        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

570
CA 13-01728
PRESENT: SMITH, J.P., PERADOTTO, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


TIMOTHY H. WRIGHT, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

CITY OF JAMESTOWN AND CITY OF JAMESTOWN POLICE
DEPARTMENT, DEFENDANTS-APPELLANTS.


MARILYN FIORE-LEHMAN, CORPORATION COUNSEL, JAMESTOWN, FOR
DEFENDANTS-APPELLANTS.

TULLY RINCKEY PLLC, ALBANY (MICHAEL W. MACOMBER OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Chautauqua County
(James H. Dillon, J.), entered December 21, 2012. The order denied
the motion of defendants for summary judgment and granted the cross
motion of plaintiff for partial summary judgment on the computation of
vacation pay.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying plaintiff’s cross motion
and granting that part of defendants’ motion for summary judgment
dismissing the second cause of action, and as modified the order is
affirmed without costs.

     Memorandum: Plaintiff, a police officer with defendant City of
Jamestown Police Department and a member of the United States Army
Reserves, commenced this action alleging that he was discriminated
against by defendants based on his status as a member of the reserves
in violation of the Uniformed Services Employment and Reemployment
Rights Act ([USERRA] 38 USC § 4301 et seq.). Defendants appeal from
an order that denied their motion for summary judgment dismissing the
complaint and granted plaintiff’s cross motion for partial summary
judgment on his claim that defendants violated USERRA by prorating his
vacation and annual compensatory time pay.

     We agree with defendants that Supreme Court erred in granting
plaintiff’s cross motion, thereby concluding that defendants violated
USERRA when they prorated plaintiff’s vacation and annual compensatory
time pay by using the time he actually worked in a prior year as a
police officer relative to his absences from work due to his reserve
duty. We therefore modify the order accordingly. Pursuant to 38 USC
§ 4316 (a), a reservist who returns to work “is entitled to the
seniority and other rights and benefits determined by seniority that
                                 -2-                           570
                                                         CA 13-01728

the person had on the date of the commencement of service in the
uniformed services[,] plus the additional seniority and rights and
benefits that such person would have attained if the person had
remained continuously employed” (emphasis added). Based on the
relevant collective bargaining agreements, the amount of vacation time
to which an employee is entitled in a given year is based on his or
her length of continuous service and, based on USERRA, the length of
continuous service must include any periods of time in which an
employee is on active military duty.

     Here, we conclude that plaintiff failed to establish as a matter
of law that vacation and compensatory time is awarded annually based
solely on seniority, as opposed to being earned based on the amount of
time actually worked in a given year. “On [plaintiff]’s theory of the
case, [defendants] would be required to provide full vacation benefits
to a returning service[person] if he [or she] worked no more than one
week in each year; indeed, following this approach to its logical
limits, a veteran who served in the Armed Forces for four years would
be entitled to accumulated vacation benefits for all four years upon
his [or her] return. This result is so sharply inconsistent with the
common conception of a vacation as a reward for and respite from a
lengthy period of labor that the statute should be applied only where
it clearly appears that vacations were intended to accrue
automatically as a function of continued association with
[defendants]” (Foster v Dravo Corp., 420 US 92, 100-101). It cannot
be concluded as a matter of law on this record, in the context of
plaintiff’s cross motion for partial summary judgment, that vacation
and compensatory time accrue automatically based solely on plaintiff’s
continued association with defendants.

     We reject defendants’ contention that the court erred in denying
that part of their motion for summary judgment dismissing the first
cause of action, alleging discrimination based on plaintiff’s military
status. There are issues of fact whether plaintiff’s reservist status
was a motivating factor in any adverse employment actions or decisions
made by defendants (see Mock v City of Rome, 851 F Supp 2d 428, 432-
433; see also Wang v New York State Dept. of Health, 40 Misc 3d 747,
757). We agree with defendants, however, that the court erred in
denying that part of their motion for summary judgment dismissing the
second cause of action, alleging retaliation. We therefore further
modify the order accordingly. “An adverse employment action must be
materially adverse, not merely an inconvenience or a change in job
responsibilities” (Griffin v Potter, 356 F3d 824, 829). “Materially
adverse actions include termination, demotion accompanied by a
decrease in pay, or a material loss of benefits or responsibilities,
but do not include ‘everything that makes an employee unhappy’ ”
(Crews v City of Mt. Vernon, 567 F3d 860, 869). Defendants met their
initial burden with respect to the retaliation cause of action and, in
opposition, plaintiff failed to raise a triable issue of fact (see
generally Zuckerman v City of New York, 49 NY2d 557, 562).

Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
