In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2219

NATHAN MILLER, et al.,

Plaintiffs-Appellants,

v.

CITY OF INDIANAPOLIS and INDIANAPOLIS FIRE
DEPARTMENT,

Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP99-1735-C-M/S--Larry J. McKinney, Chief Judge.

Argued December 3, 2001--Decided February 20, 2002



  Before POSNER, EVANS, and WILLIAMS, Circuit
Judges.

  EVANS, Circuit Judge. A group of
firefighters contend that the City of
Indianapolis violated the Uniform
Services Employment and Reemployment
Rights Act, 38 U.S.C. sec. 4301 (USERRA),
in the manner in which it calculated the
paid leave to which they are entitled
when they perform their yearly service in
the military Reserves or National Guard.
The district court concluded that the
firefighters failed to establish a
violation of USERRA even though they
might have a viable complaint that the
fire department policy violates Indiana
law.

  Each of the plaintiffs is a
"suppression" firefighter with the
Indianapolis Fire Department. Suppression
firefighters work a 24-hour shift
followed by 48 hours off, with an
additional day off every 3 weeks. The
department also has "nonsuppression"
firefighters who work 8-hour shifts 5
days a week. Both groups include
firefighters who pull duty in the
Reserves or the National Guard. The
obligation of military reservists and the
National Guard members consists generally
of one 2-week period during the year and
one weekend day per month. Obviously,
during these times, the firefighters are
unable to report for work at the fire
department.

  Section 10-2-4-3 of the Indiana Statutes
provides that officers and employees of
the state be granted leaves of absence
"without loss of time or pay" for
training or active duty in the military
for up to 15 days per year:

(c) A member is entitled to receive from
the member’s employer a leave of absence
from the member’s respective duties, in
addition to regular vacation period,
without loss of time or pay for such time
as the member is:

  (1) on training duties of the state of
Indiana under the order of the governor
as commander in chief; or

  (2) a member of any reserve component
under the order of the reserve component
authority;

for consecutive or nonconsecutive periods
not to exceed a total of fifteen (15)
days in any calendar year.

In addition, section 291-210 of the
Municipal Code of the City of
Indianapolis requires that military leave
"shall be granted in accordance with
appropriate state and federal law" and
that in "accordance with state law, a
maximum of fifteen (15) eight-hour
working days of paid military leave shall
be granted." If an employee exceeds the
15 days, he is entitled to leave "with or
without loss of time or pay . . . ."

  The Indianapolis Fire Department General
Order No. 2.03 states that all members of
the armed forces are entitled to leaves
of absence with pay for "periods not to
exceed 120 duty hours in one calendar
year." Leaves of absence beyond that
number of hours "shall be without pay."
The requirement for 120 hours of paid
leave comes from converting 15 8-hour
days into hours./1 If the firefighters
exhaust their 120 hours, they are allowed
to use things like annual vacation days,
unpaid leave, or, under some conditions,
they can trade duty time with other
personnel. The policy of the department
is to charge excess military leave
against vacation leave, but, upon
request, it will charge the excess
military leave as unpaid leave time.

  In implementing General Order No. 2.03,
the department docks the suppression
firefighters for 24 hours of military
leave for each day of military service,
which falls on a regularly scheduled tour
of duty (during which they would have
worked 24 hours). It docks nonsuppression
firefighters 8 hours per day, also the
number of hours they would have worked.
The problem the suppression firefighters
see with the 120-hour rule is that they
can use up the 120 hours in the 2-week
drill period, leaving nothing left over
for the monthly weekend obligations. In
contrast, the 8-hour-per-day firefighters
use only 80 hours of paid leave in the-2-
week drill period and have some time left
over to cover weekends. The suppression
firefighters claim that the policy is
discriminatory in violation of USERRA.

  USERRA prohibits discrimination by,
among other things, denying any benefit
of employment on the basis of the
employee’s membership in the uniformed
services. It does not expressly require
paid military leave. An employer violates
the Act by denying a benefit of
employment to an employee if the
employee’s "membership, application for
membership, service, application for
service, or obligation for service in the
uniformed 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 . . . ." Prior to USERRA,
which was enacted in 1994, the
predecessor statute--the Vietnam Era
Veterans’ Readjustment Assistance Act of
1974--required a plaintiff to show that
his military status was the sole factor
in the employer’s decision.

  USERRA aside, firefighters’ schedules,
which are rather unusual, have caused a
number of problems in the interpretation
of state statutes that require paid leave
for military service. Apparently, the
Indianapolis solution--transforming the
requirement for a number of days of paid
leave into a requirement for a certain
number of hours--is a common one and one
which has been challenged in other
jurisdictions. For instance, in Howe v.
City of St. Cloud, 515 N.W.2d 77 (Minn.
App. 1994), over a dissent, the Minnesota
Court of Appeals ruled that the city must
pay firefighters for 24 hours for every
24-hour shift they’re off work, up to 15
days per year. That is what the
Indianapolis firefighters would like. If
they were given paid leave for 15 24-hour
days, they could receive 360 hours--three
times as much paid military leave as the
nonsuppression firefighters and most
other state or municipal employees.

  Our concern in this federal case is not
whether a policy like the one in
Indianapolis is contrary to a proper
interpretation of the Indiana statutes,
an issue, by the way, recently resolved
against two Lawrence Township (Indiana)
firefighters by the Indiana Court of
Appeals. See Strode v. Koppin, Cause No.
49A02-0103-CV-148 (January 15, 2002). Our
concern under USERRA is whether the
suppression firefighters were
discriminated against and whether their
membership in the military was a
motivating factor behind the
discrimination. The firefighters state
their claim as a disparate impact claim:
"[T]he gravamen is not that the City
intentionally sought to single out
firefighters who are members of the
militia for unfavorable treatment, but
rather that the City’s ordinance and
policy had that impact because of their
military status." (Emphasis in the
original.) What it comes down to is
determining what is causing the alleged
disparity in benefits between the two
groups, suppression and nonsuppression,
firefighters.

  A disparate impact is the result of
practices "which on their face are
neutral in their treatment of different
groups but which in fact fall more
harshly on one group than another." Equal
Employment Opportunity Commission v.
Francis W. Parker School, 41 F.3d 1073
(7th Cir. 1994). At some future time it
may become necessary for us to decide
whether a disparate impact claim can be
prosecuted under USERRA. We do not always
allow such claims. For instance, we do
not recognize disparate impact claims in
this circuit under the Age Discrimination
in Employment Act. See, e.g., Salvato v.
Illinois Dep’t of Human Rights, 155 F.3d
922 (7th Cir. 1998). We have also said
that disparate impact is irrelevant to a
challenge to a jury panel. See Alverio v.
Sam’s Warehouse Club, Inc., 253 F.3d 933
(7th Cir. 2001). But whether a disparate
impact claim can be prosecuted under
USERRA will wait for another day. This
case fails on the facts.

  What USERRA does is prohibit
discrimination based on military status.
It is the State of Indiana that has
affirmatively granted a benefit to those
in the Reserves or National Guard in the
form of paid leave. It is a benefit which
other employees do not receive. For
instance, firemen who volunteered 2 weeks
each summer to work at a camp for
disabled children would not receive paid
leave.

  The suppression firefighters claim that
the way the benefit is distributed has a
disparate impact on them which violates
USERRA. In the most literal sense, the
claim can be rejected because, in fact,
everyone receives exactly the same
benefit. The suppression firefighters
receive as much paid leave as everyone
else--120 hours. Nevertheless, the claim
of disparate impact arises because 120
hours of paid leave may sometimes--though
we have no evidence that this is true--
require the suppression firefighters to
use unpaid leave or to alter their work
schedule more often than do the
nonsuppression firefighters. From this
perspective, one can see that there is
what might be called a disparate impact,
but it a disparate impact on the
suppression firefighters in the military
as opposed to the nonsuppression
firefighters in the military. Thus
stated, the claim’s fatal weakness is
apparent.

  Everyone in either group is a member of
the military, which raises the
fundamental question as to how a policy
can have a disparate impact on certain
people because of their military status
and at the same time give an unfair
advantage to another group of people
because of their military status? The
answer is that it cannot.

  Any disparity in this case does not
arise because of military service. The
benefit arises from military service. The
fact that, even though the benefit is
equally distributed, it does not cover
all of the duty time of suppression
firefighters is not a result of their
military service. They would not receive
any of it except for their military
service. Rather, that 120 hours may not
allow them paid leave for all of their
duty obligations is a result of their
work schedules.

  If they were to get what they wanted--
360 hours of paid leave--and everyone
else were to receive 120 hours, that
disparity also would be a result of the
work schedules (and an interpretation of
the Indiana statutes), not military
service. It is beyond obvious that 360
hours of leave is more beneficial than
120 hours. But even were the Indiana
statute ultimately interpreted to
require, in the case of suppression
firefighters, 15 24-hour days or 360
hours of paid leave, it does not follow
that the current Indianapolis
interpretation is a violation of USERRA.
Furthermore, it is not clear on its face
that the Indiana statute was intended to
ensure that most public employees who are
in the military would have paid leave for
their entire yearly service obligation.
Persons who work regular 8-hour shifts,
but whose shifts fall, not on Monday
through Friday, but include a weekend,
would also be required to use unpaid
leave. Fifteen days is simply not enough
paid leave to cover a 2-week period plus
an additional day per month in all
situations. Yet 15 days is what is
provided to everyone.

