Ryan Crews v. City Mt Vernon IL

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2435

R YAN P. C REWS,

Plaintiff-Appellant,

v.

C ITY OF M T. V ERNON, a municipal corporation,

C HRISTOPHER D EICHMAN, individually and in his

capacity as Assistant Chief of Police for the City of

Mt. Vernon, and C HRIS M ENDENALL, individually and in

his capacity as Chief of Police for the City of Mt. Vernon,

Defendants-Appellees.

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.

A RGUED D ECEMBER 11, 2008—D ECIDED JUNE 2, 2009

Before M ANION, E VANS, and T INDER, Circuit Judges.

T INDER, Circuit Judge. 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

2 No. 08-2435

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 accord-

ingly affirm the district court’s grant of summary judg-

ment in favor of the defendants.

I. Background

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 sched-

ule 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.

No. 08-2435 3

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 supple-

mental City pay, the Department maintained a policy

for several years that allowed Guard employees to resched-

ule 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 sched-

uled 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 sched-

uling 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-Departmen-

tal activities.

In August 2006, after the Department had hired two

additional Guard members, Mendenall rescinded the

4 No. 08-2435

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 em-

ployees to work shifts during the regular work week

that were already fully staffed. While that overstaffing

problem was manageable when the Department orig-

inally 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 con-

versations 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

No. 08-2435 5

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 advance-

ment 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

6 No. 08-2435

required to give Crews preferential work scheduling

benefits not generally available to non-Guard employees.

The court also rejected Crews’s retaliation claim, con-

cluding that denying Crews the opportunity to attend FTO

classes, making negative comments, and noting his nega-

tive attitude on a quarterly evaluation were not “materially

adverse” employment actions. The court accordingly

denied Crews’s motion for summary judgment and

granted the City’s motion for summary judgment. Crews

timely appealed.

II. Discussion

We review de novo the district court’s grant of summary

judgment. Cavin v. Home Loan Ctr., Inc., 531 F.3d 526, 528

(7th Cir. 2008) (citation omitted). Where, as here, “the

parties have filed cross-motions for summary judgment,

we construe the evidence and all reasonable inferences

in favor of the party against whom the motion under

consideration is made.” Id. (quotation omitted).

Enacted in 1994, USERRA is the latest in a series of

veterans’ employment rights laws, replacing its most

immediate predecessor, the Veterans’ Reemployment

Rights Act (“VRRA”) of 1974. 20 C.F.R. § 1002.2. The

purposes of USERRA are: “(1) to encourage noncareer

service in the uniformed services . . . ; (2) to minimize

the disruption to the lives of persons performing service

in the uniformed services . . . by providing for the

prompt reemployment of such persons upon their com-

pletion of such service; and (3) to prohibit discrimination

against persons because of their service in the uniformed

No. 08-2435 7

services.” 38 U.S.C. § 4301(a). “In enacting USERRA,

Congress emphasized USERRA’s continuity with the

VRRA . . . and that the large body of case law that had

developed under [earlier] statutes remained in full force

and effect, to the extent it is consistent with USERRA.”

20 C.F.R. § 1002.2.

USERRA affords broad protections to service members

against employment discrimination, 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 . . . .” 38 U.S.C. 4311(a). A “benefit of

employment” means “any advantage, profit, privilege,

gain, status, account, or interest (other than wages or

salary for work performed) that accrues by reason of an

employment contract or agreement or an employer

policy, plan, or practice and includes . . . the opportunity to

select work hours or location of employment.” Id. § 4303(2).

Under the burden-shifting framework of § 4311, a plain-

tiff makes out a prima facie case of discrimination by

showing that his service membership was “a motivating

factor in the employer’s action.” Id. § 4311(c)(1). The

employer must then “prove that the action would have

been taken in the absence of such membership.” Id.

Apart from the general anti-discrimination provision

of § 4311, § 4316 establishes the rights of service members

who are absent from employment while fulfilling their

service obligations. Such members are “(A) deemed to

be on furlough or leave of absence while performing

such service; and (B) entitled to such other rights and

8 No. 08-2435

benefits not determined by seniority as are generally

provided by the employer” to similarly situated em-

ployees who take a leave of absence comparable to the

military leave. Id. § 4316(b)(1).

