Mueller v. City Of Joliet et al

Filing 127

MEMORANDUM Opinion and Order. Signed by the Honorable Harry D. Leinenweber on 9/29/2023: Mailed notice(maf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DAVID MUELLER,
Plaintiff,
v.
CITY OF JOLIET; BRIAN BENTON,
in his official and
individual capacity as the
CHIEF OF POLICE; and EDGAR
GREGORY, in his individual
capacity,

Case No. 17 C 7938
Judge Harry D. Leinenweber

Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiff David Mueller (“Mueller”), an employee of the Joliet
Police Department at the relevant time, has sued the City of Joliet
(“City”), and its Chief of Police Brian Benton and Deputy Chief of
Police

Edgar

Gregory

(collectively,

“Defendants”)

for

allegedly

violating the Uniformed Service Members Employment and Reemployment
Act, 38 U.S.C. § 4311 (“USERRA”) (Count I), and the Illinois Military
Leave of Absence Act, 5 ILCS 325/1 (“IMLAA”) (Count II). Defendants
moved for summary judgment on both counts [Dkt. No. 108]. For the
reasons herein, the Court denies the Motion as to Count I and grants
it as to Count II.

I.
The

Court

recites

BACKGROUND

herein

those

facts

relevant

to

its

consideration of Defendants’ present motion, and such facts are
generally not in dispute unless otherwise indicated. See Pl.’s Resp.
to DSOF, Dkt. No. 115.
A.

Mueller’s Career

Plaintiff David Mueller (“Mueller”) was hired as a City of
Joliet police officer and subsequently promoted to sergeant. (Defs.’
Rule 56.1 Statement of Materials Facts (“DSOF”) ¶ 1, Dkt. No. 109.)
In August 2015, Mueller enlisted in the National Guard on a parttime basis (DSOF ¶ 16) and thereafter performed service for drills
and training on multiple occasions (DSOF ¶¶ 17—19).
In March 2016, Mueller received notice from the National Guard
advising him of an opening in the Illinois National Guard Counterdrug
Task Force. Mueller applied for the position (DSOF ¶ 21) with the
understanding that it would entail full-time work for the National
Guard involving approximately 40 hours per week (DSOF ¶ 22) of
administrative duties rather than training exercises (DSOF ¶ 23). He
was selected for the position, for which he received orders on March
23, 2016, to report for “Full Time National Guard Duty” (DSOF ¶ 24)
in Romeoville, Illinois. He did so on May 9, 2016, commencing his
full-time position. (DSOF ¶ 26.) The Adjutant General of the Illinois
National Guard executed the orders, assigning Mueller to counterdrug

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support in accordance with 32 U.S.C. § 112 from May 9, 2016, (DSOF
¶¶ 25—26) through September 30, 2016.
On May 9, Mueller began his position with the Illinois National
Guard Counterdrug Task Force. (DSOF ¶ 26.) On August 1, Mueller
resigned from his National Guard position and returned to the Joliet
Police Department (“JPD”). (See DSOF ¶ 46.)
B.

City Decides How to Address Plaintiff’s
Pay and Benefits While on Leave

When Mueller received these orders, Brian Benton (“Benton”)
served as the City’s Chief of Police (DSOF ¶ 3), Edgar Gregory
(“Gregory”) served as the City’s Deputy Police Chief (DSOF ¶ 4) with
the Joliet Police Department (“JPD”), and James Hock (“Hock”) served
as the City Manager for Joliet (DSOF ¶ 5).
Benton received a copy of Mueller’s orders (DSOF ¶ 27). Shortly
thereafter, Benton arranged a meeting with Hock. (DSOF ¶¶ 5, 27—28).
During the meeting, Hock, Benton, and several other City officials
discussed staffing. (DSOF ¶ 29.) Defendants allege but Plaintiffs
deny that the group decided to seek legal guidance regarding “what
kind of leave would be granted, what compensation, if any would be
granted” and subsequently received legal analysis about Plaintiff’s
eligibility for benefits and pay. (DSOF ¶¶ 30, 34; see Pl. Resp. to
DSOF ¶¶ 30, 34). In early June 2016, Benton, Hock, and several other
City conferred about Plaintiff’s eligibility for compensation. (DSOF
¶ 33.)
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On June 15, Benton sent an email to Mueller stating, among other
things, that Plaintiff would be provided “with an unpaid leave of
absence

during

your

National

Guard

applicable federal and state law . . ..

