A retired FDNY firefighter has filed suit seeking $2 million, claiming that the city failed to properly calculate his pension because it failed to include an amount attributable to overtime he missed while on military leave. Raymond Negron filed suit today in US District Court for the Eastern District of New York.
Negron’s suit claims that the Uniformed Services Employment and Reemployment Rights Act (USERRA), requires employers who provide pensions calculated on actual earnings that include overtime, to estimate the overtime that service members would have earned while deployed based upon the average of overtime they received while not on deployment. The suit claims that Negron’s pension failed to include such a calculation, and therefore violates USERRA.
He is seeking $2 million in damages, $1 million in compensatory damages, and $1 million in liquidated damages. Quoting from the complaint:
- Negron enlisted in the United States Army Reserve (Army) in September 1986.
- Defendants hired Negron as a firefighter in October of 1996.
- Defendants involuntarily retired Negron in November 1999.
- The New York City Fire Department Pension Fund (Fund) uses a formula that uses the average annual earnings for the highest pay earned in a consecutive thirty-six month period of employment in order to calculate a retiree’s pension.
- During Negron’s last three years of employment with Defendants he performed military service on approximately one hundred seventy one days.
- During Negron’s last three years of employment with Defendants he performed overtime on several occasions directly following a tour of duty.
- During Negron’s last three years of employment with Defendants he performed overtime on several occasions on days he was not scheduled to work.
- USERRA, 38 U.S.C. § 4318(b)(3)(B), requires an employer with a pension that is based upon actual, but fluctuating earnings (fluctuations based upon variables like overtime, night differential, holiday premium pay, tour-change pay, etc.) to calculate the “average” extra earning of an employee over the course of a year and add those amounts to days the employee missed overtime opportunity because of military service in order to avoid discrimination.
- Defendants had the responsibility of calculating and adding additional earnings for the purposes of calculating Negron’s pension in accordance with 38 USC §4318(b )(3)(B).
- During Negron’s retirement process, Defendants’ employees who were charged
- with calculating and processing Negron’s pension informed Negron that Defendants would not consider USERRA.
- Negron’s finalized pension is substantially smaller than it should be because of Defendants’ failure to comply with the requirements of USERRA.
- Negron’s pension calculation was illegally and detrimentally reduced as a result of Negron’s Army service and lost oppo11unity to earn overtime.
- On April 4, 2025 the Uniformed Firefighters Association issued Info-Fax #3 of 2025 wherein it notified retired members about a lawsuit settlement (“Goodman”; SONY) wherein Defendants were reviewing the pension calculations of retired firefighters who were not afforded the protections of USERRA upon their retirement.
- The point-of-contact for that lawsuit settlement notification informed Negron that Defendants were only reviewing the pensions of firefighters who worked and retired after September 11, 2001.
- 38 U.S.C. § 4318 has been in full force and effect since before 1996 (five years prior to Negron’s retirement).
- USERRA has no statute of limitations making this action timely.
Here is a copy of the complaint:
