Thaddaeus Myrick v. City of Hoover, Alabama ( 2023 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11621
____________________
THADDAEUS MYRICK,
in his official capacity as Police Officer for the
City of Hoover, Alabama,
NICHOLAS D. BRADEN,
in his official capacity as Police Officer for the
City of Hoover, Alabama,
JESSIE POPEE,
in his official capacity as Police Officer for the
City of Hoover, Alabama,
KENNETH L. FOUNTAIN,
in his official capacity as Police Officer for the
City of Hoover, Alabama,
Plaintiffs-Appellees,
versus
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2 Opinion of the Court 22-11621
CITY OF HOOVER, ALABAMA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:19-cv-01728-MHH
____________________
Before WILSON, JILL PRYOR, Circuit Judges, and CONWAY,∗ District
Judge.
CONWAY, District Judge:
Military reservists play a vital role in our nation’s defense
policy. When called to service, these men and women are expected
to leave their civilian jobs, sometimes for years on end. To alleviate
this burden, Congress enacted the Uniformed Services Employ-
ment and Reemployment Rights Act of 1994 (USERRA). 38 U.S.C.
§ 4301(a). Under USERRA, employers must provide the same
rights and benefits to employees on military leave that they provide
to similarly situated employees on comparable forms of non-mili-
tary leave. Id. § 4316(b)(1)(B).
∗ Honorable Anne C. Conway, United States District Judge for the Middle
District of Florida, sitting by designation.
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22-11621 Opinion of the Court 3
Thaddaeus Myrick, Nicholas Braden, Jessie Popee, and Ken-
neth Fountain (collectively, the Officers) worked as police officers
for the City of Hoover, Alabama. They also served as military re-
servists. Over a two-decade span, the Officers were summoned to
active-duty service a combined thirteen times. While away, Hoover
did not provide the Officers the same holiday pay and accrued ben-
efits that it gave employees on paid administrative leave. This dis-
parate treatment prompted the Officers to sue Hoover under
USERRA. And it led the district court to grant summary judgment
for the Officers.
Hoover asks us to reverse the district court’s judgment for
two reasons. First, Hoover argues that the Officers are not similar
to employees placed on paid administrative leave. Second, Hoover
asserts that military leave is not comparable to paid administrative
leave. We disagree on both points. Therefore, we affirm.
I. BACKGROUND
We begin by describing the relevant portions of Hoover’s
leave policy. We then turn to the events precipitating this lawsuit
and the litigation that followed.
A. Hoover allows employees on “paid status” to accrue ben-
efits and collect holiday pay
Hoover offers its employees various benefits, two of which
are pertinent to this appeal. First, Hoover allows its employees to
accrue different types of leave and convert their accrued leave to
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4 Opinion of the Court 22-11621
compensation. Second, Hoover affords employees twelve paid hol-
idays each year, equal to eight hours of pay per holiday.
To qualify for these benefits, Hoover employees must be on
“paid status.” An employee is on paid status when he or she is on
the payroll or using paid leave. If an employee is off the payroll and
not using paid leave, Hoover places him or her on “unpaid status.”
Employees on unpaid status do not accrue leave and do not collect
holiday pay.
B. Hoover caps accrued leave and holiday pay for employees
on military leave
Hoover offers military leave to employees absent for mili-
tary service. Hoover provides 168 hours of paid military leave an-
nually, and during those hours, military employees remain on paid
status, continuing to accrue benefits and earn holiday pay. Once
military employees exhaust those hours, they convert to unpaid
status. 1 From that point forward, military employees accrue no
benefits and collect no holiday pay until the new fiscal year, when
Hoover awards another 168 hours of paid military leave.
C. Hoover does not cap accrued leave and holiday pay for
employees on paid administrative leave
Hoover also provides paid administrative leave to its em-
ployees. This form of leave requires authorization from the
1
After exhausting those 168 hours, military employees also have the option to
use other forms of paid leave that they have accrued.
