Lam et al v. City of Cleveland
Filing
73
Opinion and Order. Defendant's Motion for Summary Judgment on Plaintiff's Remaining Claims (Related doc # 55 ) is granted. Plaintiff Leonard Graf's Amended Motion for Summary Judgment (Related doc # 57 ) is denied. In light of the stipulated dismissal of Plaintiff David Lam and all of his class claims, and because Plaintiff Graf alleges only individual claims against one Defendant, the City of Cleveland, the entire case is dismissed with prejudice. Judge Christopher A. Boyko on 9/4/2018. (H,CM)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DAVID LAM, et al.,
Plaintiff,
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 Motion (ECF DKT #55) of Defendant
City of Cleveland for Summary Judgment on Plaintiff’s Remaining Claims and the Amended
Motion (ECF DKT #57) of Plaintiff Leonard Graf for Summary Judgment. For the following
reasons, Defendant’s Motion is granted and Plaintiff’s Motion is denied.
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). Plaintiff Graf brings an individual action only: “Graf brings
his claims against Cleveland as the claim of an individual Plaintiff against Cleveland as an
individual Defendant, pursuant to the rules of civil procedure other than Fed.Civ.R. 23.”
(ECF DKT #14, ¶ 12). Plaintiff Lam brings this action on his 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. Plaintiff Lam also brings 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.
On November 6, 2017, the parties filed a Stipulation (ECF DKT #47), dismissing all
the claims of Plaintiff Lam against the City of Cleveland without prejudice pursuant to Rule
41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure. The Court entered the dismissal on
the following day.
The Second Amended Complaint is brought in federal 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.
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The Complaint additionally alleges 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).
The Complaint specifically alleges that the City of Cleveland has promulgated a
Codified 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).
On August 2, 2017, the Court granted Defendant City of Cleveland’s Motion for
Judgment on the Pleadings and dismissed Count II of the Second Amended Complaint for the
alleged violation of the USERRA by denying Reservists a benefit of their employment
accrued during the performance of their military service.
The only remaining counts are Count I requesting Declaratory Judgment and Count III
alleging 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 reservists on military leave compared to providing paid leave to other
employees on jury duty).
Both Plaintiff Graf and Defendant City of Cleveland have filed Motions for Summary
Judgment in their favor on the Declaratory Judgement Count and on the claim for Comparable
Leave under the USERRA, 38 U.S.C. § 4316.
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II. LAW AND ANALYSIS
Standard of Review
Summary judgment shall be granted only if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” See Fed.R.Civ.P. 56(a). The burden is on the moving party to conclusively show no
genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Lansing Dairy. Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). The moving party must
either point to “particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations, admissions,
interrogatory answers, or other materials” or show “that the materials cited do not establish
the absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” See Fed.R.Civ.P. 56(c)(1)(A), (B). A court
considering a motion for summary judgment must view the facts and all inferences in the light
most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). Once the movant presents evidence to meet its burden, the
nonmoving party may not rest on its pleadings, but must come forward with some significant
probative evidence to support its claim. Celotex, 477 U.S. at 324; Lansing Dairy, 39 F.3d at
1347.
This Court does not have the responsibility to search the record sua sponte for genuine
issues of material fact. Betkerur v. Aultman Hospital Ass 'n., 78 F.3d 1079, 1087 (6th Cir.
1996); Guarino v. Brookfield Township Trustees, 980 F.2d 399, 404-06 (6th Cir. 1992). The
burden falls upon the nonmoving party to “designate specific facts or evidence in dispute,”
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); and if the nonmoving party
fails to make the necessary showing on an element upon which it has the burden of proof, the
moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. Whether summary
judgment is appropriate depends upon “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Amway Distributors Benefits Ass 'n v. Northfield Ins. Co., 323
F.3d 386, 390 (6th Cir. 2003) (quoting Anderson, 477 U.S. at 251-52).
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.”
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,
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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
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
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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).
Count I - Declaratory Judgment
Pursuant to R.C. § 2721.02, “courts of record may declare rights, status, and other
legal relations whether or not further relief is or could be claimed.” Likewise, 28 U.S. C.
§ 2201(a) authorizes actions for declaratory relief and provides that “[i]n a case of actual
controversy within its jurisdiction, * * * any court of the United States, upon the filing of an
appropriate pleading, may declare the rights and other legal relations of any interested party
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seeking such declaration, whether or not further relief is or could be sought.” The United
States Supreme Court has consistently emphasized that the Declaratory Judgment
Act is discretionary in nature – that courts are authorized, but not necessarily required, to
grant declaratory relief. See, for example, Public Affairs Press v. Rickover, 369 U.S.111,112
(1962). 28 U.S.C. § 2201(a) “is an enabling Act, which confers a discretion on the courts
rather than an absolute right upon the litigant.” Green v. Mansour, 474 U.S. 64, 72 (1985)
(quoting Public Serv. Comm’n. v. Wycoff Co., 344 U.S. 237, 241 (1952)).
