A man being deployed to Iraq as a member of the Air Force Reserve has sued a company he applied to for a job because he thinks the application's questions about reserve status can be used to discriminate.
Master Sgt. Joseph Boundy, a 14-year reservist from Bartlett, Tenn., was fired from his job in June hours after giving his employer notice that he was being re-activated. David Wade, a lawyer for Wholesale Equipment Co. in Memphis, says Boundy's firing was strictly related to a pattern of poor job performance.
Wholesale Equipment has not been sued. Instead, Boundy's lawyer, Dan M. Norwood, has sued Siemens U.S.A., a German company with offices in Jackson, Tenn., in federal court in Memphis. Boundy applied for a job with Siemens and believes that his honest answer to a question about his reserve status could have prompted the company not to consider him. He applied for 40 jobs after his termination, including other companies that asked about his military background, and remains unemployed.
"You just think in the back of your mind, 'Could they be asking this as a tool to get out of hiring a reservist?'" Boundy, 33, said.
Norwood is seeking an expedited preliminary and a permanent injunction to prevent Siemens and all other employers from asking about reserve status. He maintains there is no legitimate employment-related reason to ask about reserve or National Guard status except to avoid hiring employees covered by the 1994 Uniformed Services Employment and Re-Employment Act, which requires employers to rehire reserve and guard members once they return to civilian life.
"If they don't hire them, then they don't have to give them the leave when they get deployed and they don't have to re-employ them as the law requires," said Norwood. He has contacted the offices of U.S. Reps. John Tanner and Steve Cohen, both D-Tenn., seeking a legislative remedy.
Eugene R. Fidell, a Yale University law professor and president of the National Institute of Military Justice in Washington, said he would be uncomfortable with a change in the law that would forbid employers from asking about reserve status since employers need to know their employees' backgrounds. But he said making sanctions tougher against employers that violate the law would be an improvement.
"It's always going to be a question of proof as to what was the motivating factor in refusing to hire somebody or in firing somebody," Fidell said. "It's very, very difficult for an employer to have an employee go away for a period of time and not be available. It's objectively difficult. I'm not unsympathetic. I think it's a challenge for Congress to try to reconcile the interest of commerce ... and the interest of encouraging membership and facilitating membership in the guard and reserve."
Siemens USA's New York-based spokeswoman, Elizabeth Cho, said the company had no comment in response to the lawsuit.
Employer Support for the Guard and Reserve (ESGR.org), a Department of Defense agency that seeks to mediate disputes between employers and employees on guard and reserve issues, handles between 2,000 and 3,000 mediation cases a year, said spokesman Maj. Melissa Phillips of the Air Force Reserve.
Norwood and Wade are attempting to work out an agreement avoiding a lawsuit against Wholesale Equipment, both said.
"My folks (clients) don't like to get sued but, on the other hand, they don't like to have what we view to be unfounded accusations," Wade said.
There are at least two sides to every argument and Wholesale Equipment, which makes lockers, shelving and bathroom partitions, maintains that Boundy's record of poor performance cost the company money, according to a letter from Wade to Norwood. Wade also writes that Boundy's shipments to incorrect addresses and increasingly disruptive behavior resulted in a decision to terminate him before he ever presented his deployment letter.
Wade also noted that the company had accommodated Boundy's Air Force Reserve obligations on five previous occasions, earning the company the Secretary of Defense Employer Support Freedom Award.
Boundy's five-page rebuttal of Wade's letter's claims says others were largely responsible for shipments sent to wrong addresses. He admits to dropping a company camera but points out that the company's Defense Department recognition was initiated by him.
Boundy began working with the company in March 2005. He was deployed to Kirkuk, Iraq, in 2004 and for four months in Afghanistan last fall. His current deployment to Iraq will end in January.
He said he asked for a raise and a performance review in April but was told he hadn't been on the job long enough, and one was scheduled for January 2010. He says that when he complained that the review policy was unfair, "it seems I got nit-picked ever since."
He presented his letter from the 96th Aerial Port Squadron, based in Little Rock, Ark. on the morning of June 9 and "the next thing I know I'm being called into the office at 2 p.m., saying, you know, 'We're firing you.'"
(Contact Bartholomew Sullivan of The Commercial Appeal in Memphis, Tenn., at sullivanb(at)shns.com.com.)
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