By John V. Berry, Esq., www.berrylegal.com
The U.S. Court of Appeals for the Fourth Circuit, in a case involving a police officer employed by the Town of Ocean City, Maryland, recently held that the U.S. District for the District of Maryland partially erred in dismissing the police officer’s USERRA retaliation case. The case, Bunting v. Town of Ocean City, No. 10-1140 (Unpublished Dec. Jan 31, 2011), found that the officer had in fact established a USERRA retaliation case that could proceed to trial.
Sergeant Bunting was employed by the Ocean City Police Department. At the same time, he was also a member of the U.S. Coast Guard Reserve. During a period of active duty, Sergeant Bunting missed out on an opportunity for promotion. He subsequently complained in 2004 that he had not been selected on the basis of military discrimination. Sergeant Bunning’s complaint was investigated by the Department of Labor (DOL-VETS) program.
While the investigation was ongoing, another promotional opportunity arose in 2007 with the police department, and he did not receive this promotion as well. Sergeant Bunning then filed suit for the original military discrimination issues under USERRA that had occurred in 2004, as well as the retaliation that occurred as a result of the non-promotion in 2007 based upon retaliatory grounds.
The Fourth Circuit affirmed the U.S. District Court’s finding that it was appropriate to dismiss the 2004 promotions/military discrimination claim, but reversed the District Court on the 2007 promotions/retaliation claims, reinstating Sergeant Bunning’s suit.
LEGAL HOLDING BY THE COURT
The Fourth Circuit, in reinstating Sergeant Bunting’s USERRA retaliation claim for the 2007 promotion, held that he had established enough evidence to lead a reasonable jury to the conclusion that he had been retaliated against for exercising his rights under USERRA:
“We have reviewed the record, and we conclude that Bunting has adduced evidence rising to the level of a disputed issue of material fact. When DiPino was notified of Bunting’s complaints to the mayor, she informed Ocean City’s attorney that she was referring Bunting to the OCPD’s internal affairs bureau. In addition, Ocean City responded to the DOL-VETS’s communication by implying that Bunting would face discipline for failing to comply with OCPD policies. In light of the fact that these threats of discipline were made in response to protected USERRA activities, the statements clearly raise the specter of retaliation. Finally, in evaluating Bunting for a promotion in 2007, one senior officer commented that Bunting was unfit for promotion because he filed actions against the OCPD. We conclude that these facts could lead a reasonable jury to find that Bunting may have received promotions in 2005 and 2007 if he had not engaged in protected activities, i.e., complaining to the mayor and filing a USERRA complaint with DOL-VETS.”
THOUGHTS ON THE HOLDING OF THE COURT
This is a good decision from the Fourth Circuit with respect to USERRA retaliation claims. USERRA retaliation cases tend to be more likely to be sustainable in court when comparted to lawsuits brought on the original claims of discrimination itself. Furthermore, USERRA retaliation claims are usually much better received by the courts than other types of retaliation cases (e.g. those for discrimination under the Civil Rights Act) given Congressional intent to protect military personnel from acts of retaliation.