  There could be circumstances under which
suppression firefighters could have a
claim. For instance, if the department
determined that it was much more of a
burden to have suppression firefighters
take leave for military service than for
other employees, and as a result the
department refused to allow anyone in the
military Reserves or the National Guard
to become a suppression firefighter,
those whose employment was affected could
claim a violation of USERRA.

  Certain individual plaintiffs may be
attempting to state such a disparate
treatment claim. Some contend department
officials put pressure on them to resign
from the military, thus harassing or
constructively discharging them. The
district court found that the plaintiffs
offered no support for these claims
except their own conclusory statements.
We agree, and in addition, this is one of
the unusual times when laches bars the
claims.
  Stephen K. Allison claims that in 1970,
Chief Herbert Fulmer, who is now
deceased, ordered him to resign from the
National Guard. Similarly, John M. George
claims that in 1970, Fulmer ordered him
not to re-enlist in the Indiana National
Guard. Thomas K. Poole alleges that in
1985, his district chief, who is now
retired, and a battalion chief told him
he had to choose between the fire
department and the military Reserves.
David Peed claims that a former chief who
is also now deceased, William Alte,
harassed him about his absences from work
for military service. Peed alleges that
Alte transferred him to a different
district in 1969 and pressured him into
resigning from the Indiana National
Guard. Nathan Miller claims that then-
Deputy Chief James Greeson told him that
his participation in the National Guard
"throws up a red flag" any time Miller
was off work for sickness. F. Wayne
Wright, who in 1983 filed a previous
lawsuit similar to this one, claims that
he was suspended four times in 1982 and
1983 for attending military duty. He also
claims he was wrongfully deprived of
vacation pay and required to take unpaid
leave or to trade time with other
firefighters.

  The only evidence in support of any of
these claims comes from the plaintiffs’
own affidavits and answers to
interrogatories. As the district court
concluded, information in these documents
is not sufficient to support a harassment
claim. Such a claim must be supported by
evidence that the employer’s conduct was
sufficiently severe or pervasive to alter
the conditions of employment and create
an abusive work environment. Some factors
which are considered are the frequency of
the discriminatory conduct, its severity,
whether it was physically threatening or
humiliating, and whether it unreasonably
interfered with the employee’s work
performance. Harris v. Forklift Sys,
Inc., 510 U.S. 17 (1993). The
circumstances must be viewed from an
objective perspective to determine
whether a reasonable person would
perceive the situation to be hostile.
McKenzie v. Illinois Dep’t of Transp., 92
F.3d 473 (7th Cir. 1996). Also, it is
telling here that the fire department has
not denied any requests by any of the
plaintiffs for leaves of absence for
military service.

  Furthermore, we conclude that these
claims are barred by the doctrine of
laches, which is "principally a question
of the inequity of permitting a claim to
be enforced." Lingenfelter v. Keystone
Consol. Indus., 691 F.2d 339, 340 (7th
Cir. 1982). Laches is based not on simply
the passage of time, as is a statute of
limitations, but rather upon changes of
conditions or relationships. Galliher v.
Cadwell, 145 U.S. 368 (1892). There must
be a showing of both a lack of diligence
on the part of the plaintiffs and
prejudice to the defendants. See Costello
v. United States, 365 U.S. 265 (1961).
The plaintiffs bear the burden of
explaining their delay in bringing suit.
Lingenfelter.

  Plaintiffs’ claims relate to incidents
which allegedly occurred many years ago.
In some cases the alleged perpetrators
are dead or retired. In addition,
plaintiffs do not offer any reasonable
explanation of the delay other than that
they filed their claims within 5 years of
the enactment of USERRA. This is a
puzzling explanation. For one thing, were
the enactment of the statute relevant, 5
years still seems like a long time to
wait to prosecute claims from the 1960’s,
1970’s, and 1980’s. Secondly, it might be
that, if called upon to, we would
determine, as have other courts, that
USERRA does not have retroactive
application. See Fernandez v. Department
of the Army, 234 F.3d 553 (Fed. Cir.
2001); Newport v. Ford Motor Co., 91 F.3d
1164 (8th Cir. 1996). If so, the date of
the enactment of USERRA is entirely
irrelevant here. Also, the defendants are
prejudiced by the delay in filing suit.
Former Chiefs Fulmer and Alte, who
allegedly discriminated against certain
plaintiffs, are both deceased. Others are
retired. Laches bars these claims.

  The decision of the district court is
AFFIRMED.

FOOTNOTE

/1 The amount of leave has been increased to 144
hours, but the increase is not relevant to our
analysis.
