Eric Gross v. PPG Industries, Inco , 636 F.3d 884 ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1405
E RIC F LYNN G ROSS,
Plaintiff-Appellant,
v.
PPG INDUSTRIES, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 07-CV-982—J.P. Stadtmueller, Judge.
A RGUED S EPTEMBER 16, 2010—D ECIDED M ARCH 7, 2011
Before C UDAHY, R OVNER, and E VANS, Circuit Judges.
R OVNER, Circuit Judge. Eric Flynn Gross sued his em-
ployer, PPG Industries, Inc., alleging that PPG’s
handling of his military deployment violated the Uni-
formed Services Employment and Reemployment Act
(“USERRA”), 38 U.S.C. §§ 4301-35. As relevant here,
Gross alleged that PPG unlawfully calculated his pay
while he was deployed and refused to rectify its error.
Gross and PPG filed cross-motions for summary judg-
2 No. 10-1405
ment, and the district court granted PPG’s motion. Gross
appeals, and we affirm.
I.
Following six years of active military duty as an
enlisted Marine, Gross began working for PPG Industries
in 1997. At the time of argument, Gross continued to
work at PPG’s Oak Creek, Wisconsin facility, which is
one of many PPG facilities throughout the United
States providing “coatings and specialty products and
services” to construction, consumer, industrial, and
transportation markets. Gross is employed at PPG as
a “General Industrial Technician.” Gross has continued
to serve in the United States Marine Corps Reserve
while employed at PPG.
Gross was deployed to active military service in Iraq
from June 2004 until May 2005.1 Before his deployment,
Gross met with human resources advisor Kristi Price,
who provided him with a document outlining the
benefits PPG would provide to Gross while deployed.
Before 2001, PPG provided employees serving in the
National Guard or reserves up to four weeks per year
of supplemental pay equal to the difference between
the employee’s PPG base salary and his or her military
base pay. After the September 11, 2001 terrorist attacks,
PPG adopted its “Attack on America” policy applicable
1
Gross was again deployed to Iraq from 2007 to 2008, but
that deployment is not relevant to his appeal.
No. 10-1405 3
to military leave. This policy increased the differential
pay available to employees on military leave from
four weeks to 180 days. PPG’s military leave policy
also guaranteed that a salaried employee like Gross
would be entitled to return to his job following a
military leave of absence. From 2001 onward, PPG main-
tained this differential pay policy relatively unchanged
except that it increased the availability of differential
pay progressively from 180 calendar days in 2001 up to
720 calendar days in 2004.
In particular, the 2004 version of the policy in effect
during Gross’s leave provided that:
A salaried employee who is actively at work (not on
layoff) and is called to active duty as a result of the
terrorists’ activities shall be paid by the Company an
amount equal to the difference between his or her monthly
salary for their regular work schedule and the amount of
his or her monthly military base pay, exclusive of
allowances (adjusted monthly base salary) for a total of
720 calendar days. Payment will be made on the same
frequency as normally and via direct deposit only.
PPG Indus. Inc., Military Leave’s [sic] of Absence—Attack on
America Revised, (Apr. 15, 2004) (italicized emphasis
added).
From 2001 through May 2007, PPG employed the fol-
lowing basic formula to calculate the pay differential
for employees taking a leave of absence for military
service: PPG compared an employee’s regular monthly
base salary against the military pay that employee
received (exclusive of allowances, such as housing), and
4 No. 10-1405
then issued a payroll check in the amount of the dif-
ference once it received the employee’s military pay
vouchers. For example, if a salaried PPG employee
earned $4,000 per month and received $2,000 of military
pay monthly, the employee would receive a check from
PPG for $2,000 per month while on military leave so that
his salary would be the same as it would have been if
he had worked at PPG. Under this formula, the precise
number of PPG workdays in any given month was irrele-
vant.
