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Nevada violated USERRA, lawsuit claims

The Justice Department has filed a federal lawsuit against the state of Nevada, alleging that officials violated the rights of an Army Reserve colonel by refusing to reinstate him to his job when he returned from a mobilization in 2008, and retaliating when he filed a federal complaint — by firing him and then backdating the firing.

The lawsuit, filed June 15 in U.S. District Court for the district of Nevada, alleges that after Army Reserve Col. Arthur Ingram returned from mobilization in 2008, Nevada officials offered him the position of chief accountant in the controller’s office, with less pay and less seniority than his previous job as chief deputy controller.

“The law is clear: Unnecessary delays and reprisal will not be tolerated,” said Loretta King, acting assistant attorney general for the Justice Department’s civil rights division, in a statement announcing the filing of the lawsuit.

The department alleges that Nevada officials violated the Uniformed Services Employment and Reemployment Rights Act of 1994 because the state failed to promptly re-employ Ingram in the same position or a position of similar seniority, status and pay to the position he would have held if he had remained continuously employed.

The state also violated USERRA by retaliating against Ingram for filing a complaint, the lawsuit alleges.

“I am surprised the federal government has chosen to take Mr. Ingram’s side in this matter,” said Nevada State Controller Kim Wallin in a written response to questions about the lawsuit, which names the state and the office of the controller. “We have gone out of our way to be fair to Mr. Ingram.”

Among other things, the Justice Department is asking the court to require Nevada to give Ingram the same position or one of similar seniority, status and pay, and pay him lost wages and benefits. Because Justice officials consider Nevada’s actions to be “willful,” they are asking for the back wages to be doubled. The department also is asking the court to prevent Nevada from taking further action against Ingram that violates USERRA.

The lawsuit names the state of Nevada and the office of the state controller as defendants. Officials in the Nevada governor’s office and controller’s office could not immediately be reached for comment.

The chief accountant position offered to Ingram upon his demobilization reported to the chief deputy controller, the position that Ingram held before he left in June 2003. Moreover, the chief accountant job was contingent upon him serving a one-year probationary period, and passing an exam demonstrating that he met the minimum qualifications, according to information in the lawsuit.

After informing his employer again that he wished to return as chief deputy controller, Ingram filed a complaint with the Labor Department’s Veterans’ Employment and Training Service, alleging his USERRA rights had been violated.

When Ingram reported to work July 24, 2008, he advised the controller that he was there to work at whatever job he was offered, but that he would continue to pursue his USERRA claim.

Nevada officials responded that they were rescinding the chief accountant job offer because Ingram had filed a USERRA complaint that was still under investigation, and stated that Ingram would not be employed in any position, pending the outcome of the USERRA complaint, the lawsuit alleges.

Ingram was hired as chief deputy controller Feb. 17, 2003, by state controller Kathy Augustine. The Army notified Ingram on March 3, 2003, that he was being mobilized for active duty, according to information in the lawsuit. Ingram served on active duty from June 1, 2003, through April 14, 2006, and from April 22, 2006 through April 25, 2008.

While Ingram was on active duty, Kim Wallin was elected as Nevada controller and took office in January 2007. Ingram informed Wallin in April 2007 that he would be on active duty until 2008. Throughout his time on active duty, Nevada paid him military duty leave pay and made contributions into his pension account.

The Department of Labor’s Veterans’ Employment and Training Service investigated and attempted to resolve the case before referring it to the Justice Department.