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22-11621 Opinion of the Court 5
employee’s supervisor, and if the leave exceeds thirty days, from
Hoover’s mayor.
Hoover permits paid administrative leave for various rea-
sons, including jury duty, voting, inclement weather, promotional
exams, court hearings, formal city hearings, “or other appropriate
reasons.” Hoover has utilized that final, catch-all category to place
employees on paid administrative leave while they are under inter-
nal investigation. Investigative administrative leave serves a two-
fold purpose. It allows Hoover to remove an employee under in-
vestigation from the workforce without violating the Due Process
Clause, and it protects the employee from hardship prior to a find-
ing of wrongdoing. Employees on paid administrative leave remain
on paid status—they collect a salary, accrue benefits, and take-
home holiday pay.
Paid administrative leave is typically short: absences caused
by inclement weather usually last a few days, while absences for
most other reasons average thirteen workdays. However, since
1994, Hoover has placed at least three police department employ-
ees on paid administrative leave lasting longer than 120 consecu-
tive days. Each time, Hoover placed the employee on paid admin-
istrative leave because the employee was under internal investiga-
tion. Hoover put two employees on investigative administrative
leave in 1997—the first for 440 days, and the second for 405 days.
Hoover placed a third employee on investigative administrative
leave for 599 days in 2012. Together, these three police officers
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took investigative administrative leave for an average of sixteen
months each.
D. The Officers take military leave
Officers Myrick, Braden, Popee, and Fountain worked for
the Hoover Police Department while serving as military reservists.
During the course of their employment, each Officer was called to
active-duty service, either for training or deployment. As a result,
each Officer took military leave under Hoover’s policy.
The Alabama Army National Guard ordered Officer Myrick
to active duty three times, all in 2017. He was called for training
twice, for fifty-six days and fourteen days. That same year, the Na-
tional Guard deployed Officer Myrick to Afghanistan for 377 days.
Officer Braden also served in the Alabama Army National
Guard, who called him for 122 days of training in 2011, and twenty-
five days of training in 2018. Officer Braden was deployed to Af-
ghanistan in 2017 for 354 days.
Officer Popee, a member of the Alabama Air National
Guard, was called to active-duty service six times. He was called
for training three times: first for eighteen days in 1999, then for
fifty-nine days in 2010, and lastly for seventy days in 2012. He was
deployed another three times: for 607 days starting in 2001, 691
days starting in 2004, and 426 days starting in 2008.
Officer Fountain served in the United States Army Reserve.
He was ordered to active-duty service for one year starting in 2007,
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22-11621 Opinion of the Court 7
which the military extended annually until 2011, for a total of 1,752
days.
E. The Officers sue Hoover, and the district court grants
summary judgment
During their periods of service, each Officer exhausted their
168 hours of annual paid military leave. As a result, Hoover con-
verted each Officer to unpaid status. Once converted, the Officers
accrued no benefits and earned no holiday pay while on military
leave. In the meantime, Hoover provided those benefits to employ-
ees on paid administrative leave. This disparity in benefits drove
the Officers to sue Hoover under USERRA. Both parties moved for
summary judgment, and the district court granted the Officers’
motion. Hoover now appeals.
II. STANDARD OF REVIEW
This Court reviews a district court’s rulings on cross-mo-
tions for summary judgment de novo, viewing “the facts in the
light most favorable to the nonmoving party on each motion.”
James River Ins. Co. v. Ultratec Special Effects Inc., 22 F.4th 1246, 1251
(11th Cir. 2022). Summary judgment is appropriate only “if the mo-
vant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).
III. DISCUSSION
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8 Opinion of the Court 22-11621
USERRA is the latest in a long line of laws that protect em-
ployees who serve in the military. Congress enacted USERRA to
mitigate the employment disadvantages that stem from non-career
military service. 38 U.S.C. § 4301(a)(1). In pursuit of this purpose,
Congress imposed a number of obligations on employers and
granted a number of entitlements to military employees. This ap-
peal is about the obligations and entitlements in § 4316(b).
