Petition for Writ of Certiorari — Rogers v. City of San Antonio

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Supreme Court, U.S.

/ FILED

No: —@Hr] 44 8 APR 2 7 2005

In The OFFICE OF THE CLERK

Supreme Court of the Anited States

ANTHONY ROGERS, RICHARD MORALES,

VENTURA CALDERON, JR., ANDREW L. ALMAZAN,

ROBERT J. DELEON, ROLANDO CESAR GARZA,

ROBERT A. GEARHART, ISIDRO MEDINA, JR..,

TIMOTHY L. MENCHACA, EMILIO M. MONTES,

BRUCE R. MOORE, NATHANIEL OAKMAN,

ANTONIO RIVAS, JEFFERY J. ZAVALA,

AND GEORGE W. RANDALL,

Petitioners,

vs.

CITY OF SAN ANTONIO, TEXAS,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

1 ae

i _

PETITION FOR WRIT OF CERTIORARI

MARTHA P. OWEN*

DEATS, DURST, OWEN &

LEvy, P.L.L.C.

1204 San Antonio Street, Suite 203

Austin, Texas 78701

(512) 474-6200

Attorneys for Petitioners

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

1. Does § 4316(b) of the Uniform Services Employment

and Reemployment Act of 1994, 38 U.S.C. §§ 4301 et seq.

(USERRA), which states that military reservists absent to

perform reservist training are entitled to the same rights

and benefits as non-reservists absent for other types of

leave, ensure that reservists receive the same benefits as

non-reservists absent for both involuntary and voluntary

leave, such as vacation, or is its guarantee of equality of

benefits limited to involuntary leave?

2. Does § 4311(a) of USERRA, the anti-discrimination

provision, apply to non-seniority benefits, or are these type

of benefits governed exclusively by the provisions of

§ 4316(b), so that if an employer does not provide non-

reservists with the opportunity to make up opportunities

to work overtime hours or at a higher classification which

they missed while they were absent, the employer has no

obligation to extend those opportunities to reservists when

they return from training?

PARTIES TO THE PROCEEDINGS

Petitioners

Petitioners are: Anthony Rogers, Richard Morales,

Ventura Calderon, Jr., Andrew Almazon, Robert J. Deleon,

Rolando Cesar Garza, Robert A. Gearhart, Isidrio Medina,

Jr., Timothy L. Menchaca, Emilio M. Montes, Bruce R.

Moore, Nathaniel Oakman, Antonio Rivas, Jeffrey J.

Zavala, and George W. Randall, all individual citizens of

the United States, residing in the Western District of

Texas. Petitioners were the plaintiffs in the District Court

and the appellees in the Fifth Circuit Court of Appeals.

Respondent

The City of San Antonio, Texas, is a governmental

entity. Respondent City of San Antonio was the defendant

in the District Court and appellant in the Fifth Circuit

Court of Appeals.

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW................. i

PARTIES TO THE PROCEEDINGS ......................000008 ii

icici Scat ssamnsnadebedanadanseeluies iii

IEE TR eran Oey eee 1

I cea ST ee ie 1

REASONS FOR GRANTING THE PETITION............

1. There is a split in the circuits regarding the

rights and benefits afforded to absent reserv-

RE ne I et arr ae 8

2. The Fifth Circuit’s decision conflicts with the

plain language and legislative history of

IIIT Eibiitial sci tdalanigihdncinhinisdnanpddgnisiatadmicddidgaigatiis 12

3. The Fifth Circuit’s decision conflicts with

numerous rulings of this Court and the explicit

mandate of Congress to construe legislation

protecting reservists in a liberal fashion .......... 14

4. In rejecting the applicability of § 4311(a), the

anti-discrimination provision, the Fifth Cir-

cuit’s decision conflicts with the plain language

of USERRA, the intent of Congress, and the

prior decisions of this Court and other circuits.... 17

| ______CEER TRERAES a eI Ee OPE 22

TABLE OF CONTENTS - Continued

Page

APPENDIX

Appendix 1-31

Rogers, et al. v. City of San Antonio, Texas, 392

es TUE EN Ge SD scisinesitesinnsstninsienstiaabnnbahanatiis App. 1

Appendix 32-69

Rogers, et al. v. City of San Antonio, Texas, 211

F.Supp.2d 829 (W.D. Texas 2002)... App. 32

Appendix 70-71

The Fifth Circuit order denying the timely

petition for rehearing and rehearing en banc ....App. 70

Se EN SE ARRON tel a st le | aera

TABLE OF AUTHORITIES

Page

CASES

Alabama Power Company v. Davis, 431 U.S. 581

CHIP FP cvesnstinsnsictncemssensiebibaiialasiiatnsciletaemsdeaaia cgi seeaa aaa 14

Allen v. United States Postal System, 142 F.3d 1444

Cen. Gi, SEE sckcisccicacconssstatenisinishatevensiateine 11, 12, 19, 20

Carney v. Cummins Engine Company, Inc., 602

ee FD CON. GR: Fe ise vinnttissiensictbbuanseehiadiiatiiacaniiainats 21

Chevron v. Natural Resources Defense Council, 467

C7, GF Ch cities donee 12

Coffey v. Republic Steel Corp., 447 U.S. 191 (1980).......... 15

Consumer Product Safety Comm’n v. GTE Sylvania,

Fane, GBT TIED. BE CE citlinancs chsenasesniiiaanahcasaphcmmaass 12

Fink v. City of New York, 129 F Supp.2d 511 (E.D.

DOG TRE Bee id incsiintecsapansnicusstagantcasipeteciamasigsl a tices 20

Fishgold v. Sullivan Drydock & Repair Corp., 328

CFE Fe COD i rchesanisinscitanstebenendsetansanamedooiauldiatanaal 14, 19

Gummo v. Village of Depew, 75 F.3d 98 (2nd Cir.

SED anc cthttesrtnncscoiinactsticuaiaibipbinlebedetsecinaiasaeane nee 18

Hill v. Michelin North America, Inc., 252 F.3d 307

CB Ge FI nis cccccntenccsecctscttidlauansernteeamiduaaman 15, 20

Kaiser Aluminum & Chemical Corp. v. Bonbon, 494

CFE, GBT CB ennnssicnnssinaisocnndcccndiiaitiaibemibiass idatiaadaaaa 12

King v. St. Vincent’s Hospital, 502 U.S. 215 (1991)...12, 14, 19

McGuire v. United Parcel Serv., 152 F.3d 673 (7th

Ce FID ncicisice.acecansnsendcnincactitenipansiasniaae eee 15

Monroe v. Standard Oil Co., 452 U.S. 549

CRITE) «ccicnicustndsvannisidensenibinndodsssaianaiens aan 10, 15, 20, 21

TABLE OF AUTHORITIES -— Continued

Page

Norfolk & Western Ry. Co. v. American Train

Diepatohers, 460 U.S. 117 (1681) ....ccecccccssccsssccsscsssseseees 12

Rogers, et al. v. City of San Antonio, Texas, 392 F.3d

FD Geen GIy Bei csncansntievcenteiditevicntsebianrenen passim

Rogers, et al. v. City of San Antonio, Texas, 211

F.Supp.2d 829 (W.D. Texas 2002)....................00. 1, 4, 5,6

Rogers, et al. v. City of San Antonio, No. C.A. 99-

CV-1110-OG, 2003 WL 1571550 (W.D. Tex. March

D4, BOGE sctitvicinmstnciscensienhenadianiemeaaaien 6, 7

Schmauch v. Honda of America Manufacturing,

Inc., 295 F.Supp.2d 823 (S.D.Ohio 2003) ...................... 20

United States v. Hartwell, 73 U.S. (6 Wall.) 385

CRIED esinccasinessssuiithenessinniinetecsaieiiiiiniiieadl inane tie eee ae 19

Waltermyer v. Aluminum Company of America

(ALCOA), 804 F.2d 821 (3rd Cir. 1986)........ 10, 11, 13, 21

West v. Safeway Stores, Inc., 609 F.2d 147 (5th Cir.

REG wcciccccnisnschinissensenssentndagiasaiiliaiateaaeamieamaaan are 9

STATUTES

9B UGG. O Fa ivectrittintitcctisietniaie ee 1

SB ULL. F Fin eckeitnnsdivtntaaiiiiee ee 7

50 USD. Fee Oe innit 5

BG CE. Ge Be Oe OO vctecsnscisstsisienadincideamaaaitae 10

SB ULEEGE. Bae chscidth cdccresttbiicinnisdbieaiieiadecnan passim

gs Fe S| Re et 13, 21

38 U.S.C. § 4301(aX1) amd (3).................00..........00000. 1, 4,17

38 U.S.C. § 4SO1(DKT) ......ccccccccsesccccccccesces ieee 21

TABLE OF AUTHORITIES — Continued

Page

ep Cs Oe ED cntthtrtnvtcdipatanicieschatictaniahiaiaiacndeetectias 11

a eae Se eteiiinttlanatiinnid dese htssnticicaeiiaediiaae tienen 2, 16, 18

er es III cerhabiacincdsicilbnsitcdetntibiatonhadasadisaneslanliic 2, 18, 22

Bae es We I a potttninantinsinistiniediniinsicaneniameenecenmanel passim

Be Cae OF GENEID vcninnstsesecsiiasndsenrnsnitumarnionitacene passim

LEGISLATIVE REPORTS

139 CONG. REC. S14865-03 (1993)..................ccceceseeeeeees 22

H.R. REP. No. 103-65(I) (1993), reprinted in 1994

ee EE R&R U creer ar a mn Ee 13, 15, 18

a Bs UN. ee COED ctocencsnncosicusavecensaneusensboncabies 17, 21

OTHER AUTHORITIES

U.S. Dep't of Labor Veterans Employment and

Training Service, § 1002.150, 20 CFR 102, Fed-

eral Register, Vol. 69, No. 181 p. 56294 ....00.......... eee 14

Eric Schmitt, Guard Reports Serious Drop in

Enlistment, N.Y. Times, December 17, 2004, at

OPINIONS BELOW

The Fifth Circuit opinion is reported at Rogers, et al.

v. City of San Antonio, Texas, 392 F.3d 758 (5th Cir. 2004).

Appendix 1-31. The district court opinion is reported at

Rogers, et al. v. City of San Antonio, Texas, 211 F.Supp.2d

829 (W.D. Texas 2002). Appendix 32-69. The Fifth Circuit

order denying the timely petition for rehearing and re-

hearing en banc is at Appendix 70-71.

JURISDICTION

The Court of Appeals for the Fifth Circuit entered its

judgment on December 2, 2004. Petitioners Anthony

Rogers, et al., respectfully petition for a writ of certiorari

to review this decision. The Fifth Circuit entered an order

denying a timely petition for rehearing and rehearing en

banc on January 27, 2005.

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves provisions of the Uniform Services

Employment and Reemployment Act of 1994, 38 U.S.C.

§§ 4301 et seg. (USERRA).

38 U.S.C. § 4301 provides, in pertinent part:

Purposes; sense of Congress

(a) The purposes of this chapter are —

(1) to encourage noncareer service in the

uniformed services by eliminating or minimizing

the disadvantages to civilian careers and em-

ployment which can result from such service;

(2) to minimize the disruption to the lives

of persons performing services as well as to their

employers, their fellow employees, and their

communities, by providing for the prompt reem-

ployment of such persons upon their completion

of such service; and

(3) to prohibit discrimination against per-

sons because of their service in the uniformed

services.

38 U.S.C. § 4303, provides, in pertinent part:

Definitions

(2) The term “benefit”, “benefit of employment”,

or “rights and benefits” 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 con-

tract or agreement or an employer policy, plan, or

practice and includes rights and benefits under a

pension plan, a health plan, an employee stock

ownership plan, insurance coverage and awards,

bonuses, severance pay, supplemental unem-

ployment benefits, vacations, and the opportu-

nity to select work hours or location of

employment.

38 U.S.C. § 4311 provides, in pertinent part:

Discrimination against persons who serve in

the uniformed services and acts of reprisals

prohibited

(a) Aperson who is a member of, applies to be a

member of, performs, has performed, applies to

perform, or has an obligation to perform service

in a uniformed service shall not be denied initial

employment, reemployment, retention in em-

ployment, promotion, or any benefit of employ-

ment by an employer on the basis of that

membership, application for membership, per-

formance of service, application for service, or ob-

ligation.

38 U.S.C. § 4316 provides, in pertinent part:

Rights, benefits, and obligations of persons ab-

sent from employment for service in a uni-

formed service

(b)(1) Subject to paragraphs (2) through (6), a per-

son who is absent from a position of employment by

reason of service in the uniformed services shall be —

(A) deemed to be on furlough or leave of absence

while performing such service; and

(B) entitled to such other rights and benefits not

determined by seniority as are generally provided by

the employer of the person to employees having simi-

lar seniority, status, and pay who are on furlough or -

leave of absence under a contract, agreement, policy,

practice, or plan in effect at the commencement of

such service or established while such person per-

forms such service.

STATEMENT OF THE CASE

The petitioners are fifteen military reservists’ who are

employed by the City of San Antonio Fire Department as

* The petitioners include reservists in all branches of the United

States military reserves and the National Guard; they are referred to

collectively as reservists. Rogers, 392 F.3d at 760.

firefighters or paramedics. They filed suit on October 4,

1999, claiming that the City discriminates and denies

them benefits in violation of the Uniform Services Em-

ployment and Reemployment Act of 1994, 38 U.S.C.

§§ 4301 et seg. (USERRA), when they are absent from

work to fulfill reservist training obligations. The reserv-

ists’ absences are for inactive duty training and service

commitments, such as the minimum requirements of

drilling one weekend a month and annual training for two

weeks a year, as opposed to active duty “call ups” and

deployments. Rogers, 392 F. 3d at 761. The reservists take

military leave’ or their own vacation leave in order to

fulfill their training requirements. Rogers, 211 F.Supp.2d

at 841.

With respect to this petition, the City’s policies penal-

izing the reservists for these absences fall into two general

categories: 1) treating absences for reservist service worse

than absences for vacation or other voluntary leaves for

the purpose of an employee’s entitlement to certain bene-

fits and 2) refusing to allow reservists who miss opportuni-

ties for working overtime or upgrading to a higher rank in

the Fire Department to make up opportunities for working

these hours upon their return to work.

Regarding the first category of policies, all City

firefighters have nine (9) hours of scheduled overtime built

into their twenty-one (21) day work cycle, for which they

receive overtime pay. Rogers, 211 F Supp.2d at 840. In Fire

Department parlance, this is referred to as “FLSA over-

time,” in reference to the federal statute requiring the

? Both Texas law and City policy provide that a reservist receives

fifteen days (for firefighters, seven and one-half (7%) shifts) of paid

military leave per year. Rogers, 392 F.Supp.2d at 841, n.84.

payment of overtime when hours exceed a certain statu-

tory maximum. See § 207(k) of the Fair Labor Standards

Act, as amended, 29 U.S.C. §§ 201 et seg. (FLSA). Ordinar-

ily, a firefighter would have to be present and actually

work the hours in order to receive overtime pay. Rogers,

211 F.Supp.2d at 840.

The City and the firefighters’ union, though, have

negotiated significant modifications of the requirement for

presence at work so that firefighters taking vacation and

other types of leave’ can still receive FLSA overtime under

certain circumstances. Jd. Under the collective bargaining

agreement, the overtime which a firefighter loses when he

is absent for vacation is capped at twenty-seven (27) hours

per year (three work cycles with nine (9) hours of overtime

per cycle). Id. This “three strikes, you're in” rule is de-

signed to blunt the negative effect of vacation-related

absences and treat the vacationing firefighter as if he were

present at work. Jd., 211 F.Supp.2d at 841.

In contrast, absences due to military leave are ex-

cluded from the cap on lost FLSA overtime. Jd. Addition-

ally, a reservist’s use of military leave in the same work

cycle as vacation leave disqualifies the vacation leave

from counting towards the twenty-seven (27) hour cap. Id.

“Accordingly, when a reservist is forced to use vacation

leave in the same FLSA cycle as military leave, either

because the reservist is using his own vacation leave so

that he will have enough time off to fulfill a training

requirement, or because his military duty happens to fall

* In addition to regular vacation leave, bonus day leave, perfect

attendance leave, vacation ‘eave used as Family Medical Leave Act

leave, and floating vacation shifts all count towards the 27 hour cap.

Rogers, 392 F.Supp.2d at 840-841.

RE REE a ER

in the same cycle as his pre-scheduled vacation, he loses

the benefit of the cap.” Jd.

Other provisions in the collective bargaining agree-

ment treat non-reservists out on vacation as if they were

present at work for the purpose of earning extra paid time

off (“bonus days”) and flexibility on taking leave (“perfect

attendance leave”); a reservist’s absences for more than

fifteen (15) days of military training, however, disqualifies

him from such benefits. Jd., 211 F.Supp. 2d at 846-847.

With respect to the second category of City policies at

issue in this petition, firefighters and paramedics also

have opportunities to work unscheduled overtime. Id.,

211 F.Supp. 2d at 844-846. If a reservist is not available to

work these hours because he is off on leave, he is treated

as if he refused the opportunity and bypassed on the

overtime eligibility list. Jd. He is not allowed to make up

the lost opportunity and work the hours upon his return.

Id. Similarly, if he misses opportunities to work at a

higher classification and receive the on-the-job training

and increased pay which performing at a higher rank

entails, he is not allowed to make up those hours. Id.

In the district court, the parties agreed to bifurcate

the case as to liability and damages. Rogers, 392 F.3d at

761. The parties stipulated to the material facts regarding

the policies and practices at issue and filed cross-motions

for summary judgment. Jd. On March 28, 2002, the district

court granted partial summary judgment on liability to

the reservists and denied the City’s cross-motion. Rogers,

211 F.Supp.2d at 848. On March 4, 2003, the district court

granted the plaintiffs a second partial summary judgment

on the issue of the limitations period to be applied to the

reservists’ claims. See Rogers, et al. v. City of San Antonio,

No. C.A. 99-CV-1110-OG, 2003 WL 1571550 (W.D. Tex.

