In Wallace v. City of San Diego (— F. 3d —, 2006 WL 2457100, 9th Cir.(Cal.), Aug. 25, 2006), the Ninth Circuit Court of Appeals considered the question of whether a city retaliated against a police officer in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. §§ 4301 et seq. The court ruled that the trial court erred in overturning a jury verdict in favor of the police officer because there was substantial evidence to support a finding that the city discriminated against him resulting in his constructive discharge.
Facts
Officer James Wallace was employed from March 28, 1975, to October 10, 2000, as a police officer with the San Diego Police Department (SDPD). Officer Wallace began serving in the Naval Reserve in 1982, which required him to serve annual tours of active duty of two to three weeks and several extended periods of active duty, including service in Iraq and Bosnia. Officer Wallace sued SDPD in federal court for constructive discharge under the USERRA, claiming SDPD discriminated against him because of his military service and he therefore had no choice but to resign his employment with SDPD. A jury returned a verdict for Officer Wallace, but the trial court set the verdict aside because there was insufficient evidence to support it. Officer Wallace appealed to the United States Court of Appeals.
Decision
The USERRA prohibits employers from retaliating against members of the armed services and provides a right under specified circumstances to reemployment following service. The Court of Appeals determined there was substantial evidence of a pattern of discrimination and retaliation by SDPD against Officer Wallace based upon his military status beginning as early as 1991 and continuing through 2000.
There was evidence from which the jury could have concluded that Officer’s Wallace’s supervisors at SDPD, in retaliation for his military service and absences due to that service, (1) failed to promote Officer Wallace, assigned him to a department far from his home, and gave him undesirable or reduced responsibilities, all of which occurred around the times that Officer Wallace returned from active duty; (2) imposed unusually excessive and discriminatory discipline, which included institutions of termination proceedings, a four-day suspension, and threat of termination for further misconduct; (3) refused without justification to approve Officer Wallace’s request for permission to teach at the Police Academy, despite his past years of teaching; (4) initiated disciplinary proceedings for being absent from work while Officer Wallace was on military duty; (5) refused to approve military leave; and (6) issued an “unacceptable” rating and put Officer Wallace on an additional 90-day supplemental performance review. “This evidence was sufficient to permit the jury to conclude that the intolerable situations had not abated at the time of Wallace’s resignation, and therefore, that a reasonable person in his position would have felt compelled to quit . . . .”
There was also evidence that Officer Wallace’s working conditions had improved in his last months of employment because he was transferred to a different division closer to his home. However, there was also evidence that a month and one-half after Officer Wallace was transferred his previous supervisor served him with a performance evaluation of “unacceptable” for the previous year based on disciplinary actions taken against him while he had been serving on active duty in Bosnia; the supervisor also placed him on another 90-day supplemental performance review. The jury could have reasonably concluded from this evidence that Officer Wallace’s previous supervisor was still able to take continued discriminatory action against him. Also, there was evidence from which the jury could have concluded that SDPD condoned the discriminatory actions, because SDPD did not discipline the supervisors who had carried out the bulk of the retaliatory conduct.
The court of appeals ordered the trial court to reinstate the verdict in favor of Officer Wallace.
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