A federal judge has ordered Wachovia Securities, LLC (“Wachovia”) to reinstate and pay $1.3 million in back pay and damages to a former financial advisor who alleged that the company violated his rights under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). According to the former financial advisor, Wachovia violated his USERRA rights when it offered him a lower-paying, less-advanced position upon his return from active duty in 2004. In response to Michael Serricchio’s claims, Wachovia argued that Serricchio should be barred from recovery because he failed to mitigate his damages when he made the decision to deny Wachovia’s offer of reinstatement and pursue self-employment. The Court rejected Wachovia’s argument, concluding that “pursuing [self-employment], rather than accepting a lower-paying position at Wachovia was consistent with Serricchio’s duty to mitigate his losses.” According to the Court, “[t]he notion that starting one’s own business cannot constitute comparable employment for mitigation purposes not only lacks support in the cases, but has a distinctly un-American ring.” The Court also held Wachovia liable for willfully violating USERRA, finding that the company constructively discharged Serricchio when it failed to promptly reinstate him to his former position despite knowledge of its obligation to do so under USERRA. Serricchio was awarded double back pay, interest, attorneys’ fees and costs, and reinstatement.
The judgment, which appears to be the largest judgment under a federal law protecting the employment rights of servicemen, is significant because it affirms the rights of all returning reservists and reminds employers that discrimination against servicemen will not be tolerated.
The opinion and order in Serricchio v. Wachovia Sec. LLC, No. 3:05cv1761 (D. Conn. March 19, 2009) is available here. For more information on The Employment Law Group® law firm’s USERRA Practice, click here.