Reservist's Differential Pay Was Not A "Benefit Of Employment"
GROSS v. PPG INDUSTRIES (March 7, 2011)
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PPG Industries has employed Eric Gross as an industrial technician since 1997. Gross is a member of the United States Marine Corps Reserve. He was called up for active duty in 2004. Before he left, he met with the PPG's human resources advisor, who explained his benefits. PPG’s policy guaranteed his return to his job and also paid him the differential between his PPG salary and his military salary. PPG computed the salary differential by subtracting his military monthly base pay from his PPG monthly base pay. When Gross returned from deployment, he submitted a complaint regarding the differential calculation. Since Gross was required to work more days per month in the military, he wanted PPG to: a) calculate a daily rate of pay for his military job, and b) subtract from his PPG salary his military salary for only those days he would have worked at PPG. PPG refused to apply that calculation retroactively, but did adopt it prospectively. Gross brought suit against PPG pursuant to the Uniformed Services Employment and Reemployment Act. Judge Stadtmueller (E.D. Wis.) granted PPG summary judgment. Gross appeals.
In their opinion, Judges Cudahy, Rovner, and Evans affirmed. The Court first addressed Gross' argument that the pay calculation violated the Act. Under § 4311, someone in Gross' position cannot be denied a "benefit of employment" because of his service obligations. The Court noted that it has very recently held (opinion and intheiropinion) that § 4311 does not require an employer to provide benefits to military personnel that it does not offer to other employees. Section 4311's purpose is to protect military personnel from discrimination, not to provide preferential treatment. The Court added that Gross would not be entitled to relief even if it accepted his argument that differential pay was a "benefit of employment." PPG did not deny Gross his differential pay. It just did not pay it under Gross' calculations -- nor was it required to. Next, the Court considered and rejected Gross’ retaliation claim. The Act only prohibits an adverse employment action against a person who has sought protection under the Act. Here, there was no adverse employment action. PPG paid Gross under a calculation that it was within its rights to use and denied him no pay. Even if the calculation constituted an adverse employment action, it could not amount to retaliation. All of the calculations and payments under the PPG formula took place before Gross made any complaints. They could not possibly been in retaliation for something that had not yet occurred.
From 1960 until 1989, Charles Middleton served in the Air Force. On two occasions in the early 1990s, he applied for positions with the City of Chicago. He was not hired for either position. In 2007, Middleton sued the City pursuant to the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). He alleged that the City refused to employ him on account of his military service. The district court applied the four year "catch-all" statute of limitations in 28 U.S.C. § 1658 (a) and dismissed his complaint. Middleton appeals.