In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1405

ERIC FLYNN GROSS,

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.

ARGUED SEPTEMBER 16, 2010—DECIDED MARCH 7, 2011

 

Before CUDAHY, ROVNER, and EVANS, Circuit Judges. 

ROVNER, Circuit Judge. Eric Flynn Gross sued his employer, PPG Industries, Inc., alleging that PPG’s

handling of his military deployment violated the Uniformed 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

Gross was again deployed to Iraq from 2007 to 2008, but 1

that deployment is not relevant to his appeal.

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. Before his deployment, 1

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
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 maintained 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 following 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 difference 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 irrelevant.

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 deducted 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 calculation 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 applied 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 reemployment rights of individuals who serve in the military. 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. Although 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 determining 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 statelaw claim. Noting that Gross’s complaint cited a nonexistent Wisconsin statute, the district court nonetheless 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, construing 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

“Uniformed services” is defined as “the Armed Forces, the 2

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...)

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 employed 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 employment 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.” 38 U.S.C. § 4301(a). 2
8 No. 10-1405

(...continued) 2

designated by the President in time of war or national emergency.” 38 U.S.C. § 4303(16).

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 members 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 furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect at the commencement 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 individual with “an obligation to perform service in a uniformed service shall not be denied . . . any benefit of

employment by an employer on the basis” of his membership in or obligations arising from the uniformed service. 38 U.S.C. § 4311. A “benefit of employment” in turn,

is defined as “any advantage, profit, privilege, gain,
No. 10-1405 9

status, account, or interest (other than wages or salary

for work performed) that accrues by reason of an employment 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 concluded 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 allocating 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 employees to collect military pay for attending drill in addition 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 assertion 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 employees 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 provision, § 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 subsection (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 guaranteeing “any benefit of employment” under § 4311 offers

broader protection than § 4316, we explicitly considered

and rejected such a claim in Crews. Indeed, after considering 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 interpretation 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 calculated according to the per diem model he proposes.

Gross attempts to shore up his claim with an unpublished opinion from the Sixth Circuit where the court

upheld a damages award under USERRA to an employee 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 complained 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 differential 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 admitted 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 uncontroversial. 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 contrary. 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 extended differential pay in “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.” 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 proposed 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 obligates 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 requirements 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 understand 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 employment 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 employment. 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 differential 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 considered 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 retaliation. 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, therefore, 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 considered 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 contravention 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 misstatement in the judgment regarding costs. See United
18 No. 10-1405

States v. Bonner, 522 F.3d 804, 808-09 (7th Cir. 2008) (ordering limited remand so that district court could

correct a clerical error in written judgment).

III.

For the foregoing reasons, we AFFIRM the judgment of

the district court granting summary judgment to PPG

Industries, and REMAND solely for the district court to

correct the error identified above regarding the taxation

of costs.

3-7-11