Section 4316(b)(1) forces employers to give employees on
military leave the same rights and benefits provided to similarly sit-
uated employees on non-military leave:
[A] person who is absent from a position of employ-
ment by reason of service in the uniformed services
shall be . . . 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 are on furlough
or leave of absence . . . .
Through this statute, Congress set forth a two-step process for de-
termining which benefits are available to employees on military
leave. First, the military employee must identify a group of non-
military employees “having similar seniority, status, and pay who
are on . . . leave of absence[.]” Id.; § 4316(b)(1)(B). Second, the mil-
itary employee must prove that those employees took a form of
non-military leave that is comparable to military leave. 20 C.F.R. §
1002.150(b). A military employee who clears both hurdles is enti-
tled to the same benefits that the similarly situated employees re-
ceived while on the comparable form of leave.
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22-11621 Opinion of the Court 9
The district court held that Hoover violated § 4316(b)(1)(B)
when it provided benefits 2 to employees on paid administrative
leave that it withheld from employees on military leave. Hoover
challenges this conclusion on two fronts. First, Hoover argues that
the district court mistakenly found the Officers similar to employ-
ees on paid administrative leave, rather than employees on unpaid
status and unpaid leave. Second, Hoover contends that the district
court incorrectly concluded that military leave was comparable to
paid administrative leave. We disagree with both of Hoover’s ar-
guments.
A. The Officers had a similar “status” and “pay” as Hoover
employees on paid administrative leave
Employees on military leave are only entitled to the rights
and benefits provided to similarly situated employees. This limita-
tion springs from USERRA’s text, which grants military employees
the same benefits provided “to employees having similar seniority,
status, and pay who are on . . . leave of absence[.]” § 4316(b)(1)(B).
Seizing on the quoted language, Hoover argues that we
must analyze an employee’s “status” and “pay” while he or she is
on leave. While the Officers were on leave, Hoover placed them
on unpaid status and provided them no pay. Thus, Hoover posits
that they were similar to other employees on unpaid status and un-
paid leave.
2
Neither party disputes that accrued leave and holiday pay are “benefits” un-
der USERRA. 38 U.S.C. § 4303(2).
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10 Opinion of the Court 22-11621
The trouble with Hoover’s interpretation is that the Depart-
ment of Labor (DOL)—tasked by Congress with implementing
USERRA—has rejected it. Id. § 4331(a). Indeed, the DOL issued
regulations interpreting § 4316(b)(1)(B) to mean that benefits are
“not dependent on how the employer characterizes the employee’s
status during a period of [military] service.” 20 C.F.R. § 1002.149.
Moreover, when the DOL promulgated its final rules, it considered
and rejected a comment suggesting that it make the form of leave
(paid or unpaid) a factor in the leave comparison. 70 Fed. Reg.
75246, 75264 (Dec. 19, 2005) (stating that Congress found it “irrel-
evant whether the non-military leave is paid or unpaid”).
Thus, it is evident—as even Hoover admits—that the DOL
considers an employee’s pay status during leave to have no legal
significance under § 4316(b)(1)(B). The question, then, is whether
we owe deference to the DOL’s interpretation. To answer that
question, we turn to the two-step process set forth in Chevron
U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). 3
At step one, we ask whether Congress spoke to the precise question
at issue. Id. at 842–43. At step two, we ask whether the agency’s
interpretation of the statute is permissible. Id. Applying both steps,
we conclude that the DOL’s interpretation of § 4316(b)(1)(B) de-
serves deference.
3
The DOL’s interpretation is entitled to deference under Chevron because the
regulations were promulgated using notice-and-comment procedures. U.S. v.
Mead Corp., 533 U.S. 218, 230–31 (2001); White v. United Airlines, Inc., 987 F.3d
616, 620 (7th Cir. 2021).
