Nobody's Hero

Reservists and National Guardsmen returning from Iraq are guaranteed to get their civilian jobs back. But is Uncle Sam really looking out for our troops? Not in Colorado. Just ask Jim Vigil

Within 24 hours of sending the e-mail to his Agilent superiors Duarte received one in response that, as he puts it, was, “We’re going to do this and we can do it.” The Tuesday morning after he was fired, Duarte called the Colorado ESGR; a representative said the organization’s chairman would contact him shortly, and that meanwhile he ought to contact the Department of Labor. “They’re the ones,” he was informed, “charged with helping you out.” Duarte spoke with two Labor Department representatives; both told him that unless he heard somebody say they were firing him for military service he didn’t have a case.

Weeks and then months passed without Duarte hearing again from ESGR. “When I made the call to ESGR,” Duarte says, “I thought, well, their name—Employer Support of the Guard and Reserve—they are there to support us. In the Marines, you rely on one another. It’s you’ve got my back, I’ve got yours, and I thought that’s what ESGR was about. It didn’t take me long to figure out they’re not even close. I was desperate.”

In his civilian life, Duarte’s commanding officer, Aucoin, is an attorney. He was no labor lawyer, but he became so outraged by what he heard from his Marine that he began to research USERRA law. He was stunned to discover that there was not much legal precedent for it in the United States courts and that not a single USERRA-based suit had come to a verdict in Colorado. Aucoin was convinced Duarte had a case strong enough to be the first, and Duarte agreed. In February 2004, two months after he’d been fired, Duarte filed suit in the Colorado U.S. District Court. Agilent hired one of Denver’s largest and most respected law firms, Holland & Hart. The trial would be nothing short of an unprecedented court battle between a corporate Goliath and the civilian-troop David, with more than just Duarte’s rights at stake.

One way or the other, the case would establish legal precedent for all USERRA civil claims that would follow; perhaps it would even discourage any further claimants. The trial began on March 7, 2005, under Chief Judge Lewis T. Babcock. Agilent argued that Duarte was fired “for cause.” Under USERRA, termination for cause is permitted, provided the employer can demonstrate the cause. Agilent claimed it had been downsizing for months because of hard financial times—both accurate claims—and that Duarte’s performance was underwhelming and thus sufficient cause. The trial ended a mere three days later with the judge finding in favor of Duarte.

“I do not question [Duarte’s superior’s] motives while acting under budgetary stress,” Babcock wrote in his decision. “But Duarte paid a steep price for his military deployment during his employment with Agilent. Specifically, he was seriously disadvantaged as a result of his military deployment and the corresponding diminished status and responsibilities assigned to him upon his return. This is the harm USERRA was enacted to prevent.”

Based upon calculations offered by Aucoin’s expert economics witness, Babcock awarded Duarte $383,761. The math behind the dollar amount was back pay of $114,500 plus front pay of $324,082, minus the $54,821 severance package. Agilent was required to pay all court costs and attorney fees, including Aucoin’s billable hours.

Duarte officially retired from the Marines last March, but unofficially Marines never retire. He still carries himself like an officer who expects at any moment to be called to attention or dispatched into battle. Now, just after a jog, clad in olive-colored running shorts and T-shirt, he’s seated in his office, ramrod straight, hands clasped in his lap, against the backdrop of the wall covered with his Marine photos and commendations.

“This case really wasn’t worth all that much money,” he says, in a soft, barely audible voice. “But it was never about the money for me. We’re not rich, but we do OK, and George [Aucoin] and I did a lot on a shoestring. Really, I kept thinking about the lance corporals and privates out there, who are coming back and running into the same issues, and they might not have the resources to take on a big company or a big law firm. The sad fact is many reservists have to say, ‘I should have my job back, but I’ll take whatever small severance I can get and I’ll just try to go work someplace else.’ I kept thinking that’s not right.”

Duarte eventually heard back from the Colorado ESGR. By the time the state chairman, Fred Fletemeyer, got around to calling him back, it was four months after Duarte had filed suit, and a full seven months after Duarte had first reached out to the organization. When Duarte told Fletemeyer about the suit, the ESGR honcho told him good luck and said that, considering it had become a legal matter, there was nothing ESGR could do for him.