March 24, 2003).*

On March 24, 2003, the district court entered an order

granting the City’s motion to certify a permissive appeal

from these interlocutory orders under the provisions of 28

U.S.C. § 1292(b). Rogers, 392 F.3d at 761. On May 27,

2003, the Fifth Circuit granted permission to appeal.

On December 2, 2004, the Fifth Circuit reversed and

rendered the district court’s decision in the reservists’

favor with respect to certain benefits, and reversed and

remanded on others. Id. at 771-772. The Fifth Circuit

rejected any application of USERRA’s anti-discrimination

provision, § 4311(a), and ruled that the reservists’ claims

were governed exclusively by the provisions of § 4316(b),

which addresses non-seniority benefits. Id. at 769-771.

Applying § 4316(b), the court found that it is acceptable to

treat vacation absences more favorably than military

absences on the basis that vacation is voluntary and

training is not. Id. at 767, 771-772. It therefore rejected

any comparison between military leave and voluntary

leave and reversed and rendered as to these claims. The

court remanded for further proceedings the claims pertain-

ing to the variety of involuntary leaves which the City also

treats more favorably than military leave, e.g., jury duty

and bereavement leave, since it determined that those

could be comparable to military leave. Id. at 771-772. The

court reversed and rendered on the reservists’ claim that

they should be allowed to make up missed opportunities to

‘ The limitations issue is not the subject of this petition. The Fifth

Circuit affirmed the district court’s judgment that a four year statute of

limitations should be applied to the reservists’ claims. Rogers, 392 F.3d

at 773.

work overtime hours or in a higher rank on the basis that

firefighters out on non-military leave were not extended

such opportunities.’ Id. at 771.

On January 27, 2005, the Fifth Circuit denied the

reservists’ petition for rehearing and rehearing en banc.

REASONS FOR GRANTING THE PETITION

1. There is a split in the circuits regarding the

rights and benefits afforded to absent reservists

under USERRA.

The issues raised in this case are of exceptional

importance because there is a split in the circuits regard-

ing the rights and benefits afforded to absent military

reservists under USERRA. These questions arise at a time

when reserve components comprise forty-six percent (46%)

of the United States’ military manpower, and are increas-

ingly relied upon in our military operations around the

world. See National Committee for Employer Support of

the Guard and Reserve, http://www.egsr.org. National

Guard and Army Reserve soldiers make up nearly forty

percent (40%) of the troops in Iraq alone. Eric Schmitt,

Guard Reports Serious Drop in Enlistment, N.Y. Times,

December 17, 2004, at Al. All those reservists have to

fulfill the training obligations every year which require

them to be absent from their regular jobs. “The essence of

* The -court also ruled against the reservists on their claim

involving straight-time pay, and one individual reservist’s claim

involving individualized discriminatory treatment, although the district

court had reserved these claims for determination at trial. These claims

are not the subject of this petition.

reserve duty in this context is absence from work.” West v.

Safeway Stores, Inc., 609 F.2d 147, 149 (5th Cir. 1980).

This case determines the extent to which they will be

protected from the adverse consequences of their absences.

According to USERRA § 4316(b),° reservists and other

service people protected by the statute are “entitled to

such other rights and benefits not determined by seniority

as are generally provided by the employer of the person to

employees having similar seniority, status, and pay who on

furlough or leave of absence ... ” Contrary to other cir-

cuits, as well as the clear language of this and other

USERRA provisions, the Fifth Circuit has narrowed

USERRA’s guarantee of equal treatment by determining

that reservists are entitled to the employment benefits

which only employees away on other involuntary leaves

receive, rather than those available to employees absent

for both involuntary and voluntary reasons, such as

vacation.’

* The Fifth Circuit erred in its rejection of USERRA § 4311(a) as a

basis for relief, a decision with particular implications for the petition-

ers’ claims that USERRA requires that they be allowed to make up

overtime and upgrading opportunities they miss while training. See

discussion infra pp. 17-22. Of course, if the Court were to determine

that §4311(a) applies, then it would operate to prohibit the City’s

unequal treatment of reservists and non-reservists out on voluntary

leaves. However, even if § 4316(b) provides the only grounds for relief,

the Fifth Circuit’s decision limiting the scope of § 4316(b)’s protection to

other involuntary leaves is wrong and should be reversed.

” Under the facts in this case, the distinction adopted by the court

means that the reservists cannot count their training absences towards

the twenty-seven (27) hour cap on lost FLSA overtime to the same

extent as firefighters on vacation or otherwise voluntarily absent from

work, that the reservists cannot count their vacation absences towards

the twenty-seven (27) hour cap if they use military leave in the same

work cycle, and that the reservists cannot qualify for bonus days and

(Continued on following page)

In Waltermyer v. Aluminum Company of America

(ALCOA), 804 F.2d 821 (3rd Cir. 1986), a case decided

under § 2021(b)(3), the Vietnam Era Veterans’ Readjust-

ment Assistance Act of 1974, 38 U.S.C. §§ 2001, et seg.

(VRRA), the predecessor to USERRA, the Third Circuit

found that a reservist was entitled to the same benefits

provided to employees absent for vacation. Like the

instant case, Waltermyer involved a collective bargaining

agreement under which the employer paid benefits —

holiday pay — to employees absent for other reasons, such

as scheduled vacation, but declined to pay reservists.

Following this Court’s admonition in Monroe v. Standard

Oil Co., 452 U.S. 549, 561 (1981) that VRRA’s prohibition

of discrimination did not require “employers to provide

special benefits to employee reservists not generally made

available to other employees,” the court still determined

that if an employer extended special benefits to employees

out on other types of leave, then it must extend them to

reservists as well. The Third Circuit recognized that

“relieving those on military leave from the work require-

ment merely establishes equality for National Guardsmen

and reservists, not preferential treatment.” Jd., 804 F.2d at

825.

While the Fifth Circuit purported to follow Waltermeyer

in its decision to significantly limit the “standard against

which the [reservists’] claims are to be measured,” it did

not. Id., 804 F.2d at 825. Specifically, the Fifth Circuit

excluded voluntary leave; Waltermyer included it. The Fifth

Circuit made a critical misconstruction of Waltermyer in

holding: “[slignificantly, however, [Waltermyer] indicated

perfect attendance leave to the same extent as firefighters on vacation

or voluntarily absent from work.

that a scheduled vacation, which also was exempted from

the work requirement, was not comparable to military

leave.” Rogers, 392 F.3d at 767. Contrary to the court’s

interpretation, Waltermyer found it appropriate to consider

the treatment of employees on voluntary vacation leave. In

dicta, Waltermyer does note that vacation leave is different

from the other types of leave which the employer singled

out for favorable treatment, in that the “common thread”

of the other types of absences is the “lack of choice.” Jd.,

804 F.2d at 825. “Vacation is earned time away from work,

and this exception [in the collective bargaining agreement]

merely recognizes that an employee should not be preju-

diced, in the form of lost holiday pay, for taking an earned

vacation.” Jd., 804 F.2d at 825, n.3. However, this distinc-

tion did not prompt the court to discount the treatment of

employees out on voluntary leave, as the Fifth Circuit did.*

The Fifth Circuit’s misconstruction of this single comment

provides the sole foundation for the Fifth Circuit’s whole-

sale exclusion of the entire category of voluntary leave

benefits.

In Allen v. United States Postal System, 142 F.3d 1444

(Fed. Cir. 1998), the Federal Circuit also found it appro-

priate to compare the treatment of vacationing non-

reservists with that of duty-serving reservists in analyzing

whether the Postal System violated 38 U.S.C. § 4301(b)(3),

the recodified version of VRRA § 2021(b)(3) (now, 38 U.S.C.

§ 4311(a)). Allen involved the question of whether the

* The dissent in Waltermyer also concluded that the majority's

opinion included vacation leave in the ambit of comparison: “[a]s the

majority points out, one class of employees who may be absent during

the week in which a holiday occurs yet still receive holiday pay is the

class of employees on vacation. Certainly, vacation leave is not involun-

tary.” Id., 804 F.2d at 827.

statute required an employer to notify reservists of job

openings that might arise in their absence, a benefit which

the Postal Service extended to employees out on “annual

leave.” Id., 142 F.3d at 1445. The Federal Circuit found

that the employer had placed reservists at a prohibited

disadvantage by not providing such notices to them as

well.

2. The Fifth Circuit’s decision conflicts with the

plain language and legislative history of § 4316(b).

The plain language of the USERRA § 4316(b) contains

no qualifier based on the nature of the non-reservists’

leave. Instead, to reach its result, the Fifth Circuit would

alter the statute to provide that reservists are entitled to

the benefits provided “to employees having similar senior-

ity, status, and pay who are on involuntary furlough or

leave of absence, under a contract ... ” The first and

foremost analysis when interpreting a statute should be

the “plain meaning” of the words that comprise the stat-

ute. Kaiser Aluminum & Chemical Corp. v. Bonbon, 494

U.S. 827, 835 (1990), citing Consumer Product Safety

Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).

“(I]f the intent of [a statute] is clear,” then the plain

meaning is conclusive and the analysis need proceed no

further. Norfolk & Western Ry. Co. v. American Train

Dispatchers, 499 U.S. 117, 128 (1991), quoting Chevron v.

Natural Resources Defense Council, 467 U.S. 837, 842-43

(1984).

This Court has rejected similar efforts to engraft

requirements into the statutes designed to protect reserv-

ists. In King v. St. Vincent’s Hospital, 502 U.S. 215 (1991),

the Court unanimously refused to limit the length of

service after which a reservist retains the rights of reem-

ployment under USERRA § 4316's statutory predecessor,

VRRA’s § 2024(d), to “reasonable” lengths of time. The

principle reason for the Court’s rejection of the employer’s

argument was the fact that the statute was “utterly silent

about any durational limit on the protection it provides,”

which rendered it not “susceptible to interpretive choice.”

Id. at 573.

It is only when a statute is ambiguous that the courts

review the legislative history of a statute to determine

congressional intent. While we respectfully suggest that

such an inquiry is not necessary here, an examination of

legislative intent provides further support for the Court’s

rejection of the Fifth Circuit’s holding. Congress clearly

stated:

The Committee intends to affirm the decision in

Waltermyer v. Aluminum Co. of America, 804

F.2d 821 (3rd Cir. 1986) that, to the extent the

employer policy or practice varies among various

types of non-military leaves of absence, the most

favorable treatment accorded any particular

leave would also be accorded the military leave

... Thus, for example, an employer cannot re-

quire servicemembers to reschedule their work

week because of a conflict with reserve or Na-

tional Guard duty, unless all other employees

who miss work are required to reschedule their

work.

H.R. REP. 103-65(D (April 28, 1993), quoted in Rogers, 392

F.3d at 767 (emphasis added). The legislative history thus

not oniy confirms that Congress intended the reach of the

statute to be unqualified, but also that it interpreted

Waltermyer in an unrestricted manner.

Finally, in its proposed regulations designed to im-

plement USERRA, the Department of Labor also requires

that a reservist’s absences be treated on a par with ab-

sences for any other reason. See Proposed Regulations,

Department of Labor, Veterans’ Employment and Training

Service, § 1002.150, 20 CFR 1002, Federal Register, Vol.

69, No. 181 p. 56294 (if non-seniority benefits vary accord-

ing to the type of leave, reservist must be given “the most

favorable treatment accorded to any comparable form of

leave”... ) (emphasis added).

3. The Fifth Circuit’s decision conflicts with nu-

merous rulings of this Court and the explicit

mandate of Congress to construe legislation pro-

tecting reservists in a liberal fashion.

By denying reservists the benefits available to non-

reservists absent on voluntary leave, the Fifth Circuit

violated the mandate to construe USERRA in a liberal

fashion for the benefit of reservists.

The United States has long extended special protec-

tions to individuals who are “called to the colors” and

“[leave] private life to serve their country in its hour of

great need.” Fishgold v. Sullivan Drydock & Repair Corp.,

328 U.S. 275, 284-285 (1946). This Court has called such

construction the “guiding principle” for the interpretation

of statutes protecting reservists. See Alabama Power

Company v. Davis, 431 U.S. 581, 584 (1977). Justice

Souter, writing for a unanimous court’ in King v. St.

Vincent’s, described such liberal construction as a “canon,”

* Justice Thomas did not participate in either the consideration or

decision of the case.

and stated that even if the Court were to find the language

of the statute more ambiguous on a “reasonableness”

requirement for the length of protected leave, it would still

reject such a requirement as a violation of the liberal

construction principle. Jd. at 574. See also Coffey v. Repub-

lic Steel Corp., 447 U.S. 191, 196 (1980) (predecessor to

USERRA “is to be liberally construed for the benefit of the

returning veteran”); accord, Hill v. Michelin North Amer-

ica, Inc., 252 F.3d 307, 312-313 (4th Cir. 2001) (construing

USERRA); McGuire v. United Parcel Serv., 152 F.3d 673,

676 (7th Cir. 1998) (construing USERRA).

In enacting USERRA, Congress expressly affirmed

that the Act should be liberally construed:

The provisions of Federal law providing members

of the uniformed services with employment and

reemployment rights, protection against em-

ployment-related discrimination, and the protec-

tion of certain other rights and benefits, have

been eminently successful for over fifty years.

Therefore, the Committee wishes to stress that

the extensive body of case law that has evolved

over that period, to the extent that it is consis-

tent with the provisions of this Act,” remains in

** Congress rejected the Court’s ruling in Monroe v. Standard Oil

Co., 452 U.S. 549, 559 (1981), that under the VRRA, a reservist would

be required to prove that an employer’s discriminatory actions against

him were motivated solely by his reserve status, as being a misinterpre-

tation of “the original legislative intent and history of 38 U.S.C.

§ 2021(b)(3).” H.R. REP. No. 103-65(I), at 24 (1993), reprinted in 1994

U.S.C.C.A.N. 2449, 2457. Moreover, also in response to Monroe,

Congress expanded the definition of “benefit” and “benefit of employ-

ment” to include an employee’s right to select work hours, which the

Court had determined not to be within the protective scope of

§ 2021(bX(3). “If Congress desires to amend § 2021(b)(3) to require

special work-hour scheduling for military reservists where it is

(Continued on following page)

full force and effect in interpreting these provi-

sions. This is particularly true of the basic

principle established by the Supreme Court

that the Act is to be “liberally construed.”

H.R. REP. No. 103-65(I), at 18 (1993), reprinted in 1994

U.S.C.C.A.N. 2449, 2451 (citations to Fishgold and Ala-

bama Power Co. omitted).

Additionally, Congress took care to expressly state the

purposes of the Act, which the legislative history describes

as the “same purposes that were the basis of the enact-

ment of the initial provisions in 1940 and have been the

basis for all subsequent amendments and recodifications.”

H.R. REP. No. 103-65(I), at 20 (1993), reprinted in 1994

U.S.C.C.A.N. 2449, 2453. Beginning with legislation

passed during World War II, Congress has steadily ex-

panded all aspects of legal protection, from the individuals

protected, the employers covered, the circumstances

included, to the benefits and entitlements conferred.

Congressional efforts culminated in its passage of

USERRA, in 1994, designed to “clarify, simplify, and,

where necessary, strengthen the existing veterans’ em-

ployment and reemployment rights provisions.” H.R. REP.

No. 103-65(I), at 18 (1993), reprinted in 1994 U.S.C.C.A.N.

2449, 2451.

The stated purpose of USERRA is to encourage

“noncareer service in the uniformed services by eliminat-

ing or minimizing the disadvantages to civilian

careers and employment which can result from such

service,” and the prohibition of “discrimination

reasonably possible, it is free to do so.” Id. at 565. This, of course, is just

what Congress did. See 38 U.S.C. § 4303(2).

against persons because of their service in the uniformed

services.” 38 U.S.C. § 4301(a)(1) and (3) (emphasis added).

Congress intended that “this section be helpful to courts

construing the statute.” S. REP. No. 103-158, at 40 (1993).

The exclusion of an entire category of benefits maximizes

the disadvantages that reservists suffer when they have to

be absent from work, not minimizes them.

4. In rejecting the applicability of § 4311(a), the

anti-discrimination provision, the Fifth Circuit’s

decision conflicts. with the plain language of

USERRA, the intent of Congress, and the prier

decisions of this Court and other circuits.

The Fifth Circuit rejected the applicability of

§ 4311(a), USERRA’s broad anti-discrimination provision,

and declared that in cases involving non-seniority rights

and benefits, only § 4316(b) will apply.” The petitioners

urge the Court to resolve whether, when it comes to non-

seniority benefits, § 4311(a) ensures that the disadvan-

tages reservists suffer from their inevitable absences will

indeed be eliminated or at least minimized, or that only

” Since it is not disputed that the City provides certain benefits to

non-reservists out on vacation and other voluntary leaves, the petition-

ers’ claims concerning the twenty-seven (27) hour cap on lost overtime,

bonus days and perfect attendance leave do not turn on the applicabil-

ity of § 4311(a); in other words, even if the Court determines that

§ 4316(b) provides the only means of redress, they would still prevail if

the Court determines that the Fifth Circuit has improperly excluded

voluntary leave from consideration. However, since the City does not

allow any non-reservists out on leave to make up work hours in an

overtime or higher classification capacity which they miss when they

are absent, the petitioners’ claims regarding these benefits depend on

the applicability of § 4311(a).

§ 4316(b) is available to ensure that they receive the same

benefits as other employees out on leave.

