Labor & Employment Law Daily Wrap Up, USERRA, VETERANS—E.D.N.Y.: Service member’s untimely USERRA claims for discrimination, retaliation dismissed; timely claims advance, (Mar 6, 2025)

By Ronald Miller, J.D.

The employee sufficiently alleged that his military service played at least a motivating role in being denied an interview.

A police officer and former service member’s claims that during his employment his employer discriminated and retaliated against him in violation of USERRA, mostly survived the employer’s motion to dismiss. A federal district court in New York granted the employer’s motion to dismiss the employee’s claims accruing before his assignment to the Seventh Precinct in 2004, as well as his claims based on his allegations concerning his vacation days. Otherwise, the motion to dismiss was denied. (Bjelobrk v. Suffolk County, No. 23-CV-08811 (HG) (E.D.N.Y. Mar. 5, 2025)).

Service member. The employee enlisted in the U.S. Army Reserve in 1988, received a commission in 1991 and entered the New York Army National Guard in 1991. In 1993, he graduated from Army flight school, where he flew helicopters. He joined the Suffolk County Police Department (SCPD) as a police officer in 1994. His first assignment as a police officer was with the SCPD’s Third Precinct, where he worked “steady midnights with full night differential.” During his time with the SCPD he participated in various military deployments with the U.S. Army.

While at the Third Precinct, a lieutenant told the employee that his “active membership in [the] United States Army Reserve was difficult to manage on the schedule and the coverage for his service was too expensive.” After that conversation, the employee was transferred to alternating day tours with less night differential and significantly reduced opportunities for overtime. After the employee complained, he was put back on midnight tours but was assigned to another squad to “isolate and punish” him.

Promotion requests. In 1995 the employee applied for a position in the SCPD’s Aviation Unit. Although the SCPD had previously assigned “qualified police officers on probation to the Aviation Unit,” the employee was told that that he was unqualified for the Aviation Unit because he was on probation and because his military service would create too much of a hardship for that unit’s schedule.

In 1999, the employee transferred to the SCPD Driving While Intoxicated Enforcement Team. He became a certified drug recognition expert (DRE). Before a DRE instructor course, the employee was told that his military service would interfere too much with the duties of a DRE instructor and he was excluded from the course. He was the sole member of his team who was a member of the Armed Forces Reserve/National Guard.

In late 2002, the employee applied to attend “Motorcycle School.” Two days before that class was to begin, the employee was told that his military service would “be too great of an interference” for a motorcycle officer and removed him from the class.

Military service a burden. After the employee returned from an eighteen-month military tour in Iraq in 2005, there was a vacancy in the Community Oriented Police Enforcement (COPE) unit. The employee interviewed for the role and was later told that he had not spent enough time in the Seventh Precinct and that his military service “would be a tremendous burden” on the COPE mission.

In 2010, the employee applied for an open K-9 sergeant position and interviewed for the role. He was first asked if he was still in the Army Reserve: he responded that the question was illegal. The interview ended after the employee was asked about his next military deployment. He was not selected for the position.

In 2013, the employee applied for a “Commanding Officer (Sergeant)” position. He was the only applicant who fulfilled all the requirements for the position. At the interview for that position, he “answered inappropriate questions about his military service schedule and likelihood of future mobilizations.” The interviewer told him that the military service was too much of an interference for the position. In 2016, he again applied for the position, but “was not granted an interview because of his... military service.” A less experienced applicant was selected for the position.

The employee served an active-duty military tour from January 28, 2012, to April 2, 2013. During that time, the Civil Service offered a promotional exam for the rank of lieutenant. Upon his return, the employee notified the Civil Service of his interest in taking the exam. He took the exam with around seven months less of study time than the other applicants had and failed to obtain a “competitive grade.”

Retirement. According to the employee, after he retired on July 31, 2016, the employer mis-reported his “top consecutive thirty-six month earnings,” resulting in a “significantly lower earnings amount than should have been reported.” When his pension was “finalized,” he received around $1,500 less per month than he claimed to have been entitled to.

Accrued leave. The employee asserted that during three active-duty tours, the employer “forced” him to use his accrued sick leave after he had “exhausted” his other authorized and accrued military, compensatory, personal, and vacation leaves.

On November 30, 2023, the employee sued the employer alleging discrimination and retaliation in violation of USERRA. The employer filed a motion to dismiss.

Limitations period. Between the time of USERRA’s enactment and the Veterans’ Benefits Improvement Act (VBIA), which came into effect on October 10, 2008, there was no reference to a federal statute of limitations. Today, courts use 28 U.S.C. § 1658’s generic four-year limitations period for pre-VBIA USERRA claims. Thus, the employer was right in identifying the outer limit of the employee’s potential USERRA claims on October 10, 2004. Accordingly, the court agreed with the employer that “the four-year statute of limitations provided for in § 1658 applies to USERRA claims that accrued and expired before October 10, 2008.” As applied to this case, that requires the dismissal of any claims accruing before the employee’s assignment to the Seventh Precinct in 2004.

Timely allegations. With regard to the employee’s remaining USERRA claims, the employee alleged that when he applied for a number of transfers and promotions, he was advised that his military service would be a tremendous burden. Interviewers also asked about his “future mobilizations.” As a consequence, the employee was denied a transfer to the COPE unit, a promotion to a “K-9 Sergeant position,” and selection for the Commanding Officer position in Firearms and Tactics.

When the court considered the employee’s allegations together and drawing all inferences in his favor, it could not conclude as a matter of law that the employee’s military service did not play a motivating role in his non-selection for the Commanding Officer position.

For essentially the same reasons, the court denied the employer’s motion to dismiss based on the employee’s allegations concerning his 2013 application to become Executive Officer of Firearms and Tactics. In this instance, he alleged that a less experienced and less well-trained sergeant was selected over him for the role. Thus, the court found that the employee alleged enough that his military service played at least a motivating role in being denied an interview. Consequently, the employee stated a claim for USERRA discrimination based on non-transfers. Accordingly, the motion to dismiss those claims was denied.

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 (The Law Firm of Gary N. Weintraub) for Suffolk County.

Companies: Suffolk County

Cases: USERRAVeterans EmployeeLeave Discrimination Retaliation NewYorkNews