Motion to Dismiss Denied in IBM USERRA Case

March 2, 2005 ( - A federal court has denied IBM's motion to dismiss in a case involving an employee who claimed he was fired because of his time spent in the Army Reserves.

>US District Judge Denny Chin of the US District Court for Southern New York denied the motion to dismiss, asserting that a reasonable jury could possibly find Michael Warren’s Reserve status to be a substantial and motivating factor in his dismissal, according to the New York Law Journal.

>Warren was employed at the computer giant since 1994, and was dismissed in September 2002 after three favorable performance reviews in a row. He had been a member of the Reserves since 1986 and, besides some weekend duty, took a two- to three-week period each year for active duty.

>Warren’s supervisor had repeatedly expressed concern with his Reserve duty, according to the case against IBM. One supervisor spoke to Warner 15 to 20 times in 2001 on the subject and at one point told the employee “you’re killing me – we need to know what is happening….with the reserve,” according to the Law Journal.

>When Warren in 2002 sent an e-mail to a colleague in London that threatened to inflict bodily harm, he was dismissed. Warren claimed that the message was a joke – a common action at IBM, according to the employee – but he was dismissed for violating “business conduct guidelines”.

>Warren, believing that his firing had more to do with his Reserve duty than the threatening email, filed suit, claiming IBM had violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the New York State Soldiers and Sailors Civil Relief Act.