A. Denial of a “Benefit of Employment”

In determining whether the Department’s rescission of

the work scheduling policy denied Crews and other Guard

employees a “benefit of employment” in violation of

USERRA, we must first determine the applicable provi-

sion(s) of the Act. If Crews’s claim is governed exclusively

by § 4316(b)(1), which requires only equal benefits for

Guard and non-Guard employees, then Crews clearly has

no right to special scheduling flexibility. If § 4316(b)(1)

is not the only applicable USERRA provision, then

Crews may have a viable § 4311 claim.

The Fifth Circuit has examined the interplay between

§§ 4311 and 4316 and concluded that the latter section

applied to reservist employees who, like Crews, claimed

a right to special employment benefits while absent for

drill. In Rogers v. City of San Antonio, 392 F.3d 758, 760-61

(5th Cir. 2004), firefighters challenged the City’s refusal

to give them pay, accrual of vacation leave, and other

attendance-based benefits during their absences to

attend drill. After engaging in a comprehensive analysis

of USERRA’s legislative history, the court concluded that

§ 4316(b)(1), rather than § 4311(a), applied to the reservists’

claims. Id. at 764-70. Further, because § 4316(b)(1) requires

only “equal, but not preferential” treatment for reservist

employees, the firefighters were not entitled to benefits

No. 08-2435 9

not available to non-reservist employees who took compa-

rable leaves of absence. Id. at 769.

We agree with the Fifth Circuit’s analysis in Rogers and

conclude that § 4316(b)(1) will ordinarily prevent Guard

employees who miss work for drill from demanding

employment benefits (other than those determined by

seniority) that are not generally available to non-Guard

employees who miss work for other reasons. That conclu-

sion is consistent with Monroe v. Standard Oil Co., 452 U.S.

549, 561 (1981), in which the Supreme Court held that

USERRA’s predecessor statute did not require an

employer “to provide a special work-scheduling prefer-

ence” to a reservist who, like Crews, wanted to resched-

ule his work days missed for reserve training in order to

collect a full week’s pay. Seventh Circuit precedent also

supports Rogers’s interpretation of § 4316(b)(1), as we have

held that Guard members are not entitled to preferential

policies that allow them to resolve conflicts between work

schedules and Guard training. See Pignato v. Am. Trans Air,

Inc., 14 F.3d 342, 349-350 (7th Cir. 1994). Although this

case law predates USERRA, it still remains “in full force

and effect, to the extent it is consistent with USERRA.”

20 C.F.R. § 1002.2; see also Rogers, 392 F.3d at 768 (con-

cluding that Congress intended § 4316(b)(1) to codify

Monroe’s “equal, but not preferential” rule).

While we agree with the Fifth Circuit’s analysis, it would

be premature to conclude that only § 4316(b)(1) governs

this case and that Rogers forecloses Crews’s USERRA claim.

The remedies provided by §§ 4311 and 4316 are not

necessarily mutually exclusive, and factual distinctions

10 No. 08-2435

between Rogers and this case require us to examine

whether Crews has a viable claim under § 4311. The

reservists in Rogers were not complaining about the

withdrawal of pre-existing employment benefits; in

contrast, Crews argues that the City violated § 4311 by

rescinding an existing policy of providing Guard employ-

ees with special work scheduling benefits. According to

Crews, while USERRA may not have required the City

to establish that policy in the first place, having

voluntarily done so, the City cannot now renege.

