Itâ€™s been a little over two years since Plymouth policeman Robert DeLee filed a lawsuit against the City of Plymouth claiming that the City had failed to pay all of his longevity pay after he returned from an eight-month tour in Afghanistan as a U.S. Air Force Reservist.
He holds the rank of Technical Sergeant.
Judge James Moody, United Sates District Court for the Northern District of Indiana, heard the case and entered a summary judgment on March, 2014 finding in favor of the City of Plymouth.
Now, briefs on a timely notice of appeal in the matter have been prepared on behalf of DeLee by Jocelyn Samuels, acting assistant attorney general, and Dennis Dimsey and Jodi Danis, attorneys with the Department of Justice, Civil Rights Division, Appellate Section, Washington, D. C. and the City of Plymouth by Sean Surrisi, attorney for the City of Plymouth. Both briefs are over 80 pages long.
DeLee alleged that Plymouth violated his employment rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994. USERRA is a federal law enacted in 1994 intended to protect civilian jobs and benefits for veterans and reserve troops who may be absent from their jobs during military service.
DeLee was on active duty with the Air Force between September, 2010 and May, 2011. He had been a patrolman with the Plymouth Police Department since April 19, 1999. After returning from the deployment, his position with the PPD was reinstated.
DeLee filed a USERRA complaint with the Veteranâ€™s Employment and Training Services (VETS) of the Department of Labor (DOL) on or about January 31, 2012. When the matter could not be resolved between DeLee and the City, DeLee requested the Department of Justice (DOJ) representation to file the lawsuit alleging that the City violated USERRA by denying a benefit of employment he would have received, based on seniority, had he not been deployed.
Since 1989, the City of Plymouth has used longevity pay as an incentive to retain employees by paying $225 per year after the first three years for every continuous year that an emergency personnel (police and fireman) remains. The payment is made one time per year on or near the anniversary date of the employee. In DeLeeâ€™s case, the city paid $900 for four months, but declined to pay $1,800 of longevity pay for the time he was on a leave of absence.
The City contends that their ordinance includes language that means longevity pay shall be prorated during the year immediately preceding their anniversary date when an employee is on a leave of absence. It also includes the following: â€śLongevity pay shall be prorated as based on the number of months of actual active duty during the year immediately preceding the anniversary date.â€ť
At this point, the 7th Circuit Court of Appeals will decide if they want to hear oral arguments or make a decision from the briefs provided.
Carol Anders Correspondent