Navy Lt. Joseph “Max” Ernest craved stability after a tour of service in Iraq.
The 41-year-old reservist thought returning to his job at Lockheed Martin would help after working nine months on the Iraqi Ministry of Intelligence Transition Team.
But when Ernest returned to Colorado Springs in February, he was told he was losing his job.
Ernest notified Lockheed Martin that he was ready to come back to work as a counterintelligence and law enforcement analyst, but the company told him he was going to be terminated.
“We are asking people to do things for our country, but when you come back there is nothing for you,” Ernest said. “I think that’s where people define themselves. Do we really support our troops?”
Under the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), service members have a right to be reinstated to their jobs upon return from active duty. Ernest sued Lockheed Martin on Oct. 1 in U.S. District Court in Denver alleging violation of USERRA.
Representatives for Lockheed Martin declined to comment specifically about Ernest’s case, but said the company has a long history of supporting troops.
“Lockheed Martin strongly supports our armed forces and has an excellent record of employing active duty and reserve military members and successfully bringing them back into the corporation,” said company spokesman David Jewell. “Since 2001, almost 2,000 employees have been deployed for active duty and successfully returned to work for the company.”
Jewell wouldn’t comment on why Ernest — who says he had a superb record at the company — wasn’t reinstated or what efforts were made to keep him employed.
Three avenues to protest termination
Service members can sue an employer over USERRA. Or they can go through an administrative process through the Employer Support of the Guard and Reserve. They may also file a complaint with the Department of Labor.
Last year, the Department of Labor investigated 1,526 USERRA complaints against companies. The average number of cases investigated each year since the Sept. 11, 2001, attacks is about 1,371, said department spokesman Otto Heck.
The Employer Support of the Guard and Reserve, a branch of the Department of Defense, is receiving fewer complaints each year since the 2001 attacks. In fiscal year 2007, 47 service members reported termination issues after they returned from duty, said ESGR Major Aaron Wellman. That number is down from a post- 9/11 high of 296 complaints in fiscal year 2004.
While complaints through the official channels may be on the decrease, some of that may be attributable to service members, like Ernest, going straight to an attorney for help.
Ernest hired Louisiana-based attorney George C. Aucoin, who has sued several companies on USERRA claims. In 2005, Aucoin won $500,000 against Agilent Technologies when U.S. District Judge Lewis T. Babcock ruled the company violated USERRA when it fired Marine Reserve Lt. Col. Steve Duarte.
Aucoin plans to file at least three more federal lawsuits for USERRA claims in Denver’s federal court in the coming months.
“I currently have 15 cases filed from Alaska to Florida,” Aucoin said.
Lockheed Martin has responded to Ernest’s lawsuit with a document showing he signed an arbitration agreement when the company absorbed SYTEX, the business that originally hired Ernest as a full-time employee in 2004. The document says he agreed to exhaust any dispute with Lockheed Martin in front of an arbitrator rather than a court of law.
Ernest says he doesn’t remember signing the agreement. “They went back two years and found this document,” he said. “It’s a silver bullet more or less. It’s not whether Lockheed Martin did right or wrong. It’s ‘how can we get away with this?’ ”
U.S. Senator Russ Feingold, D-Wis., has introduced legislation to address the problem, the Arbitration Fairness Act of 2007. On Dec. 12, hearings about the legislation were held before a Senate subcommittee on the U.S. Constitution, and Ernest submitted his testimony about the dispute he has with Lockheed Martin.
Arbitration clauses in the cross hairs
The Arbitration Fairness Act, if passed, would do away with mandatory arbitration clauses so that employees can choose to sign one at the time of dispute rather than at the time of employment.
“If you don’t sign, you don’t have a job,” Aucoin said of arbitration agreements. “(Ernest) didn’t even realize it because it was not cast in those terms.”
If U.S. District Magistrate Judge Kristen L. Mix, who is hearing Ernest’s case, decides to let the arbitration agreement stand, then Aucoin says he will take the case to the 10th Circuit Court of Appeals.
As of Saturday, Ernest won’t have a job when his standing orders at Buckley Air Force Base in Aurora end.
Ernest says filing the lawsuit was a tough decision to make, but he wanted to pave the way for veterans who will be coming home in the future.
“If I can cut a trail — if it does happen again — there will be precedent set against it,” he said.
Felisa Cardona: 303-954-1219 or fcardona@denverpost.com