Crews’s interpretation of § 4311 admittedly finds some

support in the statutory language of USERRA. Section

4311(a) prohibits the denial of “any benefit of employ-

ment . . . on the basis of” membership in the uniformed

services. 38 U.S.C. § 4311(a) (emphasis added). Nothing in

the text of either § 4311(a) or § 4303(2), which defines

“benefit of employment,” indicates that § 4311 covers only

those benefits extended generally to military and non-

military employees alike. Nonetheless, the better inter-

pretation is that the “benefit of employment” referenced

in § 4311(a) is one provided to both military and non-

military employees. Section 4311 is entitled “Discrimina-

tion against persons who serve in the uniformed services

and acts of reprisal prohibited.” Accordingly, courts have

indicated that the statute reaches only discriminatory

employment actions that provide military employees

with fewer benefits. See Sandoval v. City of Chicago, 560

F.3d 703, 704 (7th Cir. 2009) (“[Section] 4311 is an anti-

discrimination rule.”); Miller v. City of Indianapolis, 281

F.3d 648, 650 (7th Cir. 2002) (“USERRA prohibits dis-

crimination by, among other things, denying any benefit of

No. 08-2435 11

employment on the basis of the employee’s membership

in the uniformed services.”); Velazquez-Garcia v. Horizon

Lines of Puerto Rico, Inc., 473 F.3d 11, 15-16 (1st Cir. 2007)

(citing § 4311(a), (c) as “the mechanism of proving dis-

crimination claims under USERRA”); Rogers, 392 F.3d at

762 (describing § 4311(a) as “USERRA’s anti-discrimination

provision”); Hill v. Michelin N.A., Inc., 252 F.3d 307, 311

(4th Cir. 2001) (citing § 4311(a) as the provision that

effectuates USERRA’s purpose “to prohibit discrimina-

tion against persons because of their service in the uni-

formed services” (quoting 38 U.S.C. § 4301(a)(3))). In

addition, the legislative history of § 4311(a) provides

that the statute “would reenact the current prohibition

against discrimination” on the basis of service member-

ship. H.R. Rep. No. 103-65(I), at 23 (1993), reprinted in 1994

U.S.C.C.A.N. 2449, 2456; see also Rogers, 392 F.3d at 768

(“[T]he brief legislative history of the bill that became

§ 4311(a) reflects no intention to prohibit neutral labor

contracts from treating employees on military leave

equally with those on non-military leave with respect to

the loss of benefits due to absence from work.”).

Given the anti-discriminatory purpose of § 4311, the

Department’s decision in this case to provide equal work

scheduling benefits to all employees does not violate

USERRA. The preferential work scheduling policy that

the Department previously extended to Guard employees

was not a “benefit of employment” within the meaning

of § 4311(a), as this benefit was not one generally avail-

able to all employees. It follows that the Department’s

rescission of that policy could not be a “denial” of any

“benefit of employment” actionable under § 4311(a).

12 No. 08-2435

Crews argues that grafting a discrimination require-

ment onto § 4311 fails to appreciate the breadth of

USERRA’s protections. While one purpose of USERRA is

to prohibit employment discrimination on the basis of

military status, the Act also serves “to encourage noncareer

service in the uniformed services . . . .” 38 U.S.C.

§ 4301(a)(1). Crews notes that this goal of encouraging

military service distinguishes USERRA from other civil

rights laws, which serve not to encourage membership

in the protected class but simply to prevent discrimina-

tion on the basis of that membership.

While Crews raises a valid point that USERRA does more

than prevent discrimination, our holding that Crews’s

particular § 4311 claim requires a showing of discrimina-

tory treatment does not undermine the broader purposes

of the Act. Through a number of provisions other than

§ 4311, USERRA encourages military service by granting

service members rights with respect to civilian employ-

ment that are not available to similarly situated, non-

military employees. See 38 U.S.C. § 4312 (entitling a

service member who leaves civilian employment for

military service to reemployment upon return); id.

§ 4316(a) (granting a reemployed service member the

same seniority benefits that would have accrued had the

member “remained continuously employed”); id. § 4317

(providing that an employee absent for military service

may elect to continue coverage under the employer’s

health plan); id. § 4318 (requiring employers to count

time in military service toward employees’ pension

benefits). Crews does not claim that the Department

denied him any of these rights. Instead, he tries to charac-

No. 08-2435 13

terize his claim for additional work scheduling preferences

not required by USERRA in terms of a denial of a “benefit

of employment” under § 4311(a), which he cannot do

absent a showing of discriminatory treatment.