deployment

consistent

with

The City is willing to allow

you to utilize any accrued leave time that you have earned pursuant
to the 2012-15 Collective Bargaining Agreement between the City of
Joliet and the Fraternal Order of Police Labor Council. However,
employees in an unpaid leave status do not continue to accrue leave
time such as vacation or personal days.” (Benton 16.06.15 Email,
Dkt. No. 109-1 at 36; see DSOF ¶¶ 38—39).
C. Plaintiff’s Pay and Benefits During
His Leave of Absence (May 9—July 31, 2016)
Before, during and after Plaintiff’s National Guard service,
JPD paid Mueller each pay period the gross amount of $4,220.42 and
provided his accrual of 13.20 hours of vacation time per month. (See
DSOF ¶¶ 50—60.) In 2016, personal days did not accrue every month;
the City awarded personal days on January 1 of every calendar year.
(DSOF ¶ 11.) During the dates of his time with the National Guard,
his vacation hours were deducted in twelve-hour intervals ten times,
to amount to 120 hours. (Accrual Detail, Malloy Decl. Ex. J, Dkt.
No. 111-1 at 216; see Pl. Local Rule 56.1(B)(3) Statement of Material
Fact (“PSOF”) ¶ 29, Dkt. No. 114.)

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D.

Plaintiff’s Return to City Police Work

At some point in July 2016, Plaintiff decided to seek release
from his full-time National Guard duties, which he ended July 31,
2016. (DSOF ¶ 44). On August 1, 2016, Plaintiff returned from leave
and began performing work as a Joliet Police Sergeant. (SOF ¶ 46).
Plaintiff retired on January 21, 2021. (DSOF ¶ 2).
Mueller

sued

the

City

of

Joliet,

Benton,

and

Gregory

(“Defendants’) for violating Uniformed Service Members Employment
and Reemployment Act (“USERRA”) and the Illinois Military Leave of
Absence Act (“IMLAA”), 5 Ill. Comp. Stat. 325/1(a) (2018), repealed
by P.A. 100-1101, § 90-5 (eff. Jan. 1, 2019), and replaced by the
Illinois Service Member Employment and Reemployment Rights Act, 330
Ill.

Comp.

Stat.

61/1-1

et

seq.

(2019).

Mueller

claimed

that

Defendants violated both USERRA and IMLAA by failing to provide
vacation time accrual and differential pay and forcing him to use
vacation time during his full-time position with the National Guard.
II.

LEGAL STANDARD

Summary judgment is appropriate if the record of a case “show[s]
that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law.” FRCP 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 323—25 (1986); see also Mills
v. Health Care Serv. Corp., 171 F.3d 450, 458 (7th Cir. 1999).
Whether a fact is material depends on the underlying substantive law
that governs the dispute, and a genuine dispute is one where “the
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evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir.
2012) (citation omitted). The Court evaluates the record in the light
most favorable to the non-moving party and draws all reasonable
inferences in his favor. Burton v. Downey, 805 F.3d 776, 783 (7th
Cir.

2015).

If

judgment

motion,

evidence

showing

a

moving
the
a

party

properly

nonmoving

genuine

supports

party

must

of

material

issue

their

present
fact,

summary

admissible
however,

a

scintilla of evidence is insufficient to meet that burden. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
III.

