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ARTICLE ID 168754

$________ Wrongful termination - Defendants fail to re-hire employee in same or equivalent position after military service in Iraq - Pretext for dismissal - Back pay, front pay and emotional distress.

U.S. District Court of Massachusetts

The 43-year old plaintiff in this case was terminated from his job servicing, installing, and selling sprinkler systems after returning from a stint in Iraq with the Massachusetts National Guard. He sought relief under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. Sec. ________ et seq., Massachusetts General Laws chapter 151B which prohibit discrimination and retaliation based on military service, and under Massachusetts wage and hour laws requiring overtime wages. The defendants contend that the plaintiff was terminated because he was late for work and took excessive sick leave, and that his emotional distress resulted from his tour in Iraq, not from his being fired.

The plaintiff was a 43-year-old high school graduate who attended two semesters of college and obtained a fire sprinkler inspection certificate in December ________. His duties gradually evolved from servicing and installing sprinkler systems to focus more on sales and service. By the beginning of ________, his hourly wage had increased from $17 to $19, and he was given a company vehicle to use, a telephone, and business cards. He received a 10% commission on the sales of new systems, and by early ________, commissions accounted for 25% of his compensation. He earned an average of $________ per week for 51 weeks in ________.

The plaintiff told his supervisors in early ________ that he had agreed to re-up for the Massachusetts National Guard, but that his Guard duty would not affect his work and would only involve weekends. However, in February ________, the Guard issued a deployment letter to the plaintiff and in July ________, the plaintiff was deployed to Kuwait and then Iraq. During his deployment, the plaintiff expected the defendants to pay his wife an overdue commission that the defendants owed him, but they did not.

In April and May ________, the plaintiff notified his supervisors that he would be returning in May ________, and was positive, upbeat, and very excited to be back. However, when he stopped by the defendants’ offices after returning home, he was told that there was no position for him and that another worker had been hired. The defendants discussed the matter amongst themselves and in June, they told the plaintiff that they knew they had to hire him back. They gave the plaintiff a job as a sprinkler helper that involved helping another sprinkler fitter. The position was below his previous job status.

The plaintiff earned $22 per hour because he did not need the defendants’ health insurance anymore, but the job did not give the plaintiff the opportunity to earn commissions on sales of sprinkler systems. In contrast to the $________ he made in commissions in ________, he made only $________ from July to October in ________. He was not given a company car, telephone, or gas card; moreover, he spent an extra ten hours a week working because he had to transport another employee to work. The plaintiff told the defendants he wanted his old job back.

The plaintiff’s supervisor gave the plaintiff permission to leave work early on September 12, ________ for National Guard duty. On September 24, ________, plaintiff did not arrive at work until 10:00 a.m. because he had to put his children on the bus to school because his wife was at the hospital with her gravely ill mother. The plaintiff took one vacation day, with the approval of his supervisor, to have an MRI on his knee which he had injured in Iraq. He was one hour late to work on October 6, ________. He had the flu and did not come to work on October 20 and 21, ________. The defendants did not request or require a note from the plaintiff’s doctor. On October 22, ________, the defendants terminated the plaintiff, and claimed the reason for his dismissal was "being late for work twice and calling out sick three times all within a 30 day period." At trial, the plaintiff showed that that was a pretext for the defendants’ real motivation, which was to fire the plaintiff because of his military service and complaints about not having the benefits he had enjoyed in his previous position. The plaintiff showed that the defendants’ policy manual sets out a series of progressive disciplinary measures that the defendants did not adhere to. In addition, the plaintiff showed that another employee had been sick four days during the week of October 20, ________, but that employee was not terminated.

The plaintiff, who had been upbeat and positive when he returned from Iraq, began to suffer from depression and a loss of self- esteem as a result of the defendants’ actions. He argued more with his wife, and began to avoid his wife and children. He began to take anti-depressants, which he continued to do throughout the time of trial. He gained weight and had problems sleeping.

The plaintiff’s brother-in-law recounted an occasion on which the plaintiff broke down after an argument with his wife. The plaintiff presented evidence of his active, but unsuccessful, search for work after being fired. The plaintiff’s economic expert, Arthur M. Kenison, Ph.D., testified that the plaintiff’s lost wages amounted to $________. The defendants contended that any emotional distress suffered by the plaintiff resulted from his duty in Iraq.

At trial, the jury awarded the plaintiff $________. The award included $________ in back pay, $________ in front pay, and $________ for emotional distress.

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