The Uniformed Services Employment and Reemployment Rights Act (38 U.S.C.§§ 4301 et seq.), otherwise known as USERRA, protects our military men and women from being discriminated by their employer due to their military service or military commitments. Many employees serve as reservists, and in a time of war, such as now, oftentimes, they get called for duty or to participate in special assignments. When a reservists gets called to duty, he or she must report to service. The law prevents employers from targeting employees for such service. Oftentimes, employers feel that such employees are absent too much from their work and oftentimes, such employees are victims to impediments in promotion, or are even targeted for termination. The firefighter below has filed such a complaint.
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF FLORIDA
v. Case No.:
CITY OF MELBOURNE, and
PAUL FORSBERG in his official
COMPLAINT AND DEMAND FOR JURY TRIAL
JURISDICTION AND VENUE
Plaintiff, DOMINICK LANDOLFI, by and through his undersigned counsel, sues Defendants CITY OF MELBOURNE and PAUL FORSBERG, in his official capacity, and alleges:
1. This is an action under the Uniformed Services Employment and Reemployment Rights Act (38 U.S.C.§§ 4301 et seq.) to correct unlawful employment practices on the basis of service in the uniformed services, to vindicate plaintiff’s rights and the rights of other employees engaged in uniformed services to fair treatment and equal opportunity, and to make plaintiff whole. Plaintiff was and is a qualified employee engaged in the uniformed (military) services. Defendant discriminated against plaintiff by failing to promote employee because of his membership in the uniformed services.
2. This court has jurisdiction over the subject matter of this complaint pursuant to 28 U.S.C. §§ 1331. This action is brought under the Uniformed Services Employment and Reemployment Rights Act, (“USERRA”), 38 U.S.C. §4323.
3. Venue is proper in this district because defendants reside in this district and because a substantial part of the events or omissions giving rise to this claim arose in this district.
4. Pursuant to 38 U.S.C. §4323(h), “No fees or court costs may be charged or taxed against any person claiming rights under [USERRA].”
5. Dominick Landolfi is a resident of Brevard County, Florida, and over the age of nineteen years.
6. Plaintiff is a member of the uniformed services as defined in 38 U.S.C. § 4303 (16). Plaintiff has been a member of United States Air Force Reserve currently holding the rank of Senior Master Sergeant (SMSgt).
7. Paul Forsberg is a resident of Brevard County, over the age of nineteen years, and has been the chief for the City of Melbourne during the employment years pertinent to this complaint. He is sued in his official capacity for equitable relief only.
8. The City of Melbourne is a government entity residing in Brevard County.
9. At all times relevant to this complaint, each defendant was an employer for purposes of 38 U.S.C. § 4303 (4) (A).
STATEMENT OF CLAIM
10. Lt. Landolfi has 24 years of leadership experience in his position as a Non-Commissioned Officer in the United States Air Force Reserve.
11. Lt. Landolfi began his employment with the City of Melbourne on November 9, 1987. He was promoted to Lieutenant in October of 1999 and became eligible for the Battalion Chief position in April of 2002.
12. Lt. Landolfi performed his duties exceptionally, often going well above and beyond the call of duty in the performance of his firefighting duties and was often complimented by upper management for his service as acting Battalion Chief.
13. In 2005, Lt. Landolfi applied for a vacant Battalion Chief position.
14. On February 1, 2006, Lt. Landolfi received a letter stating that he had not been selected for the position.
15. Although it was policy to choose a candidate from the top three, Defendants went beyond those perimeters and chose the fourth candidate.
16. Lt. Landolfi met with Fire Chief Paul Forsberg to discuss the reasons he had not been promoted, since Chief Forsberg himself had informed Lt. Landolfi that he was the top candidate as determined by an independent assessment center, a written test, and several interview panels.
17. Forsberg complained that his military service was causing Lt. Landolfi to not have enough “face time” at the station and that “it is well known you work the system with your military time.”
18. Lt. Landolfi filed a grievance against the selection committee and in response, Tom Flamm, Assistant Chief of Operations (AC), wrote to Lt. Landolfi, referring to the reasons Lt. Landolfi had not been promoted as “a number of incidents that are not included in your personnel file.”
19. Said grievance only added to the retaliatory actions Lt. Landolfi suffered at the hands of the Melbourne Fire Department.
20. In 2008, Lt. Landolfi again applied for a vacant Battalion Chief (BC) position and although he was the most qualified he was passed over for the position.