When Gross completed his deployment in 2005, he
returned to his position at PPG. At that time, he began
questioning the formula PPG had used to calculate his
differential pay while he was deployed. Gross submitted
a complaint about the pay calculation through PPG’s
“RESOLVE” Employee Dispute Resolution Process. Gross
complained that because he was required to work extra
days during his deployment (weekends and holidays
that he would not have worked at PPG), PPG should
have calculated a daily military pay rate and then de-
ducted military pay only for days in a given month that
he would have worked at PPG. This formula is based
on the 30-day month the Department of Defense uses
to pay members of the military regardless of the actual
number of days in any given month. Using the same
figures as above, it would be calculated using the
following formula: (1) $2,000 monthly military pay
divided by 30 days equals a $66 per day military pay rate;
(2) $66 per diem military pay multiplied by the number
of PPG monthly work days—ordinarily 21—equals $1386;
(3) this amount is then subtracted from the PPG
No. 10-1405 5
monthly base pay—$4,000—yielding $2614 in differential
pay, as opposed to the $2,000 paid under PPG’s simple
base pay less military pay calculation. PPG declined to
revisit its formula for calculating military pay for Gross’s
2004-05 deployment. It did, however, adopt the calcula-
tion urged by Gross (which was the calculation already
used for short term military leaves of absence) for
military deployments going forward, effective May 1,
2007. Thus, Gross received differential pay for a 2007-08
deployment according to the formula he wanted ap-
plied retroactively to his 2004-05 deployment.
Gross sued PPG, alleging that its calculation of his
differential pay during his 2004-05 deployment as well
as an alleged failure to retrain him upon his return
violated provisions of USERRA addressing the reem-
ployment rights of individuals who serve in the mili-
tary. See 38 U.S.C. §§ 4312-13, 4316, 4318. He also
claimed that PPG violated a Wisconsin state statute.
The parties filed cross-motions for summary judgment.
Gross moved for summary judgment under 38 U.S.C.
§ 4311, an anti-discrimination provision that prohibits
employers from denying “any benefit of employment”
to individuals who serve in the armed services. Al-
though Gross failed to mention § 4311 in his complaint,
the district court nonetheless denied his motion on the
merits after concluding that differential pay is not a
benefit of employment under USERRA. Because PPG
had no obligation to offer differential pay, it likewise
had no obligation to calculate such pay in the manner
most beneficial to Gross. The district court also granted
summary judgment to PPG on the remaining claims in
6 No. 10-1405
Gross’s complaint. The court noted Gross’s failure to
cite any case law in support of his claims that PPG
violated the other provisions of USERRA listed in his
complaint. It also rejected Gross’s attempt to insert a
claim that PPG had retaliated against him after deter-
mining that Gross had never mentioned retaliation in
his complaint. Likewise, the court rejected any claim
based on Gross’s allegation that PPG had failed to
retrain him because Gross conceded that he was
promptly reinstated to his former position when he
returned from his deployment. Finally, the court granted
summary judgment in favor of PPG on Gross’s state-
law claim. Noting that Gross’s complaint cited a non-
existent Wisconsin statute, the district court nonethe-
less entertained the possibility that Gross meant to cite
Wisconsin’s mini-USERRA provision. See Wis. Stat.
§ 321.65. That statute, however, did not assist Gross
because the only portion of it applicable to private
sector employers covered “state active duty” or “active
duty in the national guard,” which would not apply
to Gross’s service for the Marine Corps in Iraq.
§ 321.65(1)(a). Gross appeals.
II.
We review the district court’s decision on the parties’
cross-motions for summary judgment de novo, con-
struing all facts and inferences in favor of the party
against whom summary judgment was granted. E.g.,
Sellers v. Zurich Am. Ins. Co., 627 F.3d 627, 631 (7th Cir.
2010). Summary judgment is appropriate when there are
No. 10-1405 7
no genuine issues of material fact and judgment as a
matter of law is warranted for the moving party. See, e.g.,
Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby Inc., 477
U.S. 242, 255 (1986). Gross continues to argue on appeal
that PPG’s handling of his 2005-06 military deployment
violated USERRA. In particular, he insists that the way
PPG calculated his differential pay denied him a
“benefit of employment” protected by USERRA and also
amounted to unlawful discrimination and retaliation
against him.