The Sixth Circuit Court of Appeals applies two criteria when deciding whether
declaratory relief is appropriate:
The two principal criteria guiding the policy in favor of rendering declaratory
judgment are (1) when the judgment will serve a useful purpose in clarifying
and settling the legal relations in issue, and (2) when it will terminate and
afford relief from the uncertainty, insecurity, and controversy giving rise to the
proceeding. It follows that when neither of these results can be accomplished,
the court should decline to render the declaration prayed. Allstate Ins. Co. v.
Mercier, 913 F. 2d 273, 277 (6th Cir. 1990).
Plaintiff Graf posits a number of reasons why the Court should grant him declaratory
relief on Count I of his Second Amended Complaint. Moreover, he asserts that there are no
genuine issues of material fact in dispute on this claim and that he is entitled to judgment as a
matter of law.
First, Plaintiff Graf contends that Ohio municipal governments possess no military
powers; therefore, no municipal military leave ordinance in Ohio can be constitutional.
Military or “war powers” are set forth in Art. I, § 8 of the U.S. Constitution and no such
powers, including militia powers, are granted, reserved or delegated to the political
subdivisions of Ohio.
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Second, according to Plaintiff, the USERRA preempts Codified Ordinance § 171.57.
Third, Plaintiff insists that case law in Ohio on this issue is sparse but conclusively
favors reservists like himself.
Fourth, Plaintiff proposes that the military leave provision of the CBA violates
§§ 4117.10 and 5923.05 of the Ohio Revised Code.
Lastly, Plaintiff Graf asserts that the Ordinance is an exercise of police power, R.C.
§ 5923.05 is a general statute of statewide concern and additionally, the Court should be
persuaded by the public policy considerations of “the readiness and preparedness of the state
and federal military reservists during a shooting war in which Ohio Reservists are taking an
active role.” (ECF DKT #57 at 11-12).
In opposition, Defendant City of Cleveland counters these assertions, directs the
Court’s attention to relevant Ohio case law and challenges Plaintiff’s entitlement to
declaratory relief because of non-compliance with R.C. § 2721.12.
Defendant points out that R.C. § 2721.12 requires Plaintiff to serve a copy of his
Complaint on the State Attorney General because it alleges that the City Ordinance is
unconstitutional. Although the Second Amended Complaint was filed on October 10, 2016,
Plaintiff did not serve notice upon the Ohio Attorney General until he was prompted by
Defendant. The docket reflects that Plaintiff belatedly served the Ohio Attorney General on
February 26, 2018 (ECF DKT #65). Since Plaintiff cured the jurisdictional defect, the Court
will not dismiss the Declaratory Judgment Count on the basis of the R.C. § 2721.12 mandate.
However, the Court agrees with Defendant that Plaintiff Graf is not entitled to
judgment in his favor on Count I for the following reasons.
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Plaintiff Graf sets out the military and war powers held by the federal government as
provided in the U.S. Constitution and then contends that Codified Ordinance § 171.57 is an
unconstitutional exercise of authority over military leave and training. The Court has
thoroughly read the constitutional provisions cited and the language of the City Ordinance on
military leaves of absence. The Ordinance in question does not mandate when or how a City
employee participates in military training nor when military leave is necessary. Rather, it
provides for compensation and benefits when an employee is called to active duty or for
training in the Armed Services and National Guard. The Court refuses to stretch and contort
the wording, meaning and intent of the Ordinance to make it into an exercise of military
power as Plaintiff suggests.
The Court is also not convinced that the USERRA preempts the City’s legislation. In
a prior Opinion and Order (ECF DKT #38), the Court outlined its analysis of the USERRA
vis-a-vis the Cleveland Codified Ordinance.
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). . . . 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 . . . Id. at p.7.
Defendant City of Cleveland is not legislating when or how members of the Armed
Services who are City employees can take a military leave of absence nor denying such
employees any rights or benefits to which they are entitled under the USERRA. On an
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individual level, Plaintiff Graf offers no evidence that his requests for military leave were
ever refused or that he suffered any discriminatory treatment upon his return to civilian
employment through application of the City Ordinance.
The Court finds that Plaintiff’s claim that the USERRA preempts Codified Ordinance
§ 171.57 is without merit.
The Court recognizes that there are only a few cases addressing the central issues of
this lawsuit; but these decisions are totally on point and dictate the outcome the Court reaches
today. On the other hand, Plaintiff relies upon an outdated Attorney General’s Opinion from
1960, a Hamilton County Common Pleas Court decision from 1937 and a 2009 Ohio Supreme
Court decision which addresses the unrelated issue of municipal residency restrictions.