DISCUSSION

A. USERRA (Count I)
Section 4311(a) of USERRA states 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. The statute further
provides:
a person who is absent from a position of employment by
reason of service in the uniformed services shall be .
. . entitled to such other rights and benefits not
determined by seniority as are generally provided by the
employer of the person to employees having similar
seniority, status, and pay who are on furlough or leave
of absence under a contract, agreement, policy,
practice, or plan in effect at the commencement of such
service or established while such person performs such
service.

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Id. § 4316(b)(1)(B). A “benefit of employment” in turn, is defined
as “any advantage, profit, privilege, gain, 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); see Gross v. PPG
Indus., Inc., 636 F.3d 884, 889 (7th Cir. 2011). This “includes . .
. vacations.” 20 CFR Part 1002.5 (b). Plaintiff bears the burden to
offer sufficient evidence what Plaintiff allegedly lost was a benefit
of employment, that Plaintiff was denied it, and that his military
service was “a substantial or motivating factor” in the denial of
said employment benefit. See Sandoval v. City of Chicago, Case No.
07 C 2835, 2008 WL 2743750, *4 (N.D. Ill. June 13, 2008), aff’d, 560
F.3d 703 (7th Cir. 2009). Once an employee establishes “that the
employer’s action was motivated at least in part by the employee’s
service obligations, . . . the burden shifts to the employer to show
that the action would have been taken anyway.” Hackett v. City of S.
Bend, 956 F.3d 504, 508 (7th Cir. 2020).
In Count I, Plaintiff contends that Defendants violated USERRA
in three ways while he was while on leave due to his National Guard
duty, namely by: refusing to allow Plaintiff to accrue vacation time;
failing to pay him differential pay; and effectively compelling him
to use his benefit time.

Defendants move for summary judgment on

this count arguing: Plaintiff accrued benefit time and lost no pay
while he was on leave; the City was not required under USERRA to
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provide Plaintiff differential pay; and the record evidence does not
support a finding that Defendants Benton or Gregory were decisionmakers in this matter.

Defendants also argue that Plaintiff waived

the legal theory of compelled vacation time.
Thus, the Court must determine whether there is a genuine issue
of material fact as to whether Plaintiff lost benefits and whether
said loss was denied by his employer. If so, the Court must also
determine a genuine dispute exists as to whether his military status
was a motivating factor, in order for the USERRA claim to stand.
1.

Whether Plaintiff Lost Benefits
a.

Accrued Vacation Time

In his Complaint, Mueller alleges that he did not accrue benefit
time while using benefit time. Defendants present evidence in the
record

to

the

contrary.

Defendants

point

to

Laurie

Malloy’s

Declaration (Dkt. No. 111-1) to support their contention that Mueller
did accrue his vacation time of 13.2 hours per month during his fulltime stint with the National Guard and did so on the 15th of every
month in 2016. (See Accrual Detail, Malloy Decl. Ex. J, Dkt. No.
111-1 at 216; See DSOF ¶ 50.) Plaintiff’s objection is only that the
Malloy Declaration should be stricken because Defendants did not
list Malloy in the Rule 26(a) disclosures. However, Defendants did
state, “all individuals identified by Plaintiff are incorporated
herein,” and Plaintiff had identified “Laurie Mallory” in an answer
to an interrogatory (see Pl. Interrogatory Answer no. 14, Reply Ex.
- 8 -

A; see also Mueller Dep., Dkt. No. 114-1 at 47). The Court denied
the Motion to Strike in May 2023. (Dkt. No. 123.) Having not been
presented with evidence in the record to support these allegations
in Complaint, the Court considers the Malloy Declaration as fair
game. Ultimately, this is a material fact, and there is a dispute.
But without any evidence contrary to what Defendants propose, the
issue is not genuine.
Therefore, the Court finds no genuine dispute as to whether
Mueller accrued vacation time. There is no basis for Plaintiff’s
argument that loss of the accrual of vacation time, then, was a lost
benefit.
b.

Full Pay and Differential Pay

It remains undisputed that Mueller received paychecks from the
City at the same rate of his regular earnings and that he did not
specifically receive differential pay.

