Lam et al v. City of Cleveland

Filing 38

Opinion and Order granting in part and denying in part Defendant City of Cleveland's Motion for judgment on the pleadings (Related Doc # 18 ). Judge Christopher A. Boyko on 8/2/2017.(R,D) Modified on 8/3/2017 (S,HR).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DAVID LAM, et al.,
Plaintiffs,
vs.
THE CITY OF CLEVELAND,
Defendant.

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CASE NO. 1:16CV1563
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Rule 12(c) Motion (ECF DKT #18) of
Defendant City of Cleveland for Judgment on the Pleadings. For the following reasons, the
Motion is granted in part and denied in part.
I. FACTUAL BACKGROUND
Plaintiff, David H. Lam, is a Detective in the Cleveland Police Department and an
infantry Captain in the Ohio Army National Guard. He has been employed by Cleveland
since 2008; and since 2004, he has been a drilling member of the Ohio Army National Guard.
Plaintiff, Leonard Graf, is a Patrolman in the Cleveland Police Department and a helicopter
maintenance mechanic Staff Sergeant in the Ohio Army National Guard. He has been

employed by Cleveland since 2006; and since 2000, he has been a drilling member of the
Ohio Army National Guard.
On October 10, 2016, Plaintiffs filed their Second Amended Complaint for Money
Damages Only (ECF DKT #14). Plaintiffs bring this action on their behalf and on behalf of
similarly situated individuals who are current permanent public employees of an Ohio
municipality or unincorporated township and who are also drilling military reservists who
have not been paid all the State paid military leave they have accrued pursuant to
R.C. § 5923.05. Plaintiffs also bring this action against a putative defendant class of Ohio
municipalities and unincorporated townships that have adopted or promulgated a local
ordinance that directly or indirectly eliminates, reduces or limits in any way the State paid
military leave benefit of any of their permanent public employees who are also drilling
military reservists.
Plaintiffs bring this action in U.S. District Court pursuant to the Uniformed Services
Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4301, et seq. (“USERRA”).
The USERRA compels civilian employers to deem military reservists to be on an authorized
leave of absence or furlough from their civilian employment while performing their reserve
military duties and training in times of peace or war. Further, the USERRA prohibits
discrimination against persons because of their service in the reserve components of the
uniformed services, including the National Guard.
Plaintiffs additionally allege that R.C. § 5923.05 requires public employers to pay
their reservist employees their civilian pay for up to one month in each calendar year in which
they are performing their reserve military duties and training. (ECF DKT #14, ¶ 7).

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Plaintiffs specifically allege that the City of Cleveland has promulgated an ordinance,
§ 171.57, and has entered into a Collective Bargaining Agreement (“CBA”) with the
Cleveland Police Patrolmen’s Association, which have the practical effect of reducing or
eliminating the employment benefit of State paid military leave to its employees who are
military reservists in violation of the USERRA and R.C. § 5923.05. (ECF DKT #14, ¶¶ 8-9).
Count I of the Second Amended Complaint requests Declaratory Judgment. Count II
alleges Violation of the USERRA (Denying Reservists a benefit of their employment accrued
during the performance of their military service). Count III alleges Violation of the USERRA
(Denying Reservists on military leave rights and benefits provided by Cleveland to other
similar employees on comparable furloughs or other leave of absences under their CBA with
the named plaintiffs’ union; specifically providing only differential pay to reservist on
military leave compared to providing paid leave to other employees on jury duty).
Defendant City of Cleveland moves for Judgment on the Pleadings under Fed.R.Civ.P.
12(c). The City argues that its differential pay method for military service leave is not a
violation of the USERRA; and that it is well-settled law in Ohio that a chartered municipality
like Cleveland has the Home Rule authority to establish its own policy with respect to
military leave and wages. In its Motion (ECF DKT #18), the City does not address Count I of
Plaintiffs’ Complaint.
II. LAW AND ANALYSIS
Motion for Judgment on the Pleadings
After the pleadings are closed, but within such time as not to delay the trial, any party
may move for judgment on the pleadings. Fed.R.Civ.P. 12(c). In this jurisdiction, “[t]he