21. In 2008, Assistant Chief of Operations, Tom Flamm wrote to Senator Bill Nelson saying that SMSgt Landolfi’s tour of duty was problematic in “assist[ing] us in performing our function and scheduling issues” and asked that Senator Nelson either extend or shorten “less frequently” his deployment. He attached a spread sheet which indicated SMSgt Landolfi’s tour of duty as illustrative of the problems the deployment was causing. (See Exhibit “A”)
22. This letter exhibits the general bias and contempt of the Melbourne Fire Department administration and upper management toward Lt. Landolfi due to his military involvement with reserve duty which contributed to Lt. Landolfi not being promoted.
23. In 2010, Lt. Landolfi again applied for a vacant Battalion Chief (BC) position.
24. Again having been denied his rightful promotion, Lt. Landolfi had a meeting to discuss his concerns regarding the promotion with Chief Forsberg.
25. Fire Chief Forsberg complained that Mr. Landolfi was out all the time, and that his firefighting duties were not his primary concerns and that Mr. Landolfi was causing himself to be deployed to earn more money and not serve the department.
26. It was evident that the Melbourne Fire Department as a whole did not understand the importance of military commitment and was angry towards Lt. Landolfi for not having enough “face time.”
27. It is apparent that Lt. Landolfi was being punished for being a member of the armed forces and although he was the most qualified candidate for the vacant (BC) positions he failed to be promoted the three times he applied.
LEGAL BASIS FOR CLAIM
28. USERRSA, 38 U.S.C. § 4311 provides in part:
(a) A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.
(c) An employer shall be considered to have engaged in actions prohibited:
(1) under subsection (a), if the person’s membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service;**
29. Plaintiff’s protected status was a substantial motivating factor in defendants’ refusal to employ plaintiff as a battalion chief.
30. Plaintiff was the most qualified applicant for the 2006, 2008, and 2010 promotions, yet he failed to be promoted due to his military service obligation.
31. Defendants’ refusal to promote plaintiff constituted a violation of the USERRA.
32. Plaintiff is entitled to a declaration that defendants acted in violation of the USERRA.
33. As a result of defendants’ violation of law as alleged herein, plaintiff will suffer lost wages and benefits of employment from the date of his application for promotion through the date of trial, in an amount to be proven at trial.
34. Plaintiff is entitled to an order instating him to employment as a battalion chief, or if instatement is not feasible, to an order awarding future lost earnings and lost earning capacity in an amount to be proven at trial.
35. Defendant’s acts were done willfully. Plaintiff is entitled to recover an amount equal to his lost wages and benefits as liquidated damages pursuant to 38 U.S.C. § 4323 (d)(1)(C).
36. Plaintiff is entitled to an award of attorney’s fees, expert witness fees, and other litigation expenses incurred herein, pursuant to 38 U.S.C. § 4323 (h)(2).
PRAYER FOR RELIEF
37. The plaintiff prays that the Court grant the following relief:
a. Declare defendants in violation of the Uniformed Services Employment and Reemployment Rights Act.
b. Order defendants to employ plaintiff in the position for which he applied, at the level of seniority, status, and compensation that he would have enjoyed had he been employed by defendant and remained employed continuously with defendant;
c. Pending plaintiff’s promotion as provided in the previous paragraph, order defendants to compensate plaintiff as if he were in the position for which he applied, at the level of seniority, status, and compensation that he would have enjoyed continuously with defendant;
d. Alternatively if such employment is not feasible, award plaintiff compensation for lost future earnings and benefits of employment in such amounts as are determined at trial.
e. Enjoin defendants from taking any action against plaintiff that fails to comply with the provisions of USERRA;
f. Order defendants to make plaintiff whole by compensating him for past and future pecuniary losses, including expenses, lost past earnings and benefits of employment caused by plaintiff’s loss of employment opportunity, all in such amounts as are determined at trial.
g. Declare that defendants’ violation of USERRA were willful.
h. Order defendant to pay liquidated damages to plaintiff.
i. Order defendant to pay prejudgment and postjudgment interest on all amounts due to plaintiff as a result of this action.
j. Award plaintiff his costs of suit and his reasonable attorney fees, costs, and expert witness fees pursuant to 38 U.S.C. § 4323 (h)(2).
k. Order such further or alternative relief in favor of plaintiff as the Court deems appropriate.
DEMAND FOR JURY TRIAL
PLAINTIFF demands a trial by jury on all issues so triable.
Dated: June 9, 2011
ARCADIER & ASSOCIATES, P.A.
Maurice Arcadier, Esquire
Florida Bar No. 131180
Attorney for Plaintiff
2815 W. New Haven, #304
Melbourne, Fl. 32904
Phone: (321) 953-5998
Fax: (321) 953-6075
More Information: For more information, please see our USERRA page
Attorney: Maurice Arcadier
Status: Open, Pending
Date Filed: June 2011
Our Melbourne office is centrally located in Brevard County, enabling our lawyers to serve clients throughout “the Space Coast”, including Cocoa Beach, Palm Bay and Vero Beach.