We begin with his claim that the pay calculation em-
ployed by PPG violated USERRA. Enacted in 1994,
USERRA is the most recent iteration of a series of laws
dating back to 1940 intended to protect the employ-
ment and reemployment rights of members and former
members of the armed forces. The stated goals of
USERRA are (1) “to encourage noncareer service in the
uniformed services by eliminating or minimizing the
disadvantages to civilian careers and employment
which can result from such service”; (2) “to minimize
the disruption” to the service member and others “by
providing for the prompt reemployment” of such
service members upon their return; and (3) “to
prohibit discrimination against persons because of their
service in the uniformed services.”2 38 U.S.C. § 4301(a).
2
“Uniformed services” is defined as “the Armed Forces, the
Army National Guard and the Air National Guard when
engaged in active duty for training, inactive duty training, or
full-time National Guard duty, the commissioned corps of
the Public Health Service, and any other category of persons
(continued...)
8 No. 10-1405
Congress emphasized when enacting USERRA that to
the extent it is consistent with USERRA, the “large body
of case law that had developed” under the predecessor
statutes to USERRA “remained in full force and effect.”
20 C.F.R. § 1002.2.
As relevant here, two related provisions of USERRA
govern service members’ employment rights. The first,
38 U.S.C. § 4316, sets out the rights applicable while a
military employee is away from work fulfilling service
obligations. Section 4316 establishes that service mem-
bers absent from employment are “deemed to be on
furlough or leave of absence” and that they are “entitled
to such other rights and benefits not determined by
seniority as are generally provided by the employer” to
other similarly situated employees “who are on fur-
lough or leave of absence under a contract, agree-
ment, policy, practice, or plan in effect at the commence-
ment of such service[.]” 38 U.S.C. § 4316(b)(1)(A)-(B).
The second, 38 U.S.C. § 4311, is an anti-discrimination
provision. It provides in pertinent part that an indi-
vidual with “an obligation to perform service in a uni-
formed service shall not be denied . . . any benefit of
employment by an employer on the basis” of his member-
ship in or obligations arising from the uniformed ser-
vice. 38 U.S.C. § 4311. A “benefit of employment” in turn,
is defined as “any advantage, profit, privilege, gain,
2
(...continued)
designated by the President in time of war or national emer-
gency.” 38 U.S.C. § 4303(16).
No. 10-1405 9
status, account, or interest (other than wages or salary
for work performed) that accrues by reason of an em-
ployment contract or agreement or an employer policy,
plan, or practice[.]” 38 U.S.C. § 4303(2).
The district court considered Gross’s claim under § 4311.
Gross claims that the district court erroneously con-
cluded that § 4311 does not obligate PPG to provide him
with differential pay to supplement his military salary.
Specifically, he claims that his interpretation of PPG’s
differential pay policy is a “benefit of employment”
protected by USERRA. Gross’s argument falls short on
several levels.
First, as the district court recognized, we recently
considered and rejected a claim that § 4311 requires
employers to provide its military employees benefits,
like differential pay, that exceed those benefits offered
to its other employees generally. In Crews v. City of Mt.
Vernon, a city police officer who was also a member of
the Army National Guard sued the city and two police
chiefs, claiming that the defendants violated USERRA
by refusing to extend certain preferential scheduling
benefits to him. 567 F.3d 860 (7th Cir. 2009). The Guard
obligations of the plaintiff in Crews required him to
attend weekend “drill” exercises monthly. Id. at 862.
On those occasions officers could turn in their military
pay in exchange for their regular City pay to avoid a
pay shortfall. Those officers also had the option of al-
locating their personal days (vacation, compensatory
time off, etc.) to days missed for drill so as to collect
both City pay and military pay for those days. Id. Addi-
10 No. 10-1405
tionally, the police department allowed Guard employees
to reschedule weekend work shifts when they conflicted
with drill obligations. This policy allowed Guard em-
ployees to collect military pay for attending drill in addi-
tion to their full week’s pay from the City. Id. at 863.
