Appeal from the United States District Court for the Southern District of Illinois. No. 3:06-cv-1012-DRH-DGW-David R. Herndon, Chief Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge
Before MANION, EVANS, and TINDER, Circuit Judges.
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.
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 Depart-ment'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 week-ends 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 ...