Eric Gross v. PPG Industries, Inco
636 F.3d 884
7th Cir.2011Background
- Gross sued PPG Industries under USERRA, alleging improper pay calculation during deployment and failure to rectify error.
- Gross served in the Marine Corps Reserve; deployed to Iraq from June 2004 to May 2005.
- PPG had an Attack on America military leave policy; it guaranteed differential pay for up to 720 calendar days and ensured reemployment.
- From 2001 through May 2007, PPG used a simple base-pay minus military-pay method to compute differential pay, paying the difference monthly.
- Gross challenged the pay calculation via PPG’s RESOLVE process; PPG eventually adopted Gross’s preferred method for later deployments but not retroactively.
- District court granted summary judgment for PPG; Gross appealed challenging USERRA interpretations and state-law claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §4311 requires differential pay as a 'benefit of employment | Gross argues 4311 protects the differential pay as a benefit. | PPG contends 4311 prohibits discrimination, not guaranteed enhanced benefits. | 4311 does not require higher differential pay; protect equal treatment. |
| Whether Crews v. City of Mt. Vernon controls the scope of §4311 | Gross seeks broader protection beyond equal treatment. | PPG relies on Crews to limit 4311 to equal treatment, not preferential benefits. | Crews stands; 4311 is anti-discrimination and not a license for premium benefits. |
| Whether PPG’s existing Attack on America policy satisfied USERRA | Gross claims policy should have used per diem calculation retroactively. | PPG extended differential pay; policy language did not mandate Gross’s preferred method. | PPG’s differential pay complied with policy; no USERRA violation. |
| Whether Gross’s retaliation claim under §4311 survives | Miscalculation and withholding pay were retaliatory for RESOLVE complaint. | No adverse action; calculation did not cause a loss of pay or benefits. | No materially adverse action; retaliation claim fails. |
| Whether costs were properly taxed under USERRA | Costs may be taxed against a USERRA claimant. | Costs should not be taxed under §4323(h)(1); issue may be moot. | Cautionary remand to correct judgment language on costs. |
Key Cases Cited
- Crews v. City of Mt. Vernon, 567 F.3d 860 (7th Cir. 2009) (4311 is anti-discrimination; benefits must be equal, not preferential)
- Francis v. Booz, Allen, Hamilton, Inc., 452 F.3d 299 (4th Cir. 2006) (protects against actionable retaliation standards under USERRA)
- Sandoval v. City of Chicago, 560 F.3d 703 (7th Cir. 2009) (4311 is an anti-discrimination rule; equal treatment)
- Miller v. City of Indianapolis, 281 F.3d 648 (7th Cir. 2002) (USERRA prohibits discrimination but does not require paid military leave)
- Koehler v. PepsiAmericas, Inc., 268 Fed. Appx. 396 (6th Cir. 2008) (unpublished; differential pay as a protected benefit under USERRA)