Ryan Poe , USA TODAY NETWORK – Tennessee
Memphis Police Department officer George Herbert was preparing to take the MPD’s sergeant promotional test when he was deployed to Kuwait with the Air National Guard in January 2016, the latest in a string of overseas deployments that earned him the U.S. Air Force Commendation Medal in 2011.
When he returned to MPD in September 2016, he’d missed the test, the first in years in an effort to recruit and retain more officers. But Herbert remained a patrol officer, despite his pleas over the next seven months to get another shot at promotion. According to a lawsuit he filed against the city this month, he’s not the only one.
Herbert and two MPD patrol officers in the Navy Reserves with similar stories, Michael Warren and Willie Sanders, have sued the city for not offering them the opportunity to make up the promotional test — a violation of the Uniform Services Employment and Reemployment Rights Act (USERRA), they claim.
Warren, a chief petty officer in the reserves, missed his promotional test because of a deployment to the Horn of Africa. Sanders was training in the reserves, where he serves as a crime scene investigator.
Here’s how the U.S. Department of Labor describes the relevant part of the USERRA:
“USERRA provides that returning service-members are reemployed in the job that they would have attained had they not been absent for military service (the long-standing ‘escalator’ principle), with the same seniority, status and pay, as well as other rights and benefits determined by seniority. USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment. The law clearly provides for alternative reemployment positions if the service member cannot qualify for the ‘escalator’ position.”
The lawsuit, filed in the U.S. District Court Western Division, claims about 20 officers were denied promotional testing because of military service.
The plaintiffs are seeking an order requiring the city to promote them to sergeant or offer a make-up test, and to give them the back-pay they would have received from promotions.
City spokeswoman Ursula Madden declined to comment before city attorneys receive a copy of the lawsuit.
The plaintiffs, through attorney Bryce Ashby, also declined to comment per MPD policy.
Memphis Police Association President Michael Williams said he’s not sure how many officers are affected, but that he’s been pushing the administration for a while to offer another round of promotional testing. So far, he said, the city hasn’t communicated information about more tests except to say they want them every two years.
“Some of these guys have been in combat zones and other places,” said Williams, himself a veteran. “And they get back and have to deal with this. It’s disheartening. It’s a slap in the face.”
The lawsuit comes as the administration ramps up its recruitment of officers. At 1,970 officers in February, the city is aiming to have 2,300 by 2020. At its peak in November 2011, MPD had 2,452 officers.
“Once again, this plays into the issue of, are you going to go (to MPD) if you don’t know if you’ll be promoted,” Williams said.