Brandsasse v. City of Suffolk, Va.
| Citation | 72 F.Supp.2d 608 |
| Decision Date | 25 October 1999 |
| Docket Number | No. 2:99CV766.,2:99CV766. |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Gerald L. BRANDSASSE, Plaintiff, v. CITY OF SUFFOLK, VIRGINIA, and Jimmy L. Wilson, Chief of Police City of Suffolk Police Department, and Marie Dodson, Director of Personnel City of Suffolk, Defendants. |
Michael F. Imprevento, Breit, Drescher & Breit, Norfolk, VA, for Plaintiff.
Clyde E. Roettger, Jr., Beverley Kay Wilson, Ramona D. Taylor, Office of the City Attorney, Suffolk, VA, for Defendants City of Suffolk, VA and Marie Dodson, Director, Personnel, City of Suffolk.
John A. Gibney, Jr., Shuford, Rubin & Gibney, P.C., Richmond, VA, for Defendant Jimmy L. Wilson, Chief of Police, City of Suffolk, VA.
This matter comes before the court on defendants' motions to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted pursuant to Rules 12(b)(1) and 12(b)(6), respectively, of the Federal Rules of Civil Procedure. For the reasons set forth below, the motions to dismiss of all three defendants are DENIED.
Plaintiff, Gerald L. Brandsasse, seeks injunctive relief and pecuniary damages from defendants, City of Suffolk, Virginia ("City"); Jimmy L. Wilson, Chief of Police, City of Suffolk Police Department ("Wilson"); and Marie Dodson, Director of Personnel, City of Suffolk ("Dodson"), alleging a violation of the Uniform Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4301-33 (amended 1994) ("USERRA").
Plaintiff is a Sergeant First Class in the United States Army Reserve, with concurrent civilian employment as a police officer with the Police Department for the City of Suffolk, Virginia. On or about the third quarter of 1998, Chief of Police Wilson announced that the department would administer promotional examinations which would allow officers to qualify for promotion to police sergeant and lieutenant at some time in late 1998 through early to mid 1999. The examinations consisted of a two-stage, separately administered, test: first, a written component, followed by an "assessment center evaluation."1 Both components must be completed by the individual members of the police department to be considered eligible for promotion to either rank.
As a member of the Army Reserves, plaintiff is obligated to periodically report to duty pursuant to orders issued by the Department of the Army. In December, 1998, plaintiff received permission from his commanding officer in the Army Reserves to satisfy his annual training mission for 1999 by attending military training school. The Suffolk Police Department announced, on or about January 12, 1999, that the written promotion examination was to be administered on March 10, 1999, while the assessment center evaluation would take place during the week of March 22, 1999. On or about March 8, 1999, plaintiff received orders from the Department of Army Headquarters at the 99th Regional Support Command advising him that he would be ordered for annual training for fourteen days at Fort McCoy in Wisconsin from March 21, 1999, to April 2, 1999, inclusive. Thus, the reserve service dates presented a direct conflict with the administration of the second part of the promotion exam offered by the police department.
Plaintiff requested through a member of his chain of command in the police department that an accommodation be made with respect to the assessment center portion of the examination, so that he could attend his mandatory reserve service as well as be evaluated for promotion. Plaintiff alleges that his request was denied and that agents of the defendants made clear that "if [plaintiff] could not attend the assessment center evaluation on Monday, March 22, 1999 by starting his Army class ... in Wisconsin, they would be unable to reschedule him for the assessment center evaluation and he would lose the ability to be competitive for the rank of Sergeant during this promotional cycle." (Compl.¶ 15) (emphasis in original).
Since both portions of the examination are required for promotion, and his request for an accommodation was denied, plaintiff did not sit for the administration of the written exam scheduled for March 10, 1999. On or about March 12, 1999, during the course of previously planned military training, plaintiff was advised that his military course in Wisconsin would be canceled. Plaintiff immediately returned to the police department and requested an accommodation in order to sit for the written exam (which had been administered two days earlier) and the assessment center evaluation. He was advised that the request would have to be approved by the Personnel Director, Marie Dodson. On or about March 22, 1999, plaintiff met with Dodson. Plaintiff alleges that "Dodson ... informed him through a combination of words and inferences that the Plaintiff had an obligation to arrange his military orders around the City's promotional processes," and as such the City would not grant his request. (Compl.¶ 20).