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standard of review for a judgment on the pleadings is the same as that for a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6) . . . . We ‘construe the complaint in the light
most favorable to the plaintiff, accept all of the complaint’s factual allegations as true, and
determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims
that would entitle relief.’” Roger Miller Music, Inc. v. Sony/ATV Publishing, LLC, 477 F.3d
383, 389 (6th Cir.2007) (citations omitted). A Rule 12(c) motion “is granted when no
material issue of fact exists and the party making the motion is entitled to judgment as a
matter of law.” Paskvan v. City of Cleveland Civil Serv. Comm’n, 946 F.2d 1233, 1235 (6th
Cir.1991).
USERRA
According to 38 U.S.C. § 4301:
(a) The purposes of this chapter 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 lives of persons performing service in the uniformed
services as well as to their employers, their fellow employees, and their
communities, by providing for the prompt reemployment of such persons upon
their completion of such service; and (3) to prohibit discrimination against
persons because of their service in the uniformed services. (b) It is the sense
of Congress that the Federal Government should be a model employer in
carrying out the provisions of this chapter.
Pursuant to 38 U.S.C. § 4302(b), “[t]his chapter supersedes any State law (including
any local law or ordinance), contract, agreement, policy, plan, practice, or other matter that
reduces, limits, or eliminates in any manner any right or benefit provided by this chapter,
including the establishment of additional prerequisites to the exercise of any such right or the
receipt of any such benefit.”

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Further, 38 U.S.C. § 4311(a) provides: “A person who is a member of, applies to be a
member of, performs, has performed, applies to perform, or has an obligation to perform
service in a uniformed service shall not be denied initial employment, reemployment,
retention in employment, promotion, or any benefit of employment by an employer on the
basis of that membership, application for membership, performance of service, application for
service, or obligation.”
Moreover, pursuant to 38 U.S.C. § 4316(b), a person who is absent from a position of
employment by reason of service in the uniformed services shall be deemed to be on furlough
or leave of absence while performing such service and “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.”
38 U.S.C. § 4303(2) recites:
The term “benefit,” “benefit of employment,” or “rights and benefits” means
the terms, conditions, or privileges of employment, including any advantage,
profit, privilege, gain, status, account, or interest (including wages or salary for
work performed) that accrues by reason of an employment contract or
agreement or an employer policy, plan, or practice and includes rights and
benefits under a pension plan, a health plan, an employee stock ownership
plan, insurance coverage and awards, bonuses, severance pay, supplemental
unemployment benefits, vacations, and the opportunity to select work hours or
location of employment.
R.C. Chapter 5923 - Organized Militia
R.C. § 5923.05(A)(1) provides that: “Permanent public employees who are members
of the Ohio organized militia or members of other reserve components of the armed forces of

