The opinion of the court was delivered by: Timothy R. Rice U.S. Magistrate Judge
Plaintiff Gregory Spadoni, a school teacher with defendant Easton Area School District ("the district") between 1976 and 2008, was deployed to serve in our country's military forces at Guantanamo Bay, Cuba from April 16, 2004 to March 30, 2005. See Stipulated Factual Record at ¶ 3, 13, Spadoni v. Easton Area Sch. Dist., No. 07-5348 (E.D. Pa. filed Oct. 24, 2008) [hereinafter Stipulated Factual Record].*fn1 He alleges the district violated 38 U.S.C.A. § 4301 et seq., the Uniform Services Employment and Reemployment Rights Act of 1994 ("USERRA"), by refusing to permit him to use his accrued sick leave while on military leave and by prorating his annual salary upon his return. See Complaint at ¶ 24, Spadoni v. Easton Area Sch. Dist., No. 07-5348 (E.D. Pa. filed Dec. 19, 2007); Brief of Plaintiff, Gregory D. Spadoni at 4, Spadoni v. Easton Area Sch. Dist., No. 07-5348 (E.D. Pa. filed Oct. 29, 2008) [hereinafter Spadoni's Brief].*fn2 For the following reasons, I find the district did not violate USERRA because it did not deny Spadoni a benefit of employment.
USERRA was intended "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." 38 U.S.C. § 4301(a). It "prohibits employers . . . from discriminating on the basis of military status." Satterfield v. Borough of Schuylkill Haven, 12 F. Supp. 2d 423, 438 (E.D. Pa. 1998) (Van Antwerpen, J). To promote this laudable objective, the law provides "[a] person who is a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied . . . any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation." 38 U.S.C.A. §4311(a).
An employer shall consider a person absent from employment because of uniformed services as on furlough or leave of absence, see 38 U.S.C. § 4316(b(1), and such person shall be "entitled to such other rights and benefits . . . generally provided by the employer of the person to employees having similar seniority, status, and pay who are on furlough or leave of absence," see id. at § 4316(b)(a)(B).
Plaintiffs must establish they suffered an adverse employment action which denied them a benefit of employment. See Clegg v. Ark. Dep't of Corr., 496 F.3d 922, 927-28 (8th Cir. 2007).
Benefits of employment include: 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 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.
38 U.S.C.A. §4303(2); accord 20 C.F.R. § 1002.1 et. seq. (regulations implemented to guide application of USERRA).
USERRA provisions are construed "liberally, in favor of the service member." Gordon v. Wawa, Inc., 388 F.3d 78, 81 (3d Cir. 2004). This is not surprising because military service ranks as one of the highest forms of public service a citizen can undertake. Thus, plaintiffs, such as Mr. Spadoni, and their families, merit the nation's gratitude for their sacrifices on our behalf, and must not endure discrimination in the workplace because of their absence while defending our nation.
If an employee is denied a benefit of employment, an employer violates USERRA "if the person's membership in the uniform services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership." 38 U.S.C.A. § 4311(c)(1); accord Gannon v. Nat'l R.R. Passenger Corp., 422 F. Supp. 2d 504, 508 (E.D. Pa. 2006) (Robreno, J.). The plaintiff bears the "initial burden of production to show that, by a preponderance of the evidence, 'the employee's military service was a substantial or motivating factor' in the adverse employment decision." Hart v. Twp. of Hillside, 228 Fed. Appx. 159, 162 (3d Cir. 2007) (quoting Sheehan v. Dep't of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001)). "[T]he employer then has the opportunity to come forward with evidence to show, by a preponderance of the evidence, that the employer would have taken the adverse action anyway, for a valid reason." Id. (quoting Sheehan, 240 F.3d at 1013).
Spadoni alleges the district should have permitted him to use his accrued sick leave while he was on military leave. See Spadoni's Brief at 5. He alleges the accrued sick leave constituted "paid time off," which an employer must allow an employee on military leave to use. See id. By November 3, 2004, Spadoni had accrued, and he seeks payment for, 122 unused sick days. See Stipulated Factual Record at ¶ 19.
The district did not deny Spadoni a benefit of employment when it did not permit him to use his accrued sick leave while on military leave. An employer, upon request, must permit an employee to use "accrued vacation, annual or similar leave with pay during the period of service." 20 C.F.R. § 1002.153(a). Sick leave, however, is not similar to annual leave. See id. § 1002.153(a). Rather: an employee is not entitled to use sick leave that accrued with the civilian employer during a period of service in the uniformed services, unless the employer allows employees to use sick leave for any reason, or allows other similarly situated employees on comparable furlough or leave of absence to use accrued paid sick leave. Sick leave is usually not comparable to annual or vacation leave; it is generally intended to provide income when the employee or family member is ill and the employee is unable to work.
Id. Accordingly, an employer is required to allow an employee on military leave to use accrued sick leave only if it allows employees to use sick leave for any reason or allows employees on ...