In rejecting the applicability of § 4311(a),” the core

protection afforded reservists, the Court ignored the plain

language of USERRA, the intent of Congress, and the

prior decisions of this Court and other circuits. The lan-

guage of §4311(a) is broad in its scope and clear in its

meaning, providing that anyone who performs military

service “shall not be denied ... any benefit of employ-

ment by an employer on the basis of that . . . performance of

service, ... or obligation.” 38 U.S.C. § 4311(a) (emphasis

added). There is nothing in this language which suggests an

exclusion of non-seniority related benefits. Similarly, there is

nothing in the express language of § 4316(b)(1) to indicate it

is the sole source of protection.

” The Court cited three rationales for rejecting the district court’s

application of § 4311(a). Rogers, 392 F.3d at 770-771. The first two,

which are related, do not have to do so much with the inapplicability

of § 4311(a) as they do with the applicability of § 4316(b). Assuming,

arguendo, that § 4316(b)(1) applies, does not mean that § 4311(a) would

not also apply to a reservist who is absent from work for inactive

training. The third underpinning for the Court’s rejection of § 4311(a),

was that its predecessor, § 2021(b)(3), was enacted to address only a

limited range of employment discrimination. Again, assuming, ar-

guendo, that this is accurate, it begs the question of Congress’ intent

with respect to USERRA §4311, especially coupled with that Act’s

expansive definition of “benefit,” which specifically addresses a

reservist’s right to select work hours, as the petitioners wish to do in

working the extra hours they missed when they are back on duty. See

38 U.S.C. § 4303(2). “These rights are broadly defined to include all

attributes of the employment relationship which are affected by the

absence of a member of the uniformed services because of military

service. The list of benefits is illustrative and not intended to be all

inclusive.” H.R. REP. No. 103-65(I), at 21 (1993), reprinted in 1994

U.S.C.C.A.N. 2449, 2454 (emphasis added).

erat ahi Oar use

By reading § 4311(a) out of the picture, the Fifth

Circuit’s decision violates the “cardinal rule that a statute

is to be read as a whole, since the meaning of statutory

language, plain or not, depends on context.” King at 221

(internal citation omitted) (emphasis added). See also

United States v. Hartwell, 73 U.S. (6 Wall.) 385, 396 (1868)

(in construing statute court should adopt that sense of

words which best harmonizes with context and promotes

policy and objectives of legislature), cited in King at 221.

Since the stated purpose of USERRA is to “encourage non-

career service ... by eliminating or minimizing the disad-

vantages to civilian careers and employment” and to

“prohibit discrimination against persons because of their

service in the uniformed services,” it flies in the face of the

Act to remove non-seniority benefits from the anti-

discrimination protection afforded by § 4311(a).

The Federal Circuit, in Allen 'v. United States Postal

Service, determined that USERRA’s § 4311(a) applied to

the non-seniority rights in that case. Rather than holding

that § 4311(a) did not apply at all, Allen harmonized

§ 4311(a) with § 4316(b). The application of both provisions

is consistent with the principle of liberal construction

articulated in Fishgold and followed ever since. The

Federal Circuit rejected the Fifth Circuit’s position

that the employer’s proof that other employees did not

receive notices of job openings when they were away on

the leave” settled the matter against the reservist. Refer-

ring to what is now § 4316, the court stated:

Although the USPS established that employees

on “leave of absence” status were not sent posi-

tion notices, an employer can not treat employees

on military duty like those on non-military leave

of absence when the effect is to deny the

benefits that the statute requires for em-

ployees on military duty ... The statute re-

quires that the position, or the opportunity to

apply for the position, “not be denied” to [the em-

ployee] because of his absence for military ser-

vice.

Id. at 1447 (emphasis added). See also Hill v. Michelin

(First Circuit held that § 4311(a) protected the non-

seniority benefit of a preferred work schedule); Schmauch

v. Honda of America Mnfg., 295 F.Supp.2d 823 (S.D.Ohio

2003) (district court found that § 4311(a) protected the

non-seniority benefit of an absence improvement plan);

Fink v. City of New York, 129 F.Supp.2d 511 (E.D.New

York 2001) (district court found that under § 4311(a)

protected the non-seniority benefit of a reservist’s entitle-

ment to take a promotional examination he missed while

he was off on leave).

In cases decided prior to the enactment of USERRA,

the Court in Monroe v. Standard Oil found the VRRA’s

anti-discrimination provision, § 2021(b)(3), to apply to the

non-seniority benefits (ability to select work hours) at

* As discussed infra at p. 11, the exception to this rule was

employees away on vacation. Allen at 1445.

issue in that case. Monroe at 557-565." Waltermyer also

applied § 2021(b)(3). See also Carney v. Cummins Engine

Company, Inc., 602 F.2d 763, 766 (7th Cir. 1979) (Seventh

Circuit found that under VRRA § 2021(b)(3), the reservist

was entitled to make up overtime opportunities he missed;

court rejected argument that claim governed by § 2024(d)).

Moreover, the Fifth Circuit based its holding that

USERRA § 4316(b) governs this case on an erroneous and

strained reading of the legislative history of USERRA;

namely, that “ ... USERRA § 4316(b)(1) had no true

predecessor” and that “Congress decided to adopt new

§ 4316(b)(1) to provide more specifically and affirmatively

for the accrual of non-seniority rights and benefits by

employees while on military duty, rather than continue to

rely on the general prohibition against service-related

denials of benefits for that purpose.” Rogers, 392 F.3d at

771, 769. The Fifth Circuit’s conclusion, though, is directly

contrary to the legislative history describing § 4316(b)(1)

as “similar to” the then-existing 38 U.S.C. § 4301(b)(1),

which provided that reservists away on training would be

“considered as having been on furlough or leave of ab-

sence” and “entitled to participate in insurance and other

benefits” offered by the employer ... ” S. REP. No. 103-

158, at 58 (1993). Moreover, Congress’ intent with

§ 4316(b) was to “expand the current protection.” Id.

(emphasis added).

“ Monroe did not analyze the question of the reservist’s entitle-

ment to the non-seniority benefits as a conflict between the require-

ments of VRRA §§ 2024(d) and 2021(b)(3); instead, the Court found that

there was no question that the employer had complied with § 2024(d)

and proceeded to address the § 202 1(b)(3) violation.

Finally, the court’s conclusion is also impossible to

reconcile with the legislative history of USERRA § 4311,

which reflects that it was specifically intended to

strengthen the protections afforded reservists and con-

tains no hint of creating an exception for non-seniority

benefits. See 139 CONG. REC. S14865-03, at S14883

(1993) (“This provision would strengthen considerably the

current proscription of discrimination against members of

the Reserve and National Guard.”).

CONCLUSION

For the reasons set forth herein and for such other

reasons as this Court deems just and appropriate, peti-

tioners ask this Court to grant this petition for writ of

certiorari and find that USERRA § 4316(b) ensures that

absent reservists will receive the same benefits as other

employees out on leave, both involuntary and voluntary,

and that USERRA § 4311(a) ensures that they will be able

to make up the opportunities to work overtime and higher

classification hours which they missed while they were

training even if no other employees are allowed to do the

same.

Respectfully submitted,

MARTHA P. OWEN

DEATS, DURST, OWEN & LEvy, P.L.L.C.

1204 San Antonio Street, Suite 203

Austin, Texas 78701

512.474.6200

App. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-50588

ANTHONY ROGERS; ET AL..,

Plaintiffs,

ANTHONY ROGERS; RICHARD MORALES;

VENTURA CALDERON, JR.; ANDREW L. ALMAZAN;

ROBERT J. DE LEON; ROLANDO CESAR GARZA,

ROBERT A. GEARHART; ISIDRO MEDINA, JR.;

TIMOTHY L. MENCHACA; EMILIO M. MONTES;

BRUCE R. MOORE; NATHANIEL OAKMAN;,

ANTONIO RIVAS; JEFFERY J. ZAVALA;

AND GEORGE W. RANDALL,

Plaintiffs-Appellees,

versus

CITY OF SAN ANTONIO,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

Before JONES, DENNIS and PICKERING, Circuit Judges.

DENNIS, Circuit Judge:

Plaintiffs, fifteen employees of the San Antonio fire

department, who are members of either the United States

military reserves or the National Guard (“Uniformed

App. 2

Services”), brought this civil action under the Uniform

Services Employment and Reemployment Rights Act of

1994 (“USERRA”)’ against the City of San Antonio, Texas

for declaratory, injunctive, and equitable relief; compensa-

tion for lost wages and benefits; and additional liquidated

damages. The plaintiffs contend that the City violated

USERRA by denying them employment benefits because of

their absences from work while performing their military

duties in the Uniformed Services. More specifically, the

employees assert that the City’s Collective Bargaining

Agreement (“CBA”) and policies regarding military leave

of absence deprive them of straight and overtime pay,

opportunities to earn extra vacation leave and vacation

scheduling flexibility, and opportunities to secure un-

scheduled overtime work and job upgrades. Plaintiffs

assert that under USERRA § 4311(a)’ “the City, in impie-

menting these employment practices, unlawfully discrimi-

nate against them by deeming them ‘absent’ from work

whenever they are on leave fulfilling their military reserve

duties, as opposed to viewing them as ‘constructively

present at work.’” The City contends that, because

* 38 U.S.C. § 4301 et seq.

* Section 4311(a) of USERRA provides that:

A person who is a member of, applies to be a member of,

performs, has performed, applies to perform, or has an obli-

gation to perform services in a uniformed service 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.

* Rogers v. City of San Antonio, Texas, 211 F.Supp.2d 829, 831

(W.D.Texas 2002).

App. 3

§ 4316(b)(1)* provides that persons absent from civilian

employment by reason of military service are entitled only

to such non-seniority rights and benefits as the employer

provides to employees when they are on non-military

leaves of absence, plaintiffs cannot recover since they were

treated equally as to such rights with all employees absent

on non-military leave.

Facts

Plaintiffs are employed by the City fire department in

its Fire Suppression division and Emergency Medical

Services division (“Firefighters”). The CBA between the

City and the employees’ Union governs the working

conditions of all City firefighters. Plaintiffs, as members of

the Uniformed Services (“reservists”), typically must take

leave of absence for military training a minimum of one

weekend per month and one annual two week session.

Reservists may volunteer or be ordered to take military

leave to perform extra duties. In order to be promoted,

reservists must meet the same educational requirements

* Section 4316(b)(1) of USERRA provides that:

[A] person who is absent from a position of employment by

reason of service in the uniformed services shall be —

(A) deemed to be on furlough or leave of absence

while performing such service; and

(B) entitled to such other rights and benefits

not determined by seniority as are generally

provided by the employer of the person to em-

ployees having similar seniority, status, and pay

who are on furlough or leave of absence under a

contract, agreement, policy, practice, or plan in

effect at the commencement of such service or

established while such person performs such ser-

vice.

App. 4

as a full-time active member of the Uniformed Services,

such as officer training courses.

The parties agreed to bifurcate the liability and

damages issues and filed cross-motions for partial sum-

mary judgment on the question of whether the City

violated USERRA and is therefore liable to the plaintiffs.

They also filed cross-motions on whether the plaintiffs’

claims were barred or curtailed by a statute of limitations,

laches or estoppel. The record consists principally of a joint

stipulation of facts, the CBA, and a number of depositions.

The district court granted the employees’ motion as to

liability on substantially all claims and denied the City’s

cross-motion. The district court then referred the cross-

motions regarding the statute of limitations, laches and

estoppel to a magistrate judge. The magistrate judge

granted plaintiffs’ motion on these issues, holding that the

employees were entitled to recover retrospective damages

for the four-year period preceding the filing of their com-

plaint. The district court determined that the summary

judgments on the issues of liability and limitations on

retrospective recovery “involve a controlling question of

law to which there is a substantial ground for difference of

opinion,” and certified the judgments for interlocutory

appeal under 28 U.S.C. § 1292(b).° The City appealed.

Standards of Review

The threshold question of law is one of statutory

construction, viz., namely which provision of USERRA,

* Rogers v. City of San Antonio, Texas, 2003 WL 1571550 (W.D.Tex.

March 24, 2003).

eee

App. 5

§ 4311(a) or § 4316(b)(1), governs the adjudication of the

employees’ claims. The employees contend that the district

court correctly applied only § 4311(a), which prohibits

private employers from denying employment benefits to

employees on the basis or their membership, service or

obligations related to the United States military forces.

The City contends that the district court erred in basing

its decision on § 4311(a) because this case is appropriately

governed only by § 4316(b)(1), which regulates the civilian

employment non-seniority rights of persons who are

required to be absent from jobs for service in the military

forces. We review the decision of the district court on this

issue of law de novo. See Casas v. American Airlines, Inc.,

304 F.3d 517, 520 (5th Cir.2002).

Once we have interpreted the statute and decided

upon its proper application, we address the parties’ cross-

motions de novo, applying the same standards prescribed

for use by the district court. See Walker v. Thompson, 214

F.3d 615, 624 (5th Cir.2000).

Analysis

In order to decide how USERRA should be interpreted

and applied in this case we will set forth an overview of

the statute to give perspective to our reading of its parts.

Because the statute is subject to different interpretations

we will examine its legislative history, predecessor stat-

utes, pertinent court decisions, and post-enactment admin-

istrative interpretations.

App. 6

A. USERRA Overview

The purposes of USERRA, enacted in 1994, are: (1) “to

encourage noncareer service in the uniformed services” by

eliminating or minimizing the disadvantages to civilian

employment which can result from such service”; (2) to

provide for “the prompt reemployment” of persons return-

ing to civilian jobs from military service and to “minimize

the disruption [of their] lives ... as well as [to those of]

their employers, fellow employees and communities”; and

(3) “to prohibit discrimination against persons because of

their service in the uniformed services.” 38 U.S.C. § 4301.

USERRA is the most recent in a series of laws protect-

ing veterans’ employment and reemployment rights dating

from the Selective Training and Service Act of 1940.’

USERRA’s immediate precursor, the Veterans’ Reemploy-

ment Rights Act (VRRA), was enacted as § 404 of the

Vietnam Era Veterans’ Readjustment Assistance Act of

1974.° “Congress emphasized [1] USERRA’s continuity

with the VRRA and its intention to clarify and strengthen

that law. [2] Federal laws protecting veterans’ employment

* “The term ‘uniformed services’ means the Armed Forces, the

Army National Guard and the Air National Guard when engaged in

active duty for training, inactive duty training, or full-time National

Guard duty, the commissioned corps of the Public Health Service, and

any other category of persons designated by the President in time of

war or national emergency.” 38 U.S.C. § 4303(16).

” See Proposed Regulation, Department of Labor, Veterans’

Employment and Training Service, § 1002.2, 20 CFR Part 1002, Federal

USERRA authorizes the Secretary of Labor to issue regulations

implementing the Act with respect to States, local governments, and

private employers. Jd. at § 1002.4(b) at 56286. We cite these non-

binding Proposed Regulations for their persuasive authority only.

* Id.

a a Sn i ep Nc eA

App. 7

and reemployment rights for the past fifty years had been

successful.” [3] “[T]he large body of case law that had

developed under those statutes remained in full force and

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

USERRA’s anti-discrimination provision prohibits an

employer from denying initial employment, reemployment,

retention in employment, promotion, or any benefit of

employment to a person on the basis of membership,

application for membership, performance of service,

application for service, or obligation of service. 38 U.S.C.

§ 4311(a). Also, an employer must not retaliate against a

person by taking adverse employment action against that

person because he or she has taken an action to enforce a

protection afforded under USERRA. Id. at § 4311(b).

Any person whose absence from a position of employ-

ment is necessitated by reason of service in the uniformed

services is entitled to the reemployment rights and bene-

fits of USERRA. Id. at § 4312(a). The returning uniform

services member (“reservist”) seeking reemployment must

make a timely return to or application for reinstatement

in the reservist’s employment position. Id. at § 4312(a)(3).

The employee reporting back to the employer following a

period of less than 31 days must report not later than the

beginning of the first full shift on the first full day follow-

ing the completion of service. Id. at § 4312(e)(1)(A)G).” If

the service period is between 31 and 180 days, the indi-

vidual must report within 14 days of completion of service.

Id. at § 4312(c). If the service was more than 180 days, the

* Id.

1 See Proposed Regulation, summary, 69 FR. No. 181 at 56270.

App. 8

individual must request reemployment no more than 90

days after completion. Jd. at § 4312(e)(1)(D).

An employer must promptly reemploy a person return-

ing from a period of service if the person meets the Act’s

eligibility criteria. Id. at § 4312(f)(4). “Prompt employment”

means as soon as practicable under the circumstances of the

case. For example, prompt reinstatement after “weekend

National Guard duty generally means the next regularly

scheduled working day.” However, prompt reinstatement

after “several years of active duty may require more time,

because [the] employer may have to reassign or give notice to

another employee who occupied [the] position.””

In construing a precursor to USERRA, the Supreme

Court in Fishgold v. Sullivan Drydock and Repair Corp.,

328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946), in-

vented the “escalator” principle in stating that a returning

service member “does not step back on the seniority

escalator at the point he stepped off. He steps back on at

the precise point he would have occupied had he kept his

position continuously during the war.” Id. at 284-285, 66

S.Ct. 1105. Although Fishgold was mainly a seniority case,

the escalator principle applies to the employment position,

and rate of pay, as well as the seniority rights to which the

returning service member is entitled.”

Thus, USERRA requires that the service member be

reemployed in the escalator job position comparable to the

position he would have held had he remained continuously

" Proposed Regulation § 1002.181.

12 Id

'> Proposed Regulation, summary 69 F.R. No. 181 at 56274.

App. 9

in his civilian employment. 38 U.S.C. § 4313. After service

of 90 days or less, the person is entitled to reinstatement

in the position of employment in which she or he would

have been but for the interruption of employment by

uniformed service. Id. at § 4313(a)(1)(A).* If the service

period was longer than 90 days, the service member is

entitled to reemployment in the escalator position, but the

employer may also reinstate the member in any position of

like seniority status and pay for which he is qualified. 38

U.S.C. § 4313(a)(2)(A). If the service member is unable to

qualify for either the escalator position or a comparable

position, despite reasonable employer efforts, he is entitled

to reemployment in a position that is the nearest approxi-

mation to the escalator position. Id. at § 4313(a)(2)(A), (B).”

