United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
L. ELLIS UNITED STATES DISTRICT JUDGE
Todd Helms, a retired police officer for Defendant Village of
Clarendon Hills, Illinois (the “Village”) and a
member of the U.S. Army Reserves, claims that the Village
discriminated against him based on his military service.
After retiring from the police force, Helms filed this suit
claiming the Village violated the Uniformed Services
Employment and Reemployment Rights Act
(“USERRA”), 38 U.S.C. § 4301 et
seq.The Village has moved to dismiss
Helms' complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). Although the Court does not find that the
statute of limitations or laches bars any of Helms'
claims at this time, Helms has not sufficiently alleged that
he experienced adverse employment actions in March 2008, May
2011, or April 2013 so as to pursue a discrimination claim
based on these events. Helms has also failed to sufficiently
allege that the Village subjected him to a hostile work
environment. But, drawing all reasonable inferences in
Helms' favor, the remaining alleged discrete adverse
actions taken by the Village suffice to allow him to base his
discrimination claims on such conduct.
served as an active member of the United States Army. Around
2000, he transitioned from active to reserve duty. At the
same time, Helms began employment as a police officer for the
Village. The Village knew of his military service. But the
Village attempted to interfere with his commitment to the
Army and dissuade him from continuing in the reserves.
in March 2008, after Helms appeared on a military deployment
mobilization list, the Village informed Helms that the police
department was “short staffed” and that, by going
on a deployment, Helms would “screw[ ] over all of
[his] co-workers and the Village.” Doc. 1 ¶ 14.
The Village chief of police also demanded that Helms ask
Senator Dick Durbin, one of the U.S. Senators for Illinois,
to cause the Army to rescind the deployment order. The chief
of police also threatened that, if Helms deployed, he would
lose out on a promotion opportunity. Helms, “[u]nder
duress, ” caused himself to be removed from the
deployment list. Id.
in May 2011, a Village employee mocked Helms for
participating in reserve weekend drills. In April 2013, the
Village required him to return to work within ninety days
after Helms returned from a military deployment. At the time
he returned, Helms learned that the Village had deprived him
of seniority credits and benefits during his deployment. In
December 2013, the Village removed Helms from his position as
a field training officer after he participated in a
twenty-one-day military war exercise. Several years later, in
the spring and summer of 2016, Sergeant Wendy Porter informed
Helms during his annual review that he could improve by
serving the police department in another area of specialty.
Helms then volunteered to go to juvenile officer training,
but the Village denied Helms the opportunity to do so.
Sergeant Porter informed Helms that the Village would not
send him to more training while he remained in the military.
December 2018, Helms retired from his position with the
Village. At that time, he learned that the Village would not
monetarily compensate him for his accrued time. This time
amounted to approximately 1160 hours and had a value of
approximately $19, 000.
motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the complaint, not its merits. Fed.R.Civ.P.
12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510,
1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion
to dismiss, the Court accepts as true all well-pleaded facts
in the plaintiff's complaint and draws all reasonable
inferences from those facts in the plaintiff's favor.
AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th
Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint
must not only provide the defendant with fair notice of a
claim's basis but must also be facially plausible.
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
prohibits employment discrimination against military service
members, providing that members “shall not be denied
initial employment, reemployment, retention in employment,
promotion, or any benefit of employment by an employer on the
basis of that membership, application for membership,
performance of service, application for service, or
obligation.” 38 U.S.C. § 4311(a). A benefit of
employment means “the terms, conditions, or privileges
of employment, including any advantage, profit, privilege,
gain, status, account, or interest (including wages or salary
for work performed) that accrues by reason of an employment
contract or agreement or an employer policy, plan, or
practice.” 38 U.S.C. § 4303(2). Section 4316,
which Helms cites as the basis for his claims, establishes
the rights of service members absent from their employment
while fulfilling their service obligations. It includes a
provision that a person reemployed subject to USERRA
“is entitled to the seniority and other rights and
benefits determined by seniority that the person had on the
date of the commencement of service in the uniformed services
plus the additional seniority and rights and benefits that
such person would have attained if the person had remained
continuously employed.” 38 U.S.C. § 4316(a). A
plaintiff states a USERRA discrimination claim by alleging
that his employer subjected him to an adverse employment
action for which the plaintiff's military service was a
motivating factor. 38 U.S.C. § 4311(c); Staub v.
Proctor Hosp., 562 U.S. 411, 416-17, 131 S.Ct. 1186, 179
L.Ed.2d 144 (2011).
appears to claim that the Village acted to prevent Helms and
other employees from fulfilling their military service
commitments during their employment with the Village, took
adverse employment actions against him, and subjected him to
a hostile work environment because of his military service.
The Village argues that Helms cannot pursue any claims for
violations of USERRA that occurred prior to October 2008,
that laches bars claims based on conduct through 2013, and
that Helms has failed to allege an actionable adverse
employment action or a hostile work environment. The Court
addresses these arguments in turn.
Statute of Limitations and Laches
the Village asks the Court to dismiss Helms' claims to
the extent he bases them on actions taking place before
October 2008, including the allegation that, in March 2008,
the Village demanded that Helms seek removal from the
military deployment mobilization list. Prior to October 2008,
a four-year statute of limitations applied to USERRA claims.
See Middleton v. City of Chicago, 578 F.3d 655,
657-62 (7th Cir. 2009) (concluding that the four-year statute
of limitations in 28 U.S.C. § 1658 applied to USERRA
upon its enactment). But on October 10, 2008, the Veterans
Benefit Improvement Act (“VBIA”) went into
effect, eliminating a limitations period for USERRA claims.
38 U.S.C. § 4327(b); Middleton, 578 F.3d at
662. The VBIA's elimination of the limitations period
does not apply retroactively to claims that had expired
before the VBI's enactment, i.e. those based on conduct
that occurred before October 2004. Middleton, 578
F.3d at 662-65. But Middleton left open the question
of “whether § 4327(b) applies retroactively to a
claim that accrued within the four years preceding
the VBIA.” Id. at 663. Those courts to
consider the question have concluded that the VBIA applies to
USERRA claims that would have been timely at the time of the
VBIA's enactment. See Andritzky v. Concordia Univ.
Chicago, No. 09 C 6633, 2010 WL 1474582, at *4-5 (N.D.
Ill. Apr. 8, 2010); see also Cabrera v. Perceptive
Software, LLC, 147 F.Supp.3d 1247, 1251-52 (D. Kan. Dec.
2, 2015) (“Plaintiff's USERRA claims are not
time-barred because the enactment of the VBIA eliminated the
limitations period for Plaintiff's claims before those
claims became untimely.”). Although the parties have
not addressed this aspect of the timeliness issue, ...