By Mitchel Wilson
In an unpublished decision Nazario v. City of Riverside, the Ninth Circuit Court of Appeals upheld the trial court’s decision to dismiss a discharged Riverside PD officer’s Uniformed Services Employment and Reemployment Rights Act (“USERRA”) claims, denying him a trial, because he could not show he was fired and not rehired because of his military service.
Jose Luis Nazario worked as a probationary officer for Riverside PD in 2007. The Department fired him when it learned that the U.S. Attorney’s Office intended to arrest, charge, and prosecute Nazarion for felonies during his military service. He was acquitted, but when he reapplied, the City denied his re-application. Although Nazario had been acquitted, Nazario also was enjoined by a restraining order for alleged domestic violence against his wife. Furthermore, RPD discovered “numerous improper statements made by Nazario on federal wiretaps.”
Without stating what the felony charges were, RPD pointed out that it would fire any probationary officer charged with felonies regardless of his or her veteran service. Furthermore, it showed that every single probationary officer charged with a felony had either been fired or resigned. The Ninth Circuit concluded:
Several RPD witnesses consistently stated that the decision not to rehire Nazario was based exclusively on two factors: (1) an intervening restraining order issued against Nazario after alleged domestic violence against his wife and (2) the department’s discovery of numerous improper statements made by Nazario on federal wiretaps. Nazario has not rebutted these statements. Therefore, RPD has established that Nazario would not have been rehired regardless of the asserted protected conduct.
Although Nazario was a service member, the court determined that RPD could easily show that it had a legitimate reason to fire and not hire Nazario. The evidence it presented established that it had a policy of discharging officers charged with felonies, regardless of trial outcome, and Nazario fit this permissible practice. The Ninth Circuit also concluded that it did not matter that certain acts charged as felonies occurred while he was serving in the military, but the court determined that the misconduct did not qualify as “service” under the terms of USERRA.
