The opinion of the court was delivered by: Herndon, Chief Judge
I. Introduction and Background
Now before the Court are cross motions for summary judgment filed by the parties (Docs. 67 & 69). Both motions are fully briefed and ripe for ruling. Based on the pleadings, case law and the following, the Court grants Defendants' motion for summary judgment and denies Plaintiff's motion for summary judgment.
On December 21, 2006, Ryan Crews filed a First Amended Complaint against the City of Mt. Vernon, Chris Deichman, and Chris Mendenall, for alleged violations of the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. §§ 4301 et seq (Doc. 8).*fn1 Crews is a member of the Illinois
Army National Guard ("Guard") and is also a Police Officer for the City of Mt. Vernon, Illinois. The First Amended Complaint alleges that in order to fulfill his obligations to the Guard, Crews is required to attend periodic training exercises ("drills") for one weekend per month. Crews further alleges that "[c]ity employees participating in the National Guard frequently are ordered for drill on days that are not the employee's regularly scheduled days off." (Doc. 8, ¶ 11). The First Amended Complaint also alleges that Defendants "has had a policy, plan and practice that employees who are members of the National Guard could switch their schedules in order to work their regular days off in lieu of the regularly-scheduled days on which they had to attend drill." (Doc. 8, ¶ 11). Crews contends that this policy is a benefit of employment under the USERRA , 38 U.S.C. § 4303. Crews further alleges that on August 16, 2006, Defendants rescinded the policy of allowing its employees to work their regularly-scheduled days off in place of days they were required to attend drill. Crews alleges that the decision to rescind this policy is based on discrimination and in retaliation in violation of USERRA, 38 U.S.C. § 4311(c). The First Amended Complaint seeks to recover "benefits" of his employment, attorney's fees and costs, and injunctive and equitable relief.
Since 1997, Crews has been employed by the City of Mt. Vernon as a Police Officer. From 1997 to May 2006, he was a Patrol Officer in the Patrol Division. In May 2006, the City of Mt. Vernon promoted Crews to Corporal in the Patrol Division. Crews has been a member of the Guard since 1998 and is a member of the uniformed services. As part of his Guard duties, Crews is required to attend drill exercises about once a month.
Defendant Mendenall is the Chief of Police. He has been the Chief since 1998 and has been employed as a police officer with the City since 1983.
Defendant Deichman is the Assistant Chief of Police. He has been the Assistant Chief since 2004 and has been employed as a police officer with the City since 1989.
In February 2003, Crews was called to active duty in Iraq. He completed that tour of duty in May 2004. Thereafter, Crews was again deployed to Iraq in January 2005 and completed that tour of duty in April 2006. After each deployment, Crews was honorably discharged from active duty and returned to his employment with the City.
As a member of the patrol division, Crews regularly is scheduled to work five, eight hour days each week, with two days off of work. Scheduled days off are designed to assure that at least one patrol supervisor is working each day. Due to his Guard obligations, Crews is often ordered for drill exercises on days that are not his regularly scheduled days off.
Employees are allowed to use vacation days, personal days, or compensatory time to cover for any scheduled working days required for military leave so that such days off may be paid. No employees are permitted to work their scheduled days off to make up for days off taken for outside activities or needs. Employees can arrange for a duty trade with another officer when they both agree to switch shifts. Any City employee who is ordered to drill exercises on scheduled working days may turn in military pay from the Guard and receive regular City pay.*fn2
Prior to August 2006, the City and Chief Mendenall allowed Crews and other employees who were a part of the Guard to work their scheduled days off in lieu of their regularly scheduled work days when drill exercises fell on their regularly scheduled work days.*fn3 Prior to August 2006, the City hired five additional Guard members as Policemen. At or around August 2006, the City decided to no longer allow Crews and the other employees in the Guard to work their regularly scheduled days off in lieu of the days they were off for drill ...