                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                     Revised December 20, 2004
                                                               December 2, 2004
              IN THE UNITED STATES COURT OF APPEALS
                                                            Charles R. Fulbruge III
                         FOR THE FIFTH CIRCUIT                      Clerk

                       ______________________

                            No. 03-50588
                       ______________________

ANTHONY ROGERS; RICHARD MORALES; VENTURA CALDERON, JR.; ANDREW L.
    ALMAZAN; ROBERT J. DELEON; ROLANDO CESAR GARZA; ROBERT A.
   GEARHART; ISIDRO MEDINA, JR.; TIMOTHY L. MENCHACA; EMILIO M.
 MONTES; BRUCE R. MOORE; NATHANIEL OAKMAN; ANTONIO RIVAS; JEFFERY
                 J. ZAVALA; AND GEORGE W. RANDALL,

                                                 Plaintiffs-Appellees,
                                versus

                    CITY OF SAN ANTONIO, TEXAS,

                                              Defendant-Appellant.
       ____________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
      _____________________________________________________


Before JONES, DENNIS, and PICKERING, Circuit Judges.


DENNIS, Circuit Judge:



     Plaintiffs,   fifteen   employees   of   the   San   Antonio      fire

department, who are members of either the United States military

reserves or the National Guard (“Uniformed Services”), brought this

civil action under the Uniform Services Employment and Reemployment




                                  1
Rights Act of 1994 (“USERRA”)1           against the City of San Antonio,

Texas       for     declaratory,   injunctive,     and      equitable    relief;

compensation for lost wages and benefits; and additional liquidated

damages.      The plaintiffs contend that the City violated USERRA by

denying them         employment benefits because of their absences from

work    while      performing   their   military   duties    in   the   Uniformed

Services.         More specifically, the employees assert that the City’s

Collective Bargaining Agreement (“CBA”) and policies regarding

military leave of absence deprive them of straight and overtime pay,

opportunities to earn extra vacation leave and vacation scheduling

flexibility, and opportunities to secure unscheduled overtime work

and job upgrades.         Plaintiffs assert that under USERRA § 4311(a)2

“the City, in implementing these employment practices, unlawfully

discriminate[s] against them by deeming them ‘absent’ from work

whenever they are on leave fulfilling their military reserve duties,

as opposed to viewing them as ‘constructively present at work.’”3



        1
         38 U.S.C. § 4301 et seq.
        2
         Section 4311(a) of USERRA provides that:
        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 services 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.
        3
      Rogers v. City of San Antonio, Texas, 211 F. Supp. 2d 829,
831 (W.D. Texas 2002).

                                         2
The City contends that, because § 4316(b)(1)4 provides that persons

absent from civilian employment by reason of military service are

entitled only to such non-seniority rights and benefits as the

employer provides to employees when they are on non-military leaves

of absence, plaintiffs cannot recover since they were treated

equally as to such rights with all employees absent on non-military

leave.

                                      Facts

      Plaintiffs are employed by the City fire department in its Fire

Suppression      division   and     Emergency         Medical    Services     division

(“Firefighters”). The CBA between the City and the employees’ Union

governs    the    working    conditions          of     all     City   firefighters.

Plaintiffs, as members of the Uniformed Services(“reservists”),

typically must take leave of absence for military training a minimum

of   one   weekend   per    month    and       one    annual    two    week   session.

Reservists may volunteer or be ordered to take military leave to

perform extra duties. In order to be promoted, reservists must meet


      4
       Section 4316(b)(1) of USERRA provides that:
      [A] person who is absent from a position of employment by
      reason of service in the uniformed services shall be –
           (A) deemed to be on furlough or leave of absence
           while performing such service; and
           (B) entitled to such other rights and benefits not
           determined by senority 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.

                                           3
the same educational requirements as a full-time active member of

the Uniformed Services, such as officer training courses.

         The parties agreed to bifurcate the liability and damages

issues and filed cross-motions for partial summary judgment                        on the

question of whether the City violated USERRA and is therefore liable

to the plaintiffs.           They also filed cross-motions on whether the

plaintiffs’       claims     were   barred        or   curtailed    by    a   statute   of

limitations, laches or estoppel.                  The record consists principally

of   a    joint      stipulation    of    facts,       the   CBA,   and   a   number    of

depositions.

