discharge while he was mobilized with the Army. Although Petty stated that he had faced military charges, he failed to provide the details of why he returned so early and the reason of why he was discharged. Petty also failed to provide the circumstances of his disciplinary record and the reason as to why he was discharged from the Army. Metro felt Petty’s responses on his return-to-work questionnaire were less than truthful and launched an investigation into the manner in which Petty responded on the questionnaire and the apparent alteration of his DD-214, because it was missing three fields. When Petty returned to work, he was placed in an office vice his former position as a patrol sergeant or similar position. The office in which he was placed, known as the “bubble,” was traditionally filled with officers facing “discipline or who are otherwise disempowered.” Metro was in violation of § 4313.
3. Explain why the court concludes that Petty has a claim for discrimination under USERRA. In its initial decision, the district court concluded that Metro’s actions were not discriminatory and did not violate the USERRA §4311 when they denied Petty’s request to work an off-duty job. Metro’s argument was that they denied Petty permission to work off-duty employment due to the fact that he was being investigated at the time of his request and that it was Metro’s policy to deny such requests when officers are under investigation. The district court concurred with Metro’s policy as justification. The district court did not take into consideration Metro’s reasoning behind the investigation that triggered the policy’s application to Petty. Petty was investigated on two occasions. The first investigation focused on Petty being dishonest on his return-to-work questionnaire. Metro wanted to know what Petty’s military offenses were and the reasons surrounding his discharge from the Army. In the second investigation, Metro wanted to know if the omission of three fields on Petty’s DD-214 were in violation of department rules against withholding pertinent information. The investigations were unfounded. Metro did not have a valid reason for investigating Petty, in that the investigation “was motivated for an improper purpose.” Additionally, Petty was able to prove his prima facie case of discrimination because he showed that, by a preponderance of the evidence, his protected status was a substantial or motivating factor in the adverse employment actions(s)”(Law Review 739, 2007).
4. Explain what the police department should have done differently. First, Metro should have placed Petty back in his original position after his return from mobilization, so they would not be in violation of USERRA. Second, if Metro had concerns with Petty’s truthfulness on his return-to-work questionnaire and the submission of his DD-214, they should have launched the investigation only after he was rightfully placed back in his position. Therefore, there may have been more validity as to the reasons why Petty was placed in a different position and why he was denied off-duty employment.

References
Title 38, United States Code, U.S. Department of Labor http://www.dol.gov/vets/usc/vpl/usc38.htm Erickson v. United States Postal Service – Recent Implications to 38 U.S.C. 4311 & 4312 http://www.servicemembers-lawcenter.org/LAW_REVIEW_1128.html Law Review 739, CAPT Samuel F. Wright, JAGC, USN (Ret.) (2007) Burden of Proof in Section 4311 Cases http://www.servicemembers-lawcenter.org/LAW_REVIEW_739.html --------------------------------------------
[ 1 ]. Title 38 United States Code Department of Labor
CHAPTER 43--EMPLOYMENT AND REEMPLOYMENT RIGHTS OF MEMBERS OF THE UNIFORMED SERVICES