Justice Department Sues South Dakota Business for Violating Employment Rights of Air National Guard Member
The Justice Department filed a complaint late yesterday alleging that BioFusion Health Products Inc., a business with headquarters in Rapid City, South Dakota, violated the employment rights of former South Dakota Air National Guard Senior Airman Amber M. Ishmael under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Ishmael has served her country as part of the Air National Guard since 2010 and is currently a staff sergeant with the Missouri Air National Guard.
According to the complaint, which was filed in the U.S. District Court for the District of South Dakota, Ishmael’s military service was a motivating factor in BioFusion’s decision to both deny her request for reemployment and ultimately terminate her employment. The department claims both actions by BioFusion violated Ishmael’s rights as a servicemember to employment and reemployment under USERRA.
The complaint further alleges that in February 2015, BioFusion fired Ishmael from her position as a receptionist due to her military service and subsequently denied her application for reemployment following her active military duty. Ishmael’s employment was terminated while she was out of state attending Airmen Leadership School, which is professional military education training associated with her military service. When Ishmael requested reemployment upon return, she was explicitly denied based on her previous absence related to her military service.
“BioFusion must be held to account for its alleged wrongful termination of Staff Sgt. Ishmael, who proudly serves in our Air National Guard,” said Principal Deputy Associate Attorney General Bill Baer. “The Department of Justice is committed to protecting the employment rights of those who meet their active duty commitments.”
“Staff Sergeant Ishmael served our nation with honor and distinction, and USERRA guarantees her right to return to civilian employment upon returning from military service,” said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department’s Civil Rights Division. “This lawsuit and the department’s Servicemembers and Veterans Initiative demonstrate our steadfast commitment to leverage every resource and tool at the federal government’s disposal to protect the rights of the men and women who defend our freedom and safeguard our way of life.”
“Members of our Air National Guard make many sacrifices, including spending months or years away from their jobs and families,” said U.S. Attorney Randolph J. Seiler of the District of South Dakota. “When our servicemembers are deployed in the service of our country, they are entitled to retain their civilian employment and to the protections of federal law that prevent them from being subject to discrimination based upon their military obligations. We are filing suit on behalf of Staff Sergeant Ishmael, a former member of the South Dakota Air National Guard, to ensure that she does not lose her rights while she was protecting ours.”
USERRA safeguards the rights of uniformed servicemembers to retain their civilian employment following absences due to military service obligations. USERRA also protects servicemembers from discrimination on the basis of their military obligations.
The lawsuit seeks damages equal to the amount of Ishmael’s lost wages and benefits caused by BioFusion’s failure to comply with USERRA. It also seeks orders requiring BioFusion’s compliance with all provisions of USERRA and requiring BioFusion to pay all related litigation fees.
Ishmael initially filed a complaint with the Department of Labor’s Veterans’ Employment and Training Service (VETS), which investigated this matter and attempted to reach a resolution between the parties. After resolution failed, VETS referred the complaint to the Justice Department’s Civil Rights Division. This lawsuit followed as a collaborative initiative between the Civil Rights Division and the U.S. Attorney’s Office of the District of South Dakota. The Justice Department gives high priority to the enforcement of servicemembers’ rights under USERRA. Additional information about USERRA can be found on the Justice Department’s websites at https://www.justice.gov/crt/employment-litigation-section and https://www.justice.gov/crt-military, as well as on the Department of Labor’s website at www.dol.gov/vets/programs/userra/main.htm.