         The   district     court     granted      the   employees’       motion   as   to

liability on substantially all claims and denied the City’s cross-

motion.        The     district     court     then     referred     the   cross-motions

regarding the statute of limitations, laches and estoppel to a

magistrate judge.           The magistrate judge granted plaintiffs’ motion

on these issues, holding that the employees were entitled to recover

retrospective damages for the four-year period preceding the filing

of their complaint.          The district court determined that the summary

judgments       on    the    issues      of   liability       and   limitations         on

retrospective recovery “involve a controlling question of law to

which there is a substantial ground for difference of opinion,” and




                                              4
certified the judgments for interlocutory appeal under 28 U.S.C. §

1292(b).5   The City appealed.

                            Standards of Review

      The threshold question of law is one of statutory construction,

viz., namely which provision of USERRA, § 4311(a) or § 4316(b)(1),

governs the adjudication of the employees’ claims.             The employees

contend that the district court correctly applied only § 4311(a),

which prohibits private employers from denying employment benefits

to   employees   on   the   basis   or   their   membership,    service   or

obligations related to the United States military forces.           The City

contends that the district court erred in basing its decision on §

4311(a) because this case is appropriately governed only by §

4316(b)(1), which regulates the civilian employment non-seniority

rights of persons who are required to be absent from jobs for

service in the military forces.          We review the decision of the

district court on this issue of law de novo.        See Casas v. American

Airlines, Inc., 304 F.3d 517, 520 (5th Cir. 2002).

      Once we have interpreted the statute and decided upon its

proper application, we address the parties’ cross-motions de novo,

applying the same standards prescribed for use by the district

court.    See Walker v. Thompson 214 F.3d 615, 624 (5th Cir. 2000).




      5
       Rogers v. City of San Antonio, Texas, 2003 WL 1571550
(W.D. Tex. March 24, 2003).

                                     5
                             Analysis

                                1.

     In order to decide how USERRA should be interpreted and applied

in this case we will set forth an overview of the statute to give

perspective to our reading of its parts.       Because the statute is

subject to different interpretations we will examine its legislative

history, predecessor statutes, pertinent court decisions, and post-

enactment administrative interpretations.



                        A. USERRA Overview

     The purposes of USERRA, enacted in 1994, are: (1) “to encourage

noncareer service in the uniformed services[6] by eliminating or

minimizing the disadvantages to civilian employment which can result

from such service”; (2) to provide for “the prompt reemployment” of

persons returning to civilian jobs from military service and to

“minimize the disruption [of their] lives...as well as [to those of]

their employers, fellow employees and communities”; and (3) “to

prohibit discrimination against persons because of their service in

the uniformed services.”   38 U.S.C. § 4301.




     6
      “The term ‘uniformed services’ means the Armed Forces, the
Army National Guard and the Air National Guard when engaged in
active duty for training, inactive duty training, or full-time
National Guard duty, the commissioned corps of the Public Health
Service, and any other category of persons designated by the
President in time of war or national emergency.” 38 U.S.C. §
4303(16).

                                 6
       USERRA is the most recent in a series of laws protecting

veterans’        employment    and   reemployment   rights    dating   from   the

Selective Training and Service Act of 1940.7                 USERRA’s immediate

precursor, the Veterans’ Reemployment Rights Act (VRRA), was enacted

as § 404 of the Vietnam Era Veterans’ Readjustment Assistance Act

of 1974.8        “Congress emphasized [1] USERRA’s continuity with the

VRRA and its intention to clarify and strengthen that law. [2]

Federal laws protecting veterans’ employment and reemployment rights

for the past fifty years had been successful.” [3]“[T]he large body

of case law that had developed under those statutes remained in full

force and effect, to the extent it is consistent with USERRA.”9

       USERRA’s anti-discrimination provision prohibits an employer

from    denying      initial    employment,    reemployment,      retention    in

employment, promotion, or any benefit of employment to a person on

the basis of membership, application for membership, performance of

service, application for service, or obligation of service.                   38

U.S.C. § 4311(a).         Also, an employer must not retaliate against a

person by taking adverse employment action against that person


       7
      See Proposed Regulation, Department of Labor, Veterans’
Employment and Training Service, § 1002.2, 20 CFR Part 1002,
Federal Register, Vol. 69, No. 181 p. 56286 (2004)(“Proposed
Regulation”). USERRA authorizes the Secretary of Labor to issue
regulations implementing the Act with respect to States, local
governments, and private employers. Id. at § 1002.4(b) at 56286.
We cite these non-binding Proposed Regulations for their
persuasive authority only.
       8
           Id.
       9
           Id.
                                         7
because he or she has taken an action to enforce a protection

afforded under USERRA.        Id. at § 4311(b).

