District Judge David N. Hurd
Rome police officer Mock, a U.S. Air Force reservist, was repeatedly deployed overseas. Despite scoring high on promotional exams and repeatedly ranking first on eligible promotion lists, he was denied promotions in favor of less senior officers. He was also subjected to co-workers’ unwelcome comments about his military absences, including a former chief’s comment that he was “out playing war games.” A jury rendered a verdict of no cause of action on Mock’s claims of discrimination violating the Uniformed Services Employment and Reemployment Rights Act and New York Military Law §242. The city introduced evidence of prior disciplinary action. District court denied Mock’s renewed motions for judgment as a matter of law under Federal Rule of Civil Procedure 50(b), or new trial under Rule 59(a). In rejecting Mock’s Rule 50(b) motion the court found the record sufficient for the jury to conclude that factors other than Mock’s military status were the reason he was not promoted sooner. There was no direct evidence Mock sought a special eligibility list, as required by Military Law §243(7). Even if he had, the city would have had no duty to promote Mock. It could have chosen not to promote anyone.