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1. Step One: Congress did not speak to the meaning of
“status” and “pay”
We begin with Chevron step one, which asks whether Con-
gress spoke to the precise question at issue. Congress speaks to the
question at issue when it unambigously expresses its intent
through the statute. Nat’l Cable & Telecomms. Ass’n v. Brand X Inter-
net Servs., 545 U.S. 967, 986 (2005). We are bound to apply Con-
gress’s unambiguously expressed intent without regard to the
agency’s interpretation. Barnhart v. Sigmon Coal Co., 534 U.S. 438,
462 (2002). But if a statute is genuinely ambiguous, we proceed to
Chevron step two. Autauga Cnty. Emergency Mgmt. Commc’n Dist. v.
Fed. Commc’ns Comm’n, 17 F.4th 88, 98 (11th Cir. 2021).
A statute is genuinely ambiguous when it is susceptible to
more than one reasonable interpretation, even “after employing all
the traditional tools of statutory construction.” Id. (quotation omit-
ted). We check for ambiguity by examining the statute’s text, struc-
ture, and history, and by applying the canons of construction.
Hylton v. U.S. Att’y Gen., 992 F.3d 1154, 1158 (11th Cir. 2021); Friends
of the Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1223
(11th Cir. 2009). At step one, we may also consult the legislative
history to decide whether Congress intended to speak to the pre-
cise question at issue. Miccosukee Tribe of Indians of Fla. v. United
States, 566 F.3d 1257, 1273 (11th Cir. 2009); Guar. Fin. Servs., Inc. v.
Ryan, 928 F.2d 994, 1004 (11th Cir. 1991).
In this case, the precise question at issue is whether the
words “status” and “pay” in § 4316(b)(1)(B) unambigously refer to
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12 Opinion of the Court 22-11621
an employee’s status and pay during the period of leave. We find
that they do not because a reasonable person could read those
words as references to an employee’s general employment position
and salary.
We begin with the text. Our job is to interpret a statute
based on the ordinary meaning of its text at the time that the stat-
ute was enacted. Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067,
2070 (2018). Dictionary definitions from the period of enactment
often illuminate the ordinary usage of a statutory term. Lamar,
Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1759 (2018); United
States v. Dawson, 64 F.4th 1227, 1236 (11th Cir. 2023). Here, Mer-
riam-Webster’s Collegiate Dictionary defines “status” as a “posi-
tion or rank in relation to others.” See Status, Merriam-Webster’s
Ninth New Collegiate Dictionary, at 1152 (9th ed. 1991). It defines the
noun “pay” as something paid for a purpose, “especially as a salary
or wage.” Id. at 864. Both definitions suggest that “status” and
“pay” refer to an employee’s employment position and salary.
Of course, the meaning of a word can vary depending on
context. Here, Congress referenced “status” and “pay” in a statute
that grants military members the same rights and benefits provided
“to employees having similar seniority, status, and pay who are on . . .
leave of absence.” § 4316(b)(1)(B) (emphasis added). Hoover argues
that the italicized language unambiguously confines the meanings
of “status” and “pay” to the period of leave. We disagree.
A reasonable person could read the statute as imposing two
limitations on the “employees” to whom we look for available
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benefits. First, the statute narrows the scope of “employees” to
those with particular attributes—those “having similar seniority,
status, and pay.” Then, the statute specifies that only a subset of
these similarly situated employees are relevant for pinpointing the
available benefits—those “who are on . . . leave of absence.” This
latter limitation does not confine “status” and “pay” to the period
of leave. To the contrary, the word “who” is a relative pronoun
introducing a dependent clause that modifies the noun “em-
ployee,” not the nouns “status” and “pay.” This limitation merely
recognizes that an employee on military leave is not entitled to
every benefit given to similarly situated employees, just those that
are provided while the similarly situated employees are on leave.
