Justice Department Files Suit Against Pennsylvania Department of Corrections to Protect Employment Rights of U.S. Army Reservist

WASHINGTON – The Department of Justice filed a lawsuit today against the Pennsylvania Department of Corrections (PDOC) alleging that it violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) by failing to retroactively promote a U.S. Army Reservist based on his successful performance on a make-up promotional examination after he returned from a military deployment.

Subject to certain conditions, USERRA requires employers to promptly reemploy returning service members in the positions they would have held had their employment not been interrupted by military service or in positions of like seniority, status and pay.

According to the department’s complaint filed in the U.S. District Court for the Middle District of Pennsylvania in Harrisburg, Pa., David C. Fyock’s score on the make-up examination was higher than the score of any person promoted to any of the 13 vacant corrections officer 2 positions filled based on the May 2007 promotional test that he missed. The complaint alleges that if Fyock, of Kennerdell, Pa., had achieved that high score on the May 2007 written examination, he would have been promoted from a corrections officer 1 to a corrections officer 2 position given PDOC’s selection process and Fyock’s background, work record and qualifications.

Despite USERRA’s requirement that employers reemploy returning service members in the positions they would have held if their employment not been interrupted by military service, PDOC refused to promote Fyock after his deployment. In its lawsuit, the department seeks a retroactive promotion to corrections officer 2 for Fyock, as well as lost wages and benefits.

“The Civil Rights Division is strongly committed to protecting the reemployment rights of the men and women who serve our country in uniform,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “No service member should have to forego an opportunity for advancement in his or her civilian career due to military service.”

U.S. Attorney for the Middle District of Pennsylvania Peter J. Smith stated that, “His office strongly supports the rights of service members and the objective of the statute which is to help veterans reclaim their rightful positions in the workforce after they complete their military service.”

The Labor Department’s Veterans’ Employment and Training Service investigated and attempted to resolve Fyock’s USERRA complaint before referring it to the Justice Department for litigation. It has been assigned to Assistant U.S. Attorneys Melissa Swauger and Timothy Judge from the Middle District of Pennsylvania’s Civil Division.

The department’s Civil Rights Division has given a high priority to the enforcement of service members' rights under USERRA. Additional information about USERRA can be found on the Justice Department’s websites at www.usdoj.gov/crt/emp and www.servicemembers.gov , as well as on the Labor Department’s website at www.dol.gov/vets/programs/userra/main.htm.