Judge Clears USERRA Suit for Trial

May 27, 2005 (PLANSPONSOR.com) - A Nebraska federal judge has cleared for trial a lawsuit by an Army reservist over his employer's failure to rehire him when his Iraq deployment was canceled, but said the reservist could only be awarded one day's worth of lost wages.

>US District Judge Richard Kopf, in the US District Court for the District of Nebraska, issued the decision in a case involving plaintiff Jeffrey Haight who alleged that Luckie’s Lounge and Grill of Lincoln, Nebraska violated federal law in not giving him back his bar manager position, BNA reported. Haight’s suit charged the bar with violating the Uniformed Services Employment and Reemployment Rights Act (USERRA), which protects the employment rights of returning service personnel.

>Kopf found that the question of whether Luckie’s should have reemployed Haight on the spot when his deployment was cancelled in September 2004 could go to trial because there was no doubt reemployment was required USERRA.

>However, the court also found that the company was not required to give him back the bar manager job after Haight sabotaged the company’s Web site by dismantling a series of electronic links and posting a notice accusing the employer of being unpatriotic. The Web site sabotage came a day after Haight notified the company of the deployment cancellation, according to the court ruling.

Kopf said in the decision that Haight had originally been called up for Iraq duty during the summer of 2004 and was eventually summoned as of August 23. His final work day was August 13. According to the court, he had no contact with his employer until he returned to the bar on September 6 with word that he was not being called up after all and asked for his bar manager position back.

>He was told the only available position was a “cook position,” but Haight responded that he was required to be reinstated to his management job, Kopf recounted in the ruling. Haight then threatened to contact the military and Veterans Affairs Department to support his position and left the bar.

>Kopf said that after leaving the lounge, Haight sent an e-mail message to the manager explaining where she could get information about USERRA but also threatened to contact a lawyer and the local media if he was not reinstated to his bar manager position. The next day, Haight accessed the company’s Web site and committed the sabotage, according to the court.

>Although Kopf said Haight was entitled to a jury trial on his failure-to-reinstate claim, the judge said his subsequent sabotage of the company’s computer was a violation of the company’s work rules which meant that the employer was justified in not reemploying him after the incident.

>The judge said it was clear Haight was aware of the work rules, which included a ban on destruction of company property, and therefore the destruction and alteration of the Web site was a firing offense.

>Given Luckie’s legitimate reason for terminating Haight, the court said he was only able to recover lost wages for one day, September 6, 2004, when he was denied reemployment. Any lost wages after that date would be improper since Haight was fired for lawful reasons related to the Web site sabotage, the court said.

>The case is Haight v. Katch d/b/a Luckie’s Lounge & Grill, D. Neb., No. 04-3363, 5/20/05.