Labor & Employment Law Daily Wrap Up, USERRA, VETERANS—E.D.N.Y.: No reemployment under USERRA where employee’s service exceeded five-year limit, (May 11, 2026)

By Ronald Miller, J.D.

The employee served for a period of almost 17 years but claimed that he qualified for the USERRA exception available to service members who were ordered to under any provision of law because of a war or national emergency.

Because an employee’s military service exceeded USERRA’s five-year limit without qualifying for an exception, a federal district court in New York granted the employer’s motion to dismiss his claim that it unlawfully declined to reemploy him to a fire marshal position. The court declined to find that he had specified he served because of a national emergency. The complaint did not suggest that the employee served “because of” that Presidential Proclamation 7463: a 2001 proclamation declaring a national emergency by reason of the terrorist attacks at the World Trade Center. Further, the employee failed to alleged facts showing that the employer failed to properly calculate his pension benefits or denied access to benefits to which he was entitled (Draves v. City of New York, No. 25-CV-3305 (EK) (PCG) (E.D.N.Y. May 7, 2026)).

Military service. In 1985, while a member of the United States Army Reserve, the employee joined the City of New York Fire Department (FDNY) as a firefighter. Fourteen years later, he was promoted to fire marshal. In February 2002, after three years in his new role, the employee was “activated” to full-time military service. Four years after that, he was reassigned to the Regular Army from his position as an activated member of the Army Reserve. He served until January 2019, when he was honorably discharged.

Two months before he was discharged, the employee notified FDNY, in writing, that he wished to be reinstated as a fire marshal with “all appropriate advancements, promotions, and benefits that he would have received had he remained continuously employed.”

Denied reinstatement. FDNY denied his request without stating a reason. As a result, the employee alleged he lost out on a variety of benefits, including pension benefits computed as if he had stayed employed with FDNY the entire time he served in the Army and benefits under the WTC Health Program.

In June 2025, the employee filed this lawsuit alleging five violations of USERRA including: failure to reemploy; military-service discrimination; failure to properly compute pension benefits; failure to confer benefits; FDNY’s failure to notify him for their reason for denying his reemployment. The employer filed a motion to dismiss the complaint in its entirety.

Failure to reemploy. Under USERRA a servicemember is eligible for reemployment if: (1) advance written or verbal notice of such service is given to the employer; (2) the cumulative length of the absence and of all previous absences from a position of employment with that employer by reason of service in the uniformed services does not exceed five years; and (3) the person reports to, or submits an application for reemployment to, such employer.

The employer argued that the employee failed to satisfy the last two prongs because (1) his cumulative service exceeds five years without falling into an exception; and (2) his complaint offered only the conclusory assurance that he “submitted a written request to FDNY for reemployment which complied with all requirements of USERRA.”

With respect to the employee submitting a written request for reemployment, the court was unconvinced that he failed to sufficiently alleged compliance with 38 U.S.C. § 4312(a)(3). All Subsection 4312(e) requires is for servicemembers who served more than 180 days to “submit[] an application for reemployment with the employer not later than 90 days after the completion of the period of service.” Here, the employee alleged that he did so, since prior to the completion of his military service, he submitted a written request to FDNY for reemployment.

Five-year limit. However, the court agreed with the employer that the employee’s military service exceeded the five-year limit without qualifying for an exception. The employee served from February 19, 2002, to January 31, 2019—a period of almost 17 years. The employee claimed that he qualified for the USERRA exception available to servicemembers who were ordered to or retained on active duty (other than for training) under any provision of law because of a war or national emergency.

Here, the court determined that the complaint fell short on both assertions. First, the complaint did not specify the national emergency “because of” which the employee believed he served. The employee’s briefing pointed to Presidential Proclamation 7463: a 2001 proclamation declaring a national emergency by reason of the terrorist attacks at the World Trade Center. The Proclamation has been renewed each year thereafter and remains in effect. The complaint does not suggest, however, that the employee served “because of” (rather than simply during) that Proclamation. The employee failed to plead any reason why he was ordered to active service.

The employee’s Section 4312 claim failed for a second reason: he did not identify any relevant “determination” by the Secretary of the Army in his complaint. The employee’s argument in opposition to the motion to dismiss stated that the Secretary of Defense has consistently recognized that service members who served during this period were serving during a time of war or national emergency for purposes of USERRA’s five-year exception. But the court pointed out that the Secretary of Defense is not the “Secretary concerned.” That would be the Secretary of the Army. The Department of Defense has indicated that it does not make the USERRA determination itself.

Employer conduct. Finally, the employee pointed to the fact that the employer paid him for the first eight years of military service but is now attempting to claim a five-year limit. Thus, he argued that, by their conduct... the five-year limit does not apply. But the court concluded that it was unclear why the fact that FDNY paid the employee for eight years of military service would mean that it waived the Section 4312(a)(2) five-year requirement for reemployment.

Military service discrimination. Next, the employee claimed that the employer violated 38 U.S.C. § 4311 by denying him pension rights. An employer’s actions violate Section 4311(a) if the person’s service in the uniformed services is a motivating factor in the employer’s action. To survive a motion to dismiss the Section 4311 claim, a plaintiff must plead “facts upon which it could plausibly be inferred that his military service or any protected activity was a substantial or motivating factor in the adverse employment actions.”

Here, the complaint pled no such facts. The only non-conclusory fact it alleged as to discrimination is that the employer provided “no reason” for its denial of the employee’s reemployment.

The employee says that FDNY improperly calculated his pension benefits in violation of 38 U.S.C. § 4318. However, Section 4318 only applies to “a person reemployed under this chapter.”

Failure to confer benefits. The employee also asserted a claim for failure to confer benefits in violation of 38 U.S.C. § 4316. Specifically, the employee says that the employer’s denial of access to the WTC Health Program constituted a denial of a benefit of employment to which he was entitled. Because the employee did not qualify for the protections contemplated in Section 4312, the employee’s Section 4316 claim also failed because Section 4316 only applies to servicemembers “reemployed under [USERRA]” or servicemembers who are denied employment benefits when they are “absent from a position of employment by reason of service in the uniformed services.” The employee does not have the right to be reemployed under USERRA and does not allege that he was denied benefits he was entitled to while in active service.

Failure to notify. The complaint says that the employer’s failure to notify the employee of the reason for denying his reemployment request violated 38 U.S.C. § 4312(d). Section 4312(d)(2) says only that if an employer denies a reemployment request on account of “impossibility or unreasonableness, undue hardship, or the brief or nonrecurrent nature of the employment without a reasonable expectation of continuing indefinitely or for a significant period,” then the employer has the burden of proof. The fact that the employer bears the burden of proof in litigation does not entitle the employee to notice of its reasons for denial in a rejection letter.

Accordingly, the employer was granted the motion to dismiss the complaint in its entirety.

The case is No. 25-CV-3305 (EK) (PCG).

Judge: Komitee, E.

Attorneys: Peter Joseph Gleason (Peter J. Gleason PC) for Leonard Draves. J. Birt Reynolds, New York City Law Department, for City of New York Fire Department, City of New York and Fire Commissioner Daniel Nigro.

Companies: City of New York Fire Department; City of New York

Cases: USERRAVeterans Discrimination PensionBenefitPlans NewYorkNews