The U.S. Department of Justice has sued Guam and the Guam Retirement Fund for allegedly refusing to properly provide pension credit to service members who used leave from leave-sharing program while on active military duty.
Alleging violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 or USERRA, the lawsuit said five service members, and potentially many more, were shorted their retirement benefits and pension annuities.
USERRA is a federal statute that protects the civilian employment rights of the non-career individuals who serve in the armed forces. It requires employers to treat an employee’s time in military service as service with the employer when determining pension benefits.
The leave sharing program allows employees to voluntarily transfer a portion of their sick or annual leave to a leave bank.
Employees who have exhausted their sick leave, annual leave, and compensatory time may draw donated leave from the leave bank to remain in paid-leave status rather than leave-without-pay status, for up to 90 days per year.
DOJ said Guam and the GRF do not give employees credited service for those periods of time employees use donated leave.
"In some instances, Guam contributed to an employee’s retirement account and withheld the employee’s contribution from the employee’s wages for periods the employee used donated leave while performing military service," the lawsuit said.
The United States’ complaint filed in the District Court of Guam argues that Guam and its retirement fund failed to do that when they denied pension credit to service members who used donated leave from Guam’s employee leave bank while on military duty.
The lawsuit stemmed from GRF's refusal to honor the leave credits for Jesse Cruz, Raymond San Nicolas, Alan Torres and Andy Quinata, retired employees of the Guam Fire Department, and Frederick Guzman, who retired from the Department of Education.
They are retired members of the Guam National Guard.
“This complaint reinforces that the Justice Department will continue to vigorously enforce the protections provided by federal law to those who serve in our country’s armed forces at great personal cost,” said Assistant Attorney General Kristen Clarke of the Justice Department's Civil Rights Division. “We owe a solemn duty to our service members to act when an employer seeks to infringe on their hard-earned protections.”
“These servicemembers were called to active duty and they served honorably,” said U.S. Attorney Shawn N. Anderson for Guam and the Northern Mariana Islands. “Their many sacrifices should not include the loss of their civilian retirement benefits. Our office will continue to work hard to protect the employment rights of those who have served to protect all of us.”
The United States’ lawsuit asks the court to order defendants to stop denying servicemembers proper pension credit, identify all current and former employers who have been harmed by defendants’ discriminatory practice and properly credit those employees’ retirement funds or adjust their current pension benefits.
Trial Attorneys Joseph J. Sperber and Vendarryl Jenkins of the Civil Rights Division’s Employment Litigation Section and by Assistant U.S. Attorney Mikel Schwab of the U.S. Attorney’s Office for the District of Guam are prosecuting the case.