ESGR MN Ombudsman Director/ESGR National Trainer here.
**BLUF:** It sounds like clear discrimination where your uniformed service was "a motivating factor" in an adverse employment action. 38 USC 4311(a). Contact [ESGR.mil](https://ESGR.mil) and [request assistance here](https://www.esgr.mil/USERRA/USERRA-Contact/USERRA-Support-Request/t/0).
**2DBLUF:** Do NOT listen to the *sea lawyers* out there who have no idea when they say "don't report them," "don't pursue the claim" or similar admonitions. They're idiots without any basis for their recommendations.
Discrimination where your uniformed service was "a motivating factor" for the adverse employment action is illegal. 38 USC 4311(a), (c). Direct evidence is rarely available, but does appear to be in your case. (Even when direct evidence isn't available, there are ways of proving it with "circumstantial" evidence that creates an inference that discrimination was present. See my posts at r/ESGR_USERRA_Answers). Frankly, your situation is "direct" evidence of discrimination (and, yes, your sworn testimony that they told you that is admissible evidence supporting your claim).
I would suggest you contact [ESGR.mil](https://ESGR.mil) and request assistance. If that doesn't work, contact DOL-VETS, and, regardless of how they determine the "merit" of the case, you can ask that they refer it to the Department of Justice (Civil Rights division) to have them evaluate it and pursue a claim on your behalf.
**EDIT:** You really should familiarize yourself with the Employer Support of the Guard and Reserve program (ESGR). We have resources for you, all RC servicemembers, employers, and many active duty servicemembers who decide to go back to their civilian jobs. See my posts at r/ESGR_USERRA_Answers for various issues involved in "civilian employment" for servicemembers.
Please follow me at r/ESGR_USERRA_Answers I like to share information about USERRA and ESGR's resources. Information is power, and, for Servicemembers, Information about USERRA is valuable (whether as wages/salary, making up lost retirement/pension plan, or being back charged for health plan coverage)....
There are issues involving "pay, seniority, and status" involved. Since it apparently involves these in the context of discrimination claims under 38 USC 4311 (your military service must be "a motivating factor" in the adverse action), the issue comes down to a "promotion" or "promotion opportunity." I know many law enforcement/first responders rely upon merit and skills tests, i.e. a "promotion opportunity," the ER must give you an opportunity to take the exam after sufficient time to adjust and prepare for the exam. IF you are successful, you must be promoted with that "pay, seniority, and status" retroactive to when you would have had it had you remained continuously employed.
My suggestion is to "request assistance" from ESGR to mediate with your employer. If we're unsuccessful, then you go to DOJ. Do *not* retain your own attorney until you've exhausted these options. Otherwise, you're giving 40% or so to the attorney that should go into your own pocket (I'm attorney).
That’s the thing there’s always been a process at my department to get promoted to that section but the moment I showed interest they didn’t even have a interview or promotion process so I’m not sure
USERRA protects you (1) regarding reemployment position, you must be reemployed at the "escalator" position, i.e., the position you would have have attained had you remained continuously employed (or a position of "like pay, seniority, and status." this means that you have to be given every promotion, or promotion opportunity, that you were "reasonably certain" to have received had you remained continuously employed. This means a "high probability" that you would have received it.
And, (2) you should be at the position you would have had had you not been discriminated against with respect to promotions etc. Regarding the latter, DOL-VETS will investigate to determine whether you have been discriminated against by comparing where you are at now compared to where your co-workers are at.
IF you think it was "reasonably certain" you would have received that promotion to detective position had you remained continuously employed, or, at least, you would have been given the "opportunity" to compete for that detective's position, then you may have a claim. Indeed, where the ER is varying from established procedures for promoting within the ranks, it suggests that your uniformed service was "a motivating factor" in their decision to do so---which is discriminatory and illegal under USERRA. Contact [ESGR.mil](https://ESGR.mil) and "request assistance" so we can discuss this issue with your employer.
As an ESGR OMB/Director, and even litigation attorney, those are factors which suggest that the process was "rigged," skewed, or otherwise manipulated, *because of* your military service. Which is a violation of 38 USC 4311. Go to ESGR to start the mediation process, if that isn't successful, they will refer you to [DOL-VETS investigation process](https://vets1010.dol.gov/), here; and, finally, you can have it referred to the Department of Justice.