A person who is reemployed under USERRA is enti-

tled to the seniority and other rights and benefits deter-

mined by seniority that the person had on the date of the

beginning of service plus the additional seniority and

rights and benefits that he or she would have attained if

the person had remained continuously employed.” Id. at

~ Ba.

” ie.

® Section 4303(12) of USERRA defines “seniority” as: longevity in

employment together with any benefits of employment which accrue

with, or are determined by, longevity in employment. The summary for

USERR<~’s Proposed Regulations explains that:

This definition imposes two requirements: first, the benefit

must be provided as a reward for length of service rather

than a form of short-term compensation for services ren-

dered; second, the service member’s receipt of the benefit,

but for his or her absence due to service, must have been

reasonably certain. See Coffy v. Republic Steel Corp., 447

U.S. 191, 100 S.Ct. 2100, 65 L.Ed.2d 53 (1980); Alabama

Power Co. v. Davis, 431 U.S. 581, 97 S.Ct. 2002, 52 L.Ed.2d

(Continued on following page)

App. 10

§ 4316(a). This section states the basic escalator principle

as it applies to seniority and seniority-based rights and

benefits.” An employer is not required to have a seniority

system. USERRA requires only that employers who do

have a seniority system restore the returning service

member to the proper place on the seniority ladder.” An

employee’s rate of pay after an absence from work due to

uniformed service is also determined by application of the

escalator principle.”

USERRA does not grant escalator protection to service

members’ non-seniority rights and benefits but provides

only that the employer treat employees absent because of

military service equally with employees having similar

seniority, status, and pay who are on comparable non-

military leaves of absence under a contract, agreement,

policy, practice, or plan in effect at anytime during that

uniformed service.” § 4316(b)(1).

595 (1977); see also S.Rep. No. 103-158, at 57 (1993), citing

with approval Goggin v. Lincoln, St. Louis, 702 F.2d 698,

701 (8th Cir.1983) (summarizing Supreme Court formula-

tion of two-part definition of “perquisites of seniority”).

Proposed Regulation, summary 69 F.R. No. 181 at 56276.

17 Id

~ a

° Id. At 56277.

*® Proposed Regulation, summary 69 F.R. No. 181 at 56272

(interpreting § 4316(b)(1) to mean that “[i]f the employer has more than

one kind of non-military leave and varies the level and type of benefits

provided according to the type of leave used, the comparison should be

made with the employer’s most generous form of comparable leave,”

and citing Waltermyer v. Aluminum Co. of Am., 804 F.2d 821 (3d

Cir.1986); H.R.Rep. No. 103-65, Part I at 33-34 (1993); Schmauch v.

Honda of Am. Manufacturing, Inc., 295 F.Supp.2d 823 at 836-39

(S.D.Ohio 2003)).

App. 11

B. Legislative History and Jurisprudence

The nation’s first peacetime draft law, the Selective

Training and Service Act of 1940 was designed to provide

reemployment for veterans returning to civilian life in

positions of “like seniority, status, and pay.” Pub.L. No. 54-

783, § 8, 54 Stat. 885, 890 (1940). In 1951, Congress

extended reemployment rights to reservists who had been

called up from civilian jobs for active or training duty.

Pub.L. No. 51, Ch. 144, § 1(s), 1951, 65 Stat. 75, 86-87. The

Armed Forces Reserve Act of 1952 extended reemployment

rights to National Guardsmen. Pub.L. No. 476, 66 Stat.

481. The Reserve Forces Act of 1955, Pub.L. 305, Ch. 665,

§ 262(f), 69 Stat. 598, 602, “provided that employees

returning from active duty for more than three months in

the Ready Reserve were entitled to the same employment

rights as inductees, with limited exceptions.” Monroe v.

Standard Oil Co., 452 U.S. 549, 555, 101 S.Ct. 2510, 69

L.Ed.2d 226 (1981).

In 1960, these reemployment rights and benefits were

extended to National Guardsmen. Pub.L. 86-632, 74 Stat.

467. See VRRA § 2024(c), Monroe, 452 U.S. at 549, 101

S.Ct. 2510. A new section, VRRA § 2024(d), was also

enacted in 1960 to protect employees who had military

training obligations lasting less than three months. “This

section provide[d] that employees must be granted a leave

of absence for training and, upon their return, be restored

to their positions ‘with such seniority, status, pay, and

vacation’ as they would have had if they had not been

absent for training.” Monroe, 452 U.S. 549, 101 S.Ct. 2510.

VRRA § 2024(d) did not, however, protect reservists

from discrimination by their employers in the form of

discharges, demotions, or other adverse conduct between

App. 12

leaves of absence for training. In the years following its

enactment discriminatory employment practices intensi-

fied. Congress responded with legislation codified as VRRA

§ 2021(b)(3) which, in pertinent part, provided that “[a]ny

person who [is employed by a private employer] shall not

be denied retention in employment or any promotion or

other incident or advantage of employment because of any

obligation as a member of a reserve component of the

Armed Forces.”

Senate Report No. 1477 explained the purpose of

§ 2021(b)(3) as follows:

Employment practices that discriminate against

employees with reserve obligations have become

an increasing problem in recent years. Some of

these employees have been denied promotions

because they must attend weekly drills or sum-

mer training and others have been discharged

because of these obligations ... The bill is in-

tended to protect members of the Reserve com-

ponents of the Armed Forces from such

practices.... [Under it] reservists will be enti-

tled to the same treatment afforded their co-

workers not having such military obligations. .. .

S.Rep. No. 1477, 90th Cong., 2d Sess., Reprinted

in (1968) U.S.Code Cong. & Admin. News, pp.

3421, 3421.

The House Report similarly indicated that these were

the purposes and effects of the legislation. H.R.Rep. No.

1303, 90th Cong.2d Sess., 3 (1968). See Monroe, 452 U.S.

at 557, 101 S.Ct. 2510.

As the Sixth Circuit noticed in Monroe v. Standard Oil

Co., 613 F.2d 641, 646 (6th Cir.1980), however, VRRA

§ 2021(b)(3) was subject to two different interpretations:

Pe cn Sern ee err em

App. 13

First, it can be read to mean that any time an

employee’s forced absence for reserve duty re-

quires him to forgo a benefit that would have ac-

crued to him only if he had been present for

work, he has been “denied” an incident or advan-

tage of employment “because of” his military ob-

ligation.

Or, it can be read to “merely require[] that reservists be

treated equally or neutrally with their fellow employees

without military obligations[,]” and “[t]lo meet this re-

quirement, collective bargaining agreements and employ-

ment rules must be facially neutral and must be applied

uniformly and equally to all employees.” Jd.

The Fifth Circuit and other courts adopted the first

interpretation of VRRA § 2021(b)(3) by holding that, if the

right in question is granted to all employees but is denied

to a reservist solely because of his absence to attend to

military obligations, the reservist is denied an “incident or

advantage of employment” because of an obligation as a

member of a reserve component.”

In West v. Safeway Stores, Inc., the Fifth Circuit

construed § 2021(b)(3) “to require that employers, in

applying collective bargaining agreements, treat reservists

as if they were constructively present during their reserve

duty in similar contexts.” 609 F.2d at 150. The employee, a

1 See West v. Safeway Stores, Inc., 609 F.2d 147 (5th Cir.1980),

Kidder v. Eastern Air Lines, Inc., 469 F.Supp. 1060 (S.D.Fla.1978),

Carlson v. New Hampshire Dep't of Safety, 609 F.2d 1024 (1st Cir.1979),

cert. denied, 446 U.S. 913, 100 S.Ct. 1844, 64 L.Ed.2d 267 (1980),

Hawes v. General Motors Corp., 102 L.R.R.M. (BNA) 3041 (N.D.Ohio

1979), Lott v. Goodyear Aerospace Corp., 395 F.Supp. 866 (N.D.Ohio

1975), Carney v. Cummins Engine Co., 602 F.2d 763 (7th Cir.1979), cert.

denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 754.

App. 14

meat cutter, had contended that, since the collective

bargaining agreement guaranteed a 40 hour work week

and because the only reason that he was not receiving a 40

hour work week was due to his National Guard obliga-

tions, he was being denied an advantage of employment.

The court agreed and held that the employer must provide

him with his guaranteed 40 hour work week despite the

fact that the collective bargaining agreement specifically

provided that an employee’s absence for weekend reserve

or National Guard duty was excluded or negated from the

guarantee.”

The Sixth Circuit in a virtually identical situation,

involving a 40 hour work week guarantee, however,

disagreed with West, holding that § 2021(b)\(3) merely

required that reservists be treated no differently than

other employees who are absent for non-military reasons.

Monroe, 613 F.2d 641. The employee’s collective bargaining

agreement right to work a 40 hour week, as in West, was

contingent on the employee being present for work or

arranging to switch shifts, as permitted by the agreement.

Thus, the court held, because the employee was treated

the same as his coworkers regarding absences and ex-

changing shifts, that right did not vest when the employee

failed to do either, and the employer was required to do no

more than grant him a leave of absence without pay to

*” The Court noted that “[iJf employers could by agreement with

unions require that workers be present in order to receive certain

benefits, then reservists could never secure the benefits or advantages

of employment which the Act was designed to protect.” Jd. at 150. In

closing, however, the Court acknowledged that because the employer

had conceded that it could accommodate West’s schedule, it did “not

reach the issue of whether accommodation or the alternative of

compensation is impossible or unduly burdensome.” Jd.

App. 15

comply with his military reserve obligation. Further, the

court found “nothing in the legislative history or the

statute to support judicial invalidation of nondiscrimina-

tory conditions precedent to employee benefits and ad-

here[d] to [its] belief that conditional benefits are

protected by § 2021(b)(3) only to the extent that the

conditions have been actually satisfied.” Jd. at 647.

The Supreme Court granted certiorari in Monroe,

affirmed the Sixth Circuit’s decision, and substantially

agreed with its reasoning. 452 U.S. 549, 101 S.Ct. 2510, 69

L.Ed.2d 226. The Supreme Court concluded that the

“legislative history ... indicates that § 2021(b)(3) was

enacted for the significant but limited purpose of protect-

ing the employee-reservist against discrimination like

discharge and demotion,” by reason of reserve status. Id.

at 559, 101 S.Ct. 2510. Further, the Court found nothing

in § 2021(b)\(3) or its legislative history to indicate that

Congress even considered imposing -an obligation on

employers to provide a special work-scheduling preference,

but rather that the history suggests that Congress did not

intend employers to provide special benefits to employee-

reservists not generally made available to other employ-

ees. Id. at 561, 101 S.Ct. 2510. Because the Supreme

Court’s interpretation of § 2021(b)(3) is contrary to the

Fifth Circuit’s decision in West, and the high court noted

the “apparent inter-circuit conflict on this issue” between

West and the Sixth Circuit’s decision,” we conclude that

West’s “constructive presence” interpretation was disap-

proved by Monroe. .

*® Id. at 551 n. 1, 101 S.Ct. 2510.

App. 16

After the Supreme Court’s decision in Monroe, the

Third Circuit, in Waltermyer v. Aluminum Co. of America,

804 F.2d 821 (3d Cir.1986), addressed whether a National

Guardsman was entitled to pay for a holiday that occurred

during his leave of absence for a two-week military train-

ing period. “The collective bargaining agreement limited

eligibility for holiday pay to individuals who worked

during that week, but exempted from that requirement

persons in a number of categories who were absent for

reasons beyond their control.” Jd. at 821. The agreement

provided that full-time employees would receive pay for

designated holidays if, during the payroll week in which

the holiday occurs, the employee is at work; on a scheduled

vacation; on a layoff under specified conditions; perform-

ing jury service; a witness in a court of law; qualified for

bereavement pay; or absent because of personal illness

and certain sick leave conditions apply. Id. at 822. Reading

VRRA § 2021(b)(3) in light of the Supreme Court’s decision

in Monroe, the Court of Appeals concluded that “[t]he

thrust of [that provision], according to the [Supreme]

Court, was to prevent discrimination against reservists

but not to grant them preferential treatment.” Jd. at 823.

The court noted the similarities between the characteris-

tics of absence from work required by the military obliga-

tion at issue and the absences of the exempted categories,

viz., the absences were not generally of extended duration;

and they were for reasons beyond the control of the absent

employee. Id. at 825. Therefore, the court concluded,

“relieving [National Guard members] on military leave

from the work requirement merely establishes equality for

National Guardsmen and reservists, not preferential

treatment.” Jd. at 825. Thus, the court concluded, the

plaintiff Guardsman had established his right to holiday

pay under § 2021(b)(3). Significantly, however, the court

App. 17

indicated that a scheduled vacation, which also was

exempted from the work requirement, was not comparable

to military leave. The court observed: “We realize a

planned vacation is different from the other exceptions on

the list. Vacation is earned time away from work, and this

exception merely recognizes that an employee should not

be prejudiced, in the form of lost holiday pay, for taking an

earned vacation.” Jd. at 825 n. 3.

The Senate report on the bill that became § 4316(b)(1)

stated that it “would codify court decisions that have

interpreted current law. as providing a_statutorily-

mandated leave of absence for military service that enti-

tles service members to participate in benefits that are

accorded other employees. See Waltermyer, 804 F.2d 821;

Winders v. People Express Airlines, Inc., 595 F.Supp. 1512,

1519 (D.N.J.1984), affirmed, 770 F.2d 1078 (3d Cir.1985).”

S. Rep. 103-158 (October 18, 1993). The Report explained

that:

[A]n individual who serves in the uniformed ser-

vices will be considered to be on furlough or leave

of absence while in the service [and] will be enti-

tled to the same rights and benefits not deter-

mined by seniority that are generally provided to

the employer’s other employees with similar sen-

iority, status, and pay who are on furlough or

leave of absence[,] under a practice, policy,

agreement, or plan in force at the beginning of

the period of uniformed service or which becomes

effective during the period of service. Id.

The House Report declared that the bill had the same

purpose and effect. The bill was described as providing for

“(rlights, benefits, and obligations of persons absent from

o alii sia)

App. 18

employment for service in a uniformed service.” H.R. Rep.

103-65(I) (April 28, 1993). The House Report elaborated:

The Committee intends to affirm the decision in

Waltermyer v. Aluminum Co. of America, 804

F.2d 821 (3d Cir.1986) that, to the extent the em-

ployer policy or practice varies among various

types of non-military leaves of absence, the most

favorable treatment accorded any particular

leave would also be accorded the military leave,

regardless of whether the non-military leave is

paid or unpaid. Thus, for example, an employer

cannot require service members to reschedule

their work week because of a conflict with re-

serve or National Guard duty, unless all other

employees who miss work are required to re-

schedule their work. Cf. Rumsey v. New York

State Dept. of Corr. Services, 124 L.R.R.M. 2914,

1987 WL 11617 (N.D.N.Y.1987). However, ser-

vicemembers are not entitled to receive benefits

beyond what they would have received had they

remained continuously employed.

Id. See also 1389 CONG. REC. S 14865-03m, 1993 WL

444411 (Nov. 2, 1993); A NON-TECHNICAL RESOURCE

GUIDE TO THE UNIFORMED SERVICES EMPLOY-

MENT AND REEMPLOYMENT RIGHTS ACT (USERRA),

U.S. DEPT. OF LABOR VETERANS EMPLOYMENT

AND TRAINING SERVICE, 9 (March 2003).”

* That guide provides, in pertinent part, as follows:

Rights not based on seniority Section 4316(b)[:] Departing

service members must be treated as if they are on a leave of

absence. Consequently, while they are away they must be

entitled to participate in any rights and benefits not based

on seniority that are available to employees on nonmilitary

leaves of absence, whether paid or unpaid. If there is a

(Continued on following page)

App. 19

Although the legislative history of the bill that became

§ 4316(b)(1) does not mention Monroe, Congress necessar-

ily intended for that section to codify Monroe's interpreta-

tion of § 2021(b)(3) with respect to the effects upon the

non-seniority rights of uniformed service members by their

absences from civilian employment by reason of their

military obligations. The reports of both the Senate and

the House expressed an intention to codify Waltermyer in

this respect. See H.R. Rep. 103-65(I) (April 28, 1993), S.

Rep. 103-158 (Oct. 18, 1993). Thus, they necessarily

indicated an intent to codify Monroe’s “equal, but not

preferential” interpretation of VRRA § 2021(b)(3) which

was adopted and followed by Waltermyer. Although Wal-

termyer applied the Monroe interpretation to enforce the

employee’s right to equal treatment, rather than the

employer’s right not to grant preferential treatment,

Waltermyer could not be codified without including the

Monroe interpretation that it adopted.

Conversely, USERRA’s legislative history does not

indicate that Congress intended to rely on § 4311(a)’s

general discrimination ban to assure that reservist-

employees on military leave receive benefits equal to those

that other employees receive while taking comparable non-

military leave. While new § 4316(b)(1)’s legislative history

clearly reflects the intent to specifically guarantee reserv-

ists equality of on-leave benefits, the history of § 4311(a)

variation among different types of nonmilitary leaves of ab-

sence, the service member is entitled to the most favorable

treatment so long as the nonmilitary leave is comparable.

For example, a three-day bereavement leave is not compa-

rable to a two-year period of active duty.

Id. Available at: http:/Awww.dol.gov/vets/whatsnew/uguide. pdf.

App. 20

shows an intent to continue and strengthen the anti-

discrimination provision but not the specific goal of guar-

anteeing parity of benefits.

Further, the 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. The House

report, in most relevant part, states that:

Current law protects Reserve and National

Guard personnel from termination from their ci-

vilian employment or other forms of discrimina-

tion based on their military obligations. Section

4311(a) would reenact the current prohibition

against discrimination which includes discrimi-

nation against applicants for employment, (see

Beattie v. The Trump Shuttle, Inc., 758 F.Supp.