     Any person whose absence from a position of employment is

necessitated by reason of service in the uniformed services is

entitled to the reemployment rights and benefits of USERRA.              Id. at

§ 4312(a).      The returning uniform services member (“reservist”)

seeking reemployment must make a timely return to or application for

reinstatement in the reservist’s employment position.                 Id. at §

4312(a)(3).     The employee reporting back to the employer following

a period of less than 31 days must report not later than the

beginning of the first full shift on the first full day following

the completion of service.          Id. at § 4312(e)(1)(A)(i).10        If the

service period is between 31 and 180 days, the individual must

report within 14 days of completion of service.            Id. at § 4312(c).

If the service was more than 180 days, the individual must request

reemployment no more than 90 days after completion.                   Id. at §

4312(e)(1)(D).

     An employer must promptly reemploy a person returning from a

period    of   service   if   the   person   meets   the   Act’s    eligibility

criteria.      Id. at § 4312(f)(4).     “Prompt employment” means as soon

as practicable under the circumstances of the case.                For example,

prompt reinstatement after “weekend National Guard duty generally



     10
          See Proposed Regulation, summary, 69 F.R. No. 181 at
56270.
                                       8
means the next regularly scheduled working day.”11    However, prompt

reinstatement after “several years of active duty may require more

time, because    [the] employer may have to reassign or give notice

to another employee who occupied [the] position.”12

     In construing a precursor to USERRA, the Supreme Court in

Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275 (1946),

invented the “escalator” principle in stating that a returning

service member “does not step back on the seniority escalator at the

point he stepped off.     He steps back on at the precise point he

would have occupied had he kept his position continuously during the

war.” Id. at 284-285.     Although Fishgold was mainly a seniority

case, the escalator principle applies to the employment position,

and rate of pay, as well as the seniority rights to which the

returning service member is entitled.13

     Thus, USERRA requires that the service member be reemployed in

the escalator job position comparable to the position he would have

held had he remained continuously in his civilian employment.      38

U.S.C. § 4313.     After service of 90 days or less, the person is

entitled to reinstatement in the position of employment in which she

or he would have been but for the interruption of employment by




     11
          Proposed Regulation § 1002.181.
     12
          Id.
     13
          Proposed Regulation, summary 69 F.R. No. 181 at 56274.
                                   9
uniformed service.        Id. at § 4313(a)(1)(A).14      If the service period

was   longer      than   90   days,   the    service   member   is   entitled   to

reemployment in the escalator position, but the employer may also

reinstate the member in any position of like seniority status and

pay for which he is qualified.              38 U.S.C. § 4313(a)(2)(A).    If the

service member is unable to qualify for either the escalator

position or a comparable position, despite reasonable employer

efforts, he is entitled to reemployment in a position that is the

nearest approximation to the escalator position.                 Id. at § 4313

(a)(2)(A), (B).15

      A person who is reemployed under USERRA is entitled to the

seniority and other rights and benefits determined by seniority that

the person had on the date of the beginning of service plus the

additional seniority and rights and benefits that he or she would

have attained if the person had remained continuously employed.16


      14
            Id.
      15
           Id.
      16
       Section 4303(12) of USERRA defines “seniority” as:
longevity in employment together with any benefits of employment
which accrue with, or are determined by, longevity in employment.
The summary for USERRA’s Proposed Regulations explains that:
     This definition imposes two requirements: first, the
     benefit must be provided as a reward for length of
     service rather than a form of short-term compensation for
     services rendered; second, the service member’s receipt
     of the benefit, but for his or her absence due to
     service, must have been reasonably certain. See Coffy v.
     Republic Steel Corp., 447 U.S. 191 (1980); Alabama Power



                                            10
Id. at § 4316(a). This section states the basic escalator principle

as   it     applies   to    seniority       and       seniority-based     rights     and

benefits.17      An employer is not required to have a seniority system.