Defendants argue that the

City was not required under USERRA to provide Plaintiff differential
pay. The Court agrees, and Plaintiff seems to have dropped this
argument. Therefore, there is no argument under USERRA that an
adverse employment action could be found with a lack of differential

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pay.

The

viability

of

this

argument

regarding

IMLAA

will

be

addressed, infra.
c.

Used Vacation Time

It is undisputed that Mueller used 120 hours of vacation time
during the dates of his full-time role with the National Guard.
Vacation time is a benefit of employment. 20 CFR Part 1002.5 (b).
What the parties dispute here is whether this was adverse. The
parties disagree that it was appropriate for this pay to be accounted
for

with

his

earned

vacation

time.

To

support

their

argument,

Defendants point to the Benton email facially offering Mueller a
choice and argue that a reasonable person could not find this choice
to be inappropriate.
To support his argument, Mueller presents allegations that
others

were

threatened.
constitute

compensated
To

this,

better

during

Defendants

inadmissible

hearsay.

argue

leave
that

Defendants

and

that

these

bore

he

felt

allegations

the

burden

of

explaining their objection. See Torry v. City of Chicago, 932 F.3d
579, 585 (7th Cir. 2019) (“dispensing with” underdeveloped argument
failing to explain why the statement was offered for the truth of
the matter asserted); accord McCormick v. Goebel, 2023 WL 1815937,
at *5 (N.D. Ind. Feb. 7, 2023) (“The Court is not obligated to
address individually these boilerplate hearsay challenges.”). The
Court

will

not

make

the

parties’

arguments

for

them

but

does

anticipate admissibility via hearsay exemptions to some of the
- 10 -

proffered evidence at issue. It will, of course, be up to the
Plaintiff to admit this evidence properly for a factfinder. The Court
will not consider at this time the statements made by Mueller about
what his colleagues told him when Plaintiff failed to mitigate or
respond to very foreseeable hearsay objections, but these statements
are not necessary to find the loss of vacation time adverse.
Informed

by

the

evidence

on

the

record

and

their

own

experiences, a reasonable factfinder could find the use of vacation
time to be a materially adverse employment action. Although he was
compensated

monetarily

for

these

hours,

the

time

itself

is

irreplaceable. USERRA provides leave without pay during military
service but leave without pay for another vacation once his vacation
bank is empty is not protected.
Thus, the Court finds a genuine issue of material fact as to
whether Defendants compelled Mueller to use his vacation time, and
if using vacation time was a lost benefit.
d.
Finally,
discrimination

Greater Benefits If Anything

Defendants
under

argue

USERRA

that

because

Plaintiff
IMLAA

and

cannot
USERRA

establish
provide

military personnel with greater benefits than nonmilitary personnel.
Even if IMLAA ultimately did not apply here, discussed infra, the
Police Department may have acted cautiously as if it did in granting
him more options than they would other employees. If anything,
Defendant’s theory goes, Mueller got the same but not worse benefits
- 11 -

than other employees by using his vacation time when he was out of
the office on his own volition. Defendants cite the explanation in
Crews v. City of Mt. Vernon, 567 F.3d 860, 866 (7th Cir. 2009), “the
statute reaches only discriminatory employment actions that provide
military employees with fewer benefits.”
The Court disagrees that awareness of IMLAA, or even the statute
itself, rendered USERRA redundant, per se. Of course, “State law can
grant more rights than federal law.” Heckenbach v. Bloomingdale Fire
Prot. Dist., 2020 WL 5763600, at *7 (N.D. Ill. Sept. 28, 2020)
(citations

and

quotation

marks

omitted)

(rejecting

claim

that

employer violated USERRA by denying differential pay under IMLAA),
but

there

is

no

basis

in

our

precedent

to

read

a

statute

as

superfluous, and it exceeds the power of the judiciary to read a
statute designed to protect a class as no longer needed because they
have access to rights and benefits through other means.
USERRA allows uniformed service members like Mueller to take
leave without pay and maintain reinstatement rights. Instead of leave
without pay, Joliet used Mueller’s vacation time. Why they chose to
do that is for a factfinder. Perhaps Plaintiff genuinely chose this,
as Defendants contend. Or perhaps vacation time that he was not able
to use as he actually chose was a benefit loss unique to a military
individual.
In

any

event,

Defendants’

argument

–

that

a

USERRA

discrimination claim cannot stand because the protected class has
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supposedly exclusive access to other, although different, rights –
cannot stand.
2.

