Labor & Employment Law Daily Wrap Up, USERRA, VETERANS—M.D.N.C.: Police officer, under investigation prior to deployment, cannot advance claims, (Apr 27, 2026)

By Nicholas Kaster, J.D.

While temporal proximity can be a circumstance suggesting causation, here the officer was already under investigation at the time of the announcement of his deployment.

A police officer’s USERRA claim failed to survive summary judgment where he could not show that his military service was the motivating factor in his termination for insubordination, a federal district court in North Carolina has ruled. The court also dismissed his race discrimination claim for insufficient evidence of discrimination and pretext (Richards v. City of Durham, No. 1:24-CV-955 (M.D. N.C. Apr. 24, 2026)).

Investigation. The employee was a police officer for the City of Durham. On September 2, 2022, when he was scheduled to work a shift in District 2, the officer was outside the city limits at a firing range minutes before his shift was scheduled to begin. The officer did not leave the firing range immediately and was not in District 2 when his shift began. The conduct was reported and the officer was placed on leave pending an investigation.

Deployment. At the time of the investigation, the officer was a reservist with the Coast Guard. While on leave, but before any decision had been made about whether he had violated city policy, he informed his police command team that he would be recalled to Coast Guard duty in mid October.

Termination. After the investigation, it was determined that the officer had violated two Police Department policies: Rule 1.4, requiring officers to “promptly obey all lawful orders and directions given by supervisors,” i.e., insubordination, and Rule 2.7, requiring officers to “report to assigned duty at the time and place specified.” The officer had a long history of disciplinary violations, and upon further review, he was terminated. The officer then brought claims against the city under 42 U.S.C. §§ 1981 and 1983 and under the Uniform Services Employment and Reemployment Rights Act (USERRA).

Section 1981/1983 claims. First, the court addressed the officer’s claims for racial discrimination. He did not put forth any direct evidence of racial discrimination. He had no evidence, for example, of racial comments, of abusive or disrespectful language about race, or statements attributing decisions about his employment to his race. While he offered evidence of: (1) membership in a protected class; (2) satisfactory job performance; and (3) an adverse employment action, the court found that his evidence that he was treated differently from similarly situated employees outside the protected class was insufficient to give rise to an inference of discrimination.

No pretext. Moreover, the city proffered undisputed evidence of a nondiscriminatory reason for his termination, and the officer offered insufficient evidence to rebut that explanation as pretextual. He contended that he showed disparate treatment because other officers were charged for insubordination “in circumstances much more flagrant than” his offense conduct.

However, the plaintiff must provide evidence that the proposed comparators are not just similar in some respects but similarly situated “in all respects.” The officer’s narrow focus on comparing only his offense conduct for insubordination, without considering his disciplinary history and the other charge for not reporting for duty on time, did not support an inference that the city acted out of a discriminatory motive, said the court.

Extreme overreaction? The officer maintained there was insufficient evidence to support his insubordination charge. As a result, he alleged, a jury could infer pretext based upon “an extreme overreaction” to a minor infraction. This position was without merit on multiple levels, said the court. The investigative findings of insubordination at all levels were consistent, undermining an inference of pretext and the investigative record documented ample evidence of insubordination.

In addition, the employee had an extensive disciplinary record, including one prior discipline for insubordination. Thus, neither the finding of insubordination nor the sanction of termination gives rise to an inference of discrimination, the court determined.

General assertions. The officer contended that he showed discrimination based upon a “relatively permissive approach to misconduct by white officers” coupled with statistics “showing that black officers are disciplined at a rate double their percentage in the police force.” But both assertions were too general to create a genuine issue of fact as to his termination, said the court. Statistics “without expert testimony as to methodology or relevance to plaintiff’s claim,” as here, do not establish pretext or discrimination, the court stated.

Further, the record did not support the officer’s assertion of a “permissive approach” to white officers. The officer argued that the city “has consistently avoided terminating white officers for what a jury could conclude were major infractions.” But the court noted that the officer had received 27 prior infractions, including insubordination, far exceeding the infraction history of the four proposed comparators combined.

Accordingly, the officer’s Section 1981 claim was dismissed due to insufficient evidence of discrimination and pretext.

USERRA claim. Next, the court found that the officer also failed to produce sufficient evidence to create a genuine issue of material fact on his USERRA claim.

Here, the officer did not establish a prima facie case under USERRA, because there was no evidence suggesting that the city was motivated by the officer’s service in terminating his employment. While temporal proximity can be a circumstance suggesting causation, here the officer was already under investigation at the time of the announcement of his deployment on September 21, 2022. He pointed to no mention made by any of the various decisionmakers at the various levels regarding his upcoming deployment and there was no evidence of “discriminatory animus” in the record. Given all the facts, no reasonable jury would infer from timing alone that officer’s service or protected activity was a “motivating factor” in his termination, the court found.

According to the officer, his redeployment announcement motivated the city to accelerate its investigation and his termination. There was, however, no evidence that the city accelerated its investigation, much less because of the officer’s redeployment announcement. The officer identified no evidence that the investigation and termination were accelerated, and there was no evidence of any reference to the officer’s redeployment as a basis for the timing of the investigation or termination. In addition, even if the city accelerated its investigation following the officer’s redeployment announcement, the city demonstrated that its “permissible reason for its employment decision, standing alone, would have induced it to make the same decision.”

The officer suggested that the city “would have had the benefit of knowing about” the misconduct of another officer in October 2022, for comparison, if it had delayed the investigation. But it is speculative to conclude that the unrelated conduct of another officer would have changed the city’s decision about this officer, particularly in light of the consistent findings in his investigative file, said the court. The officer also suggested that he could assert a claim solely on the basis of loss of salary, which he may have otherwise received if his termination had been delayed until after he returned from deployment. But he did not plead a claim based on loss of pay apart from termination, the court noted, and even if he had, for the reasons stated above, he did not show that the city accelerated the investigation and termination due to his redeployment.

The officer failed to establish a genuine issue of fact on his USERRA claim, the court determined. Accordingly, the city’s motion for summary judgment was granted.

The case is No. 1:24-CV-955.

Judge: Eagles, C.

Attorneys: Artur Davis (HKM Employment Attorneys) for Cornell Richards. Howard B. Rhodes (Skidmore Law Group) for City of Durham.

Companies: City of Durham

Cases: USERRAVeterans Discrimination RaceDiscrimination Discharge PublicEmployees NorthCarolinaNews