Ryan Crews v. City Mt Vernon IL ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2435
R YAN P. C REWS,
Plaintiff-Appellant,
v.
C ITY OF M T. V ERNON, a municipal corporation,
C HRISTOPHER D EICHMAN, individually and in his
capacity as Assistant Chief of Police for the City of
Mt. Vernon, and C HRIS M ENDENALL, individually and in
his capacity as Chief of Police for the City of Mt. Vernon,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:06-cv-1012-DRH-DGW—David R. Herndon, Chief Judge.
A RGUED D ECEMBER 11, 2008—D ECIDED JUNE 2, 2009
Before M ANION, E VANS, and T INDER, Circuit Judges.
T INDER, Circuit Judge. For nine years, the City of
Mt. Vernon allowed police officers who missed their
weekend work shifts to attend National Guard duties to
make up the time on their scheduled days off. The City
2 No. 08-2435
provided no comparable scheduling benefit to non-Guard
employees who missed work for other, non-military
activities. This appeal presents the question of whether,
under the Uniformed Services Employment and
Reemployment Act (“USERRA”), 38 U.S.C. §§ 4301-35, the
City must continue to provide these work scheduling
preferences to Guard employees, even though nothing in
the Act would have required the City to establish the
preferences in the first place. We hold that USERRA
does not require such preferential treatment and accord-
ingly affirm the district court’s grant of summary judg-
ment in favor of the defendants.
I. Background
Ryan Crews has been a member of the Army National
Guard since 1988 and an officer of the Mt. Vernon
Police Department since 1997. As a member of the Guard,
Crews must attend weekend training and preparedness
exercises, or “drill,” about once a month. As a “patrol
officer” for the Department from 1997 to 2006 and a
“corporal officer” since 2006, Crews’s weekly work sched-
ule is governed by the Collective Bargaining Agreement
(“CBA”) between the City and police employees. Under the
CBA, the City has discretion to establish employees’ work
schedules to meet operational needs, although the City
must make a “good faith effort” to honor employees’
requests for their preferred days off. In practice, Chief of
Police Chris Mendenall, a defendant in this action, has
the authority to establish officers’ weekly work schedules,
which consist of five, eight-hour shifts and two days off.
No. 08-2435 3
Crews’s weekend drill obligations frequently conflict
with his Department work schedule. When such a
conflict arises, the City grants Crews and other Guard
employees military leave to attend drill. Although this
leave is unpaid, Guard employees may turn in their
military pay for attending drill in exchange for their
regular City pay so as not to incur any net loss in weekly
compensation. Guard employees may also allocate their
accrued vacation days, personal days, and compensatory
time off to days missed for drill, thereby collecting
City pay and military pay for time spent at drill.
In addition to providing military leave and supple-
mental City pay, the Department maintained a policy
for several years that allowed Guard employees to resched-
ule work shifts that fell on drill weekends. In a 1997
memorandum, Crews’s supervisor told Crews that he
could “use the monthly weekend drills as [his] days off
for that week with no loss of pay.” By allowing Crews
to move his weekend shifts missed for drill to his sched-
uled days off during the regular work week, the Depart-
ment’s policy enabled Crews to collect, in addition to
his military pay for attending drill, a full week’s pay
from the City. The Department extended this work sched-
uling benefit to three other Guard members who joined
the Department between 2000 and 2003. Non-Guard
employees did not have a comparable opportunity to
reschedule work shifts missed for outside, non-Departmen-
tal activities.
In August 2006, after the Department had hired two
additional Guard members, Mendenall rescinded the
4 No. 08-2435
work scheduling policy. Mendenall and Assistant Chief
of Police Chris Deichman, also a defendant in this action,
determined that extending the policy to an increasing
number of Guard employees would result in too
many, costly scheduling conflicts. By allowing Guard
employees to reschedule their weekend shifts missed
for drill, the policy required the City to pay these em-
ployees to work shifts during the regular work week
that were already fully staffed. While that overstaffing
problem was manageable when the Department orig-
inally extended the policy to only Crews, the cost of
maintaining the policy for all current and future Guard
employees was increasing.