Plaintiff hired counsel to pursue his claims under USERRA, and after counsel contacted City attorneys, plaintiff was advised that the City would be willing to accommodate him; he was to take the written exam March 23, 1999, and appear for the assessment center evaluation on March 24, 1999. Plaintiff contends that Wilson, motivated by anger because plaintiff hired counsel to enforce his rights under federal law, then contacted plaintiff's military command, appeared at plaintiff's military command, and, despite receiving information that verified plaintiff's receipt of military orders, directed that plaintiff not report for the assessment center evaluation on March 24, 1999, as previously agreed through plaintiff's counsel and City attorneys. (Compl.¶¶ 23-26). Plaintiff's counsel again spoke of filing for injunctive relief against defendants, and after a hearing was scheduled with the Circuit Court of Suffolk, the City again agreed to schedule the assessment center evaluation for plaintiff.
Eventually, plaintiff completed both portions of the examination, finishing third out of a possible forty-seven candidates. After plaintiff was informed of his high standing on the placement exams, he was called to speak with an Internal Affairs lieutenant in late March, 1999. Mr. Brandsasse was then informed that he was under investigation with respect to his behavior. Since it is the policy of the City of Suffolk Police Department to disallow promotions to individuals under investigation, plaintiff has been ineligible for promotion since March, 1999, and will continue to be ineligible for as long as the investigation remains open.
On or about April 29, 1999, eight officers were selected to attend management training at the Virginia Beach Sheriff's Officer Training Academy from May 24, 1999, to May 28, 1999. The eight individuals chosen were the top nine candidates from the administered promotional exam, excluding Mr. Brandsasse who was not invited to attend. Plaintiff alleges that attendance at the management training is considered a pre-requisite for promotion,2 and plaintiff's absence from the seminar thus precludes promotion. (Compl.¶ 35). Plaintiff further alleges the investigation stems from statements he made during his meeting with Dodson on March 22, 1999, regarding his military commitments and the police department's decision not to accommodate him, (Compl.¶ 31), and that the investigation is merely pretextual and is geared as a reprisal for plaintiff's assertion of his rights under federal law. (Compl.¶¶ 31, 43-45).3
Plaintiff filed the complaint in this court on May 21, 1999, alleging that defendants' actions have caused him actual and impending harm in that (1) he was not accommodated with respect to the examinations, and (2) he is currently being denied promotion due to a "retaliatory and willful [pretextual] investigation calculated to deprive him of an opportunity to promote" in violation of USERRA. (Compl.¶ 53). Plaintiff seeks pecuniary damages and injunctive relief as provided by the statutory remedial scheme. On June 15, 1999, the City of Suffolk and Marie Dodson filed an answer and a motion to dismiss. Wilson separately filed a motion to dismiss on June 23, 1999.4 All defendants raise the same two grounds for dismissal of the complaint: (1) lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, because some of plaintiff's allegations are moot and others are not ripe for review; and (2) failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff timely responded, and a hearing was held. The matter is ripe for decision.
Enacted in 1994,5 the Uniform Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4301-33 ("USERRA"), prohibits employment discrimination on the basis of military service. Plaintiff brings suit under Section 4311 of USERRA, which provides two separate causes of action upon which relief can be granted. Section 4311(a) provides, in relevant part:
A person who is a member of, applies to be a member of, performs, has performed, applies to perform or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service or obligation.
38 U.S.C. § 4311(a).
The statute further provides that "[a]n employer may not discriminate in employment against or take any adverse employment action against any person because such person (1) has taken any action to enforce a protection afforded under this chapter ... or (4) has exercised a right provided for in this chapter." 38 U.S.C. § 4311(b). Plaintiff...
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