A lawsuit filed by a Florida battalion chief claiming he was passed over for promotion to division chief due to his military service, has been dismissed. Battalion Chief John H. Ramirez filed the suit in January accusing Fort Lauderdale Fire Rescue of violating the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA prohibits discrimination against service members.
Chief Ramirez, who is a Major in the US Army, originally filed suit in Broward County Circuit Court. The case was removed to federal court by the city. Quoting from the decision by US District Court Judge William P. Dimitrouleas handed down Monday:
- During Plaintiff’s employment, he served in the United States Army and was called for various deployments.
- Plaintiff has repeatedly applied for promotion to Division Chief and was passed over for promotion several times.
- Defendant uses the rule of five to select personnel for promotion, which, according to Plaintiff violates Plaintiff’s rights under USERRA by “not following the State of Florida Veterans preference.”
- Plaintiff has complained to the Defendant that his military service was a factor in the decision to deny him promotion.
- Plaintiff seeks injunctive relief in the form of an order requiring Defendant to promote Plaintiff to Division Chief.
- Plaintiff also seeks back pay and other damages. Id. Defendant moved to dismiss the Complaint in its entirety.
- To establish a prima facie case under USERRA, “a plaintiff must show by a preponderance of the evidence that his protected status was a motivating factor in the challenged action.”
- The Court finds that Plaintiff has failed to meet the burden to allege that his protected status as a servicemember was the motivating factor behind Defendant’s choice not to promote him.
- In his response, Plaintiff alleges that he “was denied opportunities to take exams that were given while he was serving overseas.
- This statement is contradicted by Plaintiff’s Complaint, which states that Plaintiff “was given the opportunity to take the Division test.” [
- Furthermore, Plaintiff alleges in response that he complained of USERRA violations to the Veterans’ Administration, but this allegation is similarly not supported by the Complaint.
- Plaintiff cannot supplement the allegations of the Complaint through a brief in response to a motion to dismiss, and Plaintiff certainly cannot contradict the allegations in the Complaint with a response to a Motion to Dismiss.
- Defendant’s motion to dismiss is granted.
Judge Dimitrouleas did grant Chief Ramirez leave to file an amended complaint.
Here is the decision:
Here is a copy of the complaint: