Opinion
Cause No. IP99-1735-C-M/S
April 13, 2001
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court on the parties' cross motions for summary judgment on plaintiffs' claims under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301, et seq. Plaintiffs claim that the Indianapolis Fire Department ("IFD") has improperly denied them military leave that they are allowed under Indiana law. The parties have fully briefed the motions and participated in oral argument. The Court will now consider plaintiffs' claims.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. INDIANAPOLIS FIRE DEPARTMENT'S MILITARY LEAVE POLICY
Each plaintiff is or has been a suppression firefighter with IFD. The primary focus of plaintiffs' complaint involves the application of IFD's military leave policy. In particular, plaintiffs claim that IFD's military leave policy deprives them of the fifteen days of leave allowed under Indiana law.
Indiana Code § 10-2-4-3 provides, in relevant part, as follows:
10-2-4-3 Government officers and employees; leave of absence for training or active duty
Sec. 3(a) This section applies to all officers and employees of . . . any . . . municipality . . . in Indiana who are listed in subsection (b).
(b) As used in this section, "member" refers to the following:
(1) A member of the Indiana National Guard.
(2) A member of the reserve component.
(3) A member of the retired personnel of the naval, air, or ground forces of the United States.
(c) A member is entitled to receive from the member's employer a leave of absence from the member's respective duties, in addition to regular vacation period, without loss of time or pay for such time as the member is:
(1) on training duties of the state of Indiana under the order of the governor as commander in chief; or
(2) a member of any reserve component under the order of the reserve component authority;
for consecutive or non-consecutive periods not to exceed a total of fifteen (15) days in a calendar year . . .
In addition, Section 291-210 of the Revised Code of the Consolidated City and County, INDIANAPOLIS/MARION COUNTY (the "City-County Ordinance Code") provides as follows:
Military leave shall be granted in accordance with appropriate state and federal law. In accordance with state law, a maximum of fifteen (15) eight-hour working days of paid military leave shall be granted. If an employee exceeds 15 days of military leave, h/she may elect to go on leave without pay or to exhaust appropriate paid leave.
IFD has since modified its policy to allow each firefighter 144 hours of paid military leave. Because the modified policy is not at issue, the Court need not discuss it.
Plaintiffs were members of a group of firefighters called "suppression firefighters." A suppression firefighter's tour of duty was one 24-hour workday. A suppression firefighter works a 24-hour tour of duty and then is off-duty for the next 48 hours. In contrast, a non-suppression firefighter's tour of duty is one eight-hour workday.
IFD promulgated a general order providing that firefighters who follow the procedures established therein are to be compensated up to 120 duty hours for military leave of absence. IFD permits firefighters who exhaust their annual allotment of military leave to elect to use perfect attendance days, annual vacation days, unpaid leave, and under certain conditions to trade duty time with other personnel to attend to additional military duties.
IFD docked suppression firefighters' leave bank twenty-four hours of military leave for each day of military service that fell on a regularly scheduled tour of duty. It docked non-suppression firefighters eight hours of military leave for each day of military service that fell on a regularly scheduled tour of duty. IFD assessed non-suppression firefighters 80 hours of military leave for a two-week annual drill period, while it assessed suppression firefighters between 96 and 120 hours of leave for a two-week annual drill period.
B. SPECIFIC CLAIMS OF CERTAIN PLAINTIFFS
In addition to plaintiffs' claim that IFD improperly redefined the word "days" under Indiana law, some of the individual plaintiffs have separate claims for relief under USERRA. For example, Stephen K. Allison claims that in May or June 1970, Chief Fulmer ordered him to "get out of the [National] Guard." As a result, he resigned his commission.
Plaintiff John M. George alleges that Chief Fulmer directed him in June 1970 not to re-enlist "but to get out of the National Guard." Plaintiff David Peed alleges that in August 1969, Chief Alter moved him out of his district because of his participation in the Indiana National Guard, and that the continuing pressure from Alter to get out of the Guard finally caused Peed not to extend his enlistment. Plaintiff Thomas K. Poole claims that in or around the spring of 1986, Chief Mitney approached him several times about getting out of the Reserves, and that in 1994 Chief Greg Thompson tried to put pressure on him to do the same. Peed never resigned from the Reserves. Finally, Plaintiff Nathan Miller claims that Chief Greeson in 1998 told him that his participation in the National Guard "threw up a red flag" any time he was "marked off sick." Greeson told Miller that it was IFD's practice to pressure firefighters to get out of the National Guard and Reserves.
Both parties have filed motions for summary judgment. In their briefs, the parties spent a considerable amount of time discussing whether IFD had the authority under Indiana law to redefine the term "days" as it appeared in I.C. § 10-2-4-3. Plaintiffs' position was that IFD had improperly enacted a local ordinance that violated a state law. In an effort to narrow the issues for summary judgment, the Court allowed the parties to argue their positions at oral argument on April 3, 2001. At that hearing, plaintiffs informed the Court that their theory on the USERRA claims was as follows: Because IFD improperly redefined "days" to mean eight-hour work days, for every day they were on military leave — assuming it fell on a regularly scheduled work day — they were charged with three days' leave. As a result, plaintiffs were really getting only five calendar days of military leave per year, as opposed to the fifteen days allowed under Indiana law. When they had exhausted their leave, they then had to use vacation time to complete their military obligations. As a result, plaintiffs claim they were denied a benefit of employment — the vacation time — in violation of USERRA.
Plaintiffs also confirmed that some of the individual plaintiffs, including Miller, Wright, Poole, Peed, and George, claimed that IFD had tried to pressure them into quitting their military duties. These plaintiffs are alleging claims of harassment and/or constructive discharge under USERRA.
After the parties' presentations at oral argument, the Court is now better able to address plaintiffs' specific claims. In particular, the Court will consider whether either party is entitled to summary judgment on plaintiffs' claim that they were denied vacation benefits because of their military status, and whether various individual plaintiffs suffered a hostile work environment or constructive discharge due to their military status. Neither party has supplemented their summary judgment filings, so the Court will now consider their pending motions.
II. STANDARDS A. SUMMARY JUDGMENT STANDARDS
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 111 S.Ct. 1317 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996), cert. denied, 520 U.S. 1116 (1997). It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which he relies. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, a court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment — even when in dispute. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115 (1997).
B. USERRA STANDARDS
One of the purposes of USERRA is to "prohibit discrimination against persons because of their service in the uniformed services." 38 U.S.C. § 4301(a)(3). To that end, the relevant portion of the statute provides:
A person 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 . . . any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.38 U.S.C. § 4311(a).
An employer is considered to have engaged in actions prohibited under § 4311(a) if, among other things, a person's "membership" or "obligation for service in the uniformed services" is a "motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership . . . or obligation for service." Yates v. Merit Systems Protection Board, 145 F.3d 1480, 1483 (Fed. Cir. 1998), citing 38 U.S.C. § 4311(c)(1). The parties concede that for claims accruing prior to USERRA's enactment in 1994, to establish liability plaintiffs must show that their military status was the "sole" factor in the employer's decision. Knowles v. Citicorp Mortgage, Inc., 142 F.3d 1082, 1085 n. 3 (8th Cir. 1998).
A "benefit of employment" is broadly defined to include "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 rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment." 38 U.S.C. § 4303 (2). "This language makes clear that the `benefit of employment' that cannot be lawfully deprived by an employer is one that flows as a result of the person's employment by the employer in question." Thomsen v. Dept. of the Treasury, 169 F.3d 1378, 1381 (Fed. Cir. 1999).
To establish a claim under USERRA, the plaintiff has the initial burden of showing by a preponderance of the evidence that the employee's military service was a "substantial or motivating factor" in the adverse employment action. Sheehan v. Department of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). If a plaintiff meets that burden, the employer then must come forward with evidence to show, by a preponderance of the evidence, that the employer would have taken the adverse action anyway, for a valid reason. Id. With these standards in mind, the Court will now consider plaintiffs' claims.
III. DISCUSSION A. DOES THIS COURT HAVE JURISDICTION OVER PLAINTIFFS' CLAIMS?
Defendants have suggested that this Court is without jurisdiction to hear plaintiffs' claims because USERRA specifically provides that actions against state employers are to be maintained in state court. 38 U.S.C. § 4323(b)(2). USERRA defines "state" as "each of the several states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, and other territories of the United States (including the agencies and political subdivisions). 38 U.S.C. § 4303(14). Defendants contend that because a municipality is a political subdivision under Indiana law, they fall under USERRA's definition of "state" and that plaintiffs' claims should therefore be in state court.
Plaintiffs respond by citing to 38 U.S.C. § 4323(b)(3), which provides that in the case of an action against a private employer by a person, the district courts of the United States shall have jurisdiction of the action. USERRA further defines "private employer" to include "a political subdivision of a State." 38 U.S.C. § 4323(j). Because defendants concede that they are political subdivisions of the State of Indiana, they are considered "private employers" for purposes of USERRA and suit against them is proper in federal court. As a result, the Court agrees with plaintiffs' interpretation of USERRA and concludes that it has jurisdiction to hear their claims.
B. DENIAL OF VACATION CLAIM
1. Plaintiffs' Initial Burden of Establishing a Loss of a Benefit of Employment
Plaintiffs have the initial burden of establishing that IFD denied them a benefit of employment. Toward that end, plaintiffs' primary contention is that IFD improperly re-defined the word "days" under Indiana law to mean eight-hour work days. Because plaintiffs work 24-hour shifts, they used three military leave days every time they had to attend military duties on a day they were scheduled to work. According to plaintiffs, this unlawful calculation of leave time eventually caused them to have to use their vacation time to meet their military requirements. According to plaintiffs, this vacation time is the "benefit of employment" that IFD denied them in violation of USERRA.
In support of their contention that they lost vacation time, plaintiffs point to page 34 of IFD employee Kristen Harrison's deposition. When questioned about IFD's application of its military leave policy when a firefighter had exhausted his allotted leave, Harrison testified as follows:
Q: . . . their vacation days? Could they take leave without pay and save a banked day? Was that an option for them, or would that automatically be assessed vacation first and then to another type if they had run out of vacation?
A: Normally I would charge their vacation, thinking that most people would prefer not to be without, leave without pay. However, if they would come back later and state they want their time back and they would like leave without pay, we would do that.
Q: You would make those adjustments?
A: Yes.
Harrison Dep. at 34. Harrison became involved with the administration of IFD's military leave policy no later than 1995. At best, this evidence shows that after 1995 when a firefighter had exhausted his military leave and needed additional time off, Harrison would first charge his vacation time. This statement of IFD's general policy, however, does nothing to establish that these individual plaintiffs actually suffered from a reduction in their vacation time.
In addition, plaintiffs point to the fact that during the normal two-week leave time for military duty, IFD assessed suppression firefighters between 96 and 120 hours of leave, depending on what day their leave began. In contrast, because non-suppression firefighters normally do not work weekends, they only use 80 hours of leave for the same two-week military leave. The charts below demonstrate how this difference occurs.
Suppression Firefighters' Two-Week Leave example 1: leave began on monday
Mon Tue Wed Thu Fri Sat Sun
x x x
x x
Total: 120 hours
example 2: leave began on tuesday
Mon Tue Wed Thu Fri Sat Sunx x
x x x
Total: 120 hours
example 3: leave began on wednesday
Mon Tue Wed Thu Fri Sat Sun
x x x x
Total: 96 hours
Non-Suppression Firefighters' Two-Week Leave example 1
Mon Tue Wed Thu Fri Sat Sunx x x x x x x x x x
Total: 80 hours
As the charts demonstrate, suppression firefighters would use between 96 and 120 hours of leave during a two-week leave period — depending on what day their leave began — while non-suppression firefighters only used eighty hours. Plaintiffs have offered no evidence about how much time they are required to spend in the military on an annual basis, but at oral argument their counsel indicated that in addition to the normal two-week training period they must spend approximately one day per month for military duty. In the above example, suppression firefighters could use their entire 120-hour allotment of leave during their two-week training period. They apparently would still have to serve twelve more days a year to fulfill their military obligations. There is a chance that they would need to attend to their military duties on days they were not scheduled to work; in that case, they would not have to use any vacation days and would suffer no loss of a benefit of employment. Of course, it is also possible that they would need to fulfill their military obligations on days they were scheduled to work, in which case they may have to use vacation days. But plaintiffs have given the Court no evidence of when, if ever, this has happened to them.
Plaintiffs' primary argument is that IFD violated USERRA by denying them the proper amount of military leave under state law. It is important to remember, however, the purpose of the federal law under which plaintiffs are proceeding. Congress has declared that the purpose of USERRA was "to prohibit discrimination against persons because of their service in the uniformed services." 38 U.S.C. § 4301(a)(3). USERRA does not, as plaintiffs appear to believe, create an affirmative right to serve in the military. As the Federal Circuit has explained:
Membership in the Ready Reserves, in and of itself, is not a benefit of Mr. Thomsen's employment with the Secret Service: USERRA cannot properly be read to convey an affirmative right to serve in the armed forces. Rather, the statute prohibits discrimination by employers on the basis of an employee's military status.Thomsen, 169 F.3d at 1381. Thus, even if the Court were to conclude that IFD somehow denied plaintiffs the proper amount of military leave under Indiana law, that in and of itself would not be a violation of USERRA. Instead, plaintiffs must produce evidence that IFD otherwise denied them a "benefit of employment" because of their military status. 38 U.S.C. § 4311(a).