The Department later rescinded the policy of allowing
Guard employees (who had become more numerous on
the force) to reschedule their weekend work shifts on
drill weekends. Thus the plaintiff, Crews, could no
longer receive a full week’s pay from the City if he
missed a weekend work shift for drill unless he used his
finite paid time off days. Id. We rejected Crews’s asser-
tion that the scheduling benefit previously extended by
the police department was a “benefit of employment”
protected by § 4311. In particular, we concluded that
§ 4311, as an anti-discrimination provision, protected
only those benefits of employment provided to both
military and non-military employees alike. Id. at 866. Thus,
the Department’s decision to rescind the preferential
scheduling benefit previously offered to its Guard em-
ployees did not run afoul of § 4311. Id. at 866-67.
Gross proposes that we overrule Crews to the extent
that it holds that a benefit of employment under § 4311
must be equally available to military and non-military
employees. In support of his claim, Gross suggests that
our reading of “any benefit of employment” fails to
account for the fact that as an anti-discrimination provi-
sion, § 4311 protects a broader category of rights than
those outlined in § 4316 applicable to service members
on leave. In Crews, we first considered the plaintiff’s
No. 10-1405 11
claim under § 4316 and concluded that because subsec-
tion (b)(1) requires “ ‘only equal but not preferential’ ”
treatment for military employees the police department
had no obligation under § 4316 to afford preferential
scheduling benefits to its Guard employees. Crews, 567
F.3d at 865 (quoting Rogers v. City of San Antonio, 392
F.3d 758, 769 (5th Cir. 2004)); see also Monroe v. Standard
Oil Co., 452 U.S. 549, 561 (1981) (holding that USERRA’s
predecessor statute did not require employers to
provide special benefits unavailable to other employees
to military reservists).
Despite Gross’s insistence that the language guaran-
teeing “any benefit of employment” under § 4311 offers
broader protection than § 4316, we explicitly considered
and rejected such a claim in Crews. Indeed, after con-
sidering the plaintiff’s claim under § 4316, we continued
to analyze whether it could succeed under § 4311.
We acknowledged that nothing in the text of § 4311 or
§ 4303(2) (defining “benefit of employment”) limited
“benefit of employment” to those benefits extended to
both military and non-military employees alike. Crews,
567 F.3d at 866. Nonetheless, we ultimately concluded
that such an interpretation made sense in light of § 4311’s
anti-discrimination purpose, which serves to protect
military employees from discrimination, not provide
them with preferential treatment. Id. at 867; see also
Sandoval v. City of Chicago, 560 F.3d 703, 704-05 (7th Cir.
2009) (“[Section] 4311 is an antidiscrimination rule”
that provides military employees “an equal-treatment
norm.”); Miller v. City of Indianapolis, 281 F.3d 648, 650 (7th
Cir. 2002) (“USERRA prohibits discrimination[.] . . . It
12 No. 10-1405
does not expressly require paid military leave.”). Thus,
we have considered and rejected the arguments Gross
advances in favor of a more generous reading of § 4311,
and he adds nothing new to the discussion that would
warrant overturning our decision in Crews.
More importantly, Gross’s contentions are largely
academic, because even if we accepted the interpreta-
tion of § 4311 he urges, he would still not be entitled to
relief. As is patently clear from the facts, PPG did
extend differential pay to Gross. It is undisputed that
PPG’s calculation of differential pay guaranteed that
he received the equivalent of his full PPG salary during
his 2004-05 military deployment. His entire argument
rests on the premise that PPG was obligated to provide
not only differential pay, but differential pay calculated
according to Gross’s specifications. Gross seems to be
claiming that the Attack on America policy in effect
during his deployment amounted to an enforceable
contract between PPG and him for differential pay calcu-
lated according to the per diem model he proposes.
Gross attempts to shore up his claim with an unpub-
lished opinion from the Sixth Circuit where the court
upheld a damages award under USERRA to an em-
ployee serving in the Army Reserve who received no
differential pay for a six-month absence for active duty
military service. Koehler v. PepsiAmericas, Inc., 268 Fed.