Whether the Loss Was a Denial

The Court now addresses the dispute about whether Mueller was
denied the opportunity to save his vacation time or whether he agreed
to it.
Defendants

argue

that

Plaintiff

raises

a

new

argument:

“Plaintiff has raised a new legal theory in his Response Brief that
is essentially absent from his Complaint, by arguing compelled
vacation.” (MSJ Reply, Dkt. 125 at 7.) But this theory is not absent
from the Complaint, which alleges, “Plaintiff was forced to choose
between being in an unpaid leave or use his accrued benefit time.”
(Compl., Dkt. No. 46 at ¶ 41.) Even if not focused on throughout the
pendency of litigation, considering this legal theory would not cause
unreasonably

delay

or

difficulty

for

the

defense.

See

Chessie

Logistics Co. v. Krinos Holdings, Inc., 867 F.3d 852, 860 (7th Cir.
2017); Schmeesv. HC1.COM, Inc., 77 F.4th 483, 2023 WL 5028935, at *3
(7th Cir. Aug. 8, 2023). Defendants have had “fair notice,” as
demonstrated in deposition questions regarding Mueller’s consent to
use his vacation time. (See Mueller Dep., Dkt. No. 114-1 at 22.)
There is a dispute here. Plaintiff points to temporal proximity,
payroll

inconsistencies,

and

allegations

in

the

record

that

Defendant Gregory expressed his displeasure with Plaintiff’s actions
and that Deputy Chief Jenson relayed Defendant Benton’s remarks that
- 13 -

Plaintiff “had to use benefit time” for his assignment. (See PSOF
¶ 16 (disputed by Reply at 10).) To this, Defendants argue that
because any discussion between Jensen and Plaintiff occurred before
Benton’s email, the Benton email controls. In that email, Benton
offered Plaintiff a choice, therefore, Defendants’ theory goes, the
action taken by Plaintiff was indisputably on his own volition.
However, a trier of fact could reasonably find that the email
did not cancel out the pressures Plaintiff perceived as forcing him
to choose vacation time. Plaintiff explains his theory that “it is
a logical conclusion that the City of Joliet used the tactic of
having Mueller use his benefit pay, to force him to resign his
National Guard deployment and return to full time duty as a Joliet
police sergeant.” (Response at 5.) The Court agrees that this theory
is logical, and it is supported by circumstantial facts on the record
indicating

that

Mueller

understood

that

JPD

faced

staffing

challenges and that colleagues were displeased with his choice.
Therefore, the Court finds a genuine issue of fact as to whether
Mueller was effectively denied the chance to preserve his vacation
time.
Thus, ultimately, there is a genuine dispute of material fact
as to whether Mueller was denied an adverse employment action.
3.

Whether Mueller’s Military Service
was a Motivating Factor

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Having found a genuine dispute about whether Mueller was denied
an adverse employment action, the Court turns to whether a genuine
dispute exists as to why, specifically whether his military service
was a substantial or motivating factor.
In support of its argument that military service was a factor
in Defendants’ motivation to compel vacation time to account for
Mueller’s leave, Plaintiff reports in his deposition that Officer
Jay

Sanders

(“Sanders”)

and

Adam

Blakely

(“Blakely”)

received

different treatment. Defendants first argue that these reports are
hearsay.
properly,