The Court has no problem concluding that vacation benefits are a "benefit of employment." Indeed, USERRA itself includes "vacations" in its definition of "benefit of employment." 38 U.S.C. § 4303(2). The problem with plaintiffs' claim is that they have provided absolutely no evidence that they were ever required to use vacation benefits after exhausting their military leave. As discussed, the only evidence plaintiffs submitted in support of that claim is testimony about IFD's post-1995 practice with respect to firefighters who had exhausted all leave. That is simply insufficient to support a claim that IFD denied each plaintiff in this cause of action vacation time. Without such evidence, plaintiffs' claim that IFD denied them a benefit of employment under USERRA fails as a matter of law, and defendants are entitled to summary judgment.
2. Plaintiffs' Burden of Establishing That Their Military Status Was a Motivating Factor in IFD's to Deny Them a Benefit of Employment
Even assuming plaintiffs had established that they had lost vacation benefits as a result of IFD's military leave policy, they would also have to show that their military status was at least a motivating factor in IFD's decision to draft its policy in the manner that it did. For those plaintiffs claiming IFD denied them benefits before USERRA's effective date in 1994, they must show that their military status was the "sole" reason for IFD's actions. At oral argument, plaintiffs' counsel proffered the argument that the real reason IFD drafted its policy as it did was to save money. Assuming that were true, all claims accruing before 1994 must fail because the plaintiffs' military status obviously could not have been the sole factor entering into IFD's decision.
Even for the post-1994 claims, plaintiffs have offered no evidence that their military status was even a motivating factor the City's decision. When specifically asked at oral argument why he thought the City's decision was based upon plaintiffs' military status — as opposed to their status as suppression firefighters with unique work schedules — plaintiffs' counsel simply answered that his clients were being deprived ten days of military leave per year. With no evidence that they were denied a benefit of employment because of their military status, plaintiffs' claims fail as a matter of law and defendants are entitled to summary judgment.
C. CLAIMS OF HARASSMENT AND/OR CONSTRUCTIVE DISCHARGE
At oral argument, plaintiffs' counsel confirmed that plaintiffs Miller, Wright, Poole, Peed, and George all were asserting claims that they were harassed and pressured into relinquishing their positions in the military. The parties' briefs refer to these claims as ones for harassment and constructive discharge. The term "constructive discharge" refers to a situation where an employee quits under circumstances where the working conditions made remaining with the employer intolerable. Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th Cir. 1998). Establishing constructive discharge is a two-step process. Simpson v. Borg-Warner Automotive, Inc., 196 F.3d 873, 877 (7th Cir. 1999). First, plaintiffs must show that their working conditions were so intolerable that a reasonable person would have been compelled to resign. Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir. 1996). Second, the conditions must be intolerable because of unlawful discrimination. Drake v. Minnesota Mining Mfg. Co., 134 F.3d 878, 886 (7th Cir. 1998). Assuming a claim for constructive discharge exists under USERRA, plaintiffs have failed to produce sufficient evidence to create a genuine issue of material fact to preclude summary judgment. Indeed, there is no evidence that any of the plaintiffs ever resigned from their positions as firefighters with IFD, let alone that they had done so because of allegedly intolerable conditions. Absent such evidence, any claims for constructive discharge fail as a matter of law.
Similarly, although neither party has directed the Court to authority that a claim for hostile work environment exists under USERRA, any such claims in this matter would fail. Under other federal laws that have a similar purpose of prohibiting discrimination in employment, any harassment must be based upon a protected characteristic and must be "sufficiently severe or pervasive to `alter the conditions of [the victim's] employment and create an abusive working environment.'" Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806 (7th Cir. 2000), quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Plaintiffs' evidence of isolated comments and pressure to leave the military are insufficient to establish that the terms and conditions of their employment were somehow altered. As a result, defendants are entitled to summary judgment on those claims.
IV. CONCLUSION
The Court has concluded that plaintiffs have failed to establish a violation of USERRA. While they may have a viable complaint that IFD's military leave policy violates Indiana law, they have failed to produce any evidence that the policy denied them a benefit of employment because of their military status. As a result, defendants' motion with respect to that claim is GRANTED. The Court also GRANTS defendants' motion for summary judgment on the constructive discharge/harassment claims of plaintiffs Miller, Wright, Poole, Peed, and George. In addition, the Court DENIES plaintiffs' motion for summary judgment. Finally, the Court realizes that the parties briefed other issues in this case, including whether the City of Indianapolis enacted a local law in violation of state law, and whether some or all of plaintiffs' claims are barred by the doctrine of laches. Because the Court has concluded that plaintiffs have otherwise failed to establish a violation of USERRA, the Court need not address those issues.
IT IS SO ORDERED.