Appx. 396 (6th Cir. March 6, 2008). But Koehler does not
help Gross. The plaintiff in Koehler, an employee of
Pepsi, received no pay from the company while on
military leave. This occurred despite a Pepsi policy enti-
No. 10-1405 13
tling certain military employees “pay coordination”
intended to “bridge the gap between Military Pay and
normal pay received.” Id. at 399. After the plaintiff com-
plained that he had not received differential pay, Pepsi
deposited the net pay allegedly owed into his account
and then unexpectedly withdrew it in a matter of days.
Id. at 400. The court on appeal simply affirmed the
district court’s finding after a bench trial that the dif-
ferential military pay was a “benefit” protected by
USERRA—largely because Pepsi accepted on appeal
the district court’s finding that it violated USERRA. Id.
at 403.
As the above facts demonstrate, Pepsi is inapplicable to
Gross’s situation. The plaintiff there had been promised
differential pay by both a company policy and at least
one company employee, and received none. In contrast,
Gross did receive differential pay under PPG’s Attack
on America Policy. And unlike Pepsi, PPG never ad-
mitted a USERRA violation nor acceded to Gross’s
demand that differential pay be calculated according to
his preferred formula.
The general premise underlying Gross’s argument—
that an employee may contract with his company for
greater benefits than USERRA provides—is uncontrover-
sial. See Crews, 567 F.3d at 867; see also 20 C.F.R. § 1002.7(c)
(“USERRA does not supersede, nullify or diminish any . . .
contract, agreement, policy, plan, practice or other
matter that establishes an employment right or benefit
that is more beneficial than . . . a right or benefit
provided under the Act.”). It simply does not assist Gross
14 No. 10-1405
here. PPG’s Attack on America policy was a voluntary
company policy. Gross presents no evidence to the con-
trary. Moreover, as discussed above, PPG did not fail to
perform under the policy or in any way rescind it. The
policy in effect during Gross’s 2004-05 deployment ex-
tended differential pay in “an amount equal to the dif-
ference between his or her monthly salary for their
regular work schedule and the amount of his or her
monthly military base pay, exclusive of allowances.” This
language says nothing about how that difference will
be calculated. The method PPG employed during Gross’s
2004-05 deployment ensured that Gross suffered no loss
of pay or benefits on account of his service. Gross’s pro-
posed calculation was not guaranteed by the language
of the policy. There is thus no need to rely on Crews’
“equal benefits” holding to see that Gross’s claim fails.
There is no evidence in the record that any employee
during the relevant time period, military or otherwise,
received differential pay according to the calculation
Gross proposes. Because PPG did extend differential pay
to Gross, overruling Crews would not assist Gross with
his argument that § 4311 required PPG to pay him not
only differential pay, but differential pay calculated
according to the per diem model he proposed. And
although PPG’s decision to adopt a more favorable pay
calculation in 2007 is laudable, nothing in USERRA obli-
gates it to retroactively apply that calculation or
suggests that the previous method used was unlawful
or discriminatory. See 20 C.F.R. § 1002.7(a) (“USERRA
establishes a floor, not a ceiling, for the employment and
reemployment rights and benefits of those it protects. . . .
No. 10-1405 15
[A]n employer may provide greater rights and benefits
than USERRA requires[.]”); Crews, 567 F.3d at 867 (noting
that USERRA encourages military service by “authorizing
employers to go above and beyond the minimum re-
quirements of the statute”).
That leaves what Gross characterizes as his retaliation
claim under § 4311. The district court concluded that
PPG was entitled to summary judgment because Gross’s
complaint failed to allege any retaliatory action by PPG.
Gross now argues that the district court failed to under-
stand that PPG’s alleged miscalculation of his pay was
itself retaliatory. PPG maintains, as it did during the
summary judgment proceedings below, that Gross never
raised his retaliation claim until he moved for summary
judgment. PPG also argues, and we agree, that Gross’s
claim fails on the merits.
