The Department of Justice is suing Con-way Freight Inc. on behalf of a U.S. military veteran, who alleges that the company violated his rights by failing to reassign him to his former position after he recovered from a temporary service-related medical disability.
The lawsuit states that Con-way’s Rock Island, Ill., facility violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) by failing to promptly reassign Naval Reservist Dale Brown to his former position as a driver with appropriate seniority once he had recovered from a serious shoulder injury he sustained in a truck accident during a night mission in Iraq.
The lawsuit seeks an adjustment to Brown’s seniority date as a driver sales representative to his pre-deployment date with back wages for Con-way’s six month delay in re-employing Brown once he asked for reinstatement following his medical clearance, and his inability to bid on desirable shifts and routes due to his lack of seniority.
According to the complaint, filed in the U.S. District Court for the Northern District of Illinois, Brown began working for Con-way on Nov. 9, 1987, as a driver sales representative. In October 1999 he joined the U.S. Naval Reserve until his honorable discharge in January 2009.
In 2006, Brown was working at Con-way’s Rock Island, Ill., facility when he deployed for active duty. He returned to Con-way in 2009 following an honorable discharge.
The suit alleges that Con-way placed him in a lower-paying position due to medical restrictions that prevented him from returning to his former position. By 2012, the suit states that Brown had made a full recovery and notified the company that he was able to resume work without medical restrictions. Con-way refused to return Brown to the DSR position and instead made him apply for open positions as they became available. Months later, Brown was eventually rehired as a driver sales representative, but Con-way treated him “as a new employee with no seniority to bid on assignments,” the suit stated.
“As a result, Brown effectively received a 40 percent reduction in pay compared to what he was earning as a DSR prior to his military leave,” according to the lawsuit. “He also no longer has a regular work schedule because his seniority was not restored upon reinstatement and he must call in each day to see if and for how long he will work on a given day.”
A spokesman for Con-way said the company was “disappointed” by the lawsuit, and that the company “proudly supported him during his employment,” and welcomed him back on his return.
“Contrary to the allegations of Mr. Brown and the Department of Justice, the company went well beyond the requirements of the Uniformed Services Employment and Reemployment Act,” Frantz said in a statement emailed to Land Line on Wednesday. “Con-way not only re-employed Mr. Brown, but it specifically created a position for him when he was unable to perform his prior duties due to a permanent shoulder injury he had suffered during his last deployment.”
Frantz also stated that Con-way has received multiple awards from the U.S. Department of Defense, including the 2007 Freedom Award, the highest honor a private employer can receive for support of Guard and Reserve employees. Con-way facilities in Fremont, Idaho, Manchester N.H., and Newark, N.J, all received the 2012 Patriot Award from the Defense Department’s Employer Support of the Guard and Reserve Office. The Patriot Awards are nominated by the employee or spouse and recognize individual supervisors and bosses for support provided directly to the nominating service member and his or her family.
“Con-way proudly supported Mr. Brown during his deployment, and welcomed him back as it has done for hundreds of Con-way employees who have been called to serve our country as members of the National Guard and Reserves,” he said. “Con-way is disappointed that the Department of Justice brought this action against our company. The complaint contains a number of factual and legal misstatements. Con-way is eager to present its case and demonstrate that the allegations made are unfounded.”
Frantz declined to comment about specific examples of factual and legal misstatements in the Justice Department’s suit.
USERRA obligates employers to promptly re-employ returning service members and place them as near as possible in the position that they would have been in absent military service, or a position of similar seniority, status and pay.
The Justice Department stated that for service members like Brown, who return with a service-connected disability, the re-employment obligation extends to providing accommodations to the service member, which can include a temporary position until the service member has recovered and is able to return to his or her proper re-employment position.
“Contrary to these requirements, Con-way violated USERRA by treating Brown as a newly hired DSR, with no accrued seniority, rather than placing him in the position that he would have held had he not served his country and suffered a serious and debilitating injury that required temporary accommodation,” the release stated.
The release stated the case stems from a referral by the U.S. Department of Labor following an investigation by the DOL’s Veterans’ Employment and Training Service. The case is being handled by the Employment Litigation Section of the Civil Rights Division.
Additional information about USERRA can be found on the Justice Department website’s Service member page and Employment Litigation Section page, as well as on the Department of Labor website.
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