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A federal appeals court has affirmed monetary awards and attorneys fees totaling nearly $800,000 to a veteran who sued a company based on the federal law protecting the rights of military members who seek to return to their jobs after service. On Sept. 9, a unanimous panel of the U.S. Court of Appeals for the 1st Circuit affirmed a District of Massachusetts judgment in favor of Stephen Fryer, a Massachusetts National Guard member and an Iraq war veteran. The 1st Circuit in Fryer v. A.S.A.P. Fire and Safety Corp. Inc. specifically affirmed damages that were based on the jury’s finding that the company’s violation of the law, the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), was willful. Fryer is a Massachusetts National Guard member who served in the Marines and the reserves. A.S.A.P. hired him as a sprinkler service/sales representative in March 2006. His case concerns events that took place after his May 2008 return from a 13-month deployment to Iraq. After his return, the company hired Fryer as a sprinkler “helper” in June 2008. Fryer claimed he was unable to earn commissions in his new role because he had no access to customers. Fryer also claimed the company would not pay the renewal fee when his personal licenses expired in July 2008, which meant he could not perform unsupervised work. A.S.A.P. terminated his employment in October 2008. Fryer sued A.S.A.P. and its owners, Brian Cote and Joseph Sheedy, in February 2009 under USERRA. His other claims against the defendants included violations of the Fair Labor Standards Act of 1938 and the Massachusetts Wage Statute, along with retaliation and harassment claims. In November 2009, a jury found that A.S.A.P. and its owners willfully violated USERRA. The jury awarded Fryer back pay under USERRA, plus several types of damages under Massachusetts state law, including front pay, commissions, overtime, emotional distress and punitive damages. Magistrate Judge Marianne Bowler’s January 2010 final judgment awarded multipliers that brought the total to $493,028, plus prejudgment interest of $33,532.99 and post-judgment interest. In November 2010, Bowler awarded an additional $178,144.28 in attorney fees, plus $69,237.12 in post-judgment interest and costs. The following month, she added $21,060 to the attorney fee interest award to correct a computational error. In her January 2010 opinion, Bowler found that “[a]mple evidence supports viewing the reasons [the company gave for his termination] as pretextual with the real reason being plaintiff’s military service and his complaints about not having the benefits and responsibilities of his preservice position.” The company’s 1st Circuit brief claimed that Fryer missed 58 hours of work, or about 10% of his work hours, during his 16 weeks at A.S.A.P in 2008, and that he was fired for excessive absenteeism. The 1st Circuit held oral argument on July 26. Federal Circuit Judge Timothy Dyk, who sat on the panel by designation, authored the opinion, joined by Judge Michael Boudin and Senior Judge Bruce Selya. Dyk concluded that A.S.A.P. waived its claim that USERRA pre-empted Fryer’s state law anti-discrimination claims, which account for much of the damages, by not raising it at the district court. He then addressed the issue of willfulness, noting, “Because the jury found that A.S.A.P. had acted willfully, the district court doubled the back-pay award under USERRA. Additionally, the award for commissions earned during the reemployment period was trebled pursuant to the Massachusetts Wage Act…, and the award for lost overtime was trebled pursuant to Massachusetts anti-discrimination law…, resulting in a total award of $14,560 for earned commissions and $12,720 for lost overtime.” Dyk observed that the term “willful” under USERRA law “refers to a knowing violation or action taken in reckless disregard of the obligations imposed by USERRA.” Dyk wrote that there’s “ample evidence” on the record that A.S.A.P. acted willfully when it refused to reinstate Fryer to his preservice position after he returned from Iraq. “A.S.A.P.’s admission that it was aware of its obligation to reinstate Fryer, coupled with Fryer’s testimony regarding his interactions with A.S.A.P.’s owners, is certainly sufficient to permit a reasonable jury to conclude that A.S.A.P. knew of its obligations and acted with reckless disregard in refusing to reinstate Fryer to his pre-service position,” he wrote. Dyk rejected A.S.A.P.’s argument that firing Fryer wasn’t a willful violation of USERRA because the company terminated his employment for cause, particularly excessive absenteeism. “A.S.A.P. appears to argue that a good faith belief that it was permissible to discharge an employee for absenteeism would also negate a finding of willfulness as to the discharge,” Dyk wrote. “Here, the jury concluded specifically that Fryer was not discharged for cause. Additionally, there was ample evidence that A.S.A.P.’s claim of excessive absenteeism was merely pretextual.” Fryer’s lawyer, Nancy Richards-Stower, a solo practitioner in Merrimack, N.H., said that, even if the 1st Circuit had not found that the defendants had waived the pre-emption argument, “we were certain that USERRA, by its own terms clearly does not pre-empt a more protective state law.” In this case, USERRA provided for lost pay, attorneys’ fees and certain injunctive relief, while the Massachusetts laws allowed for other damages, such as front pay and emotional distress damages, Richards-Stower said. “USERRA provides a floor for military discrimination rights, not a ceiling,” she said. Lester Riordan III, a solo practitioner in Concord, N.H., who argued for the defendants at the 1st Circuit, did not respond to requests for comment. Brian Akashian, who also represented the defendants and practices at the Law Offices of Kevin J. Murphy in Chelmsford, Mass., declined to comment. Sheedy, one of A.S.A.P.’s two owners, said the company probably took the case “a little lighter than we needed to,” when it was filed. “The way that things turned out, we’re a little disappointed,” Sheedy said. “Sgt. Fryer he’s an honorable guy. He fought for his country. A U.S. federal court found that we deprived him of his rights; for that we’re sorry. We would like to have reconciled it prior to this point, but we didn’t necessarily have that option. He went straight to federal court.” Sheri Qualters can be contacted at [email protected].

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