AIR FORCE RESERVIST PREVAILS IN SUIT OVER DEMOTION FOR MILITARY SERVICE
By Nechelle L. Snapp

A Solano County sheriff's lieutenant recently settled a successful lawsuit against the Sheriff's Office and the County for violating the Uniformed Services Employment and Reemployment Rights Act (USERRA) by demoting him while he was on active military duty.

Jeffrey Lastusky was a chief deputy in the Solano County Sheriff's Office when he was activated for a 20-month tour of duty as an Air Force Office of Special Investigations agent following the September 11, 2001 attacks. While he was on active duty in Washington, D.C., Lastusky learned the Sheriff had reassigned him to a deputy sheriff position during a departmental reorganization. Lastusky was given no right of appeal from the reclassification, which amounted to a three-rank demotion.

DSA, Public Back Lastusky

As a veteran reservist, Lastusky was assigned to a unit responsible for protecting Cabinet officials, including the Secretary of Defense and the Secretary of State. When the media publicized Lastusky's demotion, both the Solano County Deputy Sheriff’s Association (DSA) and the retired Air Force community in Fairfield – home to Travis AFB – criticized the County and the sheriff in the local newspapers. The DSA provided Lastusky with representation through Mastagni, Holstedt, Amick, Miller, Johnson & Uhrhammer, its retained counsel, for a federal lawsuit under the USERRA statute.

The statute requires employers who reorganize to place employees called to active duty in a position of "like seniority, status and pay" to the job the employee held before the call-up. After the firm challenged the sheriff’s decision to reassign Lastusky three ranks below his previous classification, the County hastily made Lastusky a lieutenant. However, the discriminatory acts already had occurred, and Lastusky sued in federal court for damages and reinstatement to the newly-created rank of Captain.

County Tries to Falsify Discipline Record

Lastusky had served as supervisor of the investigations bureau, had been the de facto police chief at Solano Community College, was a member of several special teams and details, and as one of four chief deputies, was Commander of the Operations Support Division. He rose through the ranks from deputy to sergeant to chief deputy without any disciplinary action taken against him.

Yet when Lastusky threatened to sue, the County depicted Lastusky as a "discipline problem" who was lucky to have kept his job at all while on military duty, let alone to have been made a deputy sheriff. When those tactics failed, the County made the bizarre claim the demotion was part of the sheriff's anti-terrorist plan for Solano County. That defense, too, failed to defeat Lastusky's lawsuit.

Mediation Follows Summary Judgment Motion

Both parties moved for summary judgment on claims alleged under state and federal causes of action. Lastusky submitted the personnel actions officially changing his status to a deputy sheriff; deposition testimony establishing no lieutenant slot had been "saved" for him when the Sheriff's Office reorganized; remarks from administration officials indicating Lastusky would be made a Captain; and evidence two other Chief Deputies were reclassified to the rank of Captain when the department reorganized.

Judge David Levi denied the County's summary judgment motion on the USERRA issues. More importantly, his decision contained wording suggesting Lastusky's claims would likely succeed at trial.

The County requested mediation. Under the supervision of retired judge Ellen James, the County and Lastusky agreed to confidential settlement terms.

Nechelle L. Snapp is an associate labor attorney at Mastagni, Holstedt, Amick, Miller, Johnsen & Uhrhammer. She and partner Christopher Miller represented Jeffrey Lastusky in his lawsuit.