USERRA also encourages military service by au-

thorizing employers to go above and beyond the mini-

mum requirements of the statute. According to a Depart-

ment of Labor (“DOL”) regulation interpreting the Act,

“USERRA establishes a floor, not a ceiling, for the em-

ployment and reemployment rights and benefits of those

it protects,” such that “an employer may provide greater

rights and benefits than USERRA requires.” 20 C.F.R.

§ 1002.7(a). Nothing about our holding suggests that

employers should not continue to provide greater

benefits as they are able, much like the Department in

this case did for several years by giving Guard employees

work scheduling preferences. The Department’s recent

decision to revoke those preferences and return to the

“floor” requirements, while understandably disappointing

to Crews, does not violate USERRA. We add that, if

Guard employees like Crews want legal protection

against their employer’s discretion to unilaterally revoke

special benefits, they can negotiate to make those benefits

part of a “contract” or “agreement.” Id. § 1002.7(c). Here,

however, the Department’s work scheduling policy for

Guard employees was strictly voluntary, and Crews has

not claimed that any contract or other provision of law

required the defendants to maintain the policy. Cf. Miller,

281 F.3d at 651-52 (observing that, while the City’s method

of deducting days of paid military leave for time spent at

reserve training did not violate USERRA, it may have

14 No. 08-2435

violated the state statute granting that leave); Butterbaugh

v. Dep’t of Justice, 336 F.3d 1332, 1337-38 (Fed. Cir. 2003)

(concluding that an agency employer incorrectly applied

the non-USERRA federal statute granting military leave

by requiring employees to take leave for training that

fell on non-work days).

In the interest of completeness, we conclude our dis-

cussion of Crews’s denial-of-benefit claim by addressing

his challenges to certain characterizations of fact made

by the district court and the defendants. Crews objects to

the district court’s finding that the Department’s current

work scheduling policy treats Guard and non-Guard

employees equally in that no employee can reschedule

days off to coincide with outside activities. The relevance

of Crews’s objection is unclear, since Crews does not base

his USERRA claim on unequal treatment. Instead, Crews

argues that he is entitled, consistent with past Depart-

mental policy, to more favorable work scheduling benefits

than those available to non-Guard employees. In any

event, the undisputed deposition testimony indicates

that Guard and non-Guard employees have equal work

scheduling opportunities. Both Deichman and Crews

himself testified that all officers cannot switch their

scheduled work days and days off unless they trade shifts

with a consenting coworker. To the extent that Crews is

trying to make out a separate § 4311 discrimination claim

based on unequal treatment, he has not carried his burden

of producing contradictory evidence that non-Guard

employees have greater work scheduling benefits. See

Velazquez-Garcia, 473 F.3d at 17 (describing the employee’s

initial burden of showing that military status was “at

No. 08-2435 15

least a motivating or substantial factor” in an employer’s

adverse action); Schmauch v. Honda of Am. Mfg., Inc., 295

F. Supp. 2d 823, 837 (S.D. Ohio 2003) (“To show a viola-

tion of § 4311(a), Plaintiff must establish that he was

denied a ‘benefit of employment.’ ”).

Crews also takes issue with the defendants’ representa-

tion that, as a corporal, Crews has “fixed” days off on

Mondays and Tuesdays, such that he cannot bid for his

preferred days off like lower-ranking patrol officers.

Corporals’ days off are “fixed,” Crews retorts, only by

virtue of Chief Mendenall’s discretionary decision re-

quiring corporals to work weekends. Crews further

points out that Mendenall’s decision is inconsistent with

the CBA, which provides that all police employees, in-

cluding “corporal officers,” may request their preferred

days off before the Department posts work schedules.

Again, the relevance of this factual representation is

questionable, since Crews’s USERRA claim relies on the

theory that he is entitled to preferential scheduling

benefits irrespective of when corporals usually work.

