By Jordan L. Jones
In Hanson v. Cnty. of Kitsap, the court held that a Kitsap County Deputy Fire Marshal’s claims under the Uniformed Services Employment and Reemployment Rights Act (USERRA) relating to (1) reemployment, (2) benefits, (3) hostile work environment, and (4) constructive discharge should be dismissed under summary judgment. The court also held that the “[p]laintiff’s motion for summary judgment on his USERRA claim under § 4318 (pension) should be granted . . . . [T]he § 4311 USERRA claim and WLAD [i.e., Washington Law Against Discrimination] claim (to the extent they are based on the failure to promote him and his removal from the fire investigation rotation) and his USERRA claim under § 4316 (without cause discharge), is very thin, but is sufficient to allow to proceed on those claims.”
The plaintiff was hired in March 2007 as a Deputy Fire Marshal 1 for Kitsap County. At the time of his hiring, Kitsap County was aware that the plaintiff was serving in the Washington Army National Guard and would need to take military leave at various points in the future. The plaintiff was called up for active duty in October 2009 and subsequently returned to work at Kitsap County in December 2012.
The plaintiff alleged that “when he returned from service, he should have been reemployed in a [Deputy Fire Marshal 2] . . . position, given the same pre-deployment hours, his prior radio call sign “FM3” back, a deputy fire marshal specific identification card, badge, new boots, and exclusive vehicle access.”
USERRA was created by Congress to encourage military service by granting service members rights with respect to civilian employment. The court noted that “USERRA’s § ‘4312 protects only a serviceperson’s right to reemployment, which in turn triggers § 4313’s guarantee of the appropriate position of employment.” The court held regarding §§ 4312 and 4313 that (1) “[p]laintiff has not shown that his removal from rotation several months after reemployment constitutes a violation of §§ 4312 or 4313 . . . [and (2)] [p]laintiff cites no authority that any of these items [e.g., radio call sign, badge, identification card] . . . are related to the statutory requirement of his being in a ‘position of like . . . status.’”
The plaintiff also contended that under § 4316 of USERRA that the “county [failed] . . . to give his prior radio call sign ‘FM3’ back, a deputy fire marshal specific identification card or badge, new boots, and exclusive vehicle access . . . .”
The court held that there was “no showing . . . that any of these items are ‘rights and benefits determined by seniority’ or ‘other rights and benefits not determined by seniority as are generally provided by the employer of the person to employees having similar seniority, status ….’”
In granting summary judgment in part for the defendant and allowing other claims to proceed the court noted that:
It is apparent that Plaintiff’s return to work was difficult for him and his employer. Although USERRA and other laws provide returning veterans many protections, they do not guarantee happiness on return to work. Many of the complaints Plaintiff raises here are related to his happiness and his perception of work place civility, but are not violations of rights protected by law.
Editor’s Notes (Jim Cline): Kitsap County continues to be plagued by employment law difficulties. The County was able to get some of the legal claims thrown out but others remain. USERRA requires that returning veterans not suffer discrimination or denial of opportunities. Apparently here the workplace environment was not a “happy” one. Whether Kitsap County provided a nondiscriminatory environment will be left for a jury to decide.
Employers that fail to provide effective supervisor and training to their managers do so at their peril. Often in cases of mixed evidence the parties find a way to settle, but this Kitsap County case appears to be headed to trial.
