By Emily Nelson
In Rebello v. City of New Bedford, a federal district court granted summary judgment to the City on a Uniformed Services Employment and Reemployment Rights Act (USERRA) claim, after Paramedic Joseph J. Rebello failed to establish that his reserve service was the proximate cause of his discharge when he was laid off during a city-wide staffing reduction.
Rebello was employed full-time as one of the City’s four EMS paramedic field supervisor and was also an active member of the Army National Guard. On January 27, 2009, Rebello told the City he would be deployed to active duty for one year beginning February 1, 2009. Shortly thereafter, in response to significant cuts in state funding, the City implemented a hiring freeze and laid off 176 employees in 25 departments. All four EMS paramedic field supervisors, including Rebello, were laid off in mid-February, two weeks after Rebello deployed. Rebello sued the City and Mr. Trout, alleging that they violated USERRA by “‘discriminating against, harassing, punishing, suspending and ultimately terminating [his] employment’ because of his military status…”
At trial, Rebello offered the following evidence to support his discrimination claim: “proximity in time between his notice of deployment and his termination; some negative comments made by EMS supervisors about his military activity; the City’s failure to apprise him of his rights under USERRA; and the City’s refusal to pay him for unused personal days and military leave time.”
The court, however, found this was insufficient to show that his military status “was at least a motivating or substantial factor” in his termination.
Although it is undisputed that he was terminated only two weeks after announcing his upcoming deployment, temporal proximity alone is insufficient…The derogatory comments he relies on were more or less ambiguous, but in any event were few, isolated, and not temporally proximate to his termination. They are properly regarded as “stray remarks” with little or no probative value…Rebello’s remaining allegations…are not probative of discriminatory intent…
But, even if Rebello’s evidence demonstrated a hostile attitude towards his reserve duties, the court ruled this would not be enough in the face of the fiscally motivated position reductions:
[D]efendants would still be entitled to summary judgment because Rebello completely fails to rebut the defendants’ well-supported contention, undisputed on the summary judgment record, that the City would have terminated Rebello if he had not been a member of the uniformed services.
Editor’s Note (Jim Cline): USERRA protects employees who have to leave employment to fulfill military service requirements. It is actually a rather robust statute and has served a strong deterrent against the occasional employer irritated by the operational issues caused by reservists recall to duty.
No doubt this reservist was disappointed to lose his job while he was serving his country, but it appears his frustration was somewhat misplaced. USERRA protects against discrimination; it doesn’t guarantee job preservation when there are nondiscriminatory reasons for force reductions. The budget cuts here were a reality that the court determined were the proximate cause for his discharge.