USERRA requires only that employers who do have a senority system

restore the returning service member to the proper place on the

seniority ladder.18        An employee’s rate of pay after an absence from

work due to uniformed service is also determined by application of

the escalator principle.19

     USERRA does not grant escalator protection to service members’

non-seniority      rights    and    benefits          but   provides   only   that   the

employer treat employees absent because of military service equally

with employees having similar seniority, status, and pay who are on

comparable       non-military      leaves        of   absence    under   a    contract,

agreement, policy, practice, or plan in effect at anytime during

that uniformed service.20          § 4316(b)(1).


     Co. V. Davis, 431 U.S. 581 (1977); see also S. Rep. No.
     103-158, at 57 (1993), citing with approval Goggin v.
     Lincoln, St. Louis, 702 F.2d 698, 701 (8th Cir. 1983)
     (summarizing Supreme Court formulation of two-part
     definition of “perquisites of senority”).
Proposed Regulation, summary 69 F.R. No. 181 at 56276.
      17
           Id.
      18
           Id.
      19
           Id. At 56277.
      20
        Proposed Regulation, summary 69 F.R. No. 181 at 56272
(interpreting § 4316(b)(1) to mean that “[i]f the employer has



                                            11
              B. Legislative History and Jurisprudence

     The nation’s first peacetime draft law, the Selective Training

and Service Act of 1940 was designed to provide reemployment for

veterans returning to civilian life in positions of “like seniority,

status, and pay.”        Pub. L. No. 54-783, § 8, 54 Stat. 885, 890

(1940).     In   1951,    Congress   extended    reemployment   rights   to

reservists who had been called up from civilian jobs for active or

training duty.   Pub. L. No. 51, Ch. 144, § 1(s), 1951, 65 Stat. 75,

86-87.    The Armed Forces Reserve Act of 1952 extended reemployment

rights to National Guardsmen.        Pub. L. No. 476, 66 Stat. 481.      The

Reserve Forces Act of 1955, Pub. L. 305, Ch. 665, § 262(f), 69 Stat.

598, 602, “provided that employees returning from active duty for

more than three months in the Ready Reserve were entitled to the

same employment rights as inductees, with limited exceptions.”

Monroe v. Standard Oil Co., 452 U.S. 549, 555 (1981).

     In 1960, these reemployment rights and benefits were extended

to National Guardsmen.      Pub. L. 86-632, 74 Stat. 467.       See VRRA §

2024(c), Monroe, 452 U.S. at 549.          A new section, VRRA § 2024(d),


more than one kind of non-military leave and varies the level and
type of benefits provided according to the type of leave used,
the comparison should be made with the employer’s most generous
form of comparable leave,” and citing Waltermyer v. Aluminum Co.
of Am., 804 F.2d 821 (3d Cir. 1986); H.R. Rep. No. 103-65, Part I
at 33-34 (1993); Schmauch v. Honda of Am. Manufacturing, Inc.,
295 F. Supp. 2d 823 at 836-39 (S.D. Ohio 2003)).



                                      12
was also enacted in 1960 to protect employees who had military

training obligations lasting less than three months.              “This section

provide[d] that employees must be granted a leave of absence for

training and, upon their return, be restored to their positions

‘with such seniority, status, pay, and vacation’ as they would have

had if they had not been absent for training.”            Monroe, 452 U.S. at

544.

       VRRA § 2024(d) did not, however, protect reservists from

discrimination   by   their    employers     in    the   form    of   discharges,

demotions, or other adverse conduct between leaves of absence for

training.     In the years following its enactment discriminatory

employment    practices       intensified.        Congress      responded   with

legislation codified as VRRA § 2021(b)(3) which, in pertinent part,

provided that “[a]ny person who [is employed by a private employer]

shall not be denied retention in employment or any promotion or

other incident or advantage of employment because of any obligation

as a member of a reserve component of the Armed Forces.”

