Petty v. Metro. Gov't of Nashville & Davidson Cnty.

• Decision Date: 24 July 2012
• Docket Number: Nos. 10–6013,10–6105.,s. 10–6013
• Citation: 687 F.3d 710
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: Brian PETTY, Plaintiff–Appellee/Cross–Appellant, v. METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON COUNTY, Defendant–Appellant/Cross–Appellee.

687 F.3d 710

Brian PETTY, Plaintiff–Appellee/Cross–Appellant,

v.METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON COUNTY, Defendant–Appellant/Cross–Appellee.

Nos. 10–6013, 10–6105.

United States Court of Appeals,Sixth Circuit.

Argued: April 19, 2012.

Decided and Filed: July 24, 2012.

ARGUED:Kevin C. Klein, Metropolitan Department of Law, Nashville, Tennessee, for Appellant/Cross–Appellee. Michael J. Wall, Branstetter, Stranch & Jennings, PLLC, Nashville, Tennessee, for Appellee/Cross–Appellant. ON BRIEF:Kevin C. Klein, Metropolitan Department of Law, Nashville, Tennessee, for Appellant/Cross–Appellee. Michael J. Wall, James G. Stranch III, Branstetter, Stranch & Jennings, PLLC, Nashville, Tennessee, for Appellee/Cross–Appellant.

Before: BOGGS, SUHRHEINRICH, and COOK, Circuit Judges.

OPINION

COOK, Circuit Judge.

This Uniformed Services Employment and Reemployment Rights Act (“USERRA”) case returns to the Sixth Circuit after remand to the district court. Petty v. Metro. Gov't of Nashville–Davidson Cnty. (Petty I), 538 F.3d 431 (6th Cir.2008). USERRA guarantees returning veterans reemployment with their former employers and prohibits employers from discriminating against veterans based on their military service. 38 U.S.C. §§ 4301–4335. Appellee/Cross–Appellant Brian Petty claims that Appellant/Cross–Appellee Metropolitan Government of Nashville–Davidson County (“Metro”) violated USERRA in its treatment of him after he returned to Metro's police department from active duty in the United States Army. First, Petty argues that Metro failed to restore him to his former position of patrol sergeant in violation of §§ 4312 and 4313, USERRA's “reemployment provisions.” Second, Petty argues that Metro discriminated against him on the basis of his military service in violation of § 4311, USERRA's “discrimination provision.”

On remand, the district court granted summary judgment in favor of Petty on his reemployment claims and ordered Metro to reinstate him to his former position as a patrol sergeant. After a bench trial, the district court awarded Petty back pay and partial liquidated damages on his reemployment claims and ruled in his favor on his discrimination claim. Metro appeals, and Petty cross-appeals. We AFFIRM the district court's rulings.

I.

Petty I, which remanded this matter to the district court for further proceedings, recounts the factual background of this case in detail. 538 F.3d at 434–38. Assuming familiarity with Petty I, we offer an abbreviated factual background and then review the proceedings on remand that led to this appeal.

A. The Factual Background

Metro hired Petty as a police officer in 1991. By 2002, Petty achieved the rank of patrol sergeant and supervised other officers within the police department. To supplement his income as a police officer, Petty also moonlighted as a security guard at two local restaurants.

In addition to these two positions, Petty served as a member of the Army National Guard. He joined in 1986 and opted into the Army reserve in 1989. In 2003, the Army deployed Petty for service in Operation Iraqi Freedom. Petty's military commitments forced him to stop working at Metro in November 2003, and the Army transferred Petty and his unit to Kuwait around February 2004.

After he arrived in Kuwait, Petty's commanding officer caught him brewing homemade wine and sharing it with another soldier in violation of military rules. Petty offered an innocent explanation for the wine, but ultimately resigned his commission to avoid facing court-martial proceedings. In January 2005, following Petty's resignation, the Army dismissed its charges against him and relieved him of his command. The Army issued Petty a DD–214, a document issued to soldiers upon discharge, indicating that his separation from the military was under honorable conditions. A separate box on the form, however, described Petty's reason for separation as “in lieu of trial by court martial.”

In February 2005, Petty requested reinstatement as a police officer with Metro. As it did all police officers returning from an extended leave of absence, Metro subjected Petty to its return-to-work process. This includes, among other things, a drug screening, a personal-history-update questionnaire, and a meeting with a Police Department psychologist. Metro relies on this process to test returning officers' continuing fitness to serve in its police department.