Section 4311(b)(1) prohibits an employer from taking
“any adverse employment action against any person
because such person . . . has taken an action to enforce
a protection” guaranteed by USERRA. Thus, Gross must
demonstrate that he engaged in activity protected
under USERRA and that PPG took an adverse employ-
ment action against him as a result. See Francis v. Booz,
Allen, & Hamilton, Inc., 452 F.3d 299, 309 (4th Cir. 2006); see
also Crews, 567 F.3d at 868-69. As we noted in Crews, the
same requirement of a “materially adverse” employment
action that applies under other civil rights statutes is
applicable under USERRA. Crews, 567 F.3d at 868-69.
That is to say, Gross must point to an employment action
such as termination, demotion accompanied by a loss
16 No. 10-1405
of pay, or a material loss of benefits or responsibilities that
“significantly alters the terms of conditions” of his employ-
ment. Id. at 869 (quoting Griffin v. Potter, 356 F.3d 824,
829 (7th Cir. 2004)).
Gross claims that he engaged in protected activity
by complaining about PPG’s calculation of his differen-
tial pay, and that PPG retaliated when it decided to “deny
[him] differential pay.” He also seems to be arguing
that PPG’s original calculation of his differential pay
was an adverse employment action, despite the fact
that this calculation obviously preceded his RESOLVE
complaint about this very issue. It is easy to see that
Gross’s claim fails on multiple levels. First, contrary to
the assertion in Gross’s brief, PPG never “denied” him
differential pay—it simply did not calculate that pay
according to Gross’s preferred formula.
Second, the calculation employed by PPG does not
amount to an adverse employment action. PPG con-
sidered his RESOLVE complaint and determined that
its calculation of differential pay conformed with both
USERRA and its internal Attack on America Policy. As
discussed above, Gross suffered no loss of pay or
benefits as a result of his 2004-05 deployment, and PPG
was entirely within its rights to interpret its policy as
it did. Moreover, on a temporal level it is difficult if not
impossible to understand how PPG’s calculation of
Gross’s military pay in 2004-05 could have been caused
by his RESOLVE complaint some time after he returned
from his deployment. At best, Gross seems to be
arguing that the continued refusal to calculate the pay
No. 10-1405 17
as he wished following his complaint amounted to retalia-
tion. For the reasons outlined above, this argument too
goes nowhere—the calculation, which left Gross in the
same financial position while deployed as if he had never
left—can hardly be considered a materially adverse
employment action. See Stephens v. Erickson, 569 F.3d 779,
790 (7th Cir. 2009) (“Federal law protects an employee
only from retaliation that produces an injury, and, there-
fore, an employer’s retaliatory conduct is actionable
only if it would be materially adverse to a reasonable
employee.”); Cole v. Illinois, 562 F.3d 812, 816-17 (7th Cir.
2009) (“[N]ot everything that makes an employee
unhappy is an actionable adverse action.”) (internal
quotations and citation omitted). Thus, whether con-
sidered on the merits or as a result of failure to raise
the claim below, Gross’s retaliation claim fails as a
matter of law and PPG is entitled to summary judgment.
There is one final matter. Gross also argues that the
district court erred by taxing costs against him in con-
travention of USERRA. Specifically, USERRA provides
that, “[n]o fees or court costs may be charged or taxed
against any person claiming rights under this chapter.”
38 U.S.C. § 4323(h)(1). The district court’s summary
judgment order specified that the action was dismissed
on the merits “with costs as taxed by the clerk of the
court.” In recognition of § 4323(h)(1), PPG never filed a
bill of costs and no costs have been imposed on Gross.
Thus, this issue may be moot. Nonetheless, out of an
abundance of caution, we will remand for the limited
purpose of allowing the district court to correct the mis-
statement in the judgment regarding costs. See United
18 No. 10-1405
States v. Bonner, 522 F.3d 804, 808-09 (7th Cir. 2008) (or-
dering limited remand so that district court could
correct a clerical error in written judgment).
III.
For the foregoing reasons, we A FFIRM the judgment of
the district court granting summary judgment to PPG
Industries, and R EMAND solely for the district court to
correct the error identified above regarding the taxation
of costs.
3-7-11