Following the rescission of the scheduling policy, Crews
tried to persuade Deichman to continue allowing him to
reschedule his work days missed for drill, but Deichman
refused and told Crews to bring any further complaints
to Chief Mendenall. Crews thereafter limited his con-
versations with Deichman to official business, prompting
Deichman to note Crews’s negative demeanor on his
September 2006 quarterly evaluation. Deichman also
denied Crews’s requests to attend classes to become a
field training officer (“FTO”), explaining that he did not
approve FTO training for officers of a corporal or higher
rank because they spend too little time in the field.
Since the rescission of the work scheduling policy, Crews
is no longer able to collect a full week’s pay from the
City when he misses a weekend shift for drill, unless
he uses up his limited days of paid time off. Further, the
impact of losing the policy’s scheduling benefits is more
No. 08-2435 5
acute for Crews now that he is a corporal. Per a 1998
decision by Mendenall, corporals do not bid for their
preferred days off like lower-ranking officers, but rather
have regular Wednesday-Sunday work schedules. (The
purpose of requiring corporals to regularly work week-
ends is to ensure that every shift has a sufficient number
of high-ranking officers; the more senior captains enjoy
regular days off on Saturdays and Sundays, leaving the
corporals and sergeants to provide leadership during the
less desirable weekend shifts.) So while he remains a
corporal, Crews’s weekend drill obligations will
regularly conflict with his scheduled work days.
In December 2006, Crews filed a complaint against the
City of Mt. Vernon, Mendenall, and Deichman, alleging
that the rescission of the work scheduling policy denied
him a benefit of employment based on military status, in
violation of USERRA, 38 U.S.C. § 4311. Crews also
claimed that Deichman retaliated against him for
opposing the rescission of the policy by making negative
comments toward Crews and denying him advance-
ment opportunities.
The district court concluded that § 4316(b)(1) of USERRA
governed Crews’s claim. That section provides that “a
person who is absent from a position of employment
by reason of service in the uniformed services” is “deemed
to be on furlough or leave of absence” and entitled to
such benefits “as are generally provided by the employer”
to non-military employees who take a comparable leave
of absence. 38 U.S.C. § 4316(b)(1) (emphasis added). The
court concluded that, under § 4316(b), the City was not
6 No. 08-2435
required to give Crews preferential work scheduling
benefits not generally available to non-Guard employees.
The court also rejected Crews’s retaliation claim, con-
cluding that denying Crews the opportunity to attend FTO
classes, making negative comments, and noting his nega-
tive attitude on a quarterly evaluation were not “materially
adverse” employment actions. The court accordingly
denied Crews’s motion for summary judgment and
granted the City’s motion for summary judgment. Crews
timely appealed.
II. Discussion
We review de novo the district court’s grant of summary
judgment. Cavin v. Home Loan Ctr., Inc., 531 F.3d 526, 528
(7th Cir. 2008) (citation omitted). Where, as here, “the
parties have filed cross-motions for summary judgment,
we construe the evidence and all reasonable inferences
in favor of the party against whom the motion under
consideration is made.” Id. (quotation omitted).
Enacted in 1994, USERRA is the latest in a series of
veterans’ employment rights laws, replacing its most
immediate predecessor, the Veterans’ Reemployment
Rights Act (“VRRA”) of 1974. 20 C.F.R. § 1002.2. The
purposes of USERRA are: “(1) to encourage noncareer
service in the uniformed services . . . ; (2) to minimize
the disruption to the lives of persons performing service
in the uniformed services . . . by providing for the
prompt reemployment of such persons upon their com-
pletion of such service; and (3) to prohibit discrimination
against persons because of their service in the uniformed
No. 08-2435 7
services.” 38 U.S.C. § 4301(a). “In enacting USERRA,
Congress emphasized USERRA’s continuity with the
VRRA . . . and that the large body of case law that had
developed under [earlier] statutes remained in full force
and effect, to the extent it is consistent with USERRA.”
20 C.F.R. § 1002.2.
USERRA affords broad protections to service members
against employment discrimination, providing that
members “shall not be denied initial employment,
reemployment, retention in employment, promotion, or
any benefit of employment by an employer on the basis of
that membership . . . .” 38 U.S.C. 4311(a). A “benefit of
employment” means “any advantage, profit, privilege,
gain, status, account, or interest (other than wages or
salary for work performed) that accrues by reason of an
employment contract or agreement or an employer
policy, plan, or practice and includes . . . the opportunity to
select work hours or location of employment.” Id. § 4303(2).