Defendants
and

the

failed
Court

to

explain

anticipates

their

that

the

hearsay
purpose

objection
of

these

statements was not necessarily for the truth of the matter asserted.
The Court reminds Mueller that he will have to admit such evidence
properly to a factfinder.
Next, Defendants argue that Blakeley is an improper comparator
because he was in the National Guard. The role of a comparator is
not so simple. A comparator of the same protected class could work
so long as the reason for leave was different than Mueller’s reason.
See Bello, 151 F.Supp. 3d at 858 (explaining that the issue is
whether the department treated this request for leave different than
other requests for leave). Moreover, there is evidence in the record
of disdain for Mueller given his decision to pursue the Full-Time
role with the National Guard while maintaining his position with
JPD, for example Gregory’s comments that he Mueller’s decision to do
- 15 -

so harmed the department. (See PSOF ¶¶ 3, 5.) Still, a comparator is
not the only way to show that military service was a motivating
factor.

The

fact

that

other

people

in

military

were

treated

appropriately does not foreclose the theory that an animus towards
Mueller’s military service was a motivating factor.
In light of the potential evidence that other officers with
different

reasons

for

leave

received

different

treatment

and

colleagues’ remarks suggesting that Mueller’s decision was harmful
to the department, the Court finds a genuine dispute of material
fact

regarding

what

role,

if

any,

Mueller’s

connection

to

the

military played in the decisions made about his benefits.
4.

Whether Benton and Gregory were Decision Makers

Next, the parties dispute the role Benton and Gregory played in
the final decision to deny Mueller the benefits he sought. Defendants
point to Benton’s and Hock’s depositions to assert that Hock made
the decision and directed Benton to relay it to Mueller via email.
(See DSOF ¶¶ 35-37.)
As discussed in the Court’s second ruling on Defendants’ Motion
to Dismiss (Dkt. No. 97), Benton and Gregory have authority over
other police officers pursuant to state law as incorporated into the
City of Joliet’s municipal code. (See Dkt. No. 97 at 6.) The parties
do not dispute that “Gregory had supervisory authority over everyone
below his position” (Dkt. No. 116 at 35.), and that according to
Gregory Plaintiff’s extended military leave impacted staffing levels
- 16 -

at JPD. The record shows Benton sent the email to Mueller apprising
him of his supposed rights regarding his leave during his full-time
National Guard role and that Gregory participated in the grievance
process. Defendants argue that the fact that the grievance process
happened

after

the

decisions

regarding

his

benefits

were

made

forecloses any rational argument of causation. However, a reasonable
factfinder could find that Mueller’s awareness of Gregory’s position
of

influence

did

indeed

influence

Mueller’s

perceived

choices.

Therefore, there is genuine dispute of fact over Benton and Gregory’s
role in determining Mueller’s benefits.
Ultimately,

because

the

Court

finds

genuine

disputes

of

material facts, the Court declines to enter summary judgment in
Defendants’ favor on Mueller’s claim of discrimination under USERRA
against the City, Benton, and Gregory.
B. IMLAA (Count II)
Before its repeal on January 1, 2019, Section 1 of IMLAA
provided in relevant part:
Any full-time employee of . . . a unit of local
government . . . who is a member of any reserve component
of the United States Armed Forces or of any reserve
component of the Illinois State Militia, shall be
granted leave from his or her public employment for any
period actively spent in military service, including:
(1) basic training;
(2) special or advance training . . .;
(3) annual training; and
- 17 -

(4) any other training or duty required by the United
States Armed Forces.
During these leaves, the employee’s seniority and other
benefits shall continue to accrue.
. . . During leaves for basic training, for up to 60
days of special or advanced training, and for any other
training or duty required by the United States Armed
Forces, if the employee’s daily rate of compensation for
military activities is less than his or her daily rate
of compensation as a public employee, he or she shall
receive his or her regular compensation as a public
employee minus the amount of his or her base pay for
military activities.
5 Ill. Comp. Stat. 325/1(a) (repealed Jan. 1, 2019) (emphasis added).
The IMLOAA provides that a violation “constitutes a civil rights
violation under the Illinois Human Rights Act,” (“IHRA”), id. § 1.01,
and a person may bring a charge under the IHRA before the IDHR, which
is

