Legal Lesson Learned: There has been increasing litigation against fire departments by applicants claiming they were not hired because of their membership in a National Guard or other military unit. Thoroughly document the evaluation of each applicant, and brief all applicants who ask about their poor rating, so those in the military understand that the department "would have taken the adverse action, anyway, for a valid reason" 38 U.S. Code 4311.
Under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), "A person who is a member of ... a uniformed service shall not be denied initial employment ... by an employer on the basis of that membership...." 38 U.S.C 4311(a). An employer is considered to have violated the statute "if the person's membership ... in the uniformed service is a motivating factor in the employer's action." 38 U.S.C. 4311(c).
Some fire service organizations have taken a leadership role in urging compliance with USERRA. For example, the Ohio Fire Chiefs' Association made an admirable pledge at their July, 2007 annual conference:
Guard Support Program Endorsed. "The groundswell of support of our armed forces continues and the Ohio Fire Chiefs' Association has joined in on the march. The Association endorsed the efforts of the Employer Support of the Guards and Reserve by signing onto its pledge that says employment will not be denied." The article concludes, "The Association's Board is aware that many firefighters and EMTs have been called into active duty as a result of their guard and reserve status. Simply thanking them isn't enough; they must be assured their jobs at their fire departments and emergency service organizations are waiting for them when they return." (See their In Command magazine, September/October 2007 (page 13).
Recent litigation is illustrated by the April 10, 2007 decision in Thomas Hart v. Township of Hillsdale, U.S. Court of Appeals for the Third Circuit (Philadelphia), 2007 U.S. App. LEXIS 8515. The three-judge court held that the Hillsdale Fire Department did adequately prove that their decision to not hire Thomas Hart in 2002 was for valid reasons, not related to his membership in the New Jersey Army National Guard.
Five years of litigation! In December, 2001, Hart applied for a position with the Hillsdale Fire Department. There were six applicants for two full-time positions. He was interviewed by the Firefighter Selection Committee. When Hart told the committee he was in the N.J. Guard, they asked him 13 questions about his military obligations.
Following his interview, Hart submitted to a psychological evaluation. In April, 2002, the Firefighter Selection Committee prepared a list of the six candidates in order of preference, and listed Hart as number six, or, last. The fire chief recommended to the mayor, and the township ultimately hired the two firefighters listed numbers one and two by the committee.
Regarding Hart, the fire chief wrote to the mayor: "One final candidate, Mr. Timothy Hart, who has finished sixth in the process due to his interview and background check, is not recommended for hiring at this time. He shall remain on the list for future consideration." Apparently the fire chief did not provide details of these deficiencies to the applicant; the specific concerns were disclosed after Hart filed his lawsuit.
On May 15, 2002, the fire department decided to hire a third full-time position. The department's selection committee turned to their three remaining applicants, and again listed Hart at bottom of the list. The fire chief recommended, and the Mayor hired the number one applicant.
Hart appealed to the NJ Department of Personnel, claiming he was not hired about of his membership in the N.J. Army National Guard. His appeal was denied, with the N.J. Merit System Board finding that the fire department "did not treat the appellant differently than the other applications."
Prior to receiving the decision from the N.J. Merit System Board, Hart filed a lawsuit in the U.S. District Court for New Jersey on December 5, 2003, claiming a violation of the Uniform Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4311 et seq. The federal District Judge dismissed the lawsuit in March, 2006, granting summary judgment to the township, and the fire department described multiple reasons for not hiring Hart:
- "Hart seemed to take the interview too casually;
- Hart was inappropriately dressed at the interview;
- Hart has a criminal history, including an incident with a BB gun and a disorderly persons offense related to an incident with is girlfriend;
- Hart has a subpar driving record, including three moving violations and four accidents;
- Hart's psychological evaluation suggested that he was immature."
The Third Circuit held, "Hart has put forth no evidence that would dispute any of the above contentions, all of which constitute legitimate, non-discretionary reasons for Hart's selection. Accordingly, we must affirm the District Court's grant of summary judgment on Hart's USERRA claim."
This case should send a clear message to fire departments - let applicants know why they have been rated poorly, and document the specific reasons. This might help avoid five years of litigation.
Larry Bennett is an attorney, adjunct professor at University of Cincinnati's Fire Science Department, a volunteer firefighter/EMT for the past 27 years, and is author of a new textbook that has recently been selected for use by the National Fire Academy, Fire Service Law, by Prentice Hall/Brady. Larry writes a free, monthly Fire & EMS and safety newsletter which you can sign up for at www.katzmanlaw.com. You can contact Larry by e-mail at: [email protected].