       Senate Report No. 1477 explained the purpose of § 2021(b)(3)

as follows:

       Employment practices that discriminate against employees
       with reserve obligations have become an increasing
       problem in recent years. Some of these employees have
       been denied promotions because they must attend weekly
       drills or summer training and others have been discharged
       because of these obligations . . .The bill is intended to
       protect members of the Reserve components of the Armed
       Forces from such practices. . . . [Under it] reservists




                                     13
     will be entitled to the same treatment afforded their
     coworkers not having such military obligations . . . . S.
     Rep. No. 1477, 90th Cong., 2d Sess., Reprinted in (1968)
     U.S. Code Cong. & Admin. News, pp. 3421, 3421.

The House Report similarly indicated that these were the purposes

and effects of the legislation. H.R. Rep. No. 1303, 90th Cong. 2d

Sess., 3 (1968).    See Monroe, 452 U.S. at 557.

     As the Sixth Circuit noticed in Monroe v. Standard Oil Co., 613

F.2d 641, 646 (6th Cir. 1980), however, VRRA § 2021 (b)(3) was

subject to two different interpretations:

     First, it can be read to mean that any time an employee's
     forced absence for reserve duty requires him to forgo a
     benefit that would have accrued to him only if he had
     been present for work, he has been "denied" an incident
     or advantage of employment "because of" his military
     obligation.

Or, it can be read to “merely require[] that reservists be treated

equally or neutrally with their fellow employees without military

obligations[,]     and   “[t]o   meet    this   requirement,   collective

bargaining agreements and employment rules must be facially neutral

and must be applied uniformly and equally to all employees.”          Id.

     The   Fifth   Circuit   and   other    courts   adopted   the   first

interpretation of VRRA § 2021(b)(3) by holding that, if the right

in question is granted to all employees but is denied to a reservist

solely because of his absence to attend to military obligations, the




                                    14
reservist is denied an “incident or advantage of employment” because

of an obligation as a member of a reserve component.21

     In West v. Safeway Stores, Inc., the Fifth Circuit construed

§ 2021(b)(3) “to require that employers, in applying collective

bargaining   agreements,    treat    reservists     as     if    they    were

constructively   present   during    their   reserve     duty    in   similar

contexts.”   609 F.2d at 150.       The employee, a meat cutter, had

contended that, since the collective bargaining agreement guaranteed

a 40 hour work week and because the only reason that he was not

receiving a 40 hour work week was due to his National Guard

obligations, he was being denied an advantage of employment.              The

court agreed and held that the employer must provide him with his

guaranteed 40 hour work week despite the fact that the collective

bargaining   agreement   specifically    provided   that    an   employee’s

absence for weekend reserve or National Guard duty was excluded or

negated from the guarantee.22


     21
      See West v. Safeway Stores, Inc. 609 F.2d 147 (5th Cir.
1980), Kidder v. Eastern Air Lines, Inc., 469 F. Supp. 1060 (S.D.
Fla. 1978), Carlson v. New Hampshire Dep’t of Safety, 609 F.2d
1024 (1st Cir. 1979) cert. denied 446 U.S. 913 (1980), Hawes v.
General Motors Corp. 102 L.L.R.M. (BNA) 3041 (N. D. Ohio 1979),
Lott v Goodyear Aerospace Corp. 395 F. Supp. 866 (N.D. Ohio
1975), Carney v Cummins Engine Co. 602 F.2d 763 (7th Cir. 1979)
cert. denied 444 U.S. 1073.
     22
       The Court noted that “[i]f employers could by agreement
with unions require that workers be present in order to receive
certain benefits, then reservists could never secure the benefits
or advantages of employment which the Act was designed to



                                    15
     The Sixth Circuit in a virtually identical situation, involving

a 40 hour work week guarantee, however, disagreed with West, holding

that § 2021(b)(3) merely required that reservists be treated no

differently than other employees who are absent for non-military

reasons.    Monroe,   613   F.2d   641.         The   employee’s    collective

bargaining agreement right to work a 40 hour week, as in West, was

contingent on the employee being present for work or arranging to

switch shifts, as permitted by the agreement. Thus, the court held,

because the employee was treated the same as his coworkers regarding

absences and exchanging shifts, that right did not vest when the

employee failed to do either, and the employer was required to do

no more than grant him a leave of absence without pay to comply with

his military reserve obligation.       Further, the court found “nothing

in the legislative history or the statute to support judicial

invalidation of nondiscriminatory conditions precedent to employee

benefits and adhere[d] to [its] belief that conditional benefits are

protected by § 2021(b)(3) only to the extent that the conditions

have been actually satisfied.” Id. at 647.