Plaintiff’s criticisms that the Ohio Supreme Court decisions, offered by Defendant City of
Cleveland, are distinguishable and not controlling precedent or do not apply the proper tests
of constitutional validity or exhibit judicial activism and improper jurisprudence on statutory
construction, are untenable. Furthermore, Plaintiff is asking the Court to sit as an appellate
court reviewing the final decisions of the Ohio Supreme Court. This the Court cannot and
will not do.
In Northern Ohio Patrolmen’s Benevolent Assn. v. City of Parma, 61 Ohio St.2d 375
(1980), plaintiffs sought a declaratory judgment that an ordinance passed in the unchartered
municipality of Parma, governing compensation for a city employee on military leave of
absence, was in conflict with R.C. § 5923.05 and was unconstitutional. Justice Locher
instructed that legislative enactments are clothed with a strong presumption of
constitutionality, and whenever possible, the court should harmonize the general law and the
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municipal ordinance. Id. at 377. Pursuant to R.C. § 5923.05, an employee receives a full city
salary plus a military salary for the period of the leave of absence; but under the Parma
Ordinance, like Codified Ordinance § 171.57 here, an employee only receives the equivalent
of the city salary. “The statute and the ordinance seek to legislate on the same subject matter,
the same individuals, and for the same period of time but at different rates of payment. The
two enactments are in direct conflict.” Id. Nevertheless, Parma’s legislation prevails over the
general state law and is valid since it is limited to a matter of local self-government, i.e.,
determining the wages paid to city employees. Id. at 383-84, citing State ex rel. Mullin v.
Mansfield, 26 Ohio St. 2d 129 (1971).
Plaintiff rightly points out that there is a distinction between the Parma case and the
instant matter because Parma is an unchartered municipality. Nevertheless, the Parma court
did comment that “[i]t is axiomatic that an ordinance, similar to the one at bar, if enacted by a
chartered municipality, would prevail over the state law irrespective of any conflict,” citing
Mullen v. Akron, 116 Ohio App. 417 (1962).
The Ohio Supreme Court faced the issue “head-on” of an ordinance adopted by a
chartered municipality pursuant to its constitutional home-rule authority regarding military
leave of its employees versus conflicting state law in State ex rel. Fraternal Order of Police,
et al. v. City of Sidney, 91 Ohio St.3d 399 (2001). In a per curiam opinion, Ohio’s highest
court dismissed a writ of mandamus sought to compel the City of Sidney to comply with R.C.
§ 5923.05 by paying a police officer reservist his regular pay irrespective of any pay he
receives from the military during his military leaves of absence. “An ordinance adopted by a
municipality pursuant to its constitutional home-rule authority regarding military leave of its
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employees prevails over conflicting state law.” Id. at 402.
In another instance, the City of Akron, a chartered municipal corporation, had a City
Code provision which mirrors Cleveland’s § 171.57: “If a city employee’s military pay * * *
during such period of leave of absence is less than his city pay would have been for such
period, he shall be paid by the city the difference between the city pay and his military or
other pay for such period.” Fraternal Order of Police, Akron Lodge No.7 v. City of Akron,
No. 20646, 2002 WL 1263956 (Ohio App. 9th Dist. May 29, 2002). “[T]he authority to
establish salaries paid to employees of a municipality is a fundamental power of local selfgovernment,” and a municipal ordinance prevails over the state statute concerning military
leave. Id. at *3.
It is clear to the Court that well-settled law supports the City of Cleveland’s position
and does not support Plaintiff Graf’s claim for Declaratory Judgment.
Plaintiff’s insistence that the military leave provision of the CBA between the City of
Cleveland and the Cleveland Police Patrolmen’s Association violates §§ 4117.10 and
5923.05 of the Ohio Revised Code is similarly unavailing. As recognized in Sidney, 91 Ohio
St.3d at 402: “R.C. 4117.10(A) expressly states that absent an election by the city to provide
the military leave specified in R.C. 5923.05, the provisions of the collective bargaining
agreement prevail.” (Emphasis added). It is obvious from the language of the Ordinance and
of Article XIII of the CBA that the City of Cleveland has not elected to provide benefits in
accordance with R.C. § 5923.05. Therefore, the CBA prevails.
