Attorney for the plaintiff says the state ignores qualified candidates in state while recruiting in California and New York.
Image: Gov. Bill Lee addressing members of the Tennessee National Guard while on a trip to the Texas-Mexico border in July 2021. Image Credit: tn.gov
By Anita Wadhwani [The Tennessee Lookout CC BY-NC-ND 4.0] –
A sergeant in the National Guard filed suit against the Tennessee Departments of Safety and Human Resources on Tuesday, alleging that state officials failed to give him — and potentially hundreds of other applicants seeking jobs in state government — veteran preferences in hiring.
Jefferson County resident Kelly Hance has served as a non-commissioned officer and active member of the Tennessee Army National Guard since 1996, specializing in petroleum supply, combat engineering and military honor funeral detail.
Between August 2016 and March of this year, Hance applied six separate times for a job as a Tennessee state trooper. His 35-page petition details that his initial applications were found to meet minimum requirements for the position, but he was never offered a job. Hance repeatedly raised questions about whether the agency was giving weight to his military service in its hiring decisions — and received mixed answers in return, according to the lawsuit.
In instances outlined in the petition, Hance was told he could not receive a veterans preference because he couldn’t produce military papers showing he is an honorably discharged veteran. Hance has not been discharged from the National Guard. And under state and federal law, active duty National Guard members qualify as veterans in hiring decisions.
Hance said that instead of discussing his veteran status, interviewers repeatedly questioned him about a successful legal challenge he filed in 2007 against his then-employer. A federal judge found the employer discriminated against Hance a result of his National Guard obligations, a decision later upheld by the 6th Circuit Court of Appeals.
When Hance filed a public records request in March seeking all records related to his trooper application denials, the state declined to provide him with a single document, the suit claims.
“Over the past decade, (Tennessee officials) have knowingly refused to comply with state law, which guarantees that veterans and uniformed service members of the Armed Forces of the United States shall receive a veteran preference in hiring,” the lawsuit said.
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A spokesperson for the Tennessee Attorney General, which defends the state in civil suits, did not respond to a request for comment. The office does not typically make public statements about ongoing litigation.
Under a 1994 federal law known as USERRA, uniformed service members performing federal duties may not be denied employment based on their military obligations. The National Guard can be deployed under either federal active duty — or state duty, such as responding to natural disasters or other emergencies.
A 2019 federal appellate court decision found that full-time National Guard members, serving in either a state or federal capacity, are covered by USERRA.
Under a 2012 state law known as the T.E.A.M. Act — enacted under the administration of Gov. Bill Haslam — veterans and their spouses who served on active federal duty in the U.S. Armed Services are required to receive a preference for a state job interview. If two candidates are equally qualified, the law requires preference to be given to the veteran in extending a job offer.
And in 2021, under the administration of Gov Bill Lee, the state enacted the Reemployment Act to provide employment protections to National Guard and other service members called to serve on state active duty.
The lawsuit says that hiring officials in the state’s Department of Human Resources and Department of Safety repeatedly ignored their responsibility to comply with the laws in regard to Hance — and potentially hundreds of other applicants. Hance’s lawyers are seeking class action status in the suit filed in Davidson County Circuit Court.
Despite state and federal laws, the state’s Human Resource Department’s policy reads that applicants “must submit information verifying honorable discharge from armed forces,” the suit said. That’s a document that active duty National Guardmembers can’t produce. By definition, they have not been honorably discharged and continue to serve.
“One of the policy goals here is we want people to serve in the National Guard and be available, but we don’t want them to have to leave their jobs,” said Mel Fowler-Green, an attorney with the Nashville firm Yezbak Law Offices.
Noting that state Gov. Bill Lee last year, in touting Tennessee’s lack of vaccine mandates, called for “cops in New York all the way to sheriff’s deputies out in L.A. we want you to join the Tennessee Highway Patrol,” Fowler-Green said Wednesday that the state has ignored potentially hundreds of qualified candidates at home.
“Gov. Lee is trying to lure law enforcement from other states, when who know how many National Guardsmen might have applied or not been given the opportunity to apply,” she said.
Anita Wadhwani is a senior reporter for the Tennessee Lookout. The Tennessee AP Broadcasters and Media (TAPME) named her Journalist of the Year in 2019 as well as giving her the Malcolm Law Award for Investigative Journalism. Wadhwani is formerly an investigative reporter with The Tennessean who focused on the impact of public policies on the people and places across Tennessee. She is a graduate of Columbia University in New York and the University of California at Berkeley School of Journalism. You can contact Wadhwai at firstname.lastname@example.org.