     The Supreme Court granted certiorari in Monroe, affirmed the

Sixth   Circuit’s   decision,   and        substantially   agreed    with   its


protect.” Id. at 150. In closing, however, the Court
acknowledged that because the employer had conceded that it could
accommodate West’s schedule, it did “not reach the issue of
whether accommodation or the alternative of compensation is
impossible or unduly burdensome.” Id.



                                      16
reasoning.     452 U.S. 549.       The Supreme Court concluded that the

“legislative history... indicates that § 2021(b)(3) was enacted for

the significant but limited purpose of protecting the employee-

reservist against discrimination like discharge and demotion,” by

reason of reserve status.         Id. at 559.       Further, the Court found

nothing in § 2021(b)(3) or its legislative history to indicate that

Congress even considered imposing an obligation on employers to

provide a special work-scheduling preference, but rather that the

history suggests that Congress did not intend employers to provide

special benefits to employee-reservists not generally made available

to other employees.        Id. at 561.          Because the Supreme Court’s

interpretation of      § 2021(b)(3) is contrary to the Fifth Circuit’s

decision in West, and the high court noted the “apparent inter-

circuit conflict on this issue” between West and the Sixth Circuit’s

decision,23    we    conclude    that     West’s    “constructive      presence”

interpretation was disapproved by Monroe.

     After     the   Supreme    Court’s      decision   in   Monroe,   the   Third

Circuit, in Waltermyer v. Aluminum Co. Of America, 804 F.2d 821 (3d

Cir. 1986), addressed whether a National Guardsman was entitled to

pay for a holiday that occurred during his leave of absence for a

two-week military training period.               “The collective bargaining



      23
           Id. at 551 n.1.



                                        17
agreement limited eligibility for holiday pay to individuals who

worked during that week, but exempted from that requirement persons

in a number of categories who were absent for reasons beyond their

control.”     Id. at 821.   The agreement provided that full-time

employees would receive pay for designated holidays if, during the

payroll week in which the holiday occurs, the employee is at work;

on a scheduled vacation; on a layoff under specified conditions;

performing jury service; a witness in a court of law; qualified for

bereavement pay; or absent because of personal illness and certain

sick leave conditions apply. Id. at 822. Reading VRRA § 2021(b)(3)

in light of the Supreme Court’s decision in Monroe, the Court of

Appeals concluded that “[t]he thrust of [that provision], according

to the [Supreme] Court, was to prevent discrimination against

reservists but not to grant them preferential treatment.”    Id. at

823.   The court noted the similarities between the characteristics

of absence from work required by the military obligation at issue

and the absences of the exempted categories, viz., the absences were

not generally of extended duration; and they were for reasons beyond

the control of the absent employee.    Id. at 825.   Therefore, the

court concluded, “relieving [National Guard members] on military

leave from the work requirement merely establishes equality for

National Guardsmen and reservists, not preferential treatment.” Id.

at 825.     Thus, the court concluded, the plaintiff Guardsman had




                                 18
established     his     right   to    holiday     pay   under    §   2021(b)(3).

Significantly,     however,     the   court     indicated    that    a    scheduled

vacation, which also was exempted from the work requirement, was not

comparable to military leave.          The court observed: “We realize a

planned vacation is different from the other exceptions on the list.

Vacation is earned time away from work, and this exception merely

recognizes that an employee should not be prejudiced, in the form

of lost holiday pay, for taking an earned vacation.”                     Id. at 825

n.3.

       The Senate report on the bill that became § 4316(b)(1) stated

that it “would codify court decisions that have interpreted current

law    as   providing   a   statutorily-mandated        leave   of   absence    for

military service that entitles service members to participate in

benefits that are accorded other employees.                 See Waltermyer, 804

F.2d 821; Winders v. People Express Airlines, Inc. 595 F. Supp.

1512, 1519 (D.N.J. 1984), affirmed, 770 F.2d 1078 (3d Cir. 1985).”