Plaintiff Graf’s remaining arguments that the City Ordinance is an exercise of police
power, that R.C. § 5923.05 is a general law of statewide concern and that public policy
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compels a finding in his favor on Count I are not persuasive. Simply because the exercise of
self-government relates to the municipality’s police department does not make the City of
Cleveland’s Ordinance an exercise of police power or police regulation. Parma, 61 Ohio
St.2d at 383. R.C. § 5923.05 has not been held to be a matter of statewide concern. Parma,
61 Ohio St.2d at 386, fn. 5. Promoting ready and prepared federal and state reservists is an
admirable goal, but:
not at the expense of a municipality which must pay an entire salary for a 31day period to an employee who is not performing any duties within the
municipality. The state has many other viable alternatives to induce enlistment
and maintenance of the armed reserves rather than further saddling the
municipalities with an additional expense. The state’s concern in this matter is
not sufficient to interfere with the municipalities’ fiscal decision as to wages
paid to its employees. Parma, 61 Ohio St.2d at 383.
Count III - Comparable Leave Violation
Plaintiff Graf argues that Defendant 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, 38 U.S.C. §§
4311(a) and 4316(b). The Department of Labor provides guidance in this regard:
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. 20 C.F.R.
§ 1002.150(b).
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In his Motion for Summary Judgment on Count III of the Second Amended
Complaint, Plaintiff Graf abandons earlier comparisons to leaves and furloughs such as CallIn Duty and Court Time and restricts his arguments to the treatment afforded City employees
on Jury Duty. He asserts that the City’s Jury Duty leave benefit is “comparable” within the
meaning of 38 U.S.C. § 4316, but is more favorable than the “differential” benefit provided
for Military Leave. Therefore, Plaintiff asks the Court to find that Codified Ordinance
§ 171.57 and the associated CBA provision in Article XIII discriminate against employees in
the military service and violate federal law. Upon review of the evidence, the Court is not
persuaded.
According to City of Cleveland policy, employees are provided jury duty leave with
pay if they turn in their compensation received from the court for jury service. (Deposition of
Personnel Director Nycole West, ECF DKT #55-28 at 12-16). There is no practical
difference between that policy and how police officers are treated under the CBA. (Id. at 16).
Under the CBA, a police officer employee on jury duty shall be considered on a tour of duty
and will be compensated accordingly as long as the officer surrenders the compensation
received from the court. (CBA Article XI, 15(I), ECF DKT #55-11 at 20).
In his deposition, Plaintiff Graf was asked if he had ever been called for jury duty
while employed with the City of Cleveland and he answered: “One time, yes.” (ECF DKT
#55-5 at 57). The inquiry continued:
Q. And then when you returned, did you provide the City of Cleveland with your
check that you received from the court?
A. I believe I did.
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Q. And you were paid your full City pay after you turned in your check from the
court?
A. Yes.
(Id.).
To repeat, under the Codified Ordinance, 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; and pursuant to the CBA,
an employee of the police department on a military leave of absence shall be paid the
difference between his regular pay and his total military pay (upon receipt of a service pay
voucher). Although Plaintiff Graf takes issue with the differential pay scheme for Military
Leave as opposed to Jury Duty leave, in reality, the effect is the same. The employee receives
his or her full City pay and is not entitled to both City pay and compensation from either the
court or the military.
In his Reply Brief (ECF DKT #69-1), Plaintiff provides a hypothetical calculation to
illustrate his contention that the Jury Duty benefit is discriminatorily more favorable than the
military leave policy. This hypothetical is not evidence; and furthermore, Plaintiff bases his
math on a false premise and on a poor analogy. Initially, Plaintiff represents that the
USERRA § 4316 “says that the employer must pay the Reservist the same amount of dollars
it provides another non-military employee.” (Id. at 23-24). The Court is unable to find that
language in the statute. Moreover, Plaintiff states that “non-military Patrolmen on jury-duty
leave” receive a leave benefit from the City of “full pay minus their jury-duty pay.” (ECF
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DKT # 69-1 at 25). But the City does not deduct any amount from an employee’s pay for jury
duty. The employee receives full pay for the period of jury duty upon turning in the jury
voucher. The Court cannot imagine that Plaintiff is arguing that it would be fair or favorable
if the City were to require him to turn in his military pay upon completion of his leave of
absence. This is especially so since his military pay exceeds his patrolman’s salary.
The Court holds that Plaintiff Graf is not entitled to judgment in his favor on Count III
of his Second Amended Complaint.
III. CONCLUSION
For these reasons, the Motion (ECF DKT #55) of Defendant City of Cleveland for
Summary Judgment on Plaintiff’s Remaining Claims is granted and the Amended Motion
(ECF DKT #57) of Plaintiff Leonard Graf for Summary Judgment is denied. In light of the
stipulated dismissal of Plaintiff David Lam and all of his class claims, and because Plaintiff
Graf alleges only individual claims against one Defendant, the City of Cleveland, the entire
case is dismissed with prejudice.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: September 4, 2018
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