Montebello Police Officers Johnnie Paxton and Brandon Contreras, represented by Lackie, Dammeier & McGill APC, sued the City of Montebello in federal court over the city’s discrimination of the officers for their participation in the Iraq war as California Army National Guard soldiers.  Upon their return home from war, the City opted to reward the officers’ heroism and sacrifice by denying them the annual leave, seniority, and pay-steps they would have accrued but for their devoted service in our armed forces.  That denial, as found by the U.S. District Court, violated the Unformed Services Employment & Reemployment Rights Act (“USERRA”).  Accordingly, the court ordered the city to compensate the officers for the annual leave and pay-step increases earned during their deployments to Iraq.  Further, the court ordered the city to reinstate the officers’ seniority as if they had never left.

            USERRA is a federal law that guarantees uniformed service members a variety of reemployment rights. Under USERRA, an employer must reemploy service members returning from deployments to the position they would have been employed had there been no interruption by military service. This provision has been coined the “escalator provision,” and applies to the employment position, the rate of pay, and the seniority rights to which a returning service member is entitled.  See Rogers v. the City of San Antonio, 392 F.3d 758, 763 (5th Cir. 2004); 20 C.F.R. § 1002.193(a).  Also under USERRA, employers are required to provide non-seniority benefits, such as vacation leave accrual, to those employees on military leaves if that employer provides such benefits to similarly situated employees on comparable leaves of absence.

            In the lawsuit brought by Officers Paxton and Contreras against the City of Montebello, the City doggedly opposed officers’ contentions that the City had violated USERRA by refusing to compensate the officers at their proper pay-steps and by refusing to restore the annual leave withheld from the officers while on military leave.  Both parties filed a motion for summary judgment—contending they should prevail as a matter of law.  On March 17, 2010, the Court found in favor of the officers, holding that although the City was justified in requiring the officers to complete their probationary periods upon their return from Iraq, the City was required to compensate them for the pay-step increases earned while on military leave. The Court further found the officers were entitled to accrue vacation time while they were on military leave in light of the City’s policy entitling employees on ordered military leave to the same vacation or annual leave privileges as they would have enjoyed had they not been absent. 

            To some, it might seem remarkable that a city like Montebello would be willing to violate federal law and their own policies to save a few dollars—at the expense of its veterans returning home to their work and their families; perhaps even more remarkable when one considers that such a city would be willing to spend exponentially more money in litigation fighting the case instead of simply paying its employees.  However, as evidenced by the increasing number of USERRA cases walking through the door at Lackie, Dammeier & McGill APC, it is quite clear that public employees like Officers Johnnie Paxton and Brandon Contreras are not alone.  Perhaps this costly judgment against the City of Montebello will serve as a wake-up call to remind public employers that their uniformed service member employees should be treated as heroes—not second-class citizens.