This dispute stems from Petty's answer to the following question on his personal-history-update questionnaire: “During your absence were you arrested, charged, detained, or a suspect in any criminal action or military disciplinary action for any reason or do you have any action pending? If yes, explain in detail (use back if necessary).” Petty answered “yes” and attached a narrative explaining that he faced military charges in Kuwait. He did not, however, reveal the details of his abrupt exit from the military—namely, that he was accused of manufacturing alcohol and providing it to an enlisted soldier.

Apparently unsatisfied that Petty's response “explain[ed] in detail” his charges, the Metropolitan Police Department's Office of Professional Accountability (“OPA”) launched an investigation into the veracity with which Petty completed his return-to-work paperwork. Metro has a “zero tolerance” policy for dishonesty, and it formally issued a complaint charging Petty with dishonesty during the return-to-work process in April 2005. After investigating the charges against Petty, Lieutenant Gordon Howey prepared a report finding that the allegations against Petty lacked foundation. The Chief of Police, Ronal Serpas, and the Director of the OPA, Kennetha Sawyers, accepted Howey's conclusions. In July 2005, Sawyers sent Petty a letter informing him of the dismissal of the charges against him.

But Petty's case continued to trouble Sawyers. Wanting to learn more about the circumstances surrounding Petty's discharge from the Army, Sawyers contacted an Army representative for information. Through her investigation, Sawyers learned that Petty had submitted an incomplete DD–214 to Metro. Petty had enlarged the form that he provided to Metro on a copy machine, cutting off several boxes—including one describing his discharge from the military as “in lieu of trial by court martial.” Sawyer's discovery sparked a second investigation into Petty's truthfulness, this one focusing on whether Petty intentionally altered his DD–214.

Metro never returned Petty to his pre-deployment position of patrol sergeant. Beginning in October 2005, Metro assigned Petty to the “bubble,” where it primarily tasked him with answering telephone calls from the public. In December 2005, Metro denied Petty's request to resume moonlighting as a security guard. See Petty I, 538 F.3d at 434–38 (citing Petty v. Metro. Gov't of Nashville–Davidson, No. 3:05–0680, 2006 WL 3333509, at *1–5 (M.D.Tenn. Nov. 16, 2006)).

B. Petty I

Petty sued, alleging violations of the reemployment and antidiscrimination provisionsof USERRA. He alleged that Metro violated his USERRA rights by (1) delaying his rehire for the purpose of subjecting him to Metro's return-to-work process; (2) failing to reinstate him to his previously held position; and (3) denying him permission to engage in extra-duty employment as a security guard. Both parties moved for summary judgment, and the district court granted Metro's motion on all claims except those arising from the denial of Petty's request for off-duty work. The off-duty-work claim proceeded to a bench trial, after which the district court entered a judgment on partial findings in favor of Metro. See id. at 438. Petty appealed.

During the pendency of Petty's appeal, Metro continued its second investigation into Petty's suspected dishonesty. This investigation initially focused on Petty's submission of an incomplete DD–214, but evolved into an examination of Petty's veracity during Metro's return-to-work process and the OPA's initial investigation. In late 2007, Metro held a disciplinary hearing on whether Petty “submitted a materially false statement,” “withheld information regarding [his] military investigation,” and “attempt[ed] to conceal the terms of [his] discharge from military duty.” After the hearing, Metro terminated Petty. Following Petty's termination, Metro notified the Peace Officer Standards Training (“POST”) Commission of the circumstances of Petty's discharge, causing the Commission to suspend Petty's certification to work as a police officer in Tennessee.

Several months after Petty's termination, we heard oral argument on his appeal. In Petty I, we held that USERRA's reemployment provisions barred Metro from requiring Petty to comply with its return-to-work procedures. See id. at 442. We further held that Metro's delay of Petty's reemployment during its second investigation—which examined his alleged dishonesty during Metro's return-to-work process—violated USERRA's reemployment provision. See id. at 443–44. Because Petty qualified for reemployment, we held, USERRA required Metro to fully reemploy Petty, regardless of any honesty issues arising from Metro's return-to-work process. Id. at 444.

Accordingly, Petty I (1) reversed the district court's grant of summary judgment to Metro on Petty's reemployment claims; (2) vacated the district court's grant of judgment on partial findings to Metro with respect to Petty's discrimination claim; and (3) remanded the case to the district court with instructions to enter summary judgment in favor of Petty on his reemployment claims, to determine the damages, and to conduct further proceedings with regard to Petty's discrimination claim. See id. at 447.

The Petty I court first learned of Petty's termination at oral argument. See id. at 444 n. 7. Accordingly, our decision in Petty I noted that Petty's termination might prevent Metro from placing Petty in his original position as patrol sergeant, but left the issue for the district court...