Miller v. City of Indianapolis, 01-2219.

Citation281 F.3d 648
Decision Date20 February 2002
Docket NumberNo. 01-2219.,01-2219.
PartiesNathan MILLER, et al., Plaintiffs-Appellants, v. CITY OF INDIANAPOLIS and Indianapolis Fire Department, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Marshall H. Tanick (argued), Mansfield, Tanick & Cohen, Minneapolis, MN, for Plaintiffs-Appellants.

Anthony W. Overholt (argued), Office of the Corp. Counsel, City Counsel Legal Div., Peggy D. Dallmann, Office of the Corp. Counsel, Indianapolis, IN, for Defendants-Appellees.

Before POSNER, EVANS, and WILLIAMS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

A group of firefighters contend that the City of Indianapolis violated the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301 (USERRA), in the manner in which it calculated the paid leave to which they are entitled when they perform their yearly service in the military Reserves or National Guard. The district court concluded that the firefighters failed to establish a violation of USERRA even though they might have a viable complaint that the fire department policy violates Indiana law.

Each of the plaintiffs is a "suppression" firefighter with the Indianapolis Fire Department. Suppression firefighters work a 24-hour shift followed by 48 hours off, with an additional day off every 3 weeks. The department also has "nonsuppression" firefighters who work 8-hour shifts 5 days a week. Both groups include firefighters who pull duty in the Reserves or the National Guard. The obligation of military reservists and the National Guard members consists generally of one 2-week period during the year and one weekend day per month. Obviously, during these times, the firefighters are unable to report for work at the fire department.

Section 10-2-4-3 of the Indiana Statutes provides that officers and employees of the state be granted leaves of absence "without loss of time or pay" for training or active duty in the military for up to 15 days per year:

(c) A member is entitled to receive from the member's employer a leave of absence from the member's respective duties, in addition to regular vacation period, without loss of time or pay for such time as the member is:

(1) on training duties of the state of Indiana under the order of the governor as commander in chief; or

(2) a member of any reserve component under the order of the reserve component authority;

for consecutive or nonconsecutive periods not to exceed a total of fifteen (15) days in any calendar year.

In addition, section 291-210 of the Municipal Code of the City of Indianapolis requires that military leave "shall be granted in accordance with appropriate state and federal law" and that in "accordance with state law, a maximum of fifteen (15) eight-hour working days of paid military leave shall be granted." If an employee exceeds the 15 days, he is entitled to leave "with or without loss of time or pay...."

The Indianapolis Fire Department General Order No. 2.03 states that all members of the armed forces are entitled to leaves of absence with pay for "periods not to exceed 120 duty hours in one calendar year." Leaves of absence beyond that number of hours "shall be without pay." The requirement for 120 hours of paid leave comes from converting 15 8-hour days into hours.1 If the firefighters exhaust their 120 hours, they are allowed to use things like annual vacation days, unpaid leave, or, under some conditions, they can trade duty time with other personnel. The policy of the department is to charge excess military leave against vacation leave, but, upon request, it will charge the excess military leave as unpaid leave time.

In implementing General Order No. 2.03, the department docks the suppression firefighters for 24 hours of military leave for each day of military service, which falls on a regularly scheduled tour of duty (during which they would have worked 24 hours). It docks nonsuppression firefighters 8 hours per day, also the number of hours they would have worked. The problem the suppression firefighters see with the 120-hour rule is that they can use up the 120 hours in the 2-week drill period, leaving nothing left over for the monthly weekend obligations. In contrast, the 8-hour-per-day firefighters use only 80 hours of paid leave in the-2-week drill period and have some time left over to cover weekends. The suppression firefighters claim that the policy is discriminatory in violation of USERRA.

USERRA prohibits discrimination by, among other things, denying any benefit of employment on the basis of the employee's membership in the uniformed services. It does not expressly require paid military leave. An employer violates the Act by denying a benefit of employment to an employee if the employee's "membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership...." Prior to USERRA, which was enacted in 1994, the predecessor statute — the Vietnam Era Veterans' Readjustment Assistance Act of 1974 — required a plaintiff to show that his military status was the sole factor in the employer's decision.

USERRA aside, firefighters' schedules, which are rather unusual, have caused a number of problems in the interpretation of state statutes that require paid leave for military service. Apparently, the Indianapolis solution — transforming the requirement for a number of days of paid leave into a requirement for a certain number of hours — is a common one and one which has been challenged in other jurisdictions. For instance, in Howe v. City of St. Cloud, 515 N.W.2d 77 (Minn.App.1994), over a dissent, the Minnesota Court of Appeals ruled that the city must pay firefighters for 24 hours for every 24-hour shift they're off work, up to 15 days per year. That is what the Indianapolis firefighters would like. If they were given paid leave for 15 24-hour days, they could receive 360 hours — three times as much paid military leave as the nonsuppression firefighters and most other state or municipal employees.

Our concern in this federal case is not whether a policy like the one in Indianapolis is contrary to a proper interpretation of the Indiana statutes, an issue, by the way, recently resolved against two Lawrence Township (Indiana) firefighters by the Indiana Court of Appeals. See Koppin v. Strode, 761 N.E.2d 455 (Ind.App. 2002). Our concern under USERRA is whether the suppression firefighters were discriminated against and whether their membership in the military was a motivating factor behind the discrimination. The firefighters state their claim as a disparate impact claim: "[T]he gravamen is not that the City intentionally sought to single out firefighters who are members of the militia for unfavorable treatment, but rather that the City's ordinance and policy had that impact because of their military status." (Emphasis in the original.) What it comes down to is determining what is causing the alleged disparity in benefits between the two groups, suppression and nonsuppression, firefighters.

A disparate impact is the result of practices "which on their face are neutral in their treatment of different groups but which in fact fall more harshly on one group than another." Equal Employment Opportunity Commission v. Francis W. Parker School, 41 F.3d 1073 (7th Cir.1994). At some future time it may become necessary for us to decide whether a disparate impact claim can be prosecuted under USERRA. We do not always allow such claims. For instance, we do not recognize disparate impact claims in this circuit under the Age Discrimination in Employment Act. See, e.g., Salvato v. Illinois Dep't of Human Rights, 155 F.3d 922 (7th Cir.1998). We have also said that disparate impact is irrelevant to a challenge to a jury panel. See Alverio v. Sam's Warehouse Club, Inc., 253 F.3d 933 (7th Cir.2001). But whether a disparate impact claim can be prosecuted under USERRA will wait for another day. This case fails on the facts.

What USERRA does is prohibit discrimination based on military status. It is the State of Indiana that has affirmatively granted a benefit to those in the Reserves or National Guard in the form of paid leave. It is a benefit which other employees do not receive. For instance, firemen who volunteered 2 weeks each summer to...

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