Accordingly, the language in § 4316(b)(1)(B) does not unambigu-
ously limit the meaning of “status” and “pay” to the period of leave.
Our conclusion is bolstered by the fact that Hoover’s inter-
pretation would split the circuits. Guar. Fin. Servs., Inc. v. Ryan, 928
F.2d 994, 1003 n.3 (11th Cir. 1991) (“That the various courts that
have already decided this question are split supports our conclusion
that the statute is ambiguous.”). To date, the Seventh and Third
Circuits have held that compensation during leave is a “right or ben-
efit” provided by § 4316(b)(1)(B). Travers v. Fed. Express Corp., 8 F.4th
198, 204 (3d Cir. 2021); White v. United Airlines, Inc., 987 F.3d 616,
621 (7th Cir. 2021). Because USERRA is designed to remedy differ-
ences in available “rights and benefits,” we cannot use those differ-
ences to negate relief under section 4316(b)(1)(B). Tully v. Dep’t of
Just., 481 F.3d 1367, 1370–71 (Fed. Cir. 2007) (“To allow differences
in the available benefits to negate relief under section 4316(b)(1)(B)
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14 Opinion of the Court 22-11621
would undermine the effect of the statute, which is designed to
remedy differences in the benefits provided for military leave and
leave for other purposes.”).
But Hoover would have us do just that. The City seeks to
contrast the Officers from other employees based on whether they
received compensation while on leave. To differentiate on this ba-
sis, we would have to break from our sister circuits and hold that
compensation during leave is not a right or benefit under the stat-
ute. While we need not decide that issue today, the implications of
Hoover’s interpretation serve as further proof that the statute is
ambiguous. Ryan, 928 F.2d at 1003 n.3.
Finally, to the extent that Congress spoke to the meaning of
“status” and “pay,” USERRA’s legislative history indicates that it
did so in a way that defeats Hoover’s interpretation. Miccosukee
Tribe of Indians, 566 F.3d at 1274. Committee comments from the
House of Representatives suggest that Congress did not intend to
distinguish between various forms of non-military leave based on
whether such leave was paid or unpaid:
[T]o the extent the employer policy or practice varies
among various types of non-military leaves of ab-
sence, 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.
H.R. Rep. No. 103-65, pt. 1, at 33–34 (1993) (emphasis added). The
DOL relied on this legislative history when it rejected a comment
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22-11621 Opinion of the Court 15
that suggested making the form of leave (paid or unpaid) a relevant
factor in the leave comparison, deeming it “irrelevant” in the eyes
of Congress. 70 Fed. Reg. at 75264. Thus, to the extent Congress
spoke to the meaning of “status” and “pay,” the legislative history
suggests that it did so in a way that defeats Hoover’s interpretation.
For those reasons, the words “status” and “pay” in
§ 4316(b)(1)(B) are ambiguous at best. We now proceed to Chevron
step two.
2. Step Two: The DOL permissibly interpreted the terms
“status” and “pay”
At step two, we readily conclude that the DOL’s interpreta-
tion of “status” and “pay” is permissible. An agency’s interpreta-
tion of a statute is permissible—deserving of deference—if it is rea-
sonable in light of the statutory scheme. In re Gateway Radiology
Consultants, P.A., 983 F.3d 1239, 1256 (11th Cir. 2020) (“An interpre-
tation is reasonable if it is rational and consistent with the stat-
ute.”). The DOL concluded that an employee’s entitlement to ben-
efits under § 4316(b)(1)(B) “is not dependent on how the employer
characterizes the employee’s status during a period of service.” 20
C.F.R. § 1002.149. This interpretation is reasonable in light of
USERRA’s statutory scheme.
The Supreme Court has long admonished courts to con-
strue statutes protecting veterans liberally for the benefit of the vet-
eran. Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285
(1946). Congress adopted this rule of construction when it enacted
USERRA. Clarkson v. Alaska Airlines, Inc., 59 F.4th 424, 429 (9th Cir.