vested

by

statute

with

the

authority

to

“issue,

receive,

investigate, conciliate, settle, and dismiss charges” under the
IHRA. 775 ILCS 5/7–101(B); see Bello v. Vill. of Skokie, 151 F.Supp.
3d 849, 867 (N.D. Ill. 2015).
In Count II, Plaintiff contends that Defendants violated IMLAA
in three ways while he was on leave due to his National Guard duty,
namely by: refusing to allow Plaintiff to accrue vacation time;
failing to allow Plaintiff to accrue personal days; and failing to
pay him differential pay. Defendants argue for summary judgment on
Mueller’s IMLAA claim on grounds that as a matter of law that they
were not required to provide differential pay or additional benefits,
and that as matter of fact that they complied.
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Defendants argue that Plaintiff’s duty was not “required by the
U.S. Armed Forces,” as required for protection as to duties under
IMLAA Section 1(a). It is undisputed that his work was not training,
to which Section 1(1)(1—3) pertain. Defendants argue that “the March
23, 2016 order was issued by the Illinois Department of Military
Affairs under the signature of the Illinois Adjutant General (SOF ¶
25) and there is no evidence that a U.S. Armed Forces representative
sought to compel Plaintiff to perform drug interdiction work as an
intelligence analyst.” (MTD at 13.) Plaintiff retorts that the orders
list federal law, 32 U.S.C. §§ 112 and 502(F), as the authority by
which states can require individuals to report to act.
The arguments conjure a sense of déjà vu, but this is actually
the Court’s first time addressing this argument. The Seventh Circuit
clarified

that

USERRA

applies

Mueller’s

case

and

generally

to

National Guard orders issued by states, but it did not address
IMLAA’s applicability. Mueller v. City of Joliet, 943 F.3d 834, 837
(7th Cir. 2019). The Seventh Circuit explained, “the language of
USERRA does not limit protection to those in ‘Federal service’ like
the Army or Navy but to those in ‘service in a uniformed service,’
which explicitly includes Title 32 full-time National Guard duty.”
Mueller, 943 F.3d at 837. Defendants assert that IMLAA’s “required
by the United States Armed Forces” language is a more exacting
standard than USERRA’s “uniformed services,” §§ 4311, 4316. (See MSJ
at 12, Dkt. No. 110 (“unique definition of ‘uniformed services’”)).
- 19 -

Defendants ask this Court to defer to the Illinois Department
of Human Rights, which determined that Mueller’s deployment did not
warrant protection by the IMLAA “because it was not for training or
part of duties for The United States Armed Forces.” (IDHR Notice of
Dismissal, Benton Decl. Ex. A; Dkt. No. 111-1 at 70; see DSOF ¶ 64).
Plaintiff argues that the IDHR was not privy to all relevant facts
and thus its determination should be ignored. Plaintiff appears to
argue that IDHR’s decision was not an interpretation of state law
but a factual determination. In Bello v. Vill. of Skokie, 151 F.Supp.
3d 849, 867 (N.D. Ill. 2015), Judge Kennelly explained, “the IHRA
specifically permits a party whose charge is dismissed to file suit
in

court,

which

makes

it

highly

unlikely

that

the

Illinois

legislature intended for courts to defer to the IDHR's resolution of
a charge.” As Plaintiff points out, the IDHR process does not involve
the type of discovery accessible through the courts. Thus, this
rationale

is

indeed

rational

for

cases

IDHR

closes

due

to

insufficient facts, such as the issue discussed Bello, where “the
IDHR's decision in Bello's administrative action, however, did not
offer the agency's interpretation of the statute.” Id. However, this
idea remains less applicable to cases IDHR closes based on a matter
of law when the IDHR would reasonably expect a Court to have access
to the same legal resources and arrive at the same conclusion.
If the issue of whether Meueller’s work with the Illinois
National Guard Counterdrug Task Force between May through July 2016
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was

“required

by

the

United

States

Armed

Forces”

were

a

fact

question, rather than a legal question, Mueller would still have a
hard time prevailing.

