In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2699

JUAN SANDOVAL and SIDNEY PENNIX,

Plaintiffs-Appellants,

v.

CITY OF CHICAGO, ILLINOIS,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 07 C 2835—Suzanne B. Conlon, Judge.

ARGUED FEBRUARY 23, 2009—DECIDED MARCH 30, 2009

Before EASTERBROOK, Chief Judge, and KANNE and

EVANS, Circuit Judges.

EASTERBROOK, Chief Judge. Two of Chicago’s police

officers filed this suit under the Uniformed Services

Employment and Reemployment Rights Act, 38 U.S.C.

§§ 4301–35. They want to be sergeants. This position

requires a competitive examination, which all candidates

take simultaneously to curtail the risks of cheating. Chicago scheduled an exam for March 25, 2006. Juan Sandoval
2 No. 08-2699

and Sidney Pennix then were on military duty—Sandoval

in El Salvador and Pennix in Iraq. Both asked for an

opportunity to take the test outside the United States.

Ernst & Young administers Chicago’s civil-service exams

outside Chicago. Both Sandoval and Pennix were offered

the opportunity to sit for the exam in Ernst & Young’s

closest offices (San Salvador for Sandoval, Frankfurt for

Pennix). Both accepted this offer without protest; both

passed and were placed in the eligibility list; and both

filed suit as soon as the first person was promoted from

that list.

Sandoval and Pennix contend that they would have

done better, and been promoted earlier, had the tests

been offered closer to the places where they were stationed. They say that Chicago should have arranged for the

military to administer the exam on base. They also seek

compensation for what they describe as the cost and

danger of reaching San Salvador or Frankfurt from their

military-duty stations. The district court granted summary judgment for Chicago, however, after concluding

that Chicago did not discriminate against persons serving

in the military. 2008 U.S. Dist. LEXIS 46521 (N.D. Ill.

June 13, 2008).

Jurisdiction is the first question. Suits against private

employers under the Uniformed Services Employment

and Reemployment Rights Act may be filed in federal

court, but suits against states must be filed in state

court. Compare 38 U.S.C. §4323(b)(2) with (b)(3). We

held in Velasquez v. Frapwell, 165 F.3d 593 (7th Cir. 1999),

that this means only state court: §4323(b) is designed to
No. 08-2699 3

avoid problems under the eleventh amendment with

federal suits against states. See Seminole Tribe v. Florida, 517

U.S. 44 (1996). But §4323(i) defines “private employer” to

include a subdivision of a state for the purpose of §4323.

So the holding of Velasquez concerns only suits against

states themselves. Chicago is a “political subdivision” of

Illinois, and subject-matter jurisdiction is established.

Sandoval and Pennix rely on 38 U.S.C. §4311(a), which

provides that a person serving in the military may not

be “denied . . . any benefit of employment . . . on the basis

of that” service. Plaintiffs say that they incurred

higher costs, and more risk, to take their tests than did

persons not serving with military units; they maintain

that they would have scored higher had the tests been

more convenient. The problem with this view is that

§4311 is an anti-discrimination rule—its caption reads

“Discrimination against persons who serve in the uniformed services and acts of reprisal prohibited”. See

Velazquez-Garcia v. Horizon Lines of Puerto Rico, Inc., 473

F.3d 11, 17 (1st Cir. 2007); Miller v. Indianapolis, 281 F.3d

648, 650–51 (7th Cir. 2002). Sandoval and Pennix were

not turned away because they were on active duty; to

the contrary, Chicago arranged for each to take the test

outside the United States. Section 4311(a) requires

Chicago to treat persons on military service the same as

other employees, which it did. If plaintiffs had been on

vacation, or on leave to attend college abroad, they

would have been treated exactly as they were. So where

is the discrimination?

What Sandoval and Pennix want is not the same treatment as everyone else (an anti-discrimination norm), but
4 No. 08-2699

better treatment than those who are attending college

or otherwise outside Chicago when a test is offered. In

other words, they seek an accommodation rather than

equal treatment. But §4311 does not require accommodation, which is fundamentally different from an equaltreatment norm. See University of Alabama v. Garrett,

531 U.S. 356 (2001); Employment Division v. Smith, 494

U.S. 872 (1990).

The opportunity to take a test that is required for promotion is a “benefit of employment” that Chicago may

not deny to persons in the armed services. Because

Chicago extended that opportunity to Sandoval and

Pennix on the same terms available to persons not in

military service, it complied with its obligations under

§4311(a). Congress is free to require employers to do

more—and perhaps Chicago would have done more

voluntarily had Sandoval or Pennix asked for on-base

administration of the test—but the statute on the

books forbids discrimination without requiring accommodation. Another section of the Act drives home the

point by requiring employers to treat persons on leave

for military service the same as persons who are on

leave for other reasons. 38 U.S.C. §4316. A requirement of

equal treatment is incompatible with a demand for preferential treatment. See Tully v. Department of Justice, 481

F.3d 1367, 1369–70 (Fed. Cir. 2007); Rogers v. San Antonio,

392 F.3d 758, 764 (5th Cir. 2004).

Plaintiffs do not give any thought to the costs that their

(belated) request for on-base administration would have

imposed on Chicago and the military. When requiring
No. 08-2699 5

accommodation, Congress usually sets limits on the

expense and inconvenience that an employer must bear

to provide that benefit. See, e.g., Trans World Airlines,

Inc. v. Hardison, 432 U.S. 63 (1977) (discussing the

accommodation-of-religion clause in Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §2000e–2(a)(1)); Vande

Zande v. Wisconsin Department of Administration, 44

F.3d 538 (7th Cir. 1995) (discussing the accommodation requirement in the Americans with Disabilities Act, 42

U.S.C. §12112(b)(5)(A)). Section 4311(a) does not set a

cap on cost, however, because it does not require accommodation in the first place.

Plaintiffs’ remaining arguments have been considered

but do not require discussion. The judgment is affirmed.

3-30-09