Manhattan U.S. Attorney Recovers $35,000 On Behalf Of A United States Army Reserve Member From Cohere Communications, LLC And Its President, Steven T. Francesco, For Violations Of The Uniformed Services Employment And Reemployment Rights Act
Cohere Agrees To Implement USERRA-Compliant Military Leave Of Absence Policy
Preet Bharara, United States Attorney for the Southern District of New York, announced today that the United States Attorney’s Office settled a federal civil rights lawsuit brought on behalf of United States Army Reserve member William J. Pfunk (“Pfunk”), against COHERE COMMUNICATIONS, LLC (“COHERE”) and its president, STEVEN T. FRANCESCO (“FRANCESCO”). The lawsuit, which was filed in Manhattan federal court in December 2012, alleges that COHERE and FRANCESCO willfully violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) by terminating Pfunk’s employment because of his military service obligations and refusing to reemploy Pfunk upon his return from military service. The settlement, which was approved yesterday by United States District Judge Paul A. Engelmayer, requires COHERE and FRANCESCO to pay Pfunk $35,000 in lost wages and other damages and to implement a policy for military leaves of absence.
Manhattan U.S. Attorney Preet Bharara said: “Our soldiers should not have to be concerned that answering a call to serve their country means sacrificing their civilian jobs. This Settlement Agreement demonstrates that when employers disregard their legal obligations under USERRA, our Office will use all the legal tools available to us to hold them responsible for their violations and ensure compliance with the law in the future.”
According to the Complaint and other documents filed in Manhattan federal court:
Pfunk began working at COHERE, a telecommunications company located in Manhattan, in November 2011. Pfunk has been a member of the United States Army Reserves since 2006 and currently holds the rank of staff sergeant. In early April 2012, Pfunk received military orders requiring him to report to a four-day training event on April 9, 2012. Pfunk notified FRANCESCO that – due to his military obligations – he would be absent from work during the week of April 9, 2012. In response, FRANCESCO referred to Pfunk’s military obligations as “elective activities” and terminated Pfunk’s employment effective immediately. Pfunk requested an opportunity to discuss the situation with FRANCESCO upon his return from military service, but FRANCESCO declined to meet with him. Thereafter, a representative of Employer Support for the Guard and Reserve, an agency of the Department of Defense, contacted FRANCESCO in an effort to restore Pfunk’s employment, but FRANCESCO refused to reemploy Pfunk. When Pfunk informed FRANCESCO that he believed his rights under USERRA had been violated and that he would be seeking legal counsel if FRANCESCO was not willing to resolve the matter, FRANCESCO responded, “If you want a war, I can impact your life more than you can screw with mine” and advised Pfunk that he was “not to stop by for any reason.”
On May 28, 2014, Judge Engelmayer entered an Opinion and Order granting in part Pfunk’s motion for summary judgment and rejecting the contention by COHERE and FRANCESCO that Pfunk was an intern not entitled to the protections of USERRA. The Court held that no reasonable jury could conclude on the facts presented that Pfunk was an intern, and that, as a matter of law, Pfunk was an employee of COHERE for purposes of USERRA.
In the Settlement Agreement, COHERE and FRANCESCO admit and acknowledge that, within one day of FRANCESCO receiving an e-mail from Pfunk notifying him that Pfunk was going to be absent from work due to a military obligation, FRANCESCO terminated Pfunk’s employment with COHERE. COHERE and FRANCESCO also agree to compensate Pfunk for lost wages and other damages, implement a Military Leaves of Absence Policy that explicitly states that COHERE and FRANCESCO will take no adverse action against any employee or applicant for employment because he or she has taken, or expects to take, USERRA protected leave during the course of his or her employment, and to review the policy, in person, with all COHERE employees.
This case is being handled by the Office’s Civil Rights Unit. Assistant United States Attorneys Christine Schessler Poscablo and Lara K. Eshkenazi are in charge of the case.