Labor & Employment Law Daily Wrap Up, USERRA, VETERANS—E.D.N.Y.: Retired Suffolk County police officer failed to substantiate USERRA discrimination, retaliation claims, (May 11, 2026)

By Robert Margolis, J.D.

He alleged he was denied transfers, but court found no evidence the transfer denials were adverse employment actions or linked to discrimination.

A former uniformed service member and Suffolk County, New York police officer lacked sufficient evidence for a reasonable jury to determine that the police department denied him requested transfers, did not give him sufficient time to study for a civil service exam, and failed to properly report his earnings to New York State Comptroller for purposes of calculating his state pension, all because of his military service, a federal district court in Brooklyn held. The court found no evidence that the transfer denials were adverse employment actions or linked to discrimination. There was also no evidence tying the scheduling of his exam or the timing of receipt of a related study guide to his military service, and it was undisputed that the police department complied with all the State Comptroller’s monthly reporting requirements regarding the officer’s service and employment (Bjelobrk v. Suffolk County, No. 23-CV-08811 (HG) (E.D.N.Y. May 7, 2026)).

Retired sergeant. The plaintiff joined the police department in 1994 and retired with the rank of sergeant in 2016. He also served in the U.S. Army Reserve beginning in 1988 and throughout the time of his employment. He alleged that because of his military service (1) he was denied several applications to transfer to other units within the police department; (2) he was given less time than other police officers to study for a promotion exam; and (3) his pension calculation excludes certain overtime he would have earned but for his period of military service.

Lawsuit. He attributed all these actions to the police department allegedly discriminating and retaliating against him because of his service, and brought claims under USERRA. After several claims were dismissed on the pleadings, the police department moved for summary judgment on all six remaining claims, divided into two “counts”: (1) Count I, comprising five claims for discrimination in violation of 38 U.S.C. §§ 4311(a) and 4318(b)(3)(B); and (2) Count II, a claim for retaliation in violation of 38 U.S.C. § 4311(b).

USERRA. USERRA protects members of the uniformed services, including those in military reserves, from discrimination based on their military service. It provides that service members “shall not be denied … retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, … performance of service, … or obligation.” 38 U.S.C. § 4311(a). The statute defines “benefit of employment” as “the terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account or interest … that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice.” 38 U.S.C. §§ 4303(2). The loss of such a benefit constitutes and adverse employment action, “so long as the loss is material.” Woodard v. N.Y. Health & Hosps. Corp., 554 F. Supp. 2d 329, 347 (E.D.N.Y. 2008).

Transfer denials. For three of the discrimination claims, based on the denial of transfers, the court granted summary judgment because no reasonable jury could find that the denials deprived him of material benefits of employment. In each case, there was no evidence to indicate the requested transfers were to objectively superior job assignments. The denials did not cause the officer to suffer any decrease in benefits, wages, or salary; reduction in job responsibilities; loss of prestige, rank, or opportunity for career advancement; or any other material change to the terms and conditions of his employment.

Even if the retired officer had shown he was denied a benefit of employment, he did not provide sufficient supporting evidence that the transfer denials were based on his military service. For one, there was no admissible evidence that he had even requested the transfer. For another, the officer failed the mandatory physical examination such that he would have been denied the transfer irrespective of his military service. Finally, the evidence the retired officer presented for the third transfer denial came from affidavit testimony that the court considered “new, uncorroborated, and self-serving” and declined to consider. Evidence raised for the first time in opposition to summary judgment, and which is inconsistent with deposition testimony, cannot create a disputed issue of material fact.

Civil Service Exam. The retired officer alleged the police department had given him less time than other sergeants to study for the Civil Service Exam, by delaying delivery of a study guide to him. The evidence showed, however, that he was given accommodations for his own delays in requesting the scheduling of the exam, and that he did not complain at the time that he was given insufficient time with the study guide nor ask for additional study time. Finally, there was no evidence tying the scheduling of his exam or the timing of receipt of the study guide to his military service.

Pension reporting. The retired officer alleged the police department failed to properly report his top consecutive thirty-six month earnings to the State Comptroller, for purposes of calculating his state pension. The undisputed evidence, however, refuted this claim. It was undisputed that the Comptroller is responsible for calculating pension amounts and that the police department complied with all the Comptroller’s monthly reporting requirements regarding the officer’s service and employment, including reporting all periods that the officer was on military leave and overtime he earned. And while the officer still contended that he was entitled to certain military service credit for unspecified dates in 2015 and 2016, the officer himself was required to provide the documentation to substantiate that service, not the employer.

Retaliation. The retired officer’s retaliation claim similarly was devoid of evidence on which a reasonable jury could conclude the police department took action against him in retaliation for him engaging in protected military activities. First, he did not explain, let alone point to evidence of, any USERRA-related activity he engaged in. Second, there was insufficient evidence that the police department knew of protected activity. The only time the officer complained of service-related discrimination was when he submitted his retirement application, which was after all the alleged adverse retaliatory acts would have occurred. It is axiomatic that if the alleged retaliatory acts occurred before the protected activity, there can be no causal connection as is required for a retaliation claim.

The case is No. 23-CV-08811 (HG).

Judge: Gonzalez, H.

Attorneys: Raymond Negron (Law Offices of Raymond Negron) for Matthew D. Bjelobrk. Leland S. Solon, County of Suffolk Attorney’s Office, for Suffolk County.

Companies: Suffolk County

Cases: USERRAVeterans Discrimination Retaliation PensionBenefitPlans NewYorkNews