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the United States, including the Ohio national guard, are entitled to a leave of absence from
their respective positions without loss of pay for the time they are performing service in the
uniformed services, for periods of up to one month, for each calendar year in which they are
performing service in the uniformed services.” (Emphasis added).
City of Cleveland Codified Ordinance
The City’s Ordinance governing military service leave of absence and benefits during
service is § 171.57 and it reads in pertinent part:
(a) All officers and employees of the City who are regular active-duty
members of any component of the Armed Forces of the United States, or
reservists who are called to active-duty to serve in the Ohio National Guard, *
* *, are entitled to a leave of absence from their respective duties for such time
as they are in the military service on field training or active duty. If a City
employee’s military pay or compensation during such period of leave of
absence is less than his or her City pay would have been for such period, he
or she shall be paid, by the City, the difference in money between the City
pay and his or her military pay for such period. (Emphasis added).
Collective Bargaining Agreement (CBA)
The CBA between the City of Cleveland and the Cleveland Police Patrolmen’s
Association provides for military leave in Article XIII:
A patrol officer who is temporarily called to active duty (e.g. summer training)
shall be granted a leave for the duration of such active duty and shall be paid
the difference between his regular pay and his total military pay (upon
receipt of a service pay voucher) for a period not to exceed thirty-one (31)
days in any calendar year, and further, shall accumulate vacation and sick
leave with pay credit during the period of such leave. (Emphasis added).
Lam and Graf’s Complaint
In Count II of the Second Amended Complaint, Plaintiffs allege: “The enforcement of
these municipal military leave ordinances and the illegal CBA cause the named plaintiffs and
the proposed class plaintiffs a disparate impact and deny them a benefit of their employment,
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their State paid military leave benefit, within the meaning of § 4311 of the USERRA.”
The Court disagrees. First, from the Court’s reading of the relevant sections of the
USERRA, it is clear that the intent of the federal legislation is to prohibit discrimination and
less beneficial treatment of employee-service members because of their military service.
Second, the Court notes that Plaintiffs’ Complaint acknowledges that “[n]o provisions in
USERRA directly compel civilian employers to pay their reservist employees during periods
of deemed military leave.” (ECF DKT #14, ¶ 5). Third, R.C. § 5923.05(A)(1) mandates that
permanent public employee-members of the Ohio National Guard (like Plaintiffs) are entitled
to a leave of absence without loss of pay when performing in the uniformed services. Last,
under the City Ordinance § 171.57 and the operative CBA, employees on military leave of
absence receive the difference between their full military pay and their civilian pay. They
earn exactly what they would have earned had they not taken military leave. The USERRA
does not mandate otherwise and there is no loss of pay as prohibited by the Ohio statute.
From another perspective, as Defendant City points out, a chartered municipal
corporation is authorized by the Ohio Constitution to exercise all powers of local selfgovernment. An ordinance adopted pursuant to this home-rule authority (for example,
§ 171.57 governing military leave of Cleveland employees) prevails over any state law on the
same subject matter. State ex rel. Fraternal Order of Police v. City of Sidney, 91 Ohio St.3d
399 (2001); Mullen v. City of Akron, 116 Ohio App. 417 (9th Dist. 1962).
The operative CBA affects Plaintiffs Lam and Graf the same as the Cleveland
Ordinance. If Plaintiffs had a dispute with the Military Leave provision of the CBA, they
could have grieved their dispute and pursued arbitration. There is no allegation in the Second

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Amended Complaint that Plaintiffs pursued their union remedy or that it would have been
futile to do so.
The Court finds that there are no material facts in dispute as to Count II of the Second
Amended Complaint and that Defendants are entitled to judgment as a matter of law.
Defendants’ Motion for Judgment on the Pleadings is granted on Count II.
In Count III, Plaintiffs Lam and Graf allege that the City of Cleveland is denying
reservists on military leave the rights and benefits provided by the City to other similar
employees on comparable furloughs or leave of absences. Discrimination in employment
benefits and rights because of an employee’s military service is forbidden by the USERRA.
The Department of Labor has promulgated regulations implementing the USERRA.
20 C.F.R. § 1002.150(b) is particularly apt to the issue here:
If the non-seniority benefits to which employees on furlough or leave of
absence are entitled vary according to the type of leave, the employee must be
given the most favorable treatment accorded to any comparable form of leave
when he or she performs service in the uniformed services. In order to
determine whether any two types of leave are comparable, the duration of the
leave may be the most significant factor to compare. For instance, a two-day
funeral leave will not be “comparable” to an extended leave for service in the
uniformed service. In addition to comparing the duration of the absences,
other factors such as the purpose of the leave and the ability of the employee to
choose when to take the leave should also be considered. Id.
Applying the Court’s required standard of review under Fed.R.Civ.P. 12(c), the Court
is unable to find in Defendant’s favor based upon the pleadings alone. The Court is unable to
determine whether Plaintiffs undoubtedly can prove no set of facts in support of their
comparability claim that would entitle them to relief. Whether or not the City is denying
Plaintiffs the same benefits granted to other employees for other furloughs and leaves is an
analysis necessitating consideration of facts outside the pleadings. Therefore, Defendant’s
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Motion for Judgment on the Pleadings is denied as to Count III of Plaintiffs’ Second
Amended Complaint.
III. CONCLUSION
For all these reasons, and since Defendant did not make any argument on the
Declaratory Judgment Claim in Count I, the Rule 12(c) Motion (ECF DKT #18) of Defendant
City of Cleveland for Judgment on the Pleadings is granted in part as to Count II only and
denied as to the remainder of the Second Amended Complaint.

IT IS SO ORDERED.
DATE: 8/2/2017

S/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge

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