Appellate Court Reinstates Jury Award in USERRA Case

September 20, 2006 ( - The 9th US Circuit Court of Appeals has overturned a district court's dismissal of a jury award to a police officer who claimed he was retaliated against for exercising his rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

According to the opinion, after a jury awarded former San Diego city police officer James Wallace $256,800 in damages, finding the city guilty of retaliation, the district court granted the city’s motion for judgment as a matter of law. The district court said the jury’s verdict was “against the great weight of the evidence.”

However, the appellate court disagreed, finding that Wallace provided evidence of a pattern of discrimination that led to his constructive discharge in October of 2000. According to the court opinion, the discriminatory actions provided as evidence include:

  • failing to consider Wallace for promotion beyond the level of sergeant;
  • imposing excessive and discriminatory disciplinary action in response to actual misconduct;
  • refusing without justification or explanation to approve Wallace’s requests for permission to teach at the Police Academy;
  • initiating disciplinary proceedings for Wallace’s absence from work while he was on military duty in August 1999;
  • a supervisor refusing to approve military leave on October 2, 1999;
  • initiating termination proceedings and suspending Wallace for four days based on the foregoing discriminatory disciplinary action;
  • threatening Wallace that further misconduct could result in termination; and
  • issuing an “unacceptable” rating on performance reviews and putting Wallace on additional 90-day supplemental performance reviews.

The appellate court remanded the case to the district court to enter judgment based on the jury’s verdict.

The opinion in Wallace v. City of San Diego, et. al. is here .