S. Rep. 103-158 (October 18, 1993).             The Report explained that:


       [A]n individual who serves in the uniformed services will
       be considered to be on furlough or leave of absence while
       in the service [and] will be entitled to the same rights
       and benefits not determined by seniority that are
       generally provided to the employer’s other employees with
       similar seniority, status, and pay who are on furlough or
       leave of absence[,] under a practice, policy, agreement,
       or plan in force at the beginning of the period of
       uniformed service or which becomes effective during the
       period of service. Id.




                                        19
      The House Report declared that the bill had the same purpose

and effect.      The bill was described as providing for “[r]ights,

benefits, and obligations of persons absent from employment for

service in a uniformed service.”           H.R. Rep. 103-65(I)(April 28,

1993).     The House Report elaborated:

      The Committee intends to affirm the decision in
      Waltermyer v. Aluminum Co. of America, 804 F.2d 821 (3d
      Cir. 1986) that, to the extent the employer policy or
      practice varies among various types of non-military
      leaves of absence, the most favorable treatment accorded
      any particular leave would also be accorded the military
      leave, regardless of whether the non-military leave is
      paid or unpaid. Thus, for example, an employer cannot
      require servicemembers to reschedule their work week
      because of a conflict with reserve or National Guard
      duty, unless all other employees who miss work are
      required to reschedule their work.    Cf. Rumsey v. New
      York State Dept. of Corr. Services, 124 LRRM 2914
      (N.D.N.Y. 1987).     However, servicemembers are not
      entitled to receive benefits beyond what they would have
      received had they remained continuously employed.
Id.   See also 139 CONG. REC. S 14865-03m, 1993 WL 444411 (Nov. 2,

1993); A NON-TECHNICAL RESOURCE GUIDE   TO THE   UNIFORMED SERVICES EMPLOYMENT     AND

REEMMPLOYMENT RIGHTS ACT (USERRA), U.S. DEP’T     OF   LABOR VETERANS EMPLOYMENT   AND

TRAINING SERVICE, 9 (March 2003).24


      24
           That guide provides, in pertinent part, as follows:

      Rights not based on seniority Section 4316(b)[:]
      Departing service members must be treated as if they are
      on a leave of absence. Consequently, while they are away
      they must be entitled to participate in any rights and
      benefits not based on seniority that are available to
      employees on nonmilitary leaves of absence, whether paid
      or unpaid. If there is a variation among different types
      of nonmilitary leaves of absence, the service member is



                                      20
      Although the legislative history of the bill that became §

4316(b)(1) does not mention Monroe, Congress necessarily intended

for that section to codify Monroe’s interpretation of § 2021(b)(3)

with respect to the effects upon the non-seniority rights of

uniformed service members by their absences from civilian employment

by reason of their military obligations.          The reports of both the

Senate and the House expressed an intention to codify Waltermyer in

this respect.    See H.R. Rep. 103-65(I) (April 28, 1993), S. Rep.

103-158 (Oct. 18, 1993). Thus, they necessarily indicated an intent

to codify Monroe’s “equal, but not preferential” interpretation of

VRRA § 2021(b)(3) which was adopted and followed by Waltermyer.

Although Waltermyer applied the Monroe interpretation to enforce the

employee’s right to equal treatment, rather than the employer’s

right not to grant preferential treatment, Waltermyer could not be

codified   without    including   the    Monroe   interpretation     that   it

adopted.

      Conversely, USERRA’s legislative history does not indicate that

Congress intended to rely on § 4311(a)’s general discrimination ban

to   assure   that   reservist-employees    on    military   leave   receive


     entitled to the most favorable treatment so long as the
     nonmilitary leave is comparable. For example, a three-
     day bereavement leave is not comparable to a two-year
     period of active duty.
     Id.
Available at: http://www.dol.gov/vets/whatsnew/uguide.pdf.



                                    21
benefits equal to those that other employees receive while taking

comparable non-military leave. While new § 4316(b)(1)’s legislative

history clearly reflects the intent to specifically guarantee

reservists equality of on-leave benefits, the history of § 4311(a)

shows an intent to continue and strengthen the anti-discrimination

provision but not the specific goal of guaranteeing parity of

benefits.

     Further, the brief legislative history of the bill that became

§ 4311(a) reflects no intention to