Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP99-1735-C-M/S--Larry J. McKinney, Chief Judge.
Before Posner, Evans, and Williams, Circuit Judges.
The opinion of the court was delivered by: Evans, Circuit Judge.
A group of firefighters contend that the City of Indianapolis violated the Uniform Services Employment and Reemployment Rights Act, 38 U.S.C. sec. 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.*fn1 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 ...