Published: May 27, 2008 07:23 pm         

Court sides with city in lawsuit brought by Crews

By TESA CULLI

tesa.culli@register-news.com

MT. VERNON — A federal judge has ruled in favor of the city in a lawsuit brought by police officer Ryan Crews which alleged his rights under the Uniformed Services Employment and Reemployment Rights Act had been violated.

Both parties had previously filed motions for summary judgment, and Chief Judge David Herndon of the U.S. District Court for the Southern District of Illinois said wrote in his judgment that, “both motions are fully briefed and ripe for ruling.”

Crews alleged that in September 2006 the city changed its practices which allowed those police officers in the National Guard to reschedule days off work to coincide with drill. Crews also alleged retaliation, stating that advancement opportunities were not made available to him due to his complains about the policy. The lawsuit named the city, Assistant Police Chief Chris Deichman and Police Chief Chris Mendenall as the defendants.

“First, Crews argues that defendants violated USERRA in deciding in August 2006 to discontinue a previous policy, plan or practice under which Guardsmen employed in the city’s police department could switch their schedules during weeks when they had required Guard drill, working their regularly scheduled days off in lieu of regularly scheduled shifts which they had to miss because of drill,” Herndon stated. “Crews further argues that there is no dispute that defendants made a deliberate decision to discontinue the policy.”

Herdon then stated the city’s position that the changing of shifts is not a benefit or policy covered under USERRA, “as the city was not required to provide Crews greater scheduling flexibility than those on similar non-military leaves of absences.

“Defendants maintain that nothing in USERRA requires employers to provide greater benefits to employees on service-related leave than are provided to other employees on non-military leave or furlough,” Herndon wrote. “Defendants also contend that there is no mandate that once any particular benefit, policy or practice is in place, that it must be maintained indefinitely. Defendants further maintain that the legal precedent and legislative history of USERRA make it clear that USERRA is intended to provide only equal, not preferential, treatment for those taking military leave. The court agrees with defendants.”

The ruling states that USERRA contains “no specific language to indicate that Congress imposed a requirement on employers to provide a special work schedule for employee-reservists not generally granted to other employees.”

“Crews’ argument that he be able to work regularly-scheduled days off in lieu of scheduled shifts which he had to miss due to drill obligations would require special work scheduling preferences not generally available to non-military employees,” the ruling states. It further uses U.S. Supreme Court case law as reasoning for the ruling

“It seems that if Congress wanted to require employers to make work schedule accommodations for employee-reservist, it would have done so expressly,” the ruling states. “There is no proof, however, that Congress enacted (USERRA) to deal with the problem of missed work hours because of drill obligations. If this court were to find that the USERRA requires the defendants to provide special work-hour scheduling for Crews and other military reservists, then it would impose preferential treatment, not equal treatment, upon military reservists.”

Herndon also ruled against Crews’ retaliation claim, stating that, “The Court finds Crews has not met the standard for his retaliation claim.”

Crews alleged in the lawsuit that after challenging the decision to discontinue allowing him to work his scheduled days off in lieu of the days he had weekend drill duty, he was retaliated against by being denied the opportunity to go to field training officer classes and that “unwarranted negative comments” were made about him and he received a low mark in the area of attitude on one quarterly evaluation.

Herndon used more case law to support his ruling the city did not retaliate against Crews, stating that adverse action must materially alter the terms and conditions of employment to constitute retaliation.

“The court finds that these instances are not material and do not constitute an adverse employment action,” Herndon wrote. “After reviewing Crews’ allegations and the record, there is insufficient evidence to demonstrate that an adverse action or a denial of a benefit of employment occurred in this case.”

Not allowing Crews to attend FTO classes was not retaliation, since the city had never approved sending someone who wasn’t “brass” to the classes.

“Further, the record reveals that Crews was sent to classes in 2006 and 2007 consistent with his duties as corporal, including ‘first line leader’ and ‘critical incident management’ and that he has been encouraged to obtain at least of 30 hours of outside training per year,” the ruling states.

Crews’ attorney, John Hundley of the Sharp Law Firm, said they are disappointed by the court’s ruling and “respectfully believe the judge has failed to apply the law correctly.”

Hundley said he will be appealing the decision to the Seventh Circuit Court of Appeals.

     

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