Petty v. Metro Gov't of Nashville-Davidson County

Decision Date18 August 2008
Docket NumberNo. 07-5649.,07-5649.
Citation538 F.3d 431
PartiesBrian PETTY, Plaintiff-Appellant, v. METROPOLITAN GOVERNMENT OF NASHVILLE-DAVIDSON COUNTY, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

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

Before: KENNEDY, BATCHELDER, and GRIFFIN, Circuit Judges.



Plaintiff-Appellant Brian Petty appeals the district court's summary judgment and judgment on partial findings in favor of Metropolitan Government of Nashville-Davidson County ("Metro") on claims that Metro violated his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. §§ 4301-4334. Because the district court erred in its application of §§ 4312 and 4313, we reverse the district court's grant of summary judgment for Metro on two claims asserted under these provisions, and order that summary judgment be entered in favor of Petty on those claims. Further, because the district court made errors of both fact and law in its judgment on partial findings under § 4311, we vacate that judgment.


The central dispute in this case is whether Metro violated USERRA in its treatment of Petty, a former police officer who left the department for active duty with the United States Army and who sought reemployment with the department after completion of his military service. There are few, if any, disputes regarding the factual background as described by the district court in its order granting summary judgment for Metro:

The parties agree to the following facts: Plaintiff joined the Army National guard in 1986 and opted into the Army Reserve with the Army National Guard as his "reserve component" in 1989. The Defendant hired the Plaintiff as a police officer on February 1, 1991. In 1993, Metro assigned the Plaintiff to patrol the West sector of Nashville, where Plaintiff focused on crime prevention in housing projects. Metro promoted the Plaintiff to the rank of sergeant in January, 2000, whereupon he started supervising other officers in the South sector. After various reassignments, Plaintiff returned to patrolling the West sector in the fall of 2002, where he continued supervising other officers.

All Metro police officers must get approval for off-duty work, and the Plaintiff sought and received Metro's approval to work as a security guard at the South Street and Bound'ry restaurants prior to his deployment.

Plaintiff remained in the Army Reserve through 2003. In October of 2003, the Army called Plaintiff at work to tell him that he "was being transferred to another unit to take command as they were being mobilized" for service in Operation Iraqi Freedom. Plaintiff told his lieutenant at Metro, Kim Dillingham, of his upcoming military leave the same day that the Army informed him. The week after the Army contacted him, the Plaintiff took his first trip to Chattanooga to begin preparations for deployment, and he stopped working at Metro altogether on November 30, 2003.

On January 2, 2004, the unit Plaintiff commanded had its official mobilization ceremony. The next day the unit left for Fort Stewart, Georgia. The unit was in Fort Stewart until roughly February 20, when it was transferred to Camp Navistar/Big Sky Oasis in Kuwait.

The Army assigned the Plaintiff to run the "mayor's cell" at Camp Navistar. Plaintiff's unit ran the camp on a day-to-day basis — moving supplies; setting out bottled water for soldiers; handling any problems with housing, etc. The job also required Plaintiff to empty and store contraband from "amnesty boxes."

In June or July, 2004, Command Sergeant Thomas Seuberling conducted a health and welfare inspection of Plaintiff's quarters. During the initial inspection, CSM Seuberling found a five-gallon jerry can (which looks like a gas can) that Plaintiff was using to manufacture homemade wine.1

Plaintiff claims that he had alcohol in his tent because CSM Seuberling asked him to obtain alcohol. Specifically, Plaintiff claims that CSM Seuberling told him that he was negotiating with a Kuwaiti farmer to get him to cut down some trees that were blocking the camp's guard towers, and that the farmer would cut down the trees if he could get him some alcohol.