Under the burden-shifting framework of § 4311, a plain-
tiff makes out a prima facie case of discrimination by
showing that his service membership was “a motivating
factor in the employer’s action.” Id. § 4311(c)(1). The
employer must then “prove that the action would have
been taken in the absence of such membership.” Id.
Apart from the general anti-discrimination provision
of § 4311, § 4316 establishes the rights of service members
who are absent from employment while fulfilling their
service obligations. Such members are “(A) deemed to
be on furlough or leave of absence while performing
such service; and (B) entitled to such other rights and
8 No. 08-2435
benefits not determined by seniority as are generally
provided by the employer” to similarly situated em-
ployees who take a leave of absence comparable to the
military leave. Id. § 4316(b)(1).
A. Denial of a “Benefit of Employment”
In determining whether the Department’s rescission of
the work scheduling policy denied Crews and other Guard
employees a “benefit of employment” in violation of
USERRA, we must first determine the applicable provi-
sion(s) of the Act. If Crews’s claim is governed exclusively
by § 4316(b)(1), which requires only equal benefits for
Guard and non-Guard employees, then Crews clearly has
no right to special scheduling flexibility. If § 4316(b)(1)
is not the only applicable USERRA provision, then
Crews may have a viable § 4311 claim.
The Fifth Circuit has examined the interplay between
§§ 4311 and 4316 and concluded that the latter section
applied to reservist employees who, like Crews, claimed
a right to special employment benefits while absent for
drill. In Rogers v. City of San Antonio, 392 F.3d 758, 760-61
(5th Cir. 2004), firefighters challenged the City’s refusal
to give them pay, accrual of vacation leave, and other
attendance-based benefits during their absences to
attend drill. After engaging in a comprehensive analysis
of USERRA’s legislative history, the court concluded that
§ 4316(b)(1), rather than § 4311(a), applied to the reservists’
claims. Id. at 764-70. Further, because § 4316(b)(1) requires
only “equal, but not preferential” treatment for reservist
employees, the firefighters were not entitled to benefits
No. 08-2435 9
not available to non-reservist employees who took compa-
rable leaves of absence. Id. at 769.
We agree with the Fifth Circuit’s analysis in Rogers and
conclude that § 4316(b)(1) will ordinarily prevent Guard
employees who miss work for drill from demanding
employment benefits (other than those determined by
seniority) that are not generally available to non-Guard
employees who miss work for other reasons. That conclu-
sion is consistent with Monroe v. Standard Oil Co., 452 U.S.
549, 561 (1981), in which the Supreme Court held that
USERRA’s predecessor statute did not require an
employer “to provide a special work-scheduling prefer-
ence” to a reservist who, like Crews, wanted to resched-
ule his work days missed for reserve training in order to
collect a full week’s pay. Seventh Circuit precedent also
supports Rogers’s interpretation of § 4316(b)(1), as we have
held that Guard members are not entitled to preferential
policies that allow them to resolve conflicts between work
schedules and Guard training. See Pignato v. Am. Trans Air,
Inc., 14 F.3d 342, 349-350 (7th Cir. 1994). Although this
case law predates USERRA, it still remains “in full force
and effect, to the extent it is consistent with USERRA.”
20 C.F.R. § 1002.2; see also Rogers, 392 F.3d at 768 (con-
cluding that Congress intended § 4316(b)(1) to codify
Monroe’s “equal, but not preferential” rule).
While we agree with the Fifth Circuit’s analysis, it would
be premature to conclude that only § 4316(b)(1) governs
this case and that Rogers forecloses Crews’s USERRA claim.
The remedies provided by §§ 4311 and 4316 are not
necessarily mutually exclusive, and factual distinctions
10 No. 08-2435
between Rogers and this case require us to examine
whether Crews has a viable claim under § 4311. The
reservists in Rogers were not complaining about the
withdrawal of pre-existing employment benefits; in
contrast, Crews argues that the City violated § 4311 by
rescinding an existing policy of providing Guard employ-
ees with special work scheduling benefits. According to
Crews, while USERRA may not have required the City
to establish that policy in the first place, having
voluntarily done so, the City cannot now renege.