Had Crews argued that the Department treated him

unequally by requiring him to work weekends, and that

the defendants’ reliance on the corporal’s work schedule

was a mere “pretext” for military animus, see Velazquez-

Garcia, 473 F.3d at 16, then whether corporals’ days off

are indeed “fixed” as the defendants suggest would be

critical to Crews’s § 4311 discrimination claim. But Crews

has not presented such a theory of discrimination.

Moreover, the record supports the conclusion that

corporals have regular Wednesday-Sunday work sched-

16 No. 08-2435

ules. Both Mendenall and Tom Vowell, a Department

captain, testified that Mendenall decided in 1998 that

corporals’ regular days off would be Mondays and Tues-

days. Crews also acknowledged that, when he accepted

the promotion to corporal, he knew that he would have

Mondays and Tuesdays off. So corporals’ Wednesday-

Sunday work schedule, while not mandated by the

CBA, was sufficiently well-established as a matter of

Departmental policy to give Crews notice that accepting

the corporal position would reduce his scheduling flexibil-

ity. As for the CBA’s provision that corporals may bid

for their preferred days off, to the extent that Crews is

arguing that Mendenall’s 1998 decision violates that

provision, Crews’s argument is, at best, more suited for

internal grievance procedures or even a separate, non-

USERRA legal action.

B. Retaliation Under USERRA

We turn to Crews’s claim that the defendants retaliated

against him for voicing his opposition to the rescission

of the work scheduling policy. In addition to protecting

against discrimination on the basis of service member-

ship, § 4311 prohibits an employer from taking “any

adverse employment action against any person because

such person . . . has taken an action to enforce a protec-

tion” provided by USERRA. 38 U.S.C. § 4311(b)(1). Al-

though we have not previously discussed the statute’s

“adverse employment action” requirement in the specific

context of a USERRA retaliation claim, our case law on

other civil rights statutes describes those employment

No. 08-2435 17

actions that are sufficiently “adverse” to be actionable

retaliation. “An adverse employment action must be

materially adverse, not merely an inconvenience or a

change in job responsibilities.” Griffin v. Potter, 356 F.3d

824, 829 (7th Cir. 2004). “An adverse employment action

is one that significantly alters the terms and conditions of

the employee’s job.” Id. Materially adverse actions

include termination, demotion accompanied by a

decrease in pay, or a material loss of benefits or responsi-

bilities, but do not include “everything that makes an

employee unhappy.” Lapka v. Chertoff, 517 F.3d 974, 986

(7th Cir. 2008) (quotation omitted). There is no reason to

understand “adverse employment action” differently in

the USERRA context.

Echoing an argument made in support of his denial-of-

benefit claim, Crews argues that applying the “materially

adverse” standard from other civil rights statutes to his

USERRA retaliation claim fails to appreciate the

different purposes of USERRA and conventional civil

rights laws. However, we have previously stated in a

USERRA case that actionable discrimination must

involve a “materially adverse employment action,” which

is “something more disruptive than a mere inconvenience

or an alteration of job responsibilities.” Maher v. City of

Chicago, 547 F.3d 817, 824 (7th Cir. 2008) (quoting Nichols v.

S. Ill. Univ.—Edwardsville, 510 F.3d 772, 780 (7th Cir. 2007)).

Although Maher involved a claim of discrimination, we

see no reason to dispense with the materiality require-

ment in retaliation cases. Requiring material adversity

for both types of claims is consistent with the Supreme

Court’s decision in Burlington Northern & Santa Fe Railway

18 No. 08-2435

Co. v. White, 548 U.S. 53 (2006), in which the Court estab-

lished the standard for retaliation claims under Title VII.

The Court concluded that, although the retaliatory actions

prohibited by Title VII are not limited to harms that are

employment-related or that occur in the workplace, the

action must nonetheless be “materially adverse,” such

that it “well might have dissuaded a reasonable worker

from making or supporting a charge of discrimination.” Id.

at 68 (quotation omitted). Requiring “material adversity”

is important, the Court continued, to discourage civil

rights litigation over “trivial harms.” Id.