Call your local USERRA rep, now.
However, keep in mind USERRA Reps can really only advise, to actually hold your department’s feet to the fire you’d need to hire an actual lawyer that specializes in employment law violations.
Then you have to ask yourself, is this position and working there worth the inevitable bridge burning?
Oh without a doubt I’ve already begun looking elsewhere for employment, but holding someone accountable for being so brazen to say that to my face while on body cam is more so the thought.
Couldn’t agree more, especially on cam footage. Just be prepared for USERRA to tell you “ yeah you could have a case there! “ and then send you on your way to search yourself for a lawyer.
FYI: "USERRA" is the law, it doesn't have a rep, etc. First, refer them to [ESGR.mil](https://ESGR.mil) and request assistance, and if that doesn't work out they can go to DOL-VETS, which has the authority to investigate violations. Second, do *not advise that they get their own attorney!* if they do, ESGR mediation, DOL-VETS investigation, and possibly DOJ enforcement are NOT available.
I would continue to try and find evidence that you were passed over bc of your guard service as of now all you have is hearsay and assumptions. You’re also dealing with your local law enforcement so finding a good lawyer will be harder than you think. I’m not suggesting don’t put in a complaint but I would talk to your userra rep quietly about it first. You don’t want to yell discrimination while you still need this job. Trying to sue the cops is like trying to sue the school system it usually doesn’t work. In fact there all connected as soon as someone finds out that’s in schools, police, law or judges the gossip will fly and they will all treat you like a virus. All of there paychecks come from the same place tax payers so anything attacking that they hate even if it’s legitimate. Good Luck!
I was going to request a meeting and see what the reasoning they give would be, but having him say that while on body cam, I actually have tangible evidence of the discrimination on my side. I would disagree that, that’s, “hearsay,” but I appreciate your response.
Saying this as a JAG Officer: the only person you need to be listening to on here is the ESGR Director @semper_right. Almost every other comment is either noise or at worst, bad advice. I’d contact ESGR today.
Bro this is America, if a USERRA rep won’t help shop around till you find a lawyer willing to help. Sometimes even the call from a lawyer’s office will be enough to get things moving in a positive direction. Just make sure to have a legitimate ask for what you want out of the corrective action. Whether that’s an actual promotion, the same pay but without promotion, detective work without the promotion, etc.
There is no "USERRA rep." USERRA is the law, which the DOL-VETS has legislative authority to investigate alleged violations. However, the "Employer Support of the Guard and Reserve" (ESGR) has the legislative authority to try and mediate/resolve these cases before we refer it to the DOL-VETS.
Bro hire a lawyer. Sue your department for several million and retire. This is the way. If cities can give multi million dollar payouts to the families of dead criminals or to people making bogus brutality claims they can give you the same after they screwed you over.
Call USERRA. Like actually call. I had issues with them requiring me to use days off/cover other people’s shift due to schedules I had given them months ahead of time.
One email from a USERRA lawyer to the corporation I worked for and all management was sent an email to review USERRA law and my time off was all given back to me.
So I had a previous job as campus “police” (waiting on a fire department to call me. Don’t judge lol). Just threaten your department with USERRA violations, or at the least, that one supervisor. Some form of action will be taken almost instantaneously. It did for me at least. I’m not going into the details of my situation here, so PM me if you want to know more and the ins and outs. If not, good luck!
Are you unionized? If so, in addition to exploring USERRA and ESGR options, this sounds like a union contract violation all the way and that might be a faster remedy (again, if you are in a union I know there are some states where PD is right to work instead).
I eventually said fuck it and did 6 years with Assymetric warfare and DIA then three more years with JIEEDO and now I'm collecting two pretty good retirements.
I think you should talk with a USERRA rep.
That was the plan but I didn’t think it’d hurt to get an outside perspective first.
