Lawsuit against city set for trial

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By Alex Bridges-abridges@nvdaily.com

HARRISONBURG -- A wrongful termination lawsuit filed against Winchester by the federal government on behalf of a Marine reservist goes to trial in February.

The complaint filed by the U.S. Department of Justice accuses Winchester officials of violating federal law by failing to properly re-employ Jon Fultz in September 2009 after he returned from active duty as a reservist in the Marines. Fultz had suffered a knee injury during his military service, according to the complaint filed in the U.S. District Court in Harrisonburg.

The lawsuit filed on Fultz's behalf seeks an unspecified amount in lost wages and benefits, the release states.

The city denies any wrongdoing and most accusations by the plaintiff, according to an answer to the complaint, filed in the court Friday by Rosalind P. Fessler, a Staunton attorney representing Winchester. The defense claims Fultz resigned from his job willfully and withdrew a request for re-employment, the answer states.

Chief U.S. District Judge Glen E. Conrad on Tuesday set the case for a two-day jury trial to begin Feb. 6. Conrad's order also set forth a number of legal ground rules and filing deadlines the parties must follow ahead of the trial.

Fultz resumed his job as a community resource officer managing the Winchester Police Department vehicle fleet, but officials placed in him a lesser status that he did not request, the complaint states. The city removed Fultz from the position without notice in February 2010, then terminated his employment in October, according to a news release issued by the Justice Department.

The defense claims Fultz "misrepresented his job duties to the military health care providers."

"Defendant admits that the military health care providers placed plaintiff on work restrictions," the answer states.

The defense also claims Fultz resigned his position, under the city's Comprehensive Employee Management System, "after Plaintiff refused to appear for a fitness for duty examination scheduled at the request of the U.S. Department of Labor at the Defendant's request and made no contact with the Defendant to explain his refusal to make the appointment and his absence for a period in excess of three days thereafter."

The defense asserts that "its circumstances had so changed as to make it impossible or unreasonable to reemploy plaintiff" and to do so "would cause undue hardship on [the city]."

Fultz had "refused to cooperate with Defendant in its efforts to determine his qualifications and fitness for duty for such positions" of similar seniority, status and pay, the answer states.

"Defendant asserts that it worked with plaintiff for a year by allowing him to convalesce from his claimed injuries and providing him with reasonable accommodations in the form of light duty assignment as he requested, however, due to plaintiff's refusal to cooperate, Defendant was unable to adequately assess plaintiff's physical condition in such a manner as to allow a determination of positions for which he was qualified," the answer states.

The Uniformed Services Employment and Reemployment Rights act requires employers to properly re-hire military members to the position they would have held -- or one of similar seniority, status and pay -- had active duty service not interrupted their job status, according to the agency.

The U.S. Department of Labor's Veterans' Employment and Training Service investigated and tried to resolve Fultz's complaint prior to the filing, according to the news release.