A recent decision of the U.S. Court of Appeals for the Sixth Circuit (which includes Michigan), Petty v. Metropolitan Government of Nashville-Davidson County, is a good reminder that returning military personnel are essentially guaranteed reemployment by their former employers upon their return from service.  In that case, the court ruled that despite Petty’s admitted misrepresentations in the reemployment process, his former employer (Metro) violated his reemployment rights under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) when it (1) failed to “promptly rehire him” due to its return-to-work-process, and (2) failed to place him into the position to which he was entitled.

Petty had been employed as a police officer with Metro since 1991, and was promoted to the rank of sergeant in 2000.  Throughout his employment he was in the Army Reserves.  In 2003 he was called to service and eventually deployed to Iraq.  While in Iraq, it was discovered that Petty was manufacturing wine in his quarters and he admitted giving alcohol to an enlisted soldier – violations of General Order 1A.  In lieu of going forward with court martial proceedings, Petty requested to resign “for the good of the service.”  The Army accepted his request and formally dismissed the charges against him in January 2005.  His discharge was characterized as “under honorable conditions” and Petty returned to the States on February 1, 2005.

On February 28, 2005, Petty visited Metro to request reinstatement.  He was required to go through a return-to-work process that applied to all police officers who had been away for an extended period of time.  This included completing a personal history questionnaire, a medical examination, a computer voice stress analysis, a drug screen, and a debriefing with a police department psychologist.  The stated purpose was to ensure that police officers were physically, emotionally, and temperamentally qualified.

Metro returned Petty to work three weeks later on March 21, 2005.  But the position to which he was returned was not the same position he had left – it was an office job in which he answered phone calls and took police reports.  Metro had learned during its investigation that Petty had redacted part of the Department of Defense form that described his separation as being “in lieu of trial by court martial” – a clearly deceptive act on his part.  Metro had traditionally placed officers facing discipline (or otherwise “disempowered”) in office jobs.

Petty filed a lawsuit alleging violations of USERRA.  The trial court granted Metro’s motion for summary disposition and dismissed Petty’s claims that Metro violated his rights by delaying his rehire and by not placing him in his former position. 

The appeals court reversed and ordered that summary judgment be entered in Petty’s favor.  The court noted that Petty had met the statutory prerequisites to qualify for USERRA’s reemployment guarantee (i.e., advance notice, less than five years of military service, a timely request for reemployment, proper documentation, and an “honorable” discharge), and held that Metro was not permitted to delay or require him to comply with its own return-to-work process.  Importantly, the court found inconsequential Metro’s asserted obligation to ensure that returning police officers met certain qualifications for the position, noting Congress’ clearly expressed view that a returning veteran’s reemployment rights take precedence over such concerns.  Since Petty had met USERRA’s prerequisites, Metro had no legal basis for questioning his honesty or qualifications or for placing him in the desk position.

Jennifer A. Zinn

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