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A Hollywood, Fla., lawyer has become one of the first military reservists in the country since the Sept. 11 terrorist attacks to file a lawsuit based on a federal law that prohibits employers from dismissing workers when they are called up for active duty. Citing the Uniformed Services Employment and Reemployment Act, Thomas Freehling has filed suit in U.S. District Court in Miami, alleging he was improperly dismissed by his employer after being called up for active duty shortly after the attacks. He’s seeking reinstatement and unspecified monetary damages. The defendants named in the lawsuit, which was filed Oct. 27, are the law firm Troy D. Ferguson & Associates in Coral Gables, Fla., and the United Automobile Insurance Group. Freehling had been working for UAIG’s in-house legal team at the time of his call-up. Troy Ferguson is a former Assistant U.S. Attorney and partner at Miami-based Steel Hector & Davis whose firm took over all the insurance defense work from UAIG’s in-house staff last November. The federal statute, enacted in 1994, states that companies must hold jobs for all full-time employees who go on active duty or give them comparable jobs when they return. Employers are not required to pay the employees while they’re gone or to maintain their fringe benefits, although many companies do. With the Bush administration planning an invasion of Iraq, thousands of military reservists are likely to be called up and have to leave their jobs behind. But according to the National Committee of Employer Support for the Guard and Reserve, a federal agency designed to better relations between employers and reservists and protect reservists’ employee rights, few employees have been terminated since being called for active duty since Sept. 11. “The problem is very small,” said Lt. Col. Jess Soto, deputy director of ombudsman service for the committee. Cases are not always cut-and-dried, he said, adding that some companies lay off an employee who’s called up for active duty on the grounds that they are experiencing a business downturn and are cutting staff, but argue that the decision was not discriminatory. Soto said his agency tries to intercede and resolve disputes between employers and reservists, but that a small number of complaints go to the U.S. Department of Labor and to the courts. In his lawsuit and interviews, Freehling, 50, claims that he started working as an insurance defense lawyer in UAIG’s North Miami office just three weeks before the Sept. 11 attacks occurred. A member of the Coast Guard Reserve since 1987, he was called up on Sept. 18, 2001, for full-time guard duty at the Coast Guard’s Lake Worth, Fla., military installation. Part of his duties was to ensure that approaching commercial ships were not threatened by terrorism. He worked for the Coast Guard two to four days a week. Freehling said he sent a letter on Nov. 1, 2001, notifying UAIG of his military status. Shortly afterward, he received a memo informing him that Troy Ferguson would be taking over all legal operations in six weeks and that the legal staff would be expanded. He claimed he wrote an e-mail to Ferguson stating his desire to stay on. Meanwhile, Freehling said, he worked part time at the new Ferguson offices in Coral Gables. Then, on Dec. 15, Freehling said, he received a severance package in the mail at home, which included two weeks’ severance pay if he signed a letter stating he would not talk about the case. “I was humiliated that they wouldn’t tell me in person,” said Freehling, who did not sign the letter or receive severance pay. On June 30, 2002, Freehling was released from active duty, according to his lawsuit. On the advice of his attorney, G. Ware Cornell of Fort Lauderdale, Fla.’s Cornell & Associates, even though he had already been dismissed, he went through the legal formality of notifying Ferguson of his intent to reclaim his job. He reported for work on Sept. 30, the first business day after the 90th day of his discharge, as required by the USERRA law. Three weeks ago, Freehling said, he went to visit Ferguson to ask him why he was terminated. He said Ferguson told him, “Why should I keep your job open? I don’t even know you.” In an interview, Ferguson confirmed Freehling’s statement. “The first time I met Mr. Freehling was three weeks ago,” he told the Miami Daily Business Review. “He came to my office. I said, ‘Tom, I’ve never met you, I’ve never hired you, but you can send in an application like anyone else.’” Ferguson said he hired many of United Automobile’s lawyers when he took over, but not all of them. He now has 28 attorneys working for him, doing all the personal injury defense work for United Automobile as well as for Star Casualty Insurance. Ferguson said he’s outraged by the allegation that he would fire a military reservist. He insisted that Charles Grimsley, the general counsel at United Automobile, is the one responsible for the dismissal, not him. “I’m as patriotic as the next guy,” he said. “I’m a black man who came to this country at 15, a success story. I was on the hiring committee at Steel Hector and the recruiting committee at the U.S. Attorney’s Office. I have a very diverse law firm. They’re trying to make the story that a former AUSA did this and it’s not true.” Grimsley could not be reached for comment. Indeed, Cornell, Freehling’s attorney, said he plans to stress Ferguson’s previous position as a federal prosecutor in litigating this case. “He’s a former Assistant U.S. Attorney who’s doing insurance defense work,” Cornell said. “We’re going to get into that very deeply.” Cornell also said he plans to “wrap [Freehling] in the American flag.” He made that promise in a letter to Anne-Marie Estevez, a partner at Morgan, Lewis & Bockius in Miami, who is representing the defendants in the lawsuit. “This is horrible,” Cornell said. “They did not appreciate what Tom was doing was for his country. They don’t understand that civilian businesses need to sacrifice when someone is called up.” Some employers do understand. The Internet site for the Employer Support of the Guard and Reserve lists dozens of businesses and government agencies that have gone beyond the legal requirements in protecting jobs and benefits for reservists who are called up. They include BellSouth, Miami-Dade County and Lucent Technologies. After Sept. 11, Lucent adopted a more generous policy of paying employees who are called up for duty the difference between what the military pays them and their regular salary. The differential is now paid for up to 104 weeks, an increase from 52 weeks. Employees’ medical, dental and vision insurance continues as before. Freehling, who still works one weekend a month for the Coast Guard, said he’s been unable to find another job as a lawyer and currently is collecting unemployment insurance. “I had no choice but to go when I was called,” he said. “It’s not fair.”

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