Interesting thoughts by some who know the US legal system, and some that have ZERO knowledge of it.
Although many of us would agree the case could have had a more stellar plaintiff in terms of things occurring after his employment, this has zero bearing on the alleged violation of USERRA, save that information was discovered during the subsequent investigation by the FBI which was useful to the plaintiff later.
Regarding the pilot's ejection, it doesn't matter what CX knows or doesn't know when it comes to USERRA. In actual fact, there would have been two separate boards convened; a safety (mishap) investigation board and an accident investigation board. The former is solely for mishap prevention and would contain privileged information (on the equivalent level of attorney/client privilege) which would not be able to be released to the general public or used in a court of law (and is for official use only; as such would not generally be available under a FOIA request).
Mishap prevention board conclusions and findings cannot ever be used for punitive action.
The OTHER board which would potentially have been convened is the accident investigation board. This is a military legal proceeding and in general cannot access the safety board's information or use it in ITS proceeding. It is an independent legal investigation and can be used for punitive action by the service if the service believes it warranted. Results of this can be released to the general public in some form or accessed through a FOIA.
Whether or not AIB information could be used in litigation would be up to the lawyers.
Neither has any bearing whatsoever on the alleged incident. Nor does some attache's or mid level officer's opinion (in fact were I in that position I'd be VERY careful issuing opinions to an outside entity). Depending on how one does it this in and of itself could further substantiate a USERRA violation charge as well as subject all parties involved to further legal action by breaking OTHER US laws.
Nor does injury while in the service allow an employer to terminate an employee (even if due to the injury he or she becomes unable to perform the job he or she was hired to do). Under USERRA, the employer must re-employ the individual and make reasonable efforts to accommodate the disability, make reasonable efforts to have him become requalified in his former position (while re-employing the individual in an equivalent position of seniority and pay), or if the individual is not able to become requalified for the job offer the individual a job which as closely approximates his former job in terms of seniority and pay as practical. Key point being it cannot fire him.
In actuality, the military really has nothing to do with adjudicating a USERRA charge (save that the member/veteran is in the service and in potentially providing supporting information on his or her service to be used by the DOL). The complaint is processed by the US department of labor which is a separate entity and ultimately decided in a US courtroom. The extent to which the government gets involved depends solely on their desire to pick up the case (and it's not outside the realm of possibilities that IT would intervene toward an employer who was violating USERRA if the violation were egregious enough); the potential plaintiff never loses the right to go out on his or her own and take it to a US court.
US law is its own animal completely different from anything on the planet. Non pertinent information can--and will--be excluded by the lawyers arguing the case at trial. In general, only evidence directly relevant to the complaint itself can be submitted, and anything irrelevant to the charge and/or obtained by questionable sources or circumstances won't be allowed in at all.
Fr' instance--although criminal law is different somewhat from civil law, in the case of the Treyvon Martin shooting, ALL evidence of Martin's criminal history, alleged drug use, misbehavior at school, gang-related postings on the internet, past incidents, etc. were excluded from the trial (which would greatly have helped the defense although they won anyway). This was because they were ruled not relevant to Zimmerman's decision to use deadly force to defend himself and what was going through HIS mind at the time.
Stuff like this is pretty typical in trials in the US. So in this case, the only thing a jury would see is that evidence which specifically addressed the charge itself (on both sides). Heresay, opinions by third parties not qualified to render it, second hand information, monday morning quarterbacking, etc. would never make it in.
BP--apparently your 'know all about' the incident may not be as much as you think it is. If it was, you'd ALSO know that not recruiting (or selectively discriminating against) people who have served or are serving violates USERRA as well.
Bottom line is there are significant legal protections for workers of companies which operate in (or into) the US and one ignores these at one's own peril.
Last edited by Shep69; 5th Feb 2016 at 13:24.