Lam v. City of Cleveland, 1:16-cv-01563

Plaintiffs David Lam and Leonard Graf are Cleveland police officers and Ohio Army National Guard reservists who claim they were not provided the full State-paid military leave mandated by R.C. § 5923.05.
Plaintiffs challenge Cleveland Codified Ordinance § 171.57 and the Collective Bargaining Agreement (CBA) with the Patrolmen’s Association, which provide that the City pays the difference between city pay and military pay (i.e., differential pay) for up to 31 days per year.
Plaintiffs assert USERRA claims on behalf of themselves and a putative class of Ohio municipal employees whose local laws or CBAs allegedly reduce or eliminate State-paid military leave benefits.
Count II alleges the City’s pay practice denies reservists a benefit of employment in violation of USERRA; Count III alleges disparate treatment because reservists receive less favorable leave benefits than other employees on comparable furloughs.
The City moved for judgment on the pleadings under Fed. R. Civ. P. 12(c); it argued its differential-pay method complies with USERRA and relied on municipal home-rule authority for its ordinance. The City did not move on Count I (declaratory judgment).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the City’s differential-pay policy violates USERRA by denying a benefit of employment	Lam/Graf: City’s ordinance/CBA reduce or eliminate State-paid military leave benefit in violation of USERRA and R.C. § 5923.05	City: Ordinance/CBA pay the difference so employees suffer no loss of pay; USERRA does not require gross pay during military leave; home-rule permits municipal policy	Court: Granted judgment for City on Count II — USERRA not violated as pleaded because employees receive the pay difference and no prohibited loss of pay is shown
Whether reservists are entitled to the most favorable non-seniority leave benefits compared to other comparable leaves under USERRA/its regs	Lam/Graf: Reservists are treated less favorably than employees on other furloughs (e.g., jury duty) and thus discriminated against	City: Policy treats military leave appropriately; comparability issue depends on factual comparisons outside the pleadings	Court: Denied judgment on Count III — cannot resolve comparability/disparate-treatment claim on pleadings; factual development required

Roger Miller Music, Inc. v. Sony/ATV Publishing, LLC, 477 F.3d 383 (6th Cir. 2007) (standard for 12(c) motion is same as for 12(b)(6))
Paskvan v. City of Cleveland Civil Serv. Comm’n, 946 F.2d 1233 (6th Cir. 1991) (12(c) granted when no material facts in dispute and movant entitled to judgment as a matter of law)
State ex rel. Fraternal Order of Police v. City of Sidney, 91 Ohio St.3d 399 (Ohio 2001) (municipal home-rule ordinance can prevail over state law on same subject)
Mullen v. City of Akron, 116 Ohio App. 417 (Ohio Ct. App. 1962) (home-rule authority supports municipal control over local employment policies)