USERRA Verdict Affirmed for Reservist

By James Hatch

Sep. 13, 2006

James Wallace began working for the San Diego Police Department in 1975, and in 1982 he joined the Naval Reserve. In 1991, Wallace served seven months in Operation Desert Storm with the reserve. After several tours of duty, Wallace alleged he was assigned to a police department division that was far from his house, and said he was given undesirable responsibilities.

    Upon his return from tours with the Naval Reserve in 1997, Wallace received a reprimand and disciplinary transfer for improper interaction with a female officer. When Wallace returned from another duty tour, he received a “below standard” evaluation and was placed on a 90-day performance review. He later received a second below-standard evaluation. Before he left for a deployment to Bosnia, Wallace was asked to provide additional documentation related to his reserve drill training.

    While he was on deployment, the San Diego Police Department in 1999 began disciplinary action against Wallace for unauthorized teaching at the police department’s academy and for his alleged failure to provide documentation relating to his reserve drills. Another investigation focused on Wallace’s failure to notify his supervisor of his absence for reserve duty. Termination proceedings against him began, but were later rescinded. Wallace was transferred to a station near his home and received a further appraisal critical of his performance. He resigned after a citizen filed a discrimination complaint against him.

    A jury awarded Wallace $256,800 because the police department had retaliated against him for his exercise of military leave rights protected by the Uniformed Services Employment and Re-employment Rights Act. The district court overturned that verdict, and Wallace appealed to the U.S. Court of Appeals for the 9th Circuit in Pasadena, California.

    The 9th Circuit reinstated the jury’s verdict because “Wallace presented evidence of a continuing pattern of hostile and discriminatory conduct.” Wallace v. San Diego, 9th Cir., No. 03-56552 (8/25/06).

    Impact: Employers are advised to carefully evaluate employee rights under USERRA.

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