USERRA

Construction Firm Settles Suit Over Guardsman's Job Rights

CATHERINE TOMASKO, ESQ., Andrews Publications Staff Writer
Government Contract Litigation Reporter

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A Wisconsin construction company will pay $4,000 to resolve the Justice Department's lawsuit alleging the firm discriminated against an Army National Guard member by demoting him after he returned from active duty.

Sylvester v. Mort's Concrete Inc., No. 09-CV-608, settlement approved (W.D. Wis. Mar. 5, 2010).

Mort's Concrete Inc. and owner Kevin Mortimer will pay the money to Rocco Sylvester Jr., the agency said.

The Justice Department filed suit in October 2009, alleging the defendants violated the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301.

USERRA forbids employers from discriminating against employees because of their military obligations. It also requires employers to offer service members their old jobs or comparable positions when they return from military duty.

The complaint, filed in the U.S. District Court for the Western District of Wisconsin, said Sylvester began working for Mort's Concrete in 2003. As a foreman, he made $25 an hour, supervised other workers and had exclusive use of a company truck.

Sylvester notified Mortimer in June 2004 that he would be leaving for a tour of duty in Iraq, according to the complaint.

Sylvester served in Iraq between June 2004 and November 2005. When he returned to work Nov. 21, 2005, the defendants gave him in a laborer's job rather than return him to a supervisory position, the complaint said.

Sylvester did not have supervisory duties or the use of his own truck, although he did earn his prior wage. However, because he was given fewer than the 40 hours he worked as a supervisor, he earned less than he did in his previous position, the Justice Department said.

The government said Sylvester resigned from employment with the company in February 2006 because of his reduced hours and less senior position.

The defendants' failure to re-employ Sylvester in his previous job because of his National Guard service violated USERRA, the Justice Department said.

In addition to paying Sylvester's lost wages, the defendants agreed to refrain from future violations of USERRA.

The agency filed suit after the Labor Department's Veterans' Employment and Training Service investigated the matter and could not reach a settlement with the defendants.

Attorneys:

Plaintiff: Louis Whitsett, Justice Department, Washington.

Defendant: Kristin J. Sederholm, Krekeler Strother, Madison, Wis.

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