30 (D.D.C.1991)), current employees who are ac-

tive or inactive members of Reserve or National

Guard units, current employees who seek to join

Reserve or National Guard units (see Boyle uv.

Burke, 925 F.2d 497 (1st Cir.1991)), or employees

who have a military obligation in the future such

as a person who enlists in the Delayed Entry

Program which does not require leaving the job

for several months. See Trulson v. Trane Co., 738

F.2d 770, 775 (7th Cir.1984).

H.R. Rep. 103-65(I) (April 28, 1993). The Senate report

likewise does not indicate that Congress intended to

prohibit such neutral labor contract provisions. The report,

in most pertinent part, provides:

New section 4311(a) would specify the relation-

ship to service that would bring individuals

within the VRR law and also specifies the actions

App. 21

of employers that would constitute violations of

that law. Specifically, as to individuals, the sec-

tion would provide that individuals who are

members of, perform, have performed, apply to

perform, or have an obligation to perform service

in the uniformed services would be covered by

the law. The section would provide that such in-

dividuals may not be denied initial employment,

reemployment, retention, promotion, or any

benefit of employment by an employer on the ba-

sis of the relationship to service.

S. Rep. 103-158 (October 18, 1993).

The legislative history of §§ 4311(a) and 4316(b)(1)

does not mention West, 609 F.2d 147. On the other hand,

that legislative history expresses an intent to codify in

§ 4316(b)(1) the Monroe-Waltermyer line of cases with

respect to non-seniority rights and benefits to which

persons absent from civilian employment by reason of

service in the uniformed services are entitled. West is

inconsistent with and was expressly disapproved by

Monroe and Waltermyer.” Therefore, we must conclude

that USERRA’s codification of Monroe and Waltermyer

legislatively overruled West.

C. Section 4316(b)(1) Governs This Case

Section 4316(b)(1) of USERRA provides that an

employee who is absent from employment for military

service is deemed to be on leave of absence and “entitled to

% Monroe, 452 U.S. at 551 n. 1, 101 S.Ct. 2510 (recognizing that

the Sixth Circuit’s opinion in Monroe conflicted with West and affirming

the Sixth Circuit), Waltermyer, 804 F.2d at 821 (noting that West was

“substantially weakened” by Monroe).

App. 22

such rights and benefits not determined by seniority ...

generally provided by the employer to employees having

similar seniority, status, and pay who are on furlough or

leave of absence under a contract, agreement, policy,

practice or plan.... ” Reading § 4316(b)(1) together with

§ 4311(a) and other USSERA provisions, the legislative

history, preceding statutes, and pertinent jurisprudence,

we conclude that Congress intended by § 4316(b)(1) to

clarify and codify the interpretation of VRRA § 2021(b)(3)

by the Supreme Court in Monroe and the Third Circuit in

Waltermyer, requiring employers, with respect to rights

and benefits not determined by seniority, to treat employ-

ees taking military leave, equally, but not preferentially, in

relation to peer employees taking comparable non-military

leaves generally provided under the employer’s contract,

policy, practice or plan. Although, the “equal, but not

preferential” requirement arose out of the Courts’ inter-

pretation of VRRA § 2021(b)(3)’s prohibition against denial

of employment rights because of military obligations,

which has been enhanced and continued by USERRA

§ 4311(a), Congress decided to adopt new § 4316(b)(1) to

provide more specifically and affirmatively for the accrual

of non-seniority rights and benefits by employees while on

military duty, rather than continue to rely on the general

prohibition against service-related denials of benefits for

that purpose. Congress sought by § 4316(b)(1) to guaran-

tee a measure of equality of treatment with respect to

military and non-military leaves and to strike an appro-

priate balance between benefits to employee-service

persons and costs to employers. USERRA does not author-

ize the courts to add to or detract from that guarantee or

to restrike that balance.

App. 23

For these reasons, we conclude that the district court

erred in deciding that § 4311(a), rather than § 4316(b)(1),

must be applied in this case. Because the district court

gave several reasons for its interpretation, we will set

them forth before commenting on each.

The district court decided that “[slection 4316 is

inapplicable to this case [, because] it only applies to a

person who is reemployed under this chapter or who is

absent on furlough or leave of absence.”” The district court

stated that § 4316 “is specifically tailored to apply to a

reservist or veteran returning to employment from active

duty rather than reservists ... who have been away for

relatively short periods [for] drilling and training [.]””

Furthermore, the court stated, “the anti-discrimination

provisions (now §4311(a-c), formerly, § 2021(b)(3)) were

specifically added ‘to protect the rights of reservists which

had been found to be inadequately protected’ under the

provision cited by the City (§ 4316, formerly VRRA

§ 2024(d)).”” Concluding that this case should be analyzed

and decided under USERRAs §4311(a) anti-

discrimination provision, the district court identified West,

609 F2d 147, decided under VRRA § 2021(b)(3), as our

Circuit precedent that must be applied in deciding claims

under the USERRA for non-seniority benefits by employ-

ees returning from service in the uniformed services.” The

district court read West to hold that VRRA § 2021(b)(3)

“requires that employers, in applying collective bargaining

911 FSupp.2d. at 838 (footnotes and internal quotations

omitted).

*" Id.

* Id. (quoting Carney, 602 F.2d 763).

7° Id. at 839 n. 63, 841 n. 82, 842, 844 n. 106.

App. 24

agreements which grant a benefit of employment based on

‘presence’ rather than on ‘hours actually worked,’ should

treat reservists as if they were ‘constructively present’

during their reserve duty.””

We believe that the district court was mistaken in

each of its reasons for deciding that § 4311(a) must be

applied in this case and, consequently, also mistaken in

using the West “constructive presence” theory to decide the

firefighters’ claims. We will discus the erroneous points of

the district court’s decision in the order set forth in its

opinion.

First, § 4316(b)(1) is fully applicable to reservists’

short absences from civilian employment for weekend

drills or two-week annual training. In USERRA, the term

“service in the uniformed services” means “the perform-

ance of duty on a voluntary or involuntary basis in a

uniformed service under competent authority.” 38 U.S.C.

§ 4303(13). It includes “active duty, active duty for train-

ing, initial active duty for training, inactive duty training,

full-time National Guard duty,” medical examinations to

determine fitness for duty, and performance of funeral

honors duty. Id. The term “uniformed services” means “the

Armed Forces, the Army National Guard and the Air

National Guard when engaged in active duty for training,

inactive duty training, or full-time National Guard duty[.]”

38 U.S.C. § 4303(16). Thus, both of these terms apply to

members of the uniformed services who participate in

inactive duty training for weekend drills and two-week

annual training. Consequently, § 4316(b)(1), which applies

to “a person who is absent from a position of employment

*° Id. at 842.

App. 25

by reason of service in the uniformed services” is fully

applicable to reservists during their weekend and two-

week military duty sessions.”

Second, “reemployment” is not formally defined in

§ 4303, but §§ 4312-4313, providing for USERRA reem-

ployment rights and positions, plainly apply to “any

person whose absence from a position of employment is

necessitated by reason of service in the uniformed ser-

vices.” 38 U.S.C. § 4312. As noted in the previous para-

graph, the terms “service in the uniformed services” and

“uniformed services” apply to “inactive duty training,”

which refers to reservists and their two week and weekend

training periods. Further, USERRA makes specific provi-

sions for the reemployment of a person whose period of

service in the uniformed services was less than 31 days. 38

U.S.C. § 4312(e)(1)(A); 4313(a)(1). Thus, a reservist who

returns to his or her job after weekend drill is “reem-

ployed” just as much as one who is reinstated after a

period of service of two years.”

Third, the district court mistakenly thought that VRRA

§ 2024(d) was the precursor of USERRA § 4316(b)(1). How-

ever, USERRA § 4316(b)(1) had no true predecessor and

deals with a different subject (non-seniority rights of

*! See Gordon v. Wawa Inc., 388 F.3d 78, 81 (3d Cir.2004) (constru-

ing “service in the uniformed services” as applicable to a reservist’s

“weekend Reserve duties” with respect to his duty under USERRA

§ 4312(e) to report to his employer upon completion of his period of

service).

* See Proposed Regulation, summary, 69 F.R. No. 181 at 56270

(explaining that employees are “reemployed” when they return to work

after a weekend or two years) and 56274 (explaining that USERRA

considers employees to be “reemployed” whether they are gone for more

or less than 31 days).

App. 26

persons absent for military service) from VRRA § 2024(d'

(reemployment rights). VRAA § 4301(b)(1) was somewhat

similar to USERRA § 4316(b)(1) but not a true precurser.

See S. Rep. 103-158 (1993). VRAA § 2021(b)(3) was added

to protect against discrimination (such as punitive dis-

charges, demotions, et al.) not protected against by VRAA

§ 2024(d). See legislative history of USERRA, supra. Thus,

VRRA § 2021(b)(3) was not added to cure a deficiency in a

prior provision similar to USERRA § 4316(b)(1).

Finally, as we have noted, West and its “constructively

present” theory of interpretation was disapproved by the

Supreme Court in Monroe and legislatively overruled in

the codification of Monroe and Waltermyer by USERRA

§ 4316(b)(1).

Applying § 4316(b)(1) to the summary judgment

record in this case, we conclude that the district court’s

judgment must be reversed and summary judgment

granted for the City on the following claims: (1) lost

straight-time pay; (2) lost overtime opportunities; and (3)

missed upgrading opportunities. From our review of the

record we have determined that there is no type of non-

military leave available to any employee under which an

employee can accrue or receive the foregoing kinds of

benefits. Hence, insofar as the record shows, there is no

type of leave under which these benefits may accrue that

is comparable to any military leave.

We further conclude that the district court’s summary

judgment with respect to: (1) bonus day leave; (2) perfect

attendance leave; and (3) the twenty-seven hour cap on

lost overtime must be reversed and the case remanded for

App. 27

further proceedings on these claims. There are genuinely

disputable issues as to the material facts of whether

involuntary non-military leaves, not generally for ex-

tended durations, for jury duty, bereavement, and line of

duty injury leave (provided that the employee returns to

work in the following shift), under which employees may

accrue or receive bonus day leave and perfect attendance

leave benefits, are comparable to each plaintiff’s military

leaves taken for service in the uniformed services. For the

same reason, there is a disputable issue as to whether sick

leave, under which employees receive the benefit of the

twenty-seven hour cap for the first shift of sick leave they

use, is comparable to military leave. Thus, we reverse and

remand on this claim also.

We also conclude that the summary judgment in favor

of Anthony Rogers must be reversed because the record

does not contain adequate evidence to support the judg-

ment. The City must be granted summary judgment on

this claim.

We must determine the period of time, pre-filing,

during which damages accrued so as to be recoverable

under USERRA. The district court referred the issues

regarding the statute of limitations, laches, and equitable

estoppel to a magistrate judge and the parties consented

to the magistrate judge’s jurisdiction pursuant to 28

U.S.C. § 636(c) for that purpose. The parties filed cross-

motions for partial summary judgment. The magistrate

judge held that the four-year statute of limitations in 28

U.S.C. § 1658 applies to plaintiffs’ causes of action and

that plaintiffs’ claims are not barred by the equitable

App. 28

defenses of laches or estoppel.” The district court certified

this issue for appeal under 28 U.S.C. § 1292(b), and the

City appeals the district court’s holding.

Section 4323 of USERRA does not provide a time limit

for bringing a claim for relief, stating only that “[n]o State

statute of limitations shall apply to any proceeding under

this chapter.” 38 U.S.C. § 4323(I). The City argues that

this court should borrow the two-year statute of limita-

tions contained in the Fair Labor Standards Act (“FLSA”).

29 U.S.C. § 255(a). However, the City’s argument that

plaintiffs’ claims are “strongly analogous” to FLSA claims

is without merit. The City cites no case authority under

USERRA or any previous statute governing veterans’

employment and reemployment rights in which a court

borrowed the FLSA statute of limitations. Furthermore,

the purposes of the two acts are not similar. Congress

passed the FLSA, pertaining to minimum wages and

working conditions, for the purpose of improving nation-

wide labor conditions,“ and USERRA for the purpose of

encouraging military service by protecting uniformed

service members’ rights and benefits.” Plaintiffs’ claims

involve neither the violation of FLSA standards nor any

similar standard. For these reasons, we reject the City’s

argument that we should borrow the two-year federal

statute of limitations from the FLSA.

Plaintiffs presented arguments in both this court and

the district court that 28 U.S.C. § 1658, the four-year

* 172 L.R.R.M. (BNA) 2240, 2003 WL 1566502 (W.D.Tex. March 4,

2003).

“* 29 U.S.C. § 202.

* 38 U.S.C. § 4301.

App. 29

uniform and general statute of limitations for federal

causes of action not governed by an explicit statute of

limitations, should apply. Alternatively, they now argue for

the first time on appeal that no statute of limitations

applies to USERRA claims and that their claims are not

barred by either laches or estoppel.”

Because plaintiffs took the position before the magis-

trate judge that the four-year residual statute of limita-

tions of § 1658 applied to their claims, and the court

rendered judgment to that effect, plaintiffs have waived

any claim to relief beyond four years prior to the date on

which their complaint was filed.” Plaintiffs have thus

limited their claim to relief and this court will not consider

their argument that no statute of limitations applies.

The City also argues that regardless of the applicable

limitations period for plaintiffs’ claims, those claims are

barred by the equitable doctrines of laches and estoppel.

The district court determined that the plaintiffs’ damages

claims are not affected by those equitable affirmative

defenses.

In order to invoke the doctrine of-laches, the City

must show an inexcusable delay in asserting a right and

undue prejudice to the City as a result of that delay.” To

* See, however, Proposed Regulations, summary, 69 F.R. No. 181 at

56281 (“The Department [of Labor] has long taken the position that no

Federal statute of limitations applied to actions under USERRA.”).

* Vela v. City of Houston, 276 F.3d 659, 678 (5th Cir.2001).

* Westchester Media v. PRL USA Holdings, Inc., 214 F.3d 658, 668

(5th Cir.2000); Miller v. City of Indianapolis, 281 F.3d 648, 654 (7th

Cir.2002) (applying laches to USERRA claims); Wallace v. Hardee’s of

Oxford, Inc., 874 F.Supp. 374, 377 (M.D.Ala.1995) (invoking that same

standard in the context of a USERRA claims).

App. 30

invoke the doctrine of equitable estoppel, the City must

show that it relied on a representation by plaintiffs,

changed its position based on that reliance, and that it

was prejudiced because of that change in position.” Essen-

tial to both of those claims is a showing by the City that it

was prejudiced by plaintiffs’ failure to bring their claims

earlier. Because the district court properly found that the

City did not introduce any summary judgment evidence

either that any “delay” in plaintiffs asserting their claims

was inexcusable or that the City was prejudiced by such

delay, plaintiffs’ claims are not barred by the equitable

doctrines of laches or estoppel.

The City’s only allegations of prejudice are that at

least one of the named plaintiffs no longer works for the

City, that potential witnesses may be retired or unavail-

able, and that the City had already fulfilled its monetary

liability to Plaintiffs by paying them under the CBA. Not

only has the City presented no summary judgment evi-

dence of such prejudice, but similar allegations of preju-

dice have been held to be insufficient in the USERRA

framework.”

*° Lauderdale County Sch. Dist., Knight, v. Enterprise Consol.

School Dist., 24 F.3d 671, 691 (5th Cir.1994).

* See Wallace, 874 F.Supp. at 377 (employer not unduly prejudiced

by the cost of defending VRRA suit now instead of earlier and by

continuing to conduct its normal business operation); Novak v. Mackin-

tosh, 937 F.Supp. 873, 880 (D.S.D.1996) (no prejudice in VRRA claim

when there was no evidence that the employer changed its position in

any way that would have occurred if there had not been delay). The

City’s allegation that it will be prejudiced by having to pay additional

compensation to Plaintiffs above the amount bargained for in the CBA

between the parties is similarly not a sufficient allegation of prejudice,

as Plaintiffs’ right to recover in this case is governed by statute rather

than the CBA. Carney, 602 F.2d at 763.

ES 7

App. 31

Considering that the plaintiffs limited their claims for

damages to the four-year period before the filing of their

suits in the district court and that the City has not shown

that it was prejudiced because of an inexcusable delay on

plaintiffs’ part, we affirm the district court’s ruling that

plaintiffs’ claims for damages, if any, were not barred but

are limited to recovery of damages commencing on October

4, 1995, four years preceding the filing of their claim.

Conclusion

The district court’s judgment on the statute of limita-

tions, laches, and equitable estoppel claims is AFFIRMED.

Otherwise, the district court’s judgment is REVERSED.

Judgment is rendered for the City dismissing plaintiffs’

claims for (1) lost straight-time pay; (2) lost overtime

opportunities; and (3) missed upgrading opportunities.

Judgment is also rendered for the City dismissing Anthony

Rogers’ individual claim. The case is REMANDED for

further proceedings on the plaintiffs’ claims for (1) bonus

day leave; (2) perfect attendance leave; and (3) the twenty-

seven hour cap on lost overtime.

App. 32

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

ANTHONY ROGERS,

RICHARD MORALES, CIVIL ACTION NO.

VENTURA CALDERON, JR, § ga 99.04.1110 0G

ROBERT J. DELEON,

ROLANDO CESAR GARZA,

ROBERT A. GEARHART,

ISIDRO MEDINA, JR.,

TIMOTHY L. MENCHACA,

EMILIO M. MONTES,

BRUCE R. MOORE,

NATHANIEL OAKMAN,

MARK JAMES OLSON,

ANTONIO RIVAS,

JEFFREY J. ZAVALA, and

GEORGE W. RANDALL,

Plaintiffs,

Vv.

CITY OF SAN ANTONIO,

TEXAS,

Defendant.

