Crews v. City of Mt. Vernon

• Decision Date: 02 June 2009
• Docket Number: No. 08-2435.,08-2435.
• Citation: 567 F.3d 860
• Parties: Ryan P. CREWS, Plaintiff-Appellant, v. CITY OF MT. VERNON, a municipal corporation, Christopher Deichman, individually and in his capacity as Assistant Chief of Police for the City of Mt. Vernon, and Chris Mendenall, individually and in his capacity as Chief of Police for the City of Mt. Vernon, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

567 F.3d 860

Ryan P. CREWS, Plaintiff-Appellant, v. CITY OF MT. VERNON, a municipal corporation, Christopher Deichman, individually and in his capacity as Assistant Chief of Police for the City of Mt. Vernon, and Chris Mendenall, individually and in his capacity as Chief of Police for the City of Mt. Vernon, Defendants-Appellees.

No. 08-2435.

United States Court of Appeals, Seventh Circuit.

Argued December 11, 2008.

Decided June 2, 2009.

John T. Hundley (argued), Mt. Vernon, IL, for Plaintiff-Appellant.

Anthony B. Byergo (argued), Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Kansas City, MO, for Defendants-Appellees.

Before MANION, EVANS, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

For nine years, the City of Mt. Vernon allowed police officers who missed their weekend work shifts to attend National Guard duties to make up the time on their scheduled days off. The City provided no comparable scheduling benefit to non-Guard employees who missed work for other, non-military activities. This appeal presents the question of whether, under the Uniformed Services Employment and Reemployment Act ("USERRA"), 38 U.S.C. §§ 4301-35, the City must continue to provide these work scheduling preferences to Guard employees, even though nothing in the Act would have required the City to establish the preferences in the first place. We hold that USERRA does not require such preferential treatment and accordingly affirm the district court's grant of summary judgment in favor of the defendants.

I. Background

Ryan Crews has been a member of the Army National Guard since 1988 and an officer of the Mt. Vernon Police Department since 1997. As a member of the Guard, Crews must attend weekend training and preparedness exercises, or "drill," about once a month. As a "patrol officer" for the Department from 1997 to 2006 and a "corporal officer" since 2006, Crews's weekly work schedule is governed by the Collective Bargaining Agreement ("CBA") between the City and police employees. Under the CBA, the City has discretion to establish employees' work schedules to meet operational needs, although the City must make a "good faith effort" to honor employees' requests for their preferred days off. In practice, Chief of Police Chris Mendenall, a defendant in this action, has the authority to establish officers' weekly work schedules, which consist of five, eight-hour shifts and two days off.

Crews's weekend drill obligations frequently conflict with his Department work schedule. When such a conflict arises, the City grants Crews and other Guard employees military leave to attend drill. Although this leave is unpaid, Guard employees may turn in their military pay for attending drill in exchange for their regular City pay so as not to incur any net loss in weekly compensation. Guard employees may also allocate their accrued vacation days, personal days, and compensatory time off to days missed for drill, thereby collecting City pay and military pay for time spent at drill.

In addition to providing military leave and supplemental City pay, the Department maintained a policy for several years that allowed Guard employees to reschedule work shifts that fell on drill weekends. In a 1997 memorandum, Crews's supervisor told Crews that he could "use the monthly weekend drills as [his] days off for that week with no loss of pay." By allowing Crews to move his weekend shifts missed for drill to his scheduled days off during the regular work week, the Department's policy enabled Crews to collect, in addition to his military pay for attending drill, a full week's pay from the City. The Department extended this work scheduling benefit to three other Guard members who joined the Department between 2000 and 2003. Non-Guard employees did not have a comparable opportunity to reschedule work shifts missed for outside, non-Departmental activities.

In August 2006, after the Department had hired two additional Guard members, Mendenall rescinded the work scheduling policy. Mendenall and Assistant Chief of Police Chris Deichman, also a defendant in this action, determined that extending the policy to an increasing number of Guard employees would result in too many, costly scheduling conflicts. By allowing Guard employees to reschedule their weekend shifts missed for drill, the policy required the City to pay these employees to work shifts during the regular work week that were already fully staffed. While that overstaffing problem was manageable when the Department originally extended the policy to only Crews, the cost of maintaining the policy for all current and future Guard employees was increasing.