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16 Opinion of the Court 22-11621
2023). Thus, when two plausible interpretations of USERRA ex-
ist—one denying benefits, the other protecting the veteran—we
must choose the interpretation that protects the veteran. Travers, 8
F.4th at 208 n.25 (“[A]ny interpretive doubt is construed in favor of
the service member, under the pro-veteran canon.”). In this case,
the word “status” could refer to an employee’s job position, or to
the way the employer classifies the employee while on leave. The
DOL selected the former interpretation, which prevents employers
from skirting USERRA’s protections by mischaracterizing military
leave. Cf. § 1002.149; 70 Fed. Reg. at 75263. This interpretation
aligns with USERRA’s purpose and scheme. Therefore, it is permis-
sible.
Because we must defer to the DOL’s interpretation of
§ 4316(b)(1)(B), we find that the words “status” and “pay” do not
refer to an employee’s pay status while on leave.4 Instead, we in-
terpret those words the way they are ordinarily understood in the
employment context—as references to an employee’s position and
salary. Both parties proceed on the assumption that the Officers
4
Hoover relies heavily on a California district court opinion to support its in-
terpretation—Elliott v. City of Anaheim, No. 8:12-cv-736-CJC-MLG, 2015 WL
13918896 (C.D. Cal. July 21, 2015). But that case is not persuasive. The court
in Elliot did not cite or consider the DOL regulation interpreting §
4316(b)(1)(B) as “not dependent on how the employer characterizes the em-
ployee’s status during a period of service.” 20 C.F.R. § 1002.149. Nor did the
court engage with the text of § 4316(b)(1)(B). Moreover, Elliott came down
before two different circuit courts held that compensation during leave is a
benefit under USERRA. Travers, 8 F.4th at 203; White, 987 F.3d at 621. Elliott is
not persuasive.
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held a position and received a salary similar to employees who
were placed on paid administrative leave. Our next step, then, is to
determine whether paid administrative leave and military leave are
comparable.
B. Military leave is comparable to paid administrative leave
Employees absent for military service are entitled to the
most favorable treatment provided to non-military employees on
any “comparable form of leave.” 20 C.F.R. § 1002.150(b). Three
factors inform our comparison between leaves: (1) the duration of
the leave, (2) the purpose of the leave, and (3) the ability of employ-
ees to choose when to take the leave. § 1002.150(c). The district
court found military leave comparable to paid administrative leave
in terms of purpose and control, but “minimally comparable” in
terms of duration. Despite this durational difference, the district
court ultimately held that the leaves were comparable.
We agree with most aspects of the district court’s thoughtful
order. Starting with purpose, we find that military leave and paid
administrative leave serve similar ends. For one, both enable Hoo-
ver to comply with the law. In its initial brief, Hoover acknowl-
edged that it provides investigate administrative leave to comply
with the Due Process Clause,5 and at oral argument, it recognized
that Alabama law compels it to provide paid leave for jury duty.
5
The Due Process Clause does not always require notice and a hearing before
an officer is suspended without pay. Gilber v. Homar, 520 U.S. 925, 932–33
(1997). Still, Hoover says that investigative administrative leave is its chosen
method for providing due process.
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18 Opinion of the Court 22-11621
Likewise, Hoover provides military leave to comply with
USERRA. Moreover, both forms of leave are intended to shield em-
ployees from unnecessary hardship. According to Hoover’s Hu-
man Resources Director, the City provides paid administrative
leave during internal investigations to protect employees from
hardship prior to a finding of wrongdoing. Similarly, USERRA aims
to alleviate the employment-related hardships that stem from mil-
itary service. 38 U.S.C. § 4301(a)(1). Military leave and paid admin-
istrative leave serve comparable purposes.
The two forms of leave are also similar in terms of control.