Crews’s interpretation of § 4311 admittedly finds some
support in the statutory language of USERRA. Section
4311(a) prohibits the denial of “any benefit of employ-
ment . . . on the basis of” membership in the uniformed
services. 38 U.S.C. § 4311(a) (emphasis added). Nothing in
the text of either § 4311(a) or § 4303(2), which defines
“benefit of employment,” indicates that § 4311 covers only
those benefits extended generally to military and non-
military employees alike. Nonetheless, the better inter-
pretation is that the “benefit of employment” referenced
in § 4311(a) is one provided to both military and non-
military employees. Section 4311 is entitled “Discrimina-
tion against persons who serve in the uniformed services
and acts of reprisal prohibited.” Accordingly, courts have
indicated that the statute reaches only discriminatory
employment actions that provide military employees
with fewer benefits. See Sandoval v. City of Chicago, 560
F.3d 703, 704 (7th Cir. 2009) (“[Section] 4311 is an anti-
discrimination rule.”); Miller v. City of Indianapolis, 281
F.3d 648, 650 (7th Cir. 2002) (“USERRA prohibits dis-
crimination by, among other things, denying any benefit of
No. 08-2435 11
employment on the basis of the employee’s membership
in the uniformed services.”); Velazquez-Garcia v. Horizon
Lines of Puerto Rico, Inc., 473 F.3d 11, 15-16 (1st Cir. 2007)
(citing § 4311(a), (c) as “the mechanism of proving dis-
crimination claims under USERRA”); Rogers, 392 F.3d at
762 (describing § 4311(a) as “USERRA’s anti-discrimination
provision”); Hill v. Michelin N.A., Inc., 252 F.3d 307, 311
(4th Cir. 2001) (citing § 4311(a) as the provision that
effectuates USERRA’s purpose “to prohibit discrimina-
tion against persons because of their service in the uni-
formed services” (quoting 38 U.S.C. § 4301(a)(3))). In
addition, the legislative history of § 4311(a) provides
that the statute “would reenact the current prohibition
against discrimination” on the basis of service member-
ship. H.R. Rep. No. 103-65(I), at 23 (1993), reprinted in 1994
U.S.C.C.A.N. 2449, 2456; see also Rogers, 392 F.3d at 768(“[T]he brief legislative history of the bill that became
§ 4311(a) reflects no intention to prohibit neutral labor
contracts from treating employees on military leave
equally with those on non-military leave with respect to
the loss of benefits due to absence from work.”).
Given the anti-discriminatory purpose of § 4311, the
Department’s decision in this case to provide equal work
scheduling benefits to all employees does not violate
USERRA. The preferential work scheduling policy that
the Department previously extended to Guard employees
was not a “benefit of employment” within the meaning
of § 4311(a), as this benefit was not one generally avail-
able to all employees. It follows that the Department’s
rescission of that policy could not be a “denial” of any
“benefit of employment” actionable under § 4311(a).
12 No. 08-2435
Crews argues that grafting a discrimination require-
ment onto § 4311 fails to appreciate the breadth of
USERRA’s protections. While one purpose of USERRA is
to prohibit employment discrimination on the basis of
military status, the Act also serves “to encourage noncareer
service in the uniformed services . . . .” 38 U.S.C.
§ 4301(a)(1). Crews notes that this goal of encouraging
military service distinguishes USERRA from other civil
rights laws, which serve not to encourage membership
in the protected class but simply to prevent discrimina-
tion on the basis of that membership.
