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Eric Flynn Gross v. Ppg Industries

March 7, 2011

ERIC FLYNN GROSS, PLAINTIFF-APPELLANT,
v.
PPG INDUSTRIES, INC., DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 07-CV-982-J.P. Stadtmueller, Judge.

The opinion of the court was delivered by: Rovner, Circuit Judge.

ARGUED SEPTEMBER 16, 2010

Before CUDAHY, ROVNER, and EVANS, Circuit Judges.

Eric Flynn Gross sued his employer, PPG Industries, Inc., alleging that PPG's handling of his military deployment violated the Uniformed Services Employment and Reemployment Act ("USERRA"), 38 U.S.C. §§ 4301-35. As relevant here, Gross alleged that PPG unlawfully calculated his pay while he was deployed and refused to rectify its error. Gross and PPG filed cross-motions for summary judgment, and the district court granted PPG's motion. Gross appeals, and we affirm.

I.

Following six years of active military duty as an enlisted Marine, Gross began working for PPG Industries in 1997. At the time of argument, Gross continued to work at PPG's Oak Creek, Wisconsin facility, which is one of many PPG facilities throughout the United States providing "coatings and specialty products and services" to construction, consumer, industrial, and transportation markets. Gross is employed at PPG as a "General Industrial Technician." Gross has continued to serve in the United States Marine Corps Reserve while employed at PPG.

Gross was deployed to active military service in Iraq from June 2004 until May 2005.*fn1 Before his deployment, Gross met with human resources advisor Kristi Price, who provided him with a document outlining the benefits PPG would provide to Gross while deployed. Before 2001, PPG provided employees serving in the National Guard or reserves up to four weeks per year of supplemental pay equal to the difference between the employee's PPG base salary and his or her military base pay. After the September 11, 2001 terrorist attacks, PPG adopted its "Attack on America" policy applicable to military leave. This policy increased the differential pay available to employees on military leave from four weeks to 180 days. PPG's military leave policy also guaranteed that a salaried employee like Gross would be entitled to return to his job following a military leave of absence. From 2001 onward, PPG maintained this differential pay policy relatively unchanged except that it increased the availability of differential pay progressively from 180 calendar days in 2001 up to 720 calendar days in 2004.

In particular, the 2004 version of the policy in effect during Gross's leave provided that:

A salaried employee who is actively at work (not on layoff) and is called to active duty as a result of the terrorists' activities shall be paid by the Company an amount equal to the difference between his or her monthly salary for their regular work schedule and the amount of his or her monthly military base pay, exclusive of allowances (adjusted monthly base salary) for a total of 720 calendar days. Payment will be made on the same frequency as normally and via direct deposit only.

PPG Indus. Inc., Military Leave's [sic] of Absence-Attack on America Revised, (Apr. 15, 2004) (italicized emphasis added).

From 2001 through May 2007, PPG employed the following basic formula to calculate the pay differential for employees taking a leave of absence for military service: PPG compared an employee's regular monthly base salary against the military pay that employee received (exclusive of allowances, such as housing), and then issued a payroll check in the amount of the difference once it received the employee's military pay vouchers. For example, if a salaried PPG employee earned $4,000 per month and received $2,000 of military pay monthly, the employee would receive a check from PPG for $2,000 per month while on military leave so that his salary would be the same as it would have been if he had worked at PPG. Under this formula, the precise number of PPG workdays in any given month was irrelevant.

When Gross completed his deployment in 2005, he returned to his position at PPG. At that time, he began questioning the formula PPG had used to calculate his differential pay while he was deployed. Gross submitted a complaint about the pay calculation through PPG's "RESOLVE" Employee Dispute Resolution Process. Gross complained that because he was required to work extra days during his deployment (weekends and holidays that he would not have worked at PPG), PPG should have calculated a daily military pay rate and then deducted military pay only for days in a given month that he would have worked at PPG. This formula is based on the 30-day month the Department of Defense uses to pay members of the military regardless of the actual number of days in any given month. Using the same figures as above, it would be calculated using the following formula: (1) $2,000 monthly military pay divided by 30 days equals a $66 per day military pay rate; (2) $66 per diem military pay multiplied by the number of PPG monthly work days-ordinarily 21-equals $1386; (3) this amount is then subtracted from the PPG monthly base pay-$4,000-yielding $2614 in differential pay, as opposed to the $2,000 paid under PPG's simple base pay less military pay calculation. PPG declined to revisit its formula for calculating military pay for Gross's 2004-05 deployment. It did, however, adopt the calculation urged by Gross (which was the calculation already used for short term military leaves of absence) for military deployments going forward, effective May 1, 2007. Thus, Gross received differential pay for a 2007-08 deployment according to the formula he wanted applied retroactively to his 2004-05 deployment.

Gross sued PPG, alleging that its calculation of his differential pay during his 2004-05 deployment as well as an alleged failure to retrain him upon his return violated provisions of USERRA addressing the reemployment rights of individuals who serve in the military. See 38 U.S.C. §§ 4312-13, 4316, 4318. He also claimed that PPG violated a Wisconsin state statute. The parties filed cross-motions for summary judgment. Gross moved for summary judgment under 38 U.S.C. § 4311, an anti-discrimination provision that prohibits employers from denying "any benefit of employment" to individuals who serve in the armed services. Although Gross failed to mention § 4311 in his complaint, the district court nonetheless denied his motion on the merits after concluding that differential pay is not a benefit of employment under USERRA. Because PPG had no obligation to offer differential pay, it likewise had no obligation to calculate such pay in the manner most beneficial to Gross. The district court also granted summary judgment to PPG on the remaining claims in Gross's complaint. The court noted Gross's failure to cite any case law in support of his claims that PPG violated the other provisions of USERRA listed in his complaint. It also rejected Gross's attempt to insert a claim that PPG had retaliated against him after determining that Gross had never mentioned retaliation in his complaint. Likewise, the court rejected any claim based on Gross's allegation that PPG had failed to retrain him because Gross conceded that he was promptly reinstated to his former position when he returned from his deployment. Finally, the court granted summary judgment in favor of PPG on Gross's state-law claim. Noting that Gross's complaint cited a nonexistent ...


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