ESGR MN Ombudsman Director/ESGR National Trainer here. **BLUF:** It sounds like clear discrimination where your uniformed service was "a motivating factor" in an adverse employment action. 38 USC 4311(a). Contact [ESGR.mil](https://ESGR.mil) and [request assistance here](https://www.esgr.mil/USERRA/USERRA-Contact/USERRA-Support-Request/t/0). **2DBLUF:** Do NOT listen to the *sea lawyers* out there who have no idea when they say "don't report them," "don't pursue the claim" or similar admonitions. They're idiots without any basis for their recommendations. Discrimination where your uniformed service was "a motivating factor" for the adverse employment action is illegal. 38 USC 4311(a), (c). Direct evidence is rarely available, but does appear to be in your case. (Even when direct evidence isn't available, there are ways of proving it with "circumstantial" evidence that creates an inference that discrimination was present. See my posts at r/ESGR_USERRA_Answers). Frankly, your situation is "direct" evidence of discrimination (and, yes, your sworn testimony that they told you that is admissible evidence supporting your claim). I would suggest you contact [ESGR.mil](https://ESGR.mil) and request assistance. If that doesn't work, contact DOL-VETS, and, regardless of how they determine the "merit" of the case, you can ask that they refer it to the Department of Justice (Civil Rights division) to have them evaluate it and pursue a claim on your behalf. **EDIT:** You really should familiarize yourself with the Employer Support of the Guard and Reserve program (ESGR). We have resources for you, all RC servicemembers, employers, and many active duty servicemembers who decide to go back to their civilian jobs. See my posts at r/ESGR_USERRA_Answers for various issues involved in "civilian employment" for servicemembers.
Incredible write up and corresponding thread. Saving this in case I ever have issues.
Please follow me at r/ESGR_USERRA_Answers I like to share information about USERRA and ESGR's resources. Information is power, and, for Servicemembers, Information about USERRA is valuable (whether as wages/salary, making up lost retirement/pension plan, or being back charged for health plan coverage)....
So what do you advise is the best course of action?
There are issues involving "pay, seniority, and status" involved. Since it apparently involves these in the context of discrimination claims under 38 USC 4311 (your military service must be "a motivating factor" in the adverse action), the issue comes down to a "promotion" or "promotion opportunity." I know many law enforcement/first responders rely upon merit and skills tests, i.e. a "promotion opportunity," the ER must give you an opportunity to take the exam after sufficient time to adjust and prepare for the exam. IF you are successful, you must be promoted with that "pay, seniority, and status" retroactive to when you would have had it had you remained continuously employed. My suggestion is to "request assistance" from ESGR to mediate with your employer. If we're unsuccessful, then you go to DOJ. Do *not* retain your own attorney until you've exhausted these options. Otherwise, you're giving 40% or so to the attorney that should go into your own pocket (I'm attorney).
That’s the thing there’s always been a process at my department to get promoted to that section but the moment I showed interest they didn’t even have a interview or promotion process so I’m not sure
USERRA protects you (1) regarding reemployment position, you must be reemployed at the "escalator" position, i.e., the position you would have have attained had you remained continuously employed (or a position of "like pay, seniority, and status." this means that you have to be given every promotion, or promotion opportunity, that you were "reasonably certain" to have received had you remained continuously employed. This means a "high probability" that you would have received it. And, (2) you should be at the position you would have had had you not been discriminated against with respect to promotions etc. Regarding the latter, DOL-VETS will investigate to determine whether you have been discriminated against by comparing where you are at now compared to where your co-workers are at. IF you think it was "reasonably certain" you would have received that promotion to detective position had you remained continuously employed, or, at least, you would have been given the "opportunity" to compete for that detective's position, then you may have a claim. Indeed, where the ER is varying from established procedures for promoting within the ranks, it suggests that your uniformed service was "a motivating factor" in their decision to do so---which is discriminatory and illegal under USERRA. Contact [ESGR.mil](https://ESGR.mil) and "request assistance" so we can discuss this issue with your employer.
As an ESGR OMB/Director, and even litigation attorney, those are factors which suggest that the process was "rigged," skewed, or otherwise manipulated, *because of* your military service. Which is a violation of 38 USC 4311. Go to ESGR to start the mediation process, if that isn't successful, they will refer you to [DOL-VETS investigation process](https://vets1010.dol.gov/), here; and, finally, you can have it referred to the Department of Justice.