OP QO? OP OPO? OD OR OO? OP? CO CO) CO? CO? CO? CO? CO? 6? OD HO? ?

MEMORANDUM OF DECISION AND ORDER

A. Introduction

This is an action for declaratory, equitable, and

injunctive relief brought by fifteen military reservists who

are currently (or retired from)’ working for the City of San

* There is only one plaintiff, George W. Randall, who retired from

the Fire Department on November 30, 2000. He was first employed by

(Continued on following page)

App. 33

Antonio Fire Department.’ They are assigned either to the

Department’s Firefighting division or to the Department’s

Emergency Medical Services (EMS) division.’ They serve

the country in a variety of branches of the United States

military reserves and National Guard.* Through the filing

of this lawsuit, plaintiffs challenge a number of the poli-

cies and practices of the City’s Fire Department as being

discriminatory under the provisions of the Uniform Ser-

vices Employment and Reemployment Rights Act of 1994

(“USERRA”), 38 U.S.C. § 4301 et seg. (2000). The chal-

lenged employment practices at issue concern, for in-

stance, how military leave is excluded from the “twenty-

seven” hour cap imposed on lost overtime, “bonus day”

leave, “perfect attendance” leave, unscheduled overtime

compensation and upgrading opportunities. In sum,

plaintiffs argue the City, in implementing these employ-

ment practices, unlawfully discriminate against them by

deeming them “absent” from work whenever they are on

leave fulfilling their military reserve duties, as opposed to

viewing them as “constructively present at work.” Plain-

tiffs contend that the City’s practices have resulted in

disparate treatment discrimination on the basis of their

military reserve status. Plaintiffs maintain they are not

seeking preferential treatment, but rather, equal treat-

ment with respect to the same employment benefits

available to non-reservist employees.

the Department on February 16, 1967 and continued his employment

with the Department until his retirement. Plaintiffs’ “Statement of

Undisputed Facts,” { 13, attached as an Appendix to Plaintiffs’ cross

motion for partial summary judgment, Docket Entry 56.

* Docket Entry 49.

* Docket Entry 56, at 2.

* Id.

App. 34

This Order addresses the cross-motions for partial sum-

mary judgment on the question of liability under

USERRA.” Earlier in the case, the parties agreed to

bifurcate this legal issue from the damages question.

According to the parties’ amended joint-stipulated facts,’

the material factual record of this case is largely undis-

puted.’

Having considered the legal arguments presented by

both parties, the summary judgment record and the

applicable law, the court finds that plaintiffs’ motion for

partial summary judgment (Docket Entry 56) is well-taken

and should be GRANTED, with the exception of plaintiffs’

claim for “loss of straight-time for hours worked,” which

would be dealt with during the damages phase of the case.

Plaintiffs have met their burden of establishing that their

military service was “a motivating factor” in the applica-

tion of the City’s practices and policies concerning over-

time compensation and upgrading procedures, among

others. In other words, the City’s policies and procedures

would not have “isparately impacted the plaintiffs but for

their military reserve status. While the City has argued

that it has not intentionally or purposefully singled out

those employees who have military reserve duty such as

the plaintiffs, the enactment and application of its policies

and procedures concerning the employment benefits at

* Docket Entries 56 & 60.

* Docket Entry 61.

"In saying this, however, the court acknowledges the City’s

objections to the plaintiffs’ “Statement of Undisputed Facts,” provided

as an Appendix to plaintiffs’ cross-motion for summary judgment.

Docket Entry 62, at 1-3. The City has also objected to some of plaintiffs’

summary judgment exhibits. Id. at 3-6. These objections will be

addressed later in this Order.

App. 35

issue in this case, does violate the rights afforded to these

individuals under USERRA. Further, the City has failed to

meet its burden to show that it would have taken the same

actions, irrespective of the plaintiffs’ military obligations.

Consequently, and as set forth more fully below, the City’s

cross-motion for partial summary judgment (Docket Entry

60) will be DENIED.

B. Jurisdiction

This court has jurisdiction over this action pursuant

to 38 U.S.C. § 4323 and 28 U.S.C. § 1331.

C. Issues Presented

1. Whether plaintiffs have established the City’s actions

are motivated by the plaintiffs’ “membership” or obli-

gation for service in the uniformed services?

2. Whether the City has affirmatively established that

its actions “would have been taken” in the absence of

such “membership” or obligation for service?

D. Summary Judgment Standard

The issue of liability under USERRA has been pre-

sented to the court through cross-motions for partial

summary judgment.’ A party is entitled to summary

judgment upon motion if the pleadings, depositions,

answers to interrogatories, and admissions on file, to-

gether with affidavits, show that there is no genuine issue

as to any material fact and that the moving party is

* Docket Entries 56 & 60.

Ea ed ied y SONA AAs od AS MTOR aa :

App. 36

entitled to a judgment as a matter of law.” Mere allega-

tions of a factual dispute between the parties will not

defeat an otherwise proper motion for summary judgment;

the requirement is that there be no genuine issue of

material fact.” A fact is material if it might affect the

outcome of the lawsuit under the governing law.” A dis-

pute about a material fact is genuine if the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party.” Therefore, summary judgment is

proper if, under governing laws, there is only one reason-

able conclusion as to the verdict; if reasonable finders of

fact could resolve a factual issue in favor of either party,

summary judgment should not be granted.”

A party seeking summary judgment bears the initial

responsibility of informing the court of the basis for its

motion and identifying those portions of the record which

it believes demonstrate the absence of a genuine issue of

° Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322,

106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Banc One Capital Partners

Corp. v. Kneipper, 67 F.3d 1187, 1198 (5th Cir.1995); Neff v. Ameri-

can Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir.1995), cert.

denied, 516 U.S. 1045, 116 S.Ct. 704, 133 L.Ed.2d 660 (1996).

*° Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct.

2505, 91 L.Ed.2d 202 (1986).

" Id. at 248, 106 S.Ct. 2505. See also Thomas v. LTV Corp., 39

F.3d 611, 616 (5th Cir.1994).

” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct.

2505; Wise v. E.I. DuPont De Nemours & Co., 58 F.3d 193, 195 (5th

Cir.1995); MacMillan v. United States, 46 F.3d 377, 380-81 (5th

Cir.1995).

** Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct.

2505; Kunin v. Feofanov, 69 F.3d 59, 61 (5th Cir.1995); and Banc One

Capital Partners Corp., 67 F.3d at 1198.

App. 37

material fact. To satisfy this burden, the movant must

either submit evidentiary documents that negate the

existence of some material element of the nonmoving

party's claim or defense, or if the crucial issue is one for

which the nonmoving party will bear the burden of proof

at trial, merely point out that the evidentiary documents

in the record contain insufficient proof concerning an

essential element of the nonmoving party’ claim or

defense.” Regardless of whether the moving party accom-

panies its summary judgment motion with affidavits or

other evidentiary materials, the motion must be granted if

the evidence before the court demonstrates that the

standard for entry of summary judgment, as set forth in

Rule 56(c), is satisfied.”

Once the moving party kas carried that burden, the

burden shifts to the nonmoving party to show that sum-

mary judgment is not appropriate.” The nonmoving party

cannot discharge this burden by referring to the mere

allegations or denials of the nonmoving party’s pleadings.

Rather, the nonmoving party’ response must, either by

submitting opposing evidentiary documents or by referring

* Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. 2548; Wise,

58 F.3d at 195; Burfield v. Brown, Moore, & Flint, Inc., 51 F.3d 583,

588 (5th Cir.1995).

* Edwards v. Aguillard, 482 U.S. 578, 595 n. 16, 107 S.Ct. 2573,

96 L.Ed.2d 510 (1987); and Celotex Corp. v. Catrett, 477 U.S. at 325,

106 S.Ct. 2548.

6 Id.

” Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th

Cir.1991).

* Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. at

250, 106 S.Ct. 2505; State of Texas v. Thompson, 70 F.3d 390, 393

(5th Cir.1995).

App. 38

to evidentiary documents already in the record, set out

specific facts showing the existence of a genuine issue for

trial.” When both parties move for summary judgment, as

in this case, each party must carry its own burden as the

movant for its motion and as the non-movant in response

to the other party’s motion.” All justifiable inferences must

still be drawn in favor of the losing party.”

1. The City’s Objections to Plaintiffs’ Summary

Judgment Evidence

The City has filed objections to certain exhibits

attached to plaintiffs’ cross-motion for summary judg-

ment.” Specifically, the City objects to portions of para-

graphs 55 and 62, and to the entirety of paragraphs 82-90

of plaintiffs’ “Statement of Undisputed Facts,” as being

contradictory to the Joint Stipulated Facts and/or based on

subjective beliefs rather than the objective summary

judgment record. The City also raises objections to the

affidavits of plaintiff Anthony Rogers and Richard Ozuna

and to the “wholesale inclusion” of various depositions.

Plaintiffs have filed a response to each one of the City’s

objections.”

* Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548;

Fields, 922 F.2d at 1187; Neff v. American Dairy Queen Corp., 58

F.3d at 1065; Engstrom v. First Nat’l Bank, 47 F.3d 1459, 1462 (5th

Cir.1995), cert. denied, 516 U.S. 818, 116 S.Ct. 75, 133 L.Ed.2d 35

(1995).

* See Blackie v. Maine, 75 F.3d 716, 721 (1st Cir.1996).

** See Murphy Expl. & Prod. Co. v. Oryx Energy Co., 101 F.3d

670, 673 (Fed.Cir.1996).

” Docket Entry 62.

*° Docket Entry 65.

App. 39

As a preliminary matter, the court notes it has not

relied on any of the objected evidence in entering this

Order. The court has only relied on the factual record

undisputed by the parties.* The court, nevertheless,

denies the City’s objections in their entirety because they

are based on the weight of the evidence and not on its

admissibility.” Particularly, the court did not find it

necessary to evaluate the individual merits of plaintiff

Rogers’ claim that he was purportedly denied upgrading

and/or training opportunities because of his military

reserve duties. That evidence is relevant to the damages

question, but not to the legal issue of liability under

USERRA.” Regarding the “wholesale” inclusion of various

depositions, that objection is denied as plaintiffs have

specifically identified the portions of the deposition testi-

mony they rely on in support of their cross-motion for

summary judgment.” For these reasons, and based on the

arguments articulated by plaintiffs as to each of the

objections raised by the City, the City’s objections to

certain exhibits attached to plaintiffs’ summary judgment

motion are DENIED.

E. Analysis

From the outset, it should be noted that the parties

fundamentally disagree with respect to the proper burden

of proof applicable to discrimination cases under USERRA.

Plaintiffs advocate that the proper burden of proof is the

* Docket Entry 56, Plaintiffs’ Appendix and docket entry 61.

** Docket Entry 62, at Section A, {\j 4-5 and Section B, { 1.

*° See discussion, at 845-46, infra.

” Docket Entry 65, at J D.

App. 40

“but for” test as opposed to the burden-shifting analysis

used in traditional Title VII cases, and the one relied upon

by the City.” The parties also disagree with respect to

which USERRA provision governs the challenged employ-

ment practices at issue in this case. While plaintiffs rely

on the broad provision of the statute prohibiting discrimi-

nation in employment rights, pay and benefits, 38 U.S.C.

§ 4311(a-c), the City maintains the controlling provision is

§ 4316 because the benefits at issue are seniority-based.”

The correct position on these critical issues sets the stage

for who will prevail in this case. The court finds that

plaintiffs’ position on both issues is correct.

1. Claims under USERRA

In 1994, Congress enacted USERRA which prohibits

employment discrimination on the basis of military service

and provides a private right of action for enforcement of

rights under the Act.” Section 4301 describes the goals of

USERRA as follows:

(1) to encourage noncareer service in the uniformed

services by eliminating or minimizing the disadvan-

tages to civilian careers and employment which can

result from such service;

(2) to minimize the disruption to the lives of persons

performing service in the uniformed services as well

as to their employers, their fellow employees, and

* Docket Entry 56, at 5-6, Docket Entry 60, at 2, and Docket Entry

64, at 2-5.

* Docket Entry 56, at 8-9, Docket Entry 60, at 6-7 and Docket

Entry 64, at 5-6.

*° 38 U.S.C. § 4323. USERRA replaced the Veterans’ Reemployment

Rights Act (“VRRA”) on October 13, 1994.

App. 41

their communities, by providing for the prompt reem-

ployment of such persons upon their completion of

such service; and

(3) to prohibit discrimination against persons be-

cause of their service in the uniformed services.”

As reflected in § 4301, USERRA prohibits discrimination

against military personnel on the basis of their military

service and attempts to minimize the disadvantages to

their civilian careers as a result of such service.”

According to Section 4311(b) of the Act “[a]n employer

may not discriminate in employment against or take any

adverse employment action against any person because

such person ... has exercised a right provided for in this

chapter.”” In that regard, section 4311(a) provides that:

“[a] person who is a member of [. . .] a uniformed service

shall not be denied initial employment, reemployment,

retention in employment, promotion, or any benefit of

employment by an employer on the basis of that member-

ship, application for membership, performance of service,

application for service, or obligation.”” The term “benefit

of employment” is broadly defined.” It includes “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 [...] bonuses, severance pay, supplemental

* 38 U.S.C. § 4301.

2 See Curby v. Archon, 216 F.3d 549, 556 (6th Cir.2000).

* 38 U.S.C. § 4311(b).

* § 431(a) (Emphasis added).

5 See Yates v. Merit Systems Protection Board, 145 F.3d 1480,

1483 (Fed.Cir.1998).

App. 42

unemployment benefits, vacations, and the opportunity to

select work hours or location of employment.”

Significantly, Section 4311(c)(1) of the Act sets forth

the parties’ respective burdens of proof:

An employer shall be considered to have engaged

in actions prohibited under subsection (a) [of

USERRA], if the person’s membership, applica-

tion for membership, service, application for ser-

vice, or obligation to serve in the uniformed

services is a motivating factor in the employer’s

action, unless the employer can prove that the ac-

tion would have been taken in the absence of such

membership, application for membership, service,

application for service, or obligation for service.”

Contrary to the City’s position in this case, the deci-

sion rendered last year by the Federal Circuit Court in

Sheehan v. Department of the Navy,” expressly stated

that “(t]he procedural framework and evidentiary burdens

set out in § 4311... are different from those in discrimina-

tion cases under Title VII... .”” Instead, the proper test

for determining whether the Act has been violated is the

so-called “but for” test, in which the employee is required

to make an initial showing that his military service is at

least “‘a motivating or substantial factor in the employer’s

action, upon which the employer must then prove, by a

preponderance of the evidence, that the action would have

been taken despite the protected status.”“° The term

* § 4303(2).

*" § 4311(c)(1) (Emphasis added).

* 240 F.3d 1009 (Fed.Cir.2001).

*° Id. at 1014 (Emphasis added).

“ Id. See also 38 U.S.C. § 4311(c) (Emphasis added).

App. 43

“‘motivating factor’ means that if the employer was asked

at the moment of the decision what its reasons were and if

it gave a truthful response, one of those reasons would be

the employee’s military position or related obligations.”

In other words, a plaintiff’s military position and related

obligations would be a motivating factor if the employer

“relied upon, took into account, considered, or comditioned

its decision on [the employee’s] military-related absence.””

In order to avail itself of the affirmative defense

available under the Act, the employer must do more than

“merely showing that at the time of the decision it was

motivated only in part by a legitimate reason.” Rather,

the employer must show, by a preponderance of the evi-

dence, “that its legitimate reason, standing alone, would

have induced it to make the same decision.™ In that

regard, the court in Sheehan explains, that “[t]his applies

to both so-called ‘dual [or mixed] motive’ cases (in which

the employer defends on the ground, that, even if an

invalid reason played a part in the adverse action, the

same action would have been taken in the absence of the

invalid reason) and so-called ‘pretext’ cases (in which the

[employer] defends on the ground that it acted only for a

valid reason).”” This is the burden of proof analysis used

“ Robinson v. Morris Moore Chevrolet-Buick, 974 F.Supp. 571,

575 (E.D.Tex.1997) (citing Price Waterhouse v. Hopkins, 490 U.S.

228, 250, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989)).

“ Id. at 576.

“ Id.

* 240 F.3d at 1014. See also Robinson, 974 F.Supp. at 576.

App. 44

by at least one district court within the Fifth Circuit, and

the one followed in this case.“

Finally, it should be noted that Section 4311 is a

congressional response to the United States Supreme

Court decision in Monroe v. Standard Oil Co.“ In that

case, the Court held that USERRA’s antecedent, the

Vietnam Era Veterans’ Readjustment Assistance Act of

1974, “was enacted for the significant purpose of protect-

ing the employee/reservist against discrimination like

discharge and demotion, motivated solely by reserve

status.” Congress amended the statute in 1994 to provide

that a violation occurs when a person’s membership in the

uniformed services is a motivating factor, even if not the

sole factor.” “Stated otherwise, Congress intended to

lessen, but not eliminate, a veteran’s [or reservist’s]

obligation to show that the employer’s adverse decision

was related to his service in the armed forces.”” Thus, to

“ Id. See also Gummo v. Village of Depew, 75 F.3d 98, 106 (2d

Cir.), cert. denied, 517 U.S. 1190, 116 S.Ct. 1678, 134 L.Ed.2d 780

(1996); and Curby, 216 F.3d at 556.

“ 452 U.S. 549, 101 S.Ct. 2510, 69 L.Ed.2d 226 (1981).

“ Id.-at 559, 101 S.Ct. 2510 (Emphasis added). See also Pignato

v. American Trans Air, Inc., 14 F.3d 342 (7th Cir.1994) (holding that

in order to establish employer liability in mixed-motive cases, the

impermissible motive must be the controlling reason for the adverse

action), cert. denied, 512 U.S. 1205, 114 S.Ct. 2675, 129 L.Ed.2d 810

(1994).

