By Mitchel Wilson
In Landolfini v. City of Melburn, (2013), the court granted the defendant City summary judgment and dismissed Dominick Landolfi’s claim for discrimination under the USERRA. Landolfini alleged that the City failed to promote him because he is a reservist in the air force and that he might be called away to serve. But the court concluded that his misconduct is what led to his promotion difficulties.
Landolfini, as a firefighter with Melburn was passed over three times for promotions he applied to. He was passed over for Battalion Chief in 2006, Battalion Chief in 2008, and Assistant Chief in 2010. He claimed a violation of USERRA, the federal law that protects armed service members and reservists from discrimination
Under USERRA, a person who is a member of, or has an obligation to perform service in, a uniformed service may not be denied a promotion on the basis of his membership or obligation. 38 U.S.C. §4311(a). An employer, therefore, violates USERRA where the individual’s membership or obligation for service in the uniformed services is a motivating factor in the employer’s failure to promote the individual, unless the employer proves that it would not have promoted the individual absent the individual’s membership or obligation. See id. §4311(c)(1).
Because Landolfini had actively served in the military close to those times, the court concluded that he had presented enough evidence to support the basic assertion, or prima facie case, that his military service was a “motivating factor” but not necessarily the sole factor in their decision to pass him over. However, the City may rebut Landolfini’s case by showing legitimate reasons behind its decision to not promote him and it did.
The department was able to show its reasons by comparing Landolfini to the firefighters they actually picked, who all had more experience than he and all scored higher on each stage of the application process. Furthermore, they presented testimony that supported their perception that Landolfi was not trustworthy and was disruptive in the department. At one point, his supervisor testified that he learned of an incident where Landolfini “exposed himself to a mentally disabled person” in what is clearly a juvenile and unprofessional act.
