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Justice Dept. goes to bat in vet's USERRA suit

Jan. 9, 2013 - 12:29PM   |   Last Updated: Jan. 9, 2013 - 12:29PM  |  
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The Justice Department has filed suit against the sheriff in Jerome County, Idaho, charging violations of the reemployment rights of an Army National Guard soldier who re-injured his knee on a weekend training drill.

Mervin Jones first injured the knee in Iraq in 2004, according to the lawsuit, filed in federal court in Boise, Idaho. The complaint alleges that the sheriff's office fired Jones on April 10, 2009, two weeks after a second knee surgery required after he re-injured his knee during a weekend training drill in 2008.

Under the Uniformed Services Employment and Reemployment Rights Act, employers must accommodate service members injured in the line of duty. Troops recuperating from injuries are allowed up to two years to be reemployed.

Jones, a medically retired sergeant, initially filed a complaint with the Labor Department, which referred it to Justice after an investigation.

USERRA cases investigated by the Labor Department involving reasonable accommodations for the disabled have ranged from 2 percent to 2.6 percent of total cases since 2007, according to annual reports to Congress.

In 2007, there were 24 such cases; in 2011, there were 36 cases. Preliminary numbers for 2012 indicate 30 such cases, said Michael Volpe, a spokesman for the Labor Department.

Jones was hired in 2002 as a correctional deputy sheriff, and by 2007 had been promoted to corporal and detective.

In 2004, Jones was deployed to Iraq, where he suffered a knee injury. When he returned home in 2005, then-Sheriff Jim Weaver rehired him, the lawsuit states.

When Jones re-injured his knee in 2008 on a weekend training drill, Weaver and his chief deputy sheriff recommended that Jones use his accrued sick leave and take time off to recover, according to the lawsuit.

Weaver also assured Jones that USERRA applied to his situation, and that Jones could return to his job when his knee healed.

In August 2008, the Army determined that Jones' knee was injured in the line of duty and paid for his November 2008 surgery. By December, Jones' doctor decided a second knee surgery was necessary.

In January 2009, a new sheriff took office in Jerome County, Doug McFall. His chief deputy, Jack Johnson, told Jones that he would have to take leave under the Family Medical Leave Act.

In February, a month before his second surgery was scheduled, Jones asked to return to light-duty work because he feared his FMLA leave would run out. He was told there were no openings, according to the lawsuit.

About a week before his surgery, Johnson sent Jones a letter requiring him to undergo a "fitness for duty" evaluation and a physical fitness test, stating that if he couldn't meet these requirements by April 6, 2009, disciplinary action would follow.

On April 10, Jones was fired, according to the lawsuit.

Reached by phone, McFall said he can't comment on the case because it is a personnel matter and under active litigation.

Within six weeks of his March 26, 2009, knee surgery, Jones' knee had healed and he was able to return to work. But he has been unable to find work in the law enforcement field.

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