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The Post Journal speaks with Tully Rinckey PLLC SR. Associate Michael Macomber about his recent USERRA Victory

The Post-Journal

Jury Decides City Did Not Deny Promotion For Officer Fighting Overseas

By A.J. Rao, Post-Journal
October 3, 2014

 

MAYVILLE – A jury determined Thursday that Timothy H. Wright was not denied a promotion or annual compensatory time by the city of Jamestown and the Jamestown Police Department because of his extended military leaves.

In his favor, however, the State Supreme Court jury determined that the retired JPD detective and U.S. Army reservist did have his vacation time unfairly prorated in violation of the city’s collective bargaining agreement.

The verdict, while not a “complete” victory for Wright, did bring an end to what he considered a “stressful” seven-year ordeal that stemmed from allegations of discrimination leveled at the city and the JPD.

Both, he believed, improperly prorated his vacation and annual compensatory times after he was deployed on four separate occasions between 2002 and 2010.

This, according to his attorney, Michael W. Macomber, was not only in violation of the city’s collective bargaining agreement, but the Uniformed Services Employment and Reemployment Rights Act of 1994, which states that service members are entitled to benefits that “such person would have attained if the person had remained continuously employed.”

Moreover, Wright maintained that he was repeatedly passed over for assignment opportunities and a promotion purely because of his military-related absences. Macomber evidenced this by indicating that the candidate who was chosen over Wright had less seniority and prior disciplinary issues.

“(There was) a negative military animus that Wright faced for 20 years,” said Macomber, in his closing argument. “Wright’s military service was a burden to the department. The promotion occurred when Wright was 10,000 miles away, serving in Afghanistan … and the candidate that was ultimately promoted had a lengthy (disciplinary) history with the department. It gave us an inference of discrimination there.”

Marilyn Fiore-Lehman, corporation counsel of the human resource director of Jamestown and representing the city, countered Wright’s allegations by describing them as “offensive” and having no merit within the long-standing practices of the city and the JPD.

“I don’t believe that the city discriminated against him in any way, shape or form,” she said. “I believe that the proration of his vacation was done in accordance with policies, practices and procedures that had been applied to all members of the Jamestown Police Department.”

Fiore-Lehman evidenced this by other JPD officers, including Harry Snellings, Jamestown chief of police, who deployed overseas as members of the U.S. Army Reserve.

All of them, she indicated, had their vacation and annual compensatory times similarly prorated.

“(Wright chooses) to ignore years of history,” said Fiore-Lehman, in her closing argument. He wants benefits that others are not entitled to.”

Regarding Wright’s failed attempts at getting promoted, Fiore-Lehman said Wright is not alone, and that several officers lose out to candidates with less seniority. Moreover, Wright, unlike other candidates, failed to reapply for a promotion after his initial rejection.

“(When you try for a promotion), you have to realize that you might not get it,” she said. “(Wright’s) disappointment is not discrimination.”

After closing arguments, the six-person jury deliberated for approximately two hours before rendering their verdict before Judge Deborah Chimes.

Fiore-Lehman said both parties will meet to determine what if any damages Wright is now entitled to receive.

“(This case has been) extremely difficult,” said Wright, after the verdict. “I never wanted to have to pursue something like this … definitely not against an employer where I worked and enjoyed the work, both as a patrolman and as a detective for countless years. I’m extremely relieved not only for me, but my family.”

 

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