By Jordan Jones
In Dubiak v. S. Abington Twp., the Court denied South Abington Township’s Motion to dismiss a police officer’s complaint that he was discriminated against in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA) when he was not rehired following active duty with the Marine Corps.
The Officer was employed with South Abington Township for about ten months when he was called to active duty with the Marine Corps and informed the employer that he was scheduled to be away for thirteen months. During active duty, the Officer was deployed to Iraq. The Officer was later informed that he could be released early from active duty, after only seven months. The Officer then made a formal request to the township to return. The Officer’s attempt at reemployment was denied, even though a position was available, and he was ultimately terminated by the Township. The police officer position was later filled by another applicant.
The Officer argued that the Township was in “violation of Employment & Re-Employment Rights of Members of the Uniformed Services (USERRA) 38 U.S.C. 4301, et. Seq.” The Court construed the Officer’s complaint as alleging that the Township violated Section 4311 of USERRA which prohibits “discrimination” and “acts of reprisal” against “persons who serve in the uniformed services.”
The Township made a technical argument that his written complaint was defective. It contending that Section 4311 “cannot apply as a matter of law to [the Officer’s]…claim because 4311 only applies ‘after reemployment has occurred[;]’” and that “USERRA’s reemployment provision found in section 4312 protects military members up until the moment they are reemployed, while other sections of USERRA, such as the antidiscrimination provision found in section 4311, only protect the member after reemployment occurs.”
The Court stated that the explicit and plain meaning of Section 4311 of USERRA indicates that members of the military should not be denied reemployment based on military membership. The Court also noted that USERRA should be liberally construed in favor of service members and that this law applies to matters in which the purported discriminatory treatment is refusal to hire.
[The Township’s]… interpretation of Section 4311 – even assuming that it represents the law of other Circuits – finds no support in Third Circuit case law or in a neutral reading of the face of the statute…Section 4311 explicitly states that a member of the uniformed services “shall not be denied… reemployment…on the basis of that membership.” 38 U.S.C. § 4311(a). This section is perfectly clear on its face…
Ultimately, the Court denied the Township’s Motion to Dismiss the Officer’s complaint as a matter of law.
Editor’s Note (Jim Cline): As this Court indicates, USERRA is generally liberally construed to protect service members. Although the Officer’s complaint was inartfully drafted, the Court cut through the technical argument to get to the core of the complaint. Here the employer was left arguing that the statute only protected service members once they were reemployed and, since it hadn’t reemployed him, he lacked the protection of the act. The Court saw through the absurdity of that position.