This factor accounts for an employee’s ability to choose when to
take the leave. § 1002.150(c). Military employees do not control
when they will be summoned for active-duty service, just as non-
military employees do not control when Hoover will launch an in-
vestigation and place them on administrative leave. Hence, em-
ployees taking military leave have a similar lack of control as those
on investigative administrative leave. 6
That leaves the final factor—duration. 20 C.F.R. §
1002.150(b). The district court analyzed this factor by grouping mil-
itary leave and paid administrative leave into two categories based
on length—short-term leave and long-term leave. In the short-
6
Hoover argues that the leaves differ somewhat as to control because military
employees can volunteer for military assignments. But nothing in the record
suggests that such opportunities were available to the Officers. And even if the
Officers had volunteered for certain military assignments, it is not clear that
they could have chosen when to take leave to perform those assignments.
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22-11621 Opinion of the Court 19
term-leave category, the court placed military leave for training
and administrative leave for brief events like jury duty. It con-
cluded that short-term military leave lasted three times longer
(thirty-seven days) than short-term administrative leave (thirteen
days). In the long-term-leave category, the district court placed mil-
itary leave for deployment and investigative administrative leave.
It found that both lasted, on average, sixteen months.
The district court ultimately concluded that military leave
was not comparable in duration to paid administrative leave be-
cause the three-to-one difference between short-term military
leave and short-term administrative leave was significant. In reach-
ing this decision, the district court disregarded the similarity be-
tween military leave for deployment and investigative administra-
tive leave, labeling the long-term leaves “outliers.” We see things
differently.
We do not view the instances of investigative administrative
leave as outliers. Instead, they set the upper strata of paid adminis-
trative leave that Hoover was willing to provide its employees. See
Clarkson, 59 F.4th at 435–36 (considering as relevant evidence a
comparison between the longest instance of military leave and the
longest instance of non-military leave). These instances demon-
strate that Hoover was inclined to provide paid administrative leave
for up to around sixteen months—the same average length as the
longest instances of military leave.7 Had the Officers been placed
7
The district court did not consider Officer Fountain’s military leave when
calculating the average length of deployment. Fountain was ordered to active-
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20 Opinion of the Court 22-11621
on paid administrative leave instead of military leave, they would
have received holiday pay and accrued benefits for each period of
service, including those shorter than sixteen months. So, the dis-
trict court should have found the two forms of leave comparable in
duration.8 See Tully, 481 F.3d at 1369–70 (stating that the duration
inquiry reflects an equality principle that entitles veterans to the
same benefits they would have earned had they not left for military
service, but for some other reason). Nevertheless, the district court
ultimately held that the leaves were comparable, and it granted
summary judgment to the Officers. Because the district court
reached the correct conclusion, we affirm.
IV. CONCLUSION
duty service for one year starting in 2007, which the military extended annu-
ally until 2011, totaling 1,752 days. The district court was unsure whether to
regard this leave as a single period, or multiple one-year periods. Because
Fountain was absent for active-duty service in the United States military for a
continuous, uninterrupted period of service, we conclude that his leave is best
viewed as a single period. Nevertheless, even if we added Officer Fountain’s
abnormal, one-off absence into the mix of military leaves, the longest instances
of military leave (on average, twenty-one months) would still be similar to the
longest average instances of investigative administrative leave (sixteen
months).
8
Beyond the three enumerated factors in section 1002.150(c)—duration, pur-
pose, and control—Hoover cites other unenumerated factors to support its
position. But because the three enumerated factors favor the Officers, the un-
enumerated factors do not change the outcome. Clarkson, 59 F.4th at 436
(“[T]he factors enumerated in the regulation should be weighed most heavily
when considering whether two leaves are comparable.”).
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22-11621 Opinion of the Court 21
Hoover violated § 4316(b)(1)(B) by not providing the Offic-
ers the same benefits on military leave that it afforded similar em-
ployees on paid administrative leave. We affirm the district court’s
order granting the Officers’ motion for summary judgment.
AFFIRMED.