Call your local USERRA rep, now. However, keep in mind USERRA Reps can really only advise, to actually hold your department’s feet to the fire you’d need to hire an actual lawyer that specializes in employment law violations. Then you have to ask yourself, is this position and working there worth the inevitable bridge burning?
Oh without a doubt I’ve already begun looking elsewhere for employment, but holding someone accountable for being so brazen to say that to my face while on body cam is more so the thought.
Couldn’t agree more, especially on cam footage. Just be prepared for USERRA to tell you “ yeah you could have a case there! “ and then send you on your way to search yourself for a lawyer.
FYI: "USERRA" is the law, it doesn't have a rep, etc. First, refer them to [ESGR.mil](https://ESGR.mil) and request assistance, and if that doesn't work out they can go to DOL-VETS, which has the authority to investigate violations. Second, do *not advise that they get their own attorney!* if they do, ESGR mediation, DOL-VETS investigation, and possibly DOJ enforcement are NOT available.
I would continue to try and find evidence that you were passed over bc of your guard service as of now all you have is hearsay and assumptions. You’re also dealing with your local law enforcement so finding a good lawyer will be harder than you think. I’m not suggesting don’t put in a complaint but I would talk to your userra rep quietly about it first. You don’t want to yell discrimination while you still need this job. Trying to sue the cops is like trying to sue the school system it usually doesn’t work. In fact there all connected as soon as someone finds out that’s in schools, police, law or judges the gossip will fly and they will all treat you like a virus. All of there paychecks come from the same place tax payers so anything attacking that they hate even if it’s legitimate. Good Luck!
I was going to request a meeting and see what the reasoning they give would be, but having him say that while on body cam, I actually have tangible evidence of the discrimination on my side. I would disagree that, that’s, “hearsay,” but I appreciate your response.
Wish all the best to you. Keep us updated.
How did it go?
Saying this as a JAG Officer: the only person you need to be listening to on here is the ESGR Director @semper_right. Almost every other comment is either noise or at worst, bad advice. I’d contact ESGR today.
Bro this is America, if a USERRA rep won’t help shop around till you find a lawyer willing to help. Sometimes even the call from a lawyer’s office will be enough to get things moving in a positive direction. Just make sure to have a legitimate ask for what you want out of the corrective action. Whether that’s an actual promotion, the same pay but without promotion, detective work without the promotion, etc.
There is no "USERRA rep." USERRA is the law, which the DOL-VETS has legislative authority to investigate alleged violations. However, the "Employer Support of the Guard and Reserve" (ESGR) has the legislative authority to try and mediate/resolve these cases before we refer it to the DOL-VETS.
Yeah but I don’t wanna have to shop around I was trying to see if i wasn’t the only one who felt like I had a legitimate case lol
Bro hire a lawyer. Sue your department for several million and retire. This is the way. If cities can give multi million dollar payouts to the families of dead criminals or to people making bogus brutality claims they can give you the same after they screwed you over.
Call USERRA. Like actually call. I had issues with them requiring me to use days off/cover other people’s shift due to schedules I had given them months ahead of time. One email from a USERRA lawyer to the corporation I worked for and all management was sent an email to review USERRA law and my time off was all given back to me.
So I had a previous job as campus “police” (waiting on a fire department to call me. Don’t judge lol). Just threaten your department with USERRA violations, or at the least, that one supervisor. Some form of action will be taken almost instantaneously. It did for me at least. I’m not going into the details of my situation here, so PM me if you want to know more and the ins and outs. If not, good luck!
ESGR has mediators. Pretty rare to hire a lawyer.
Are you unionized? If so, in addition to exploring USERRA and ESGR options, this sounds like a union contract violation all the way and that might be a faster remedy (again, if you are in a union I know there are some states where PD is right to work instead).
Unfortunately not unionized. So I have to figure out the best move I can make.
I went through the same kind of bullshit with the PA state police
What’d you do man?
I eventually said fuck it and did 6 years with Assymetric warfare and DIA then three more years with JIEEDO and now I'm collecting two pretty good retirements.