Based upon CSM Seuberling's health and welfare inspection, and the resulting investigation, Plaintiff was charged with a violation of the Military Code of Justice. Specifically, Plaintiff was charged with: (1) violation of a lawful order; and (2) conduct unbecoming an officer. With regard to the first charge, Plaintiff was accused of violating U.S. Central command General Order 1A, in that he was in possession of, and manufactured, alcohol. By Plaintiff's own admission, he was in possession of, and was manufacturing, alcohol. Plaintiff testified in his deposition that his intent in manufacturing wine in his tent was "mainly" to use it as an incentive for the farmer to clear trees, but he acknowledged that he may have used the wine for his own consumption eventually. Plaintiff also admits receiving bottles of alcohol while in Kuwait, and using them for personal consumption.

With respect to the conduct unbecoming an officer charge, Plaintiff was accused of offering alcohol to enlisted soldiers. By Plaintiff's own admission, he gave alcohol to a female enlisted soldier, Sergeant Melanie Barnhart. Furthermore, by Plaintiff's own admission, he and Sergeant Barnhart drank together. Plaintiff knew that giving alcohol to a soldier was a violation of General Order 1A. Nevertheless, Plaintiff gave alcohol to Sergeant Barnhart anyway, and he drank with her.

In late 2004, Plaintiff appeared in front of a military judge, where he was arraigned. In lieu of going forward with court martial proceedings, Plaintiff submitted a request to resign his commission "for the good of the service." When Plaintiff submitted his request to resign "for the good of the service," the Army relieved him of his command, meaning that he was relieved of his supervisory responsibilities. Plaintiff was notified on January 15, 2005 that his resignation "for the good of the service" had been approved. The Army formally dismissed all charges against him in January 2005.

When he left active duty, Plaintiff received two versions of his Department of Defense Form DD-214. One focuses on awards, commendations, and service dates, but does not include the "character of service." The other includes the character of service.

Plaintiff's discharge was characterized as "under honorable conditions (general)." The Army returned Plaintiff to Fort Stewart, Georgia on or about February 1, 2005.

Plaintiff visited Metro to request reinstatement on February 28, 2005. The Police Department has a return-to-work process for officers who have been away from the Police Department for an extended period of time. This return-to-work process applies to all officers who have been away from the Police Department for an extended period of time, regardless of the reason for their separation. The Police Department's return-to-work process includes a personal history update questionnaire, a medical examination, a computer voice stress analysis, a drug screening, and a debriefing with a Police Department psychologist. In addition, the Police Department requests that returning officers execute a medical records authorization, and for individuals returning from military duty, an authorization to obtain military records. The purpose of the Police Department's return-to-work process is to ensure that every individual entrusted with the responsibility of being a Metropolitan Police Officer is still physically, emotionally, and temperamentally qualified to be a police officer after having being absent from the Department.

One of the questions on the personal history questionnaire Plaintiff filled out during the return-to-work process asked: "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)." Plaintiff answered "Yes." He also attached a narrative explanation of his response in which he admitted facing military charges in Kuwait. The narrative description did not disclose: (1) that Plaintiff was accused of giving alcohol to an enlisted soldier; and (2) that Plaintiff was accused of manufacturing alcohol.

Plaintiff did not receive any salary or benefits for the period of examination between February 28, 2005 and March 21, 2005.

On March 21, 2005, Defendant returned the Plaintiff to work. Defendant did not, however, return the Plaintiff to his original position of patrol sergeant, or a substantially similar position. Plaintiff contends that he was assigned to an office job in which he primarily answered telephone calls from the public. Defendant states that Plaintiff has also taken police reports, which is a duty that must be performed by a sworn police officer.

The Metropolitan Police Department's Office of Professional Accountability ("OPA") serves the internal affairs function of the Metropolitan Police Department. OPA initiated an investigation focused on whether Plaintiff was honest and truthful when he completed return-to-work paperwork after returning from military service.2 The Police Department's "Disciplinary/Corrective Action Grid" indicates that the Department has a zero tolerance for dishonesty.

On April 14, 2005, Metro issued a Notice of Complaint to Plaintiff outlining these charges. On May 10, 2005, Lieutenant Gordon Howey met with Plaintiff...

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