“ See Newport v. Ford Motor Co., 91 F.3d 1164, 1167 (8th

Cir.1996) (noting that USERRA was enacted in response to Monroe

and changed Monroe’s “sole cause” standard to a “motivating factor”

standard).

® Id. See also Gummo, 75 F.3d at 106 (where the court in

expressly rejecting Monroe, opted instead to evaluate § 4311(b) (formerly,

§ 2021(b)\(3)) by using the scheme of burden of proof allocations approved

by the United States Supreme Court in NLRB v. Transportation

(Continued on following page)

App. 45

the extent that the City follows the “sole cause” standard

enunciated in Monroe, that standard has been repealed

by § 4311 of the Act and is no longer applicable.” It should

be emphasized that USERRA was “designed to improve,

rather than replace the VRRA,”’ and it is “to be broadly

construed and strictly enforced.””

Since the plaintiffs challenge a number of the City’s

policies and practices, the existence of which are not in

dispute, the application of the “but for” test in this case

differs from the typical adverse employment action case.

While the City maintains that the plaintiffs have not

established that the City’s actions were “motivated,” at

least in part, by their membership or obligation for service

in the uniformed services, the required motivation needed

by plaintiffs to satisfy their burden of proof is met by the

existence of the policies and practice themselves. Plaintiffs’

claims involve policies and practices, which by their very

nature, attach consequences to a reservist’s absence for

military duty. For example, and as discussed more fully

below, according to the collective bargaining agreement

(“CBA”) between the City and the firefighters’ union:

Management Corp., 462 U.S. 393, 401, 103 S.Ct. 2469, 76 L.Ed.2d 667

(1983)).

* It should be noted that the right denied to the reservist in

Monroe, that is, to arrange his work hours so that he could both fulfill

his reservist obligations and put in a full forty hours of work, is now

protected. See § 4303(2).

See Novak v. Mackintosh, 919 F.Supp. 870, 877 (D.S.D.1996);

and Gummo, 75 F.3d at 106-07.

* Yates, 145 F.3d at 1484-85; and Petersen v. Department of

Interior, 71 M.S.P.R. 227, 234-35 (1996) (discussing relevant legislative

history).

“ According to Plaintiffs’ “Statement of Undisputed Facts,” the

permanent, uniformed members of the Citys Fire Department are

(Continued on following page)

App. 46

military leave, unlike vacation and other related leave,

will not count towards the “twenty-seven hour cap” on loss

of overtime leave under the Federal Labor Standards Act

(“FLSA”); the use of military leave in the same cycle as

vacation leave means that the vacation leave will not

count towards the “twenty-seven hour cap;” and absences

for military leave in excess of fifteen days per year, dis-

qualify a firefighter from receiving “bonus day” leave.

Reservists assigned to the EMS division who cannct accept

an unscheduled overtime opportunity because they are off

duty on military leave are treated as if they had refused

the opportunity, unlike non-reservists who are off duty for

continuing education or Department training. No reserv-

ist, in either the Fire Fighting division or the EMS divi-

sion, is given the opportunity to “make up” for the

unscheduled overtime or upgrading opportunities missed

when they are away on military duty. Plaintiffs are dis-

parately impacted, and indeed discriminatorily penalized,

by these policies and practices when compared to those

employees who need not be absent from work to perform

military reserve duty. According to the express language of

the challenged employment practices or policies, the City

cannot persuasively argue that it did not “take into ac-

count,” “consider,” or “condition its decision” on its employ-

ees’ military-related absences.

Before analyzing the specific policies and practices

challenged in this case, it should be noted that the City

represented by the International Association of Fire Fighters, Local 624

(the Union), which serves as their exclusive bargaining agent. Since

1974, the Union and the City have executed a series of collective

bargaining agreements governing the firefighters’ wages, hours, and

other terms and conditions of employment. Docket Entry 56, Plaintiffs’

Appendix, at J 26.

App. 47

incorrectly argues that the plaintiffs’ claims fall within

§ 4316 of the Act on the ground that the benefits at issue

are seniority-based. While it is undisputed that unsched-

uled overtime is distributed in both the Fire Fighting and

EMS divisions in order of seniority, a policy not objected to

by plaintiffs, § 4316 is inapplicable to this case. According

to the provision’s express language, it only applies to a

person “who is reemployed under this chapter ... ,” or

“who is absent ‘on furlough or leave of absence.’”” Section

4316 is specifically tailored to apply to a reservist or

veteran returning to employment from active duty rather

than reservists, like the plaintiffs in this case, who have

been away for relatively short periods of time to fulfill

their standard drilling and training requirements.” As

discussed in Carney v. Cummins Engine Company,

Inc.,” the anti-discrimination provisions (now § 4311(a-c),

formerly, § 2021(b)\(3)) were specifically added “to protect

the rights of reservists which had been found to be inade-

quately protected” under the provision cited by the City

(§ 4316, formerly § 2024(d)).° The Carney court, in that

regard, further stated:

*® 38 U.S.C. § 4316(a) (Emphasis added)

* § 4316(b) (Emphasis added).

” According to plaintiffs’ “Statement of Undisputed Facts,”

typically, a reservist or guardsman performs minimum requirements of

drilling one weekend a month and annual training for two weeks a

year. He may also be ordered to perform additional duties, meet

mandatory educational requirements, or may volunteer for additional

duties. Docket Entry 56, Plaintiffs’ Appendix, at { 30.

* 602 F.2d 763 (7th Cir.1979), cert. denied, 444 U.S. 1073, 100

S.Ct. 1018, 62 L.Ed.2d 754 (1980).

° Id. at 766.

App. 48

Contrary to defendant’s contention, it is not “in-

conceivable” that Congress could have intended

to grant reservists greater protection than veter-

ans returning from active duty. That is the clear

import of Section [4311], and it is not illogical to

extend to reservists some protection, such as the

overtime opportunities missed here, that would

simply not be practicable for the longer-term ab-

sences of veterans.”

In light of the plain language of the statute and the City’s

failure to cite legal authority in support of its position that

§ 4316 is the applicable provision in this case, the court

will analyze plaintiffs’ challenges to the City’s policies and

practices under the broad anti-discrimination provision of

the Act, § 4311.

2. The Challenged Policies and Practices

In determining whether a “right,” or “benefit of

employment” has been denied in violation of USERRA,

courts are usually guided by the three criteria outlined in

Allen v. United States Postal Service:”

First, the courts have considered whether [“the

benefit of employment”] is one generally granted

to all employees in the workplace, and whether it

“ Id. See also Lott v. Goodyear Aerospace Corporation, 395

F.Supp. 866, 868 (N.D.Ohio 1975) (where the court held that the

legislative history does not support the argument that the benefits of

employment must be afforded only as to any person on a furlough or

leave of absence. “Rather, the legislative history indicates that reserv-

ists who are required to attend weekly drills will be entitled to the same

treatment afforded their coworkers not having such military obliga-

tions.”).

* 142 F.3d 1444 (Fed.Cir.1998).

App. 49

was denied [ ...] because of absence of military

service. Several courts have ruled that a gener-

ally available benefit cannot be denied because of

military duty.”

Second, the courts have considered whether the

person absent on military duty was treated the

same way as if the person had remained at work.

These rulings recognize that although for some

statutory purposes persons returning from mili-

tary duty correctly are treated as if they had

been on furlough or. leave of absence, under

[§ 4311] they must not be disadvantaged by fail-

ure to treat them as if they had been present at

work.”

Third, the courts have considered whether it was

reasonably certain that the benefit would have

®@ Id. at 1446 (citing Waltermyer v. Aluminum Company of

America, 804 F.2d 821, 824-25 (3d Cir.1986) (reservist was entitled to

holiday pay despite requirement that employee be present on days

before and after the holiday); Carney, 602, F.2d at 766-67 (reservist

was entitled to overtime opportunities he missed while on military

duty)). While the court in Allen refers to the “sole cause” standard as

enunciated in Monroe, the court has omitted the reference from the

quoted paragraph as it is not a correct statement of the law. Besides

referencing the wrong standard, the court in Allen does provide useful

guidance.

® Id. at 1446-47 (citing West v. Safeway Stores, Inc., 609 F.2d

147, 150 (5th Cir.1980) (“collective bargaining agreement must be

construed as if (reservist) was constructively present at work.”); and

Carlson v. New Hampshire Dept. of Safety, 609 F.2d 1024, 1027 (1st

Cir.1979) (where the court, in stating that it was not sufficient to treat

reservist like any employee on leave, deemed a shift change as a

“constructive demotion.”)), cert. denied, 446 U.S. 913, 100 S.Ct. 1844,

64 L.Ed.2d 267 (1980).

App. 50

accrued to the employee but for the absence of

military service.”

With these criteria in mind, the court will proceed to

analyze each of the City’s policies and practices challenged

by plaintiffs in this case.

a. The “Twenty-Seven” Hour Cap on_ Lost

FLSA Overtime”

With respect to overtime for firefighters assigned to

the Firefighting division, the collective bargaining agree-

ment in effect since 1988 has provided, in relevant part:

Under a twenty-one (21) day cycle, each em-

ployee shall lose no more than twenty-seven (27)

hours of overtime pay per year as a result of

scheduled vacation leave being counted as pro-

di:ctive time for F.L.S.A. purposes.”

In the 1995 collective bargaining agreement, the

following provision was added:

For the purpose of computing eligibility for

F.L.S.A overtime and application of the twenty-

seven (27) hour limit in this paragraph, all other

“ Id. at 1447 (citing Teamsters Local Union 612 v. Helton, 413

F.2d 1380, 1383-84 (5th Cir.1969)).

“ This policy is described in detail in plaintiffs’ “Undisputed

Statement of Facts,” Docket Entry 56, Appendix, at J 49-57.

* Docket Entry 56, Plaintiffs’ Appendix, at 749 and Agreed

Exhibits A & B. The collective bargaining agreements in effect at times

material to this case are the following: the agreement in effect from

October 1, 1988 through November 15, 1995; the agreement in effect

from November 14, 1995 through September 30, 1999, and the current

agreement, in effect since September 30, 1999. Plaintiff’s Appendix, at

{ 27; and Amended Joint-Stipulated Facts, Docket Entry 61, at J 29.

RSIS OE RPE LRT GN Sr I Pt ATS NST NAO OS COME ON RIT

App. 51

types of leave will take priority over vacation

leave in application of this provision (i.e., when

vacation leave and any other form of leave is

used in the same 21 day cycle, the loss of F.L.S.A.

overtime shall not apply to the twenty-seven (27)

hour maximum loss).”

This provision also appears in the 1999 agreement.”

It is undisputed that firefighters assigned to the

Firefighting division who work twenty-four hour shifts

have overtime built into their work schedules.” For

purposes of overtime compensation under the Fair Labor

Standards Act (“FLSA”),” instead of having their work

hours measured by the conventional forty hour per week

standard, firefighters are subject to a special set of work

hour standards designed to accommodate the twenty-four

hour shifts.” The Secretary of Labor, through regulation,

has set the maximum number of hours which firefighters

can work, depending on the length of the FLSA work

” This provision is found in Article XIV, Section 3 of the agree-

ment. Docket Entry 56, Plaintiffs’ Appendix, at {50 and Agreed

Exhibits A & B; and Amended Joint-Stipulated Facts, at ] 42. See also

Plaintiffs’ Exhibit 5. Fire Department’s Division Order on “FLSA

Guidelines,” dated July 1, 1997.

* Docket Entry 56, Agreed Exhibit B.

® It is undisputed that the firefighters assigned to the EMS

division are not detrimentally affected by this policy. This policy is only

challenged by those plaintiffs/firefighters who are assigned to the Fire

Fighting division since they are on a work schedule requiring the

regular payment of overtime compensation. See Docket Entry 56, at 2

& fn. 2.

” 29 U.S.C. § 201 et seq.

™ Docket Entry 56, at 10. See 29 U.S.C. § 207(k) and 29 C.FR.

§ 553.200 et seq.

App. 52

period used by the employer.” Pursuant to the CBA, the

Citys Fire Department operates on a twenty-one day

FLSA work period.” Thus, according to the federal regula-

tions, the maximum number of hours which firefighters

can work in a twenty-one day period without earning

overtime is 159. The City’s firefighters, however, are

scheduled to work 168 hours; and as such, they are enti-

tied to receive nine hours of pay at an overtime rate every

twenty-one days.“ According to the plaintiffs, this is

known in the Fire Department as “FLSA overtime.”” Both,

the FLSA and the CBA generally require that an employee

“actually work” the hours if they are to receive the over-

time rate.” As plaintiffs state: “[i]Jt is axiomatic that if an

employee takes some sort of leave during the work period,

he does not earn an overtime rate.””

The Fire Department, however, through provisions in

the CBA, provides some critical exceptions to this re-

quirement, the result of which employees receive compen-

sation at an overtime rate when they have not actually

worked the requisite amount of hours.” The City and the

” Id.

® Docket Entry 56, Plaintiffs’ Appendix, at | 47 and Docket Entry

61, Amended Joint-Stipulation of Facts, at J 32.

“ Docket Entry 61, at J 33; and Plaintiffs’ Appendix, Docket Entry

56, at J 48.

* Docket Entry 56, at 10.

* Docket Entry 56, at 11.

" Id. (and legal authority cited therein).

* Id. and Plaintiffs’ Appendix, at {J 50-51 and Agreed Exhibits A

& B; and Docket Entry 61, at {J 42-43. The Plaintiffs further note that

through its own policy, the Fire Department treats firefighters who are

off work on various types of administrative leave do not lose their FLSA

overtime at all, even though they are not actually performing their

regular duties and are not working the fifty-six hours per week. For

(Continued on following page)

App. 53

Union have negotiated a benefit whereby once a firefighter

loses twenty-seven hours of FLSA overtime in a given year

(t.e., once he loses the overtime in three FLSA work

periods) to the taking of vacation or vacation-related leave,

his loss of FLSA overtime is capped. When he takes

additional vacation leave that year, even though he is not

actually working, he will still receive his FLSA overtime as

if he were. Vacation leave, floating vacation shifts (that is,

a vacation shift taken apart from vacation leave scheduled

in advance and typically, in groups of four twenty-four

hour shifts), bonus day leave, perfect attendance leave,

and vacation leave used as Family Medical Leave Act

leave, all count towards the “twenty-seven” hour cap.”

Military leave inexplicably does not.” The plaintiffs, in

this regard, maintain that while “the impact of absences

due to vacation is blunted ... the impact of absences due

to military service is not.”

Military reservists are, without question, bound to be

absent from work more often than their non-reservist

counterparts. “The essence of reserve duty in this context

is absence from work.”” Reservists must be off work to train

a minimum of one weekend per month and two weeks per

year, and many have significantly more extensive time

instance, a firefighter assigned to play in the Department’s band or sent

on recruiting trips or attending specialized training, will still receive

his FLSA overtime. Docket Entry 56, at 11 and fn. 10 (citing to Plain-

tiffs’ Exhibit 5, at 2).

® Id. and Plaintiffs’ Exhibit 5, at 1.

* Docket Entry 64, at 9.

App. 54

commitments.” Any use of their allotted fifteen days per

year of military leave will take them out of their FLSA

overtime for the cycle in which they use it.” Depending on

how their reservists duties are scheduled, a factor which

more often than not they have little to no control over,

they face the possibility of losing the FLSA overtime in at

least some of the seventeen FLSA cycles per year.”

The plaintiffs also take issue with the related provi-

sion in the CBA which provides that if vacation leave is

taken in conjunction with another type of leave, such as

military leave, the vacation leave taken will not count

towards the 27 hour cap.” Accordingly, when a reservist is

forced to use vacation leave in the same FLSA cycle as

military leave, either because the reservist is using his

own vacation leave so that he will have enough time off to

fulfill a training requirement, or because his military duty

happens to fall in the same cycle as his pre-scheduled

vacation, he loses the benefit of the cap.” For plaintiffs,

* Docket Entry 56, at 12 & fn. 11 (citing Green v. Spartan

Stores, Inc., 112 L.R.R.M. (BNA) 2099 (W.D.Mich.1982), for the

proposition that it is immaterial if the reservist is absent for the

purpose of fulfilling his minimal requirement, is absent because he is

ordered to perform additional service, or has initiated the additional

service himself); and Plaintiffs’ Appendix, at J 30.

“ Id. According to plaintiffs, and undisputed by the City, both

Texas law and City policy require that a reservist be paid for fifteen

days of military leave a year. Docket Entry 64, at 7.

*° Id. at 12.

* Docket Entry 56, Plaintiffs’ Appendix, at J 55.

*" Id. Plaintiffs further point out that this is very likely to occur, as

typically firefighters have four vacation groups of four shifts each per

year. These are scheduled by seniority, prior to the beginning of the

year. “Not only does the firefighter have limited control over when he is

scheduled for reservist duty, he also has limited control over when he is

(Continued on following page)

App. 55

even the use of their allotted military leave not only

means that the reservist will automatically lose their

FLSA overtime; their use of military leave also limits their

ability to take advantage of the twenty-seven hour cap in

the use vf vacation leave. Plaintiffs contend that in order

to counter the disadvantage posed to them by this provi-

sion, they sometimes choose, albeit not required by the

City, to forego the use of their allotted military leave

altogether, and instead exhaust their own vacation leave

or even trade time with other firefighters in order to fulfill

their service requirements.”

It is evident that, through these employment policies

and practices, the plaintiffs are being denied the same

benefit otherwise available to their non-reservist counter-

parts, namely the twenty-seven hour cap on lost FLSA

overtime per year, which translates into the payment of

overtime compensation when overtime hours are not

actually worked. Plaintiffs are indeed at a disadvantage

for no other reason other than their military reserve

status.”

Contrary to defendant’s position, the plaintiffs in this

case are not seeking any preferential treatment. Rather,

they seek to be treated the same as their non-reservists

scheduled for vacation, and no flexibility for rescheduling his vacation

groups to avoid the impact of this provision.” Jd. at fn. 12.