Although once Plaintiff accepted the job, he

may well have been required to perform the job duties, he did resign
his post that was ordered from May 9, 2016, through September 30,
2016, less than halfway through. And it is undisputed that he was
not required to perform the job.

But the Court sees the issue of

statutory interpretation as a legal question, comparing it to the
interpretation

of

USERRA

that

the

Seventh

Circuit

recently

clarified.
A

state

administrative

agency’s

interpretation

of

the

applicability of state law remains more persuasive here. That said,
Defendants’ cited authorities, U.S. Fire Ins. Co. v. Barker Car
Rental, 132 F.3d 1153, 1156 (7th Cir. 1997) (“in ascertaining the
meaning of [an Illinois statute], we must apply the same rules of
statutory construction that the Supreme Court of Illinois would apply
if it were faced with the same task”), and People ex rel. Birkett v.
City of Chicago, 779 N.E.2d 875, 881 (Ill. 2002) (“A court will give
substantial weight and deference to an interpretation of an ambiguous
statute by the agency charged with administering and enforcing that
statute.”), are not as on point as they hope. Out of caution, the
Court will conduct its own analysis, guided by the precedential and
persuasive resources we have, while acknowledging the sensitivity in
interpreting a state law and particularly one that has been repealed.
- 21 -

In Bello, 151 F.Supp. 3d at 868, Judge Kennelly went on to
interpret IMLAA absent an Illinois agency’s interpretation of the
statute. He explained his interpretation that IMLAA did not did not
entitle employees to paid leave for every participation in military
training followed three “jurisprudential rules,” namely, that a
court's primary objective is “to ascertain and give effect to the
intention of the legislature,” People ex rel. Sherman v. Cryns, 786
N.E.2d 139, 150 (Ill. 2003) and its corresponding rule that the
language of a statute is “the best indication of [legislative]
intent,” Metzger v. DaRosa, 805 N.E.2d 1165, 1167 (Ill. 2004), and
that federal courts answering novel questions of state law should
err on the side of restricting liability rather than expanding it,
Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 635–36 (7th Cir. 2007).
There, he explained that people are not entitled to receive work
credit for time they would not otherwise be working. (Id.)
This Court adopts Judge Kennelly’s approach to interpreting
IMLAA. The provisions of IMLAA as a whole afforded greater protection
than its federal counterpart. Moreover, in its amicus brief in
Mueller v. City of Joliet, 943 F.3d 834, 837 (7th Cir. 2019), the
State of Illinois expressed its interest in providing such benefits
to Illinois workers who work in state efforts with the National
Guard. On the other hand, in accordance with the principle elevating
the statutory text, the Court understands some language of IMLAA to
be more limiting than its federal counterpart. IMLAA specifically
- 22 -

separated
modified

“duties”
by

from

“required

“training”

by

the

in

United

that
States

“duties”
Armed

is

always

Forces”

but

“training” is not. Section 1(a). This interpretation of the statute
also comports with the third principle to err on the side of
restricting liability.
Ultimately, although IMLAA applies to “any reserve component of
the United States Armed Forces or of any reserve component of the
Illinois State Militia,” the duties must be “required by the United
States Armed Forces.” Section 1(a). Training need not be, but it is
undisputed that Mueller was not performing training between May and
September 2016. There was federal authority authorizing his duties,
but undisputed evidence does not establish that it was required.
Absent robust arguments from Plaintiff, the Court is inclined to
defer to the state administrative agency interpretation here. The
IDHR

determined

that

IMLAA

does

not

apply

to

Mueller’s

case.

Therefore, the Defendants prevail at summary judgment on the IMLAA
claim.
IV.

CONCLUSION

For the reasons stated herein, Defendants’ Motion for Summary
Judgment [Dkt. No. 108] is denied as to Count I and granted as to
Count II.

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IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: 9/29/2023

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