Following the rescission of the scheduling policy, Crews tried to persuade Deichman to continue allowing him to reschedule his work days missed for drill, but Deichman refused and told Crews to bring any further complaints to Chief Mendenall. Crews thereafter limited his conversations with Deichman to official business, prompting Deichman to note Crews's negative demeanor on his September 2006 quarterly evaluation. Deichman also denied Crews's requests to attend classes to become a field training officer ("FTO"), explaining that he did not approve FTO training for officers of a corporal or higher rank because they spend too little time in the field.

Since the rescission of the work scheduling policy, Crews is no longer able to collect a full week's pay from the City when he misses a weekend shift for drill, unless he uses up his limited days of paid time off. Further, the impact of losing the policy's scheduling benefits is more acute for Crews now that he is a corporal. Per a 1998 decision by Mendenall, corporals do not bid for their preferred days off like lower-ranking officers, but rather have regular Wednesday-Sunday work schedules. (The purpose of requiring corporals to regularly work weekends is to ensure that every shift has a sufficient number of high-ranking officers; the more senior captains enjoy regular days off on Saturdays and Sundays, leaving the corporals and sergeants to provide leadership during the less desirable weekend shifts.) So while he remains a corporal, Crews's weekend drill obligations will regularly conflict with his scheduled work days.

In December 2006, Crews filed a complaint against the City of Mt. Vernon, Mendenall, and Deichman, alleging that the rescission of the work scheduling policy denied him a benefit of employment based on military status, in violation of USERRA, 38 U.S.C. § 4311. Crews also claimed that Deichman retaliated against him for opposing the rescission of the policy by making negative comments toward Crews and denying him advancement opportunities.

The district court concluded that § 4316(b)(1) of USERRA governed Crews's claim. That section provides that "a person who is absent from a position of employment by reason of service in the uniformed services" is "deemed to be on furlough or leave of absence" and entitled to such benefits "as are generally provided by the employer" to non-military employees who take a comparable leave of absence. 38 U.S.C. § 4316(b)(1) (emphasis added). The court concluded that, under § 4316(b), the City was not required to give Crews preferential work scheduling benefits not generally available to non-Guard employees. The court also rejected Crews's retaliation claim, concluding that denying Crews the opportunity to attend FTO classes, making negative comments, and noting his negative attitude on a quarterly evaluation were not "materially adverse" employment actions. The court accordingly denied Crews's motion for summary judgment and granted the City's motion for summary judgment. Crews timely appealed.

II. Discussion

We review de novo the district court's grant of summary judgment. Cavin v. Home Loan Ctr., Inc., 531 F.3d 526, 528 (7th Cir.2008) (citation omitted). Where, as here, "the parties have filed cross-motions for summary judgment, we construe the evidence and all reasonable inferences in favor of the party against whom the motion under consideration is made." Id. (quotation omitted).

Enacted in 1994, USERRA is the latest in a series of veterans' employment rights laws, replacing its most immediate predecessor, the Veterans' Reemployment Rights Act ("VRRA") of 1974. 20 C.F.R. § 1002.2. The purposes of USERRA are: "(1) to encourage noncareer service in the uniformed services ...; (2) to minimize the disruption to the lives of persons performing service in the uniformed services ... by providing for the prompt reemployment of such persons upon their completion of such service; and (3) to prohibit discrimination against persons because of their service in the uniformed services." 38 U.S.C. § 4301(a). "In enacting USERRA, Congress emphasized USERRA's continuity with the VRRA ... and that the large body of case law that had developed under [earlier] statutes remained in full force and effect, to the extent it is consistent with USERRA." 20 C.F.R. § 1002.2.

USERRA affords broad protections to service members against employment discrimination, providing that members "shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership. ..." 38 U.S.C. 4311(a). A "benefit of employment" means "any advantage, profit, privilege, gain, status, account, or interest (other than wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes ... the opportunity to select work hours or location of employment." Id. § 4303(2). Under the burden-shifting framework of § 4311, a plaintiff makes out a prima facie case of discrimination by showing that his service membership was "a motivating factor in the employer's action." Id. § 4311(c)(1). The employer must then "prove that the action would have been taken in the absence of such membership." Id.

Apart from the general...