Montgomery County has asked a judge to dismiss a lawsuit filed by a police officer who claims it mishandled his military leave time, noting that it has taken the actions he requested in the six weeks since the suit was filed.
Jae S. Hwang, a Montgomery County Police sergeant, claimed his seniority, pay, benefits and retirement benefits suffered when the county did not place him on active-duty status while he was training as a Judge Advocate General in the U.S. Army Reserve.
He claimed the county’s actions violated the federal Uniformed Services Employment and Reemployment Rights Act (USERRA).
In its motion to dismiss, filed last week, Montgomery County says it corrected Hwang’s increment date and his adjusted service date, changed his leave status from “Leave Without Pay Personal” to “Leave Without Pay Military Involuntary” and rescinded a letter that told Hwang he owed $250 from a raise he received while on active duty.
Hwang filed the lawsuit Nov. 4. The county sent him a letter informing him these actions were being taken on Nov. 27.
Hwang also was reimbursed $3,092 for overpaid insurance premiums, which the county directly deposited into his bank account. Hwang was notified of the reimbursement on Dec. 10, the motion to dismiss says.
The county also states that it is waiving repayment of more than $3,000 that it improperly paid him for one 80-hour pay period during his training.
“Since [Hwang] actually received more monies than he was entitled to, notwithstanding any incorrect documentation of his employment and pay status, [Hwang] has received a windfall,” the county stated in its motion to dismiss.
Hwang’s attorney, John Ki, said the county had not granted all the relief Hwang is seeking and called the motion to dismiss “frivolous and meritless.”
“They never even asked,” said Ki, a Rockville solo practitioner. “There was no dialogue as to what [Hwang] wants or is entitled to.”
A spokesperson for Montgomery County did not return a call for comment.
Hwang said the county ignored a settlement offer he made after filing suit last month.
“They finally reviewed it after completely blowing it off before they realized they did make a mistake and rectified it,” Ki said. “Instead of simply apologizing, they go ahead and file a motion to dismiss, but that does not give the full relief [Hwang] wants.”
Ki said he is in the process of crafting a response to the motion to dismiss. He declined to elaborate on what further relief Hwang will ask for, aside from attorney’s fees at the least.
According to Hwang’s lawsuit, police officers have to accumulate a certain number of working days in order to rise in rank.
During required military training from Feb. 9 to June 17, Hwang asked the county to put him on non-paid military leave. The county’s Office of Human Resources and the Montgomery County Police Department’s payroll and personnel department, however, placed Hwang on “leave without pay,” a different status.
As a result, Hwang claims, his increment date for seniority was pushed back almost six days.
The county also asked Hwang to return more than $250 from a raise he had received while on active duty, claiming he could not receive the raise due to the change in his increment date. The county took benefit payments for the period he was on active duty out of his future paychecks.
In its motion, the county asked the U.S. District Court in Greenbelt to dismiss the case for failure to state a claim and because service increment, pay, benefits and leave had been addressed. The county also argued that Hwang had not suffered any damages — that he had, in fact, received extra money — and that the case was therefore moot.
Adam Augustine Carter, who represents other clients in USERRA cases, said it is unusual for a defendant to ask for a case to be dismissed because it has granted much of the relief a plaintiff requested.
“Normally, you don’t do a motion to dismiss saying you’ve given the plaintiff all the relief sought and that’s the reason for the motion to dismiss,” said Carter, who is with The Employment Law Group P.C. in Washington, D.C.
Military law attorney Joseph M. Owens, however, said he was not surprised at the county’s response.
“Basically, the county can see he was correct,” said Owens, of The Law Office of Joseph M. Owens in Baltimore. “Probably by the time lawyers looked at that, they realized he was correct in his case and they took appropriate considerations,” said Owens,
Under USERRA, employers cannot take any negative or adverse action against an employee who is serving on active duty, military law attorneys said. The employer must retain the service member’s job or an equivalent position — one with the same benefits, pay, opportunity for benefits and right to accrue vacation.
Hwang started working for the police department in July 2003, according to the complaint.
He attended the University of Baltimore School of Law while working and passed the Maryland bar exam in 2009. Hwang then joined the Judge Advocate General’s Corps for the U.S. Army Reserve in July 2012.
While at his military training, Hwang wrote the HR office about changing his military status, but the department refused to change it.
His direct supervisors attempted to intervene with HR but were “ignored and rebuffed,” the complaint states.
Hwang returned to work 10 days earlier than planned, concerned about his seniority being pushed further back.
Hwang had asked the county to restore his service date, pay back wage deductions and restore his personal leave in his complaint.
The case is Jae S. Hwang v. Montgomery County, Maryland, U.S. District Court case number: 8:13-cv-03269-DKC.
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