Society has long understood that war can exact a heavy psychological toll on the soldiers, marines, sailors, airmen, and coast guardsmen who serve in the military. During WWI, servicemembers came home with shell shock. The psychological difficulties military men and women face have been diagnosed as “combat stress reaction,” “combat fatigue,” and “battle neurosis.” Since the 1980s, post-traumatic stress disorder (PTSD) has been the prevalent diagnosis. 
The psychological handicaps suffered by servicemembers are real, and given the sacrifices they have made, federal law protects veterans who enter the civilian workforce. Some of those protections, such as confidentiality for medical information, apply to all employees, whether or not they have served in the military. But others, such as those set forth in the Uniformed Services Employment and Reemployment Rights Act (USERRA), are unique. Read on to see how one employee, if nothing else, reminded his employer of the unique duties owed to the employees who fight for our country.
It all started after a particularly trying day
Before joining the Denver Fire Department on December 1, 2006, David Perez spent eight years on active duty in the U.S. Marine Corps. During his employment with the fire department, he also served in the Selected Marine Corps Reserve (SMCR).
On August 17, 2011, Perez responded to a tragic accident in which a truck had hit and killed a young child. Later that day, he attended some training in which pictures and statistics related to military actions in Afghanistan and Iraq were shown. He left the training after becoming visibly distraught. Captain Randy Wells and another firefighter followed him and asked if he was OK. Perez told them that he was fine but needed some time to “let things out.”
After further discussion with Wells and Lieutenant Bob Miller, Perez decided to go home for the rest of the day. Before he left, however, he met with his coworkers and told them that the events of the day had made him emotional and brought back difficult memories of his time in military service.
On August 28, without informing Perez, Wells wrote a letter to Assistant Chief Daniel Garcia asking that Perez undergo an evaluation for PTSD. A few days later, the fire department told Perez about Wells’ request that he be evaluated for PTSD.
In response, Perez disclosed to the department for the first time that he was already receiving treatment for PTSD from the U.S. Department of Veterans Affairs (VA) and an extra evaluation therefore wasn’t necessary. Nevertheless, on September 28 and 29, he underwent a fitness-for-duty (FFD) evaluation that determined he was “fit for duty with considerations.”
On October 1, Wells held a meeting with the other firefighters at Perez’s station during which he allegedly discussed Perez’s PTSD and polled the other firefighters for their opinions on the matter. Perez didn’t attend the meeting because he didn’t work that day.
The fire department transferred Perez from Engine Company 9 to the Fire Prevention Division. In late December, he considered resigning because he felt the fire department had wronged him. However, he did not resign.
Dispute over leave leads to lawsuit
In April 2012, Perez began working with Engine Company 23. In February 2013, the fire department’s administration chief, Tony Berumen, sent an internal letter to Perez. According to Perez, the letter dealt with comments he made to the captain of Engine Company 23, Derek Warlum, when he spoke about favors the fire department had granted him and his need for five months of leave during his SMCR military training.
Perez claimed he sent a letter to the department discrediting the content of Berumen’s letter. Afterward, he learned of a conversation between Warlum and Lieutenant Scott Reeves during which they supposedly “questioned [his] position as a firefighter” and Warlum allegedly said: “What does he want to do, be a firefighter or be a reservist?” After learning about the alleged conversation, Perez transferred to Engine Company 12. He continues to work for the Denver Fire Department.
Nevertheless, acting without legal counsel, Perez sued the fire department, alleging it had violated the Americans with Disabilities Act (ADA) and USERRA. The department asked the court to dismiss both claims, arguing that even if everything alleged in his complaint was true, Perez could not succeed on either claim.
When a court is faced with this kind of motion, it isn’t the court’s job to determine if the employee’s allegations are accurate. Rather, the court asks itself, “Assuming that everything alleged in the complaint is true, could the employee succeed at trial on this claim?” If the answer is yes, the court denies the motion and allows the claim to proceed to trial. If the answer is no, the court grants the motion and dismisses the claim.
In Perez’s case, the U.S. District Court for the District of Colorado denied the department’s motion for dismissal on the ADA claim (meaning Perez may pursue that claim) but dismissed the USERRA claim.
ADA claim
Among other things, the ADA requires that all medical information an employer obtains about an employee as a result of an involuntary medical inquiry it initiated must be kept confidential and may be disclosed only to a limited group of individuals. An FFD examination is considered a medical inquiry.
Assuming that Perez’s allegations were true, the court decided that he revealed his PTSD diagnosis to the department involuntarily after Wells requested that he be evaluated. Thus, according to the court, assuming his claims were true, the information should have been kept confidential and not shared with his coworkers.
Furthermore, Perez alleged that Wells’ actions created an uncomfortable work environment that caused him to consider resigning from the department. According to the court, assuming his claim was true, he had alleged a tangible injury as a result of the department’s actions. Consequently, the court denied the department’s request to dismiss his ADA claim and permitted him to continue to pursue it.
That being said, the court also noted that Perez’s allegations in the complaint were factually sparse. But because he was acting as his own attorney, the court was obligated to hold his allegations to a less stringent standard than if an attorney had prepared his complaint.
USERRA claim
USERRA forbids an employer from denying “initial employment, reemployment, retention in employment, promotion, or any benefit of employment on the basis” of an employee’s application for membership or membership in the military or his performance or service in the military.
According to the court, even if it assumed that all of Perez’s allegations were true, his complaint did not allege that the fire department took any adverse action against him as a result of his involvement in the SMCR. He didn’t allege that the letter from Berumen was a disciplinary action or that the department attempted to deny him reemployment, a promotion, or any benefit as a result of his request for leave for military training.
Indeed, the department still employs Perez, and the single negative statement by Warlum wasn’t sufficient to create an illegally hostile work environment. Perez v. Denver Fire Department, 2016 WL 379571 (D. Colo.).
Lessons learned
It’s vital to remember that although the court allowed the ADA claim to proceed, that doesn’t mean Perez is going to ultimately succeed on the claim. The only thing the court’s decision means is that Perez may continue pursuing the claim. If he cannot produce sufficient evidence to support his ADA claim, he will lose. Nevertheless, the decision provides several lessons.
First, this case stands as a reminder to keep employees’ medical information confidential. If you obtain medical information that an employee didn’t provide voluntarily or without any prompting from you, you must not, generally speaking, disseminate the information to your workforce. All medical information must be kept strictly confidential and shared only with the few individuals identified in the ADA as having a need to know. If you are unsure about whom you can share such information with, contact legal counsel before sharing it with anyone.
Second, remember that military members and individuals who apply for military service are afforded special protections that are far-reaching and must be interpreted broadly. If you violate those protections, USERRA gives your employee the right to sue you. Thus, it would be wise to ensure that you have clear and up-to-date policies regarding the employment, retention, promotion, discipline, and treatment of employees who serve in the military.
Brinton M. Wilkins is an attorney with Kirton McConkie, practicing in the firm’s Salt Lake City, Utah, office. He may be contacted at bwilkins@kmclaw.com