* Id. at 13.

* See e.g., Waltermyer v. Aluminum Company of America

(ALCOA), 804 F.2d 821, 825 (3d Cir.1986); Hanning v. Kaiser

Aluminum, 95 L.R.R.M. (BNA) 2964 (E.D.La.1977); and Kidder v.

Eastern Air Lines, 469 F.Supp. 1060, 1066-67 (S.D.Fla.1978), cases

decided pre-USERRA in which the courts held that military reservists

were entitled to holiday pay which was available to all employees who

were present the week in which the holiday fell.

App. 56

counterparts.” While the City attempts to compare plain-

tiffs with those co-workers who are away from work on

some other non-military leave of absence, that is not the

proper comparison. “The mandated standard of compari-

son, is not, as defendants would maintain, to ‘those co-

workers away on non-military leave of absence’ but to the

more embrasive class of ‘coworkers not having (reserve)

obligations.’”™”’ Indeed, the Fifth Circuit stated in West v.

Safeway Stores, Inc.,” that the Act requires that em-

ployers, in applying collective bargaining agreements

which grant a benefit of employment based on “presence”

rather than on “hours actually worked,” should treat

reservists as if they were “constructively present” during

their reserve duty.”

The City does not deny the adverse impact of its policy

concerning the twenty-seven hour cap on lost FLSA

overtime on plaintiffs. It does argue, however, that its

actions do not violate USERRA because it has not singled

out military leave for discriminatory treatment. For

instance, the City posits that other types of leave are also

excluded from being counted towards the twenty-seven

hour cap (i.e., sick leave, emergency leave, light duty, etc.).

This is not a convincing argument because:

[i]t is immaterial that non-military employees of

defendant on leave of absence would not be entitled

to overtime opportunities [. . .] since the right of re-

servists to such opportunities is governed by

statute rather than by collective bargaining

” Docket Entry 56, at 9.

" Carlson, 609 F.2d at 1027 (citations omitted).

” 609 F.2d at 150.

7”

App. 57

agreement. Nor does it matter that affording

plaintiff relief might conflict with the collective

bargaining agreement between defendant and

the Union.”

Consequently, the City’s only affirmative defense raised in

this case, namely that its actions were instituted pursuant

to a collective bargaining agreement, a defense frequently

raised by employers in benefit cases, is one that has been

uniformly rejected by the courts.” Further, the City’s

affirmative defense fails for a more subtle reason due to

the nature of the plaintiffs’ policies and practices claims.

As the court in Robinson v. Morris Moore Chevrolet-

Buick explained, for the defense to be successful, the

employer must show its legitimate reason, standing alone,

would have induced it to make the same decision.” It

should also be noted that since the collective bargaining

agreement accepted by the City imposes the penalties for

the military leave absences, the City is hard-pressed to

show that it would have nevertheless imposed the penal-

ties, irrespective of the absences.

Moreover, the City maintains there is no requirement

that a military reservist use scheduled vacation time to

perform his military service and that some of the plaintiffs

have “voluntarily decided to incur this loss.” In making

this argument, however, the City ignores the fact that the

~ “ Carney, 602 F.2d at 766 (citing Kidder, 469 F Supp. at 1066-67;

and Lott v. Goodyear Aerospace Corp., 395 F.Supp. 866, 869-70

(N.D.Ohio 1975); and McKinney v. Missouri-Kansas-Texas R. Co.,

357 U.S. 265, 268-69, 78 S.Ct. 1222, 2 L.Ed.2d 1305 (1958)).

* Id. See Docket Entry 60, at 8 and 10.

* 974 F.Supp. at 576.

” Docket Entry 60, at 6.

App. 58

plaintiffs incur a loss when they use their allotted fifteen

days of military leave. Further, the undisputed evidence

establishes that while the City provides fifteen days of

paid military leave, the reservists are frequently required

to be absent more often, in which case the only paid leave

available for them to use is vacation leave.” Plaintiffs do

not deny that they will sometimes choose to take vacation

leave, or to trade time with another firefighter, in lieu of

using military leave in order to avoid the penalty associ-

ated with the use of military leave. They maintain though,

that even if the avoidance of this penalty in this manner

may be a voluntary act (i.e., not imposed by the City), it is

nevertheless a direct consequence of the City’s discrimina-

tory practices.” The court agrees.

Based on the court’s analysis of the exclusion of

military leave from the twenty-seven hour cap under the

Allen criteria, the court concludes that it violates

USERRA. The availability of the twenty-seven hour cap is

a “benefit of employment” granted to all employees,

especially so since all employees receive and are required

to take vacation leave. They are thus guaranteed to

benefit (i.e., receive overtime compensation they would not

otherwise be entitled to receive) from the cap once they

have lost twenty-seven hours of FLSA overtime. The

plaintiffs, because of their military reserve status, are not

treated as though they are “constructively present” at

work; indeed, they are not treated as well as if they were

on vacation. The court thus, finds, that plaintiffs have met

their burden of showing that their military status was at

* Docket Entry 56, Plaintiffs’ Appendix, at J 40.

*” Docket Entry 64, at 10 and fn. 6.

App. 59

least a motivating or substantial factor considered by the

City in its implementation of the twenty-seven hour cap. It

is undisputed that plaintiffs would have benefitted from

the policy but for their military obligations. Further, there

is no genuine issue of material fact with respect to the

City’s inability to affirmatively establish that its actions in

implementing this practice “would have been taken” in the

absence of plaintiffs’ military reserve status.”

Because plaintiffs’ claim for “loss of straight-time for

hours worked claim,” is connected to plaintiffs’ instant

claim for lost FLSA overtime compensation, and as plain-

tiffs’ state: “[it] is an adverse effect suffered every time a

reservist loses FLSA overtime to the taking of military

leave,”’” the court finds it appropriate to reserve judgment

on the merits of plaintiffs’ claim at this time and address it

during the damages phase of the case.

b. Unscheduled Overtime Compensation and

Upgrading/Training Opportunities

lt. Unscheduled Overtime

In addition to the FLSA overtime built into their work

schedules, firefighters assigned to both the Firefighting

and EMS divisions have the opportunity to work unsched-

uled overtime, that is, extra hours worked in addition to

the regular work shift, for which a firefighter would

® Particularly, the City has failed to establish that similar

provisions have been upheld under USERRA.

' Docket Entry 56, at 19-20; docket entry 64, at 11-12. The City’s

briefing on the issue is found in Docket Entry 60, at 8-9; and Docket

Entry 63, at 5-7.

Id. at 19 & fn. 17.

App. 60

receive time and one-half his regular rate of pay. Plaintiffs

allege that since the overtime increments are typically for

increments of twelve hours each, this can amount to a

significant amount of money, and as a result, the opportu-

nities are highly coveted.

It is undisputed that the distribution of overtime

operates somewhat differently in the Firefighting and

EMS divisions. For instance, in the EMS division, if a

firefighter cannot be reached or is not available when the

overtime opportunity is offered, as when he is on reservist

duty, then he is treated as though he refused the opportu-

nity and his name is “crossed off” that particular overtime

list." In the Firefighting division, if a firefighter is not

available to work overtime, his name is skipped on the list

but he remains eligible to be offered another opportunity

from that list, provided that he is not on long-term leave,

in which case he is skipped altogether.” Significantly,

neither policy requires that reservists be “made up” on the

*® Docket Entry 56, Plaintiffs’ Appendix, at 9 69. For a detailed

description of the City’s unscheduled overtime policy, the court relies on

the undisputed paragraphs in Plaintiffs’ Appendix, at JJ 69-74.

'* Docket Entry 56, at 16 & fn. 15.

‘* Plaintiffs had admitted that the policy applicable to the EMS

division is harsher than the one applied in the Firefighting division. Id.

In addition, the City has acknowledged that while firefighters assigned

to the EMS division are not allowed to make up overtime opportunities

missed, there is one exception to this policy, albeit applied in the same

manner to reservists and non-reservists alike. Docket Entry 60, at 11.

The exception applies when an EMS employee is attending continuing

education training. According to the deposition testimony of Alfred

Montez, EMS employees who attend continuing education training are

allowed to make up the overtime opportunity missed because the EMS

division considered employees in continuing education training, as not

on any type of leave, but merely performing other work duties. Id. at

Exhibit D, at 4-13.

App. 61

overtime opportunities they miss when they are off from

work performing reserve duty. The firefighters in both

divisions, because of their military reserve duties, stand at

a disadvantage, when compared with their non-reservist

counterparts, for being scheduled for and receiving over-

time compensation. Similar policies, denying military

reservists the benefit of earning or “be made” available

overtime opportunities, have been struck down as dis-

criminatory.

For example, in Carney v. Cummins Engine Co.,”

the Seventh Circuit Court of Appeals reasoned that the

employer’s practice of treating reservists’s unavailability

to work overtime as tantamount to a refusal to work was a

violation of the VRRA.” The court in Carney, in response

to the defendant’s contention that the plaintiff was seeking

preferential treatment by demanding the right to make up

missed overtime, stated that the plaintiff did not voluntar-

ily decline the opportunity to work overtime and indeed

would have worked overtime but for his absence due to his

military duty. The employer was thus ordered to permit

the reservist to make up missed overtime opportunities, or

alternatively compensate him.™ Significantly, in support

of its holding, the Carney court stated: “It is immaterial

that non-military employees of defendant on leave of

absence would not be entitled to overtime opportunities

[. . .] since the right of reservists to such opportunities is

** See West, 609 F.2d at 150 (“reservists must be treated as if they

were ‘constructively present’ during their reserve duty. . . . ”).

” 602 F.2d 763 (7th Cir.1979), cert. denied, 444 U.S. 1073, 100

S.Ct. 1018, 62 L.Ed.2d 754 (1980).

* Id. at 766-67.

109 Id.

App. 62

governed by statute rather than by the collective bargain-

ing agreement.”””

Likewise, the district court in Lott v. Goodyear

Aerospace, in upholding the statutory right of an

employee to the same overtime opportunities as non-

reservist employees, stated:

Carrying out its congressional purpose [what is

now Section 4311] entitles a reservist, who can-

not take advantage of overtime work because of

his military duty, to be equated with a person

who is able to work overtime [internal citation

omitted]. Since the latter person draws overtime

pay, unless he voluntarily chooses not to exercise

the opportunity, the reservist should not be

marked up for overtime that he could not take

advantage of because of his military duty.’”

Accordingly, following the Carney and Lott decisions, the

court rules that the City is liable under USERRA as

plaintiffs have established, as a matter of law, that their

military reserve status is a motivating factor in the City’s

decision to deny them the opportunity to “make up” for

%° Id. at 766 (internal citations omitted).

™! 395 F.Supp. 866, 869-70 (N.D.Ohio 1975).

"2 Id. at 870. While the court acknowledges the contrary ruling in

Breeding v. TRW, Inc., Ross Gear Div., 477 F.Supp. 1177, 1184

(M.D.Tenn.1979) (where the court held that an employee unavailable to

work overtime on account of his military training was not entitled to an

alternative opportunity under the Act), the court considers the Seventh

Circuit’s ruling in Carney a more sound and accurate statement of the

law. Further, the reasoning in Breeding is weakened by its extensive

reliance on Monroe, the outcome of which would have been different

under USERRA as the Act now expressly protects the reservist’s right

to select his work hours. 38 U.S.C. § 4303(2). See discussion at 11 and

fn. 45, supra.

App. 63

any lost overtime. The City’s defenses, i.e., that plaintiffs

are seeking preferential treatment, that they must be

“present” in order to receive overtime payment, and that

they are treated the same as other similarly-situated non-

reservist firefighters, are not legally or factually sufficient

for the City to meet its burden of establishing that it

would have “taken the same action,” irrespective of the

military reserve status.

ii. Upgrading/Training Opportunities”

As in the claim to “make up” overtime missed because

of military duty, the dispositive issue with regards to the

upgrading and/or training opportunities is whether the

City is required by USERRA to allow absent reservists to

“make up” any opportunities for upgrading and/or training

missed while on duty. In view of the liberal standard

applicable to USERRA claims, the answer to that question

is “Yes.” The court finds instructive the case of Yates v.

Merit Systems Protection Board.“ In that case, the

Federal Circuit Court held that the Merit Systems Protec-

tion Board had jurisdiction to address plaintiff’s claim

under USERRA, namely, that she had been denied the

opportunity to “make up” the two weeks of training and

"* Under Article XVI of the CBA, an employee who works in a

higher classification shall be paid at the higher classification rate of pay

for actual time worked in that classification. In the Fire Department,

this is also known as “upgrading.” Opportunities for upgrading are

generated through the absence of a firefighter of a superior rank.

Docket Entry 56, Plaintiffs’ Appendix, at J 75. The court, in its analysis

of plaintiffs’ claim for missed upgrading and/or training opportunities,

relies on the description provided by plaintiffs’ “Statement of Undis-

puted Facts,” { 75-81.

«145 F.3d 1480 (Fed.Cir.1998).

ee ea -

App. 64

her thirty-day evaluation she missed while on reserve

duty." The court ‘reasoned that each of these claims is

properly viewed as a “benefit of employment” because each

was an “advantage” or “status” of her probationary em-

ployment with her employer.'”

The plaintiffs rely on the individual circumstances of

plaintiff Captain Anthony Rogers, as the highest ranked

plaintiff, as representative of the type of unequal treat-

ment and/or disadvantages suffered by ail the named-

plaintiffs, in terms of the upgrading and/or training

missed because of their military duties."” Whether or not

plaintiffs have enough evidence to prove an injury based

on this claim under USERRA will be left to the fact-finder

to decide during the damages phase of this case. At this

juncture of the case, plaintiffs have shown that USERRA

guarantees them these opportunities.

c. “Bonus Day” Leave and “Perfect Atten-

dance” Leave

Bonus days and perfect attendance leave are two

other benefits available to employees in the Fire Depart-

ment under the CBA. They are available to reservists only on

a reduced basis. Beginning with the 1995 CBA, Fire De-

partment employees were and are eligible to earn two

additional leave days (one additional shift), for each six

months of “perfect attendance.” This benefit is called “Bonus

Day Leave.” They also receive two -extra incentives,

"8 Id. at 1484-85.

"N° Td. at 1485 (citing 38 U.S.C. § 4303(2)).

” Docket Entry 56, at 18.

“* Docket Entry 56, Plaintiffs’ Appendix, at 7 58.

App. 65

referred to in the CBA as “perfect attendance leave” (or

“PAL”), entitling an employee to use two shifts of vacation

leave outside his regularly scheduled vacation groups (2

floating vacation shift or “FVS”), providing some flexibility

for taking time off, and allowing conversion of one shift of

accrued sick leave to vacation leave. The relevant provi-

sions of the CBA which discuss these benefits are found in

Article XVII of the CBA. According to Article XVII, Section

4 of the 1999 CBA:

B. Employees not working for one of the follow-

ing reasons are not eligible to receive the two (2)

days perfect attendance bonus:

1. sick leave,

2. line of duty injury [‘LOD”] (provided that the

use of LOD leave for a portion of a shift, as to

those employees that return to work in the fol-

lowing shift, shall not be a disqualification under ::

this section),

3. emergency leave,

4. military leave in excess of fifteen (15) days in

a calendar year,

5. leave without pay, and

6. suspensions.

C. The types of leave that will not adversely af-

fect the employee’s entitlement to the perfect at-

tendance bonus are:

1. LOD (provided that the use of LOD leave for

a portion of a shift, as to those employees that re-

turn to work on the following shift),

App. 66

2. Properly scheduled and authorized vacation

days, holidays, compensatory time, bereavement

leave, administrative leave,” and

3. time restored by the commissioner or an ar-

bitrator (hearing examiner).””

Based on the express terms of the quoted paragraphs, if a

firefighter takes military leave in excess of fifteen days

~(the allotment of paid leave which City employees re-

ceive), he will not qualify for bonus day leave.

Section 3 of Article XVII of the CBA contains the

provisions concerning perfect attendance leave. It pro-

vides, in relevant part:

A. Any employee who achieves perfect atten-

dance over a 6 month period shall be entitled to

utilize two (2) additional shifts of accrued vaca-

tion leave outside of scheduled vacation periods

plus may convert one shift of sick leave for use as

a floating vacation shift in accordance with the

provisions of this section, hereinafter to be called

perfect attendance leave". Perfect Attendance

Leave shall be used during the subsequent six (6)

months.

119

The term “perfect attendance” appears to be a term of art under

the CBA because it is not used in its literal meaning as firefighters

taking vacation, holidays, compensatory time, bereavement leave and

administrative leave, among others, will still qualify as having “perfect

attendance.” In other words, the use of those periods of leave do not

count against “perfect attendance.” Docket Entry 56, at 15.

® Docket Entry 56, Agreed Exhibits A & B.

Plaintiffs object to the term “military leave in excess of 15 days.”

According to the plaintiffs, “[t]here is no military leave in excess of 15

days; after 15 days are used, what the firefighter will have to be using

is his own vacation leave.” Docket Entry 56, at 16.

App. 67

D. “Perfect attendance” shall mean that the

employee has not utilized any of the following

types of leave:

1. sick leave,

2. emergency leave (provided that the use of be-

reavement leave, although taken on an emer-

gency leave basis, shall not be a disqualification

under this section),

3. line of duty leave (provided that the use of

LOD leave for a portion of a shift, as to those

employees that return to work on the following

shift, shall not be a disqualification under this

section),

4. leave without pay, and

5. suspensions.”

Whether the use of military leave in excess of 15 days

disqualifies a reservist from receiving perfect attendance

leave is not as clear as in “bonus day leave,” considering

that the above-quoted provisions do not explicitly include

military leave in the list of disqualifying leaves. Plaintiffs,

however, have produced as summary judgment evidence a

Fire Departmen

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