While Crews raises a valid point that USERRA does more
than prevent discrimination, our holding that Crews’s
particular § 4311 claim requires a showing of discrimina-
tory treatment does not undermine the broader purposes
of the Act. Through a number of provisions other than
§ 4311, USERRA encourages military service by granting
service members rights with respect to civilian employ-
ment that are not available to similarly situated, non-
military employees. See 38 U.S.C. § 4312 (entitling a
service member who leaves civilian employment for
military service to reemployment upon return); id.§ 4316(a) (granting a reemployed service member the
same seniority benefits that would have accrued had the
member “remained continuously employed”); id. § 4317
(providing that an employee absent for military service
may elect to continue coverage under the employer’s
health plan); id. § 4318 (requiring employers to count
time in military service toward employees’ pension
benefits). Crews does not claim that the Department
denied him any of these rights. Instead, he tries to charac-
No. 08-2435 13
terize his claim for additional work scheduling preferences
not required by USERRA in terms of a denial of a “benefit
of employment” under § 4311(a), which he cannot do
absent a showing of discriminatory treatment.
USERRA also encourages military service by au-
thorizing employers to go above and beyond the mini-
mum requirements of the statute. According to a Depart-
ment of Labor (“DOL”) regulation interpreting the Act,
“USERRA establishes a floor, not a ceiling, for the em-
ployment and reemployment rights and benefits of those
it protects,” such that “an employer may provide greater
rights and benefits than USERRA requires.” 20 C.F.R.
§ 1002.7(a). Nothing about our holding suggests that
employers should not continue to provide greater
benefits as they are able, much like the Department in
this case did for several years by giving Guard employees
work scheduling preferences. The Department’s recent
decision to revoke those preferences and return to the
“floor” requirements, while understandably disappointing
to Crews, does not violate USERRA. We add that, if
Guard employees like Crews want legal protection
against their employer’s discretion to unilaterally revoke
special benefits, they can negotiate to make those benefits
part of a “contract” or “agreement.” Id. § 1002.7(c). Here,
however, the Department’s work scheduling policy for
Guard employees was strictly voluntary, and Crews has
not claimed that any contract or other provision of law
required the defendants to maintain the policy. Cf. Miller,
281 F.3d at 651-52 (observing that, while the City’s method
of deducting days of paid military leave for time spent at
reserve training did not violate USERRA, it may have
14 No. 08-2435
violated the state statute granting that leave); Butterbaugh
v. Dep’t of Justice, 336 F.3d 1332, 1337-38 (Fed. Cir. 2003)
(concluding that an agency employer incorrectly applied
the non-USERRA federal statute granting military leave
by requiring employees to take leave for training that
fell on non-work days).
In the interest of completeness, we conclude our dis-
cussion of Crews’s denial-of-benefit claim by addressing
his challenges to certain characterizations of fact made
by the district court and the defendants. Crews objects to
the district court’s finding that the Department’s current
work scheduling policy treats Guard and non-Guard
employees equally in that no employee can reschedule
days off to coincide with outside activities. The relevance
of Crews’s objection is unclear, since Crews does not base
his USERRA claim on unequal treatment. Instead, Crews
argues that he is entitled, consistent with past Depart-
mental policy, to more favorable work scheduling benefits
than those available to non-Guard employees. In any
event, the undisputed deposition testimony indicates
that Guard and non-Guard employees have equal work
scheduling opportunities. Both Deichman and Crews
himself testified that all officers cannot switch their
scheduled work days and days off unless they trade shifts
with a consenting coworker. To the extent that Crews is
trying to make out a separate § 4311 discrimination claim
based on unequal treatment, he has not carried his burden
of producing contradictory evidence that non-Guard
employees have greater work scheduling benefits. See
Velazquez-Garcia, 473 F.3d at 17 (describing the employee’s
initial burden of showing that military status was “at
No. 08-2435 15
least a motivating or substantial factor” in an employer’s
adverse action); Schmauch v. Honda of Am. Mfg., Inc., 295
F. Supp. 2d 823, 837 (S.D. Ohio 2003) (“To show a viola-
tion of § 4311(a), Plaintiff must establish that he was
denied a ‘benefit of employment.’ ”).
Crews also takes issue with the defendants’ representa-
tion that, as a corporal, Crews has “fixed” days off on
Mondays and Tuesdays, such that he cannot bid for his
preferred days off like lower-ranking patrol officers.
Corporals’ days off are “fixed,” Crews retorts, only by
virtue of Chief Mendenall’s discretionary decision re-
quiring corporals to work weekends. Crews further
points out that Mendenall’s decision is inconsistent with
the CBA, which provides that all police employees, in-
cluding “corporal officers,” may request their preferred
days off before the Department posts work schedules.