In line with Burlington, we do not think that the

protections of USERRA are so sweeping as to provide a

remedy for mere “trivial harms.” That is especially true

since textual differences between the anti-retaliation

provisions of Title VII and USERRA suggest that the

latter has a more limited scope. In concluding that the

retaliatory actions prohibited by Title VII are not

confined to employment-related harms, the Court in

Burlington compared the language of Title VII’s anti-

discrimination provision with the language of the anti-

retaliation provision. Id. at 62. Unlike the conduct prohib-

ited by the anti-discrimination provision, which must

affect an employee’s conditions of “employment,” the

conduct reached by the anti-retaliation provision is not

qualified in terms of employment. Id. (citing 42 U.S.C.

§§ 2000e-2(a), e-3(a)). No comparable textual distinction

exists between USERRA’s anti-discrimination provision,

38 U.S.C. § 4311(a), and the anti-retaliation provision, id.

§ 4311(b), both of which address only actions affecting

“employment.”

No. 08-2435 19

Applying the “materially adverse” standard to Crews’s

claim, it is clear that Crews suffered no actionable retalia-

tion. Crews first points to disparaging comments that

Chief Mendenall made to the press about Crews’s USERRA

lawsuit. However, negative employer comments will

support a retaliation claim only if they are “severe and

pervasive.” Griffin, 356 F.3d at 829. The plaintiff must

show more than “petty slights or minor annoyances that

often take place at work and that all employees experi-

ence.” Burlington, 548 U.S. at 68.

Here, the purportedly “disparaging” comments cited

by Crews are nothing more than Mendenall’s statements to

the media that Crews’s USERRA lawsuit “had no merit”

and that his allegations were “simply untrue.” These

isolated comments, which occurred outside the work-

place and had no impact on Crews’s conditions of em-

ployment, are not severe enough to be actionable retalia-

tion. See Breneisen v. Motorola, Inc., 512 F.3d 972, 981-82

(7th Cir. 2008) (concluding that a supervisor’s com-

ments that expressed frustration with employees’ taking

medical leave, but that resulted in no loss of job benefits,

were not materially adverse); Griffin, 356 F.3d at 829-30

(finding that a supervisor’s comments at staff meetings

that the plaintiff was a “bad influence” and know-it-all

were not actionable retaliation); cf. Smart v. Ball State

Univ., 89 F.3d 437, 442 (7th Cir. 1996) (concluding that

negative employer evaluations, even if undeserved, were

not alone sufficient to show an adverse employment

action).

Crews also contends that the defendants engaged in

retaliation by refusing to allow him to attend FTO classes

20 No. 08-2435

following his promotion to corporal, thereby denying him

advancement opportunities. However, the record estab-

lishes that the Department did not approve FTO classes

for corporals and higher-ranking officers. Deichman

testified that the job of a corporal, which involves much

time in the office handling administrative matters and

little time in the actual field, does not lend itself to pro-

viding field training to new recruits. Crews also acknowl-

edged that he was unaware of Deichman ever approving

FTO training for corporals.

The undisputed evidence also indicates that Crews

received alternative, non-FTO training commensurate

with his corporal rank. Crews testified that he attended

classes in “first line leader management” and “critical

incident management,” instruction geared toward

officers who fulfill a more supervisory role. A log

prepared by Deichman also indicated that Crews had

completed the third-highest amount of command staff

training hours for the period between May 2005 and

December 2006—a significant accomplishment, since

Crews, having been promoted to corporal in May 2006, was

only a command officer for about a third of that period.

The Department did not deny Crews training opportuni-

ties, and we do not see how changing the specific classes

offered based on the officer’s rank would dissuade a

“reasonable employee” from asserting his USERRA rights.

Burlington, 548 U.S. at 68. Accordingly, Crews has failed

to establish a materially adverse employment action,

and the district court properly granted summary judg-

ment for the defendants on Crews’s retaliation claim.

No. 08-2435 21

III. Conclusion

For the foregoing reasons, we A FFIRM the district court’s

grant of summary judgment in favor of the defendants.

6-2-09