Tucson reservist loses job when Navy calls A federal lawsuit alleges Pep Boys fired a store manager because of his military obligation.
OSCAR ABEYTA and IRWIN M. GOLDBERG
Tucson Citizen
March 15, 2003
Automotive supply chain Pep Boys fired a Tucson store manager because his military Reserve duties took him away from work, according to a federal lawsuit filed here.
It may not be an isolated case. Several other reservists fired from Pep Boys in Tucson and Pennsylvania have contacted a military advocacy group with similar complaints.
Pep Boys' Tucson attorney, Todd E. Hale, declined to comment on the lawsuit, citing company policy not to discuss ongoing legal cases.
In the Tucson case, Erik Balodis, then a store manager at the 7227 E. 22nd St. Pep Boys, was fired after being called to a U.S. Naval Reserve exercise in June 2002. Balodis, a father of two young children, was unable to find work for five months.
He eventually found work as a store manager at Big Lots in October 2002 but by then the family's finances were in ruins.
In February, his family was forced to sell its four-bedroom East Side home and file for bankruptcy. Balodis, who is stationed in South Korea, now earns about $20,000 less a year, said his wife, Kathy.
Under the federal Uniformed Services Employment and Re-employment Rights Act and Arizona state law, an employer may not terminate an employee who is called to active duty.
In the lawsuit, Balodis' attorney, Andrea Watters, said Pep Boys fired Balodis because his duties with the Navy were keeping him from work. The suit says he told the company he was being called to training in June of last year. On the day he reported for duty, he was told by Pep Boys that we was being terminated for "job abandonment."
The lawsuit indicates Balodis had worked 20 days in a row for the company without a day off before the termination.
"On the surface it appears it would be a violation of section 4311, which is the section of the law that talks about discrimination," said Capt. Eric Davis, a mediator in the Employer Support of the Guard and Reserve's Arlington, Va., headquarters. ESGR is a volunteer organization that works to help resolve employer issues with Reserve and Guard members.
"If an employer makes an employment decision on the past, present or future military obligations, that sort of employment discrimination is illegal," Davis said.
The suit claims that, despite being an employee who was recognized repeatedly for his good work with the company, Pep Boys "demanded that he 'choose' his job over his military service."
The suit cites a letter sent to the Naval Reserve by Pep Boys, dated Sept. 11, 2001, requesting Balodis "be exempted from any impending call to active duty as a result of the tragic and senseless acts of terrorism. ... While I recognize Mr. Balodis' commitment to protect and serve the nation, I must also make you aware that he holds a critical position in the Corporate Structure of Pep Boys."
Court filings by Pep Boys, however, claim Balodis' termination had nothing to do with his Reserve duties.
"Pep Boys consistently cooperated in accommodating those obligations," Hale wrote. "Pep Boys made the difficult decision to terminate him because his performance and judgement declined to an unacceptable level. His military service played no role whatsoever in the decision."
The filing made reference to three company memos regarding Balodis' performance and noted he had been demoted from district manager to store manager in February 2002.
But Watters disputed the company's claims.
"I believe he was being set up for termination," Watters said. "The bottom line is, when they terminated him they issued a letter detailing why they terminated him which did not raise those issues."
Other complaints
Balodis may not be alone in how he was treated by the Pennsylvania-based company.
Two similar incidents were reported to Arizona's state ESGR chairman, William Valenzuela.
Valenzuela said he spoke with two other Pep Boys employees who were called to active duty and terminated by the company at about the same time as Balodis. And he said he heard there may have been four others who faced a similar fate. He said Pep Boys is the only company he's heard of that has had that many termination disputes over military service here.
ESGR did not take any action with the other two Pep Boys employees because they had already contacted lawyers, which prohibits ESGR from getting involved, Valenzuela said.
Davis said he received a complaint Thursday from Pennsylvania regarding a Reserve member who was deployed to Bosnia in May 2002.
This reservist held a part-time job with Pep Boys and was told a drain plug was not put in a vehicle, Davis said.
"This would have happened nine months prior to departure," Davis said.
Col. Alan Smith of ESGR headquarters said his office has received 4,000 to 5,000 calls in the past couple of months and that, with the exception of the one case handled by Davis, Pep Boys hasn't been mentioned.
Pep Boys has stores in 36 states. Aside from Arizona and Pennsylvania, no other states with Pep Boys stores have reported problems.
Valenzuela said it's not unusual for companies to work through ESGR with the military to reschedule or postpone reserve training to accommodate work schedules.
"During the time there's no war, the commanders can work with that," he said. "Right now the commanders can't work with that."
He said he's seen an overall increase in termination complaints since the situations overseas have intensified, and the military has called up more Reserve units.
"There's all kinds of call-ups going on right now, and there's some employers who are not going to go for it," he said.
In the vast majority of cases where service personnel are terminated because of their military service, he said a phone call or meeting to inform the employers of the law is all it takes to get the employee reinstated.
Family impact
Kathy Balodis has been packing up the four-bedroom East Side house where she, her husband and their two daughters have lived for three years.
"Our dream home that we worked so hard on," Balodis described it. With her husband off serving in Korea, she's had to do the packing by herself. They're supposed to be out by the end of the month, but she doesn't know where the family will be moving to yet.
The family doesn't want to move, but after her husband was terminated by Pep Boys, he spent five months out of work. She said the family pretty much lived off credit cards during that time. Eventually he found work as a store manager at Big Lots, but their finances were in ruins by then. The Balodises put their house up for sale at the beginning of February and filed for bankruptcy two weeks later.
"I'm trying to get qualified to buy a mobile home, but I don't know if that will happen with the bankruptcy. Maybe I can get some help from my parents, but if not, we'll be living in an apartment," she said, eyeing the boxes in her living room dejectedly.
The sad part of it all, Kathy Balodis said, is that her husband was dedicated to Pep Boys and planned to work there until his retirement.
"He gave 100 percent to the company, and when he had to give 20 percent to the military, they got rid of him. That's just not right," she said.
Whether her husband gets a big settlement out of the lawsuit is not an issue for her, she said.
"The main thing I want out of Pep Boys is for them not to treat anyone like they treated my husband."
Other Pep Boys news
Pep Boys stock closed up 27 cents at $6.69 yesterday. That came a day after the company disappointed Wall Street by posting lower-than- expected earnings for the fourth quarter ended Feb. 1.
It showed sales falling from $508.4 million in the fourth quarter of 2001 to $482.7 million last year. Pep Boys reported a loss of $1.83 million, or 4 cents a share, for the quarter compared with earnings of $3.68 million, or 7 cents per share, in 2001.
THE LAW:
Federal
A person who is a member of, applies to be a member of, performs, has performed, applies to perform or has an obligation to perform in a uniformed service shall not be denied initial employment, re-employment, retention in employment, promotion or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service or obligation.
State
An employee has a claim against an employer for termination of employment only if one or more of the following circumstances have occurred:
The employer has terminated the employment relationship of an employee in retaliation for any of the following:
Service in the national guard or armed forces as protected by (state law).
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