Again, the relevance of this factual representation is
questionable, since Crews’s USERRA claim relies on the
theory that he is entitled to preferential scheduling
benefits irrespective of when corporals usually work.
Had Crews argued that the Department treated him
unequally by requiring him to work weekends, and that
the defendants’ reliance on the corporal’s work schedule
was a mere “pretext” for military animus, see Velazquez-
Garcia, 473 F.3d at 16, then whether corporals’ days off
are indeed “fixed” as the defendants suggest would be
critical to Crews’s § 4311 discrimination claim. But Crews
has not presented such a theory of discrimination.
Moreover, the record supports the conclusion that
corporals have regular Wednesday-Sunday work sched-
16 No. 08-2435
ules. Both Mendenall and Tom Vowell, a Department
captain, testified that Mendenall decided in 1998 that
corporals’ regular days off would be Mondays and Tues-
days. Crews also acknowledged that, when he accepted
the promotion to corporal, he knew that he would have
Mondays and Tuesdays off. So corporals’ Wednesday-
Sunday work schedule, while not mandated by the
CBA, was sufficiently well-established as a matter of
Departmental policy to give Crews notice that accepting
the corporal position would reduce his scheduling flexibil-
ity. As for the CBA’s provision that corporals may bid
for their preferred days off, to the extent that Crews is
arguing that Mendenall’s 1998 decision violates that
provision, Crews’s argument is, at best, more suited for
internal grievance procedures or even a separate, non-
USERRA legal action.
B. Retaliation Under USERRA
We turn to Crews’s claim that the defendants retaliated
against him for voicing his opposition to the rescission
of the work scheduling policy. In addition to protecting
against discrimination on the basis of service member-
ship, § 4311 prohibits an employer from taking “any
adverse employment action against any person because
such person . . . has taken an action to enforce a protec-
tion” provided by USERRA. 38 U.S.C. § 4311(b)(1). Al-
though we have not previously discussed the statute’s
“adverse employment action” requirement in the specific
context of a USERRA retaliation claim, our case law on
other civil rights statutes describes those employment
No. 08-2435 17
actions that are sufficiently “adverse” to be actionable
retaliation. “An adverse employment action must be
materially adverse, not merely an inconvenience or a
change in job responsibilities.” Griffin v. Potter, 356 F.3d
824, 829 (7th Cir. 2004). “An adverse employment action
is one that significantly alters the terms and conditions of
the employee’s job.” Id. Materially adverse actions
include termination, demotion accompanied by a
decrease in pay, or a material loss of benefits or responsi-
bilities, but do not include “everything that makes an
employee unhappy.” Lapka v. Chertoff, 517 F.3d 974, 986
(7th Cir. 2008) (quotation omitted). There is no reason to
understand “adverse employment action” differently in
the USERRA context.
Echoing an argument made in support of his denial-of-
benefit claim, Crews argues that applying the “materially
adverse” standard from other civil rights statutes to his
USERRA retaliation claim fails to appreciate the
different purposes of USERRA and conventional civil
rights laws. However, we have previously stated in a
USERRA case that actionable discrimination must
involve a “materially adverse employment action,” which
is “something more disruptive than a mere inconvenience
or an alteration of job responsibilities.” Maher v. City of
Chicago, 547 F.3d 817, 824 (7th Cir. 2008) (quoting Nichols v.
S. Ill. Univ.—Edwardsville, 510 F.3d 772, 780 (7th Cir. 2007)).
Although Maher involved a claim of discrimination, we
see no reason to dispense with the materiality require-
ment in retaliation cases. Requiring material adversity
for both types of claims is consistent with the Supreme
Court’s decision in Burlington Northern & Santa Fe Railway
18 No. 08-2435
Co. v. White, 548 U.S. 53 (2006), in which the Court estab-
lished the standard for retaliation claims under Title VII.
The Court concluded that, although the retaliatory actions
prohibited by Title VII are not limited to harms that are
employment-related or that occur in the workplace, the
action must nonetheless be “materially adverse,” such
that it “well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.” Id.
at 68 (quotation omitted). Requiring “material adversity”
is important, the Court continued, to discourage civil
rights litigation over “trivial harms.” Id.In line with Burlington, we do not think that the
protections of USERRA are so sweeping as to provide a
remedy for mere “trivial harms.” That is especially true
since textual differences between the anti-retaliation
provisions of Title VII and USERRA suggest that the
latter has a more limited scope. In concluding that the
retaliatory actions prohibited by Title VII are not
confined to employment-related harms, the Court in
Burlington compared the language of Title VII’s anti-
discrimination provision with the language of the anti-
retaliation provision. Id. at 62. Unlike the conduct prohib-
ited by the anti-discrimination provision, which must
affect an employee’s conditions of “employment,” the
conduct reached by the anti-retaliation provision is not
qualified in terms of employment. Id. (citing 42 U.S.C.
§§ 2000e-2(a), e-3(a)). No comparable textual distinction
exists between USERRA’s anti-discrimination provision,
38 U.S.C. § 4311(a), and the anti-retaliation provision, id.§ 4311(b), both of which address only actions affecting
“employment.”
No. 08-2435 19
Applying the “materially adverse” standard to Crews’s
claim, it is clear that Crews suffered no actionable retalia-
tion. Crews first points to disparaging comments that
Chief Mendenall made to the press about Crews’s USERRA
lawsuit. However, negative employer comments will
support a retaliation claim only if they are “severe and
pervasive.” Griffin, 356 F.3d at 829. The plaintiff must
show more than “petty slights or minor annoyances that
often take place at work and that all employees experi-
ence.” Burlington, 548 U.S. at 68.
Here, the purportedly “disparaging” comments cited
by Crews are nothing more than Mendenall’s statements to
the media that Crews’s USERRA lawsuit “had no merit”
and that his allegations were “simply untrue.” These
isolated comments, which occurred outside the work-
place and had no impact on Crews’s conditions of em-
ployment, are not severe enough to be actionable retalia-
tion. See Breneisen v. Motorola, Inc., 512 F.3d 972, 981-82
(7th Cir. 2008) (concluding that a supervisor’s com-
ments that expressed frustration with employees’ taking
medical leave, but that resulted in no loss of job benefits,
were not materially adverse); Griffin, 356 F.3d at 829-30(finding that a supervisor’s comments at staff meetings
that the plaintiff was a “bad influence” and know-it-all
were not actionable retaliation); cf. Smart v. Ball State
Univ., 89 F.3d 437, 442 (7th Cir. 1996) (concluding that
negative employer evaluations, even if undeserved, were
not alone sufficient to show an adverse employment
action).
Crews also contends that the defendants engaged in
retaliation by refusing to allow him to attend FTO classes
20 No. 08-2435
following his promotion to corporal, thereby denying him
advancement opportunities. However, the record estab-
lishes that the Department did not approve FTO classes
for corporals and higher-ranking officers. Deichman
testified that the job of a corporal, which involves much
time in the office handling administrative matters and
little time in the actual field, does not lend itself to pro-
viding field training to new recruits. Crews also acknowl-
edged that he was unaware of Deichman ever approving
FTO training for corporals.
The undisputed evidence also indicates that Crews
received alternative, non-FTO training commensurate
with his corporal rank. Crews testified that he attended
classes in “first line leader management” and “critical
incident management,” instruction geared toward
officers who fulfill a more supervisory role. A log
prepared by Deichman also indicated that Crews had
completed the third-highest amount of command staff
training hours for the period between May 2005 and
December 2006—a significant accomplishment, since
Crews, having been promoted to corporal in May 2006, was
only a command officer for about a third of that period.
The Department did not deny Crews training opportuni-
ties, and we do not see how changing the specific classes
offered based on the officer’s rank would dissuade a
“reasonable employee” from asserting his USERRA rights.
Burlington, 548 U.S. at 68. Accordingly, Crews has failed
to establish a materially adverse employment action,
and the district court properly granted summary judg-
ment for the defendants on Crews’s retaliation claim.
No. 08-2435 21
III. Conclusion
For the foregoing reasons, we A FFIRM the district court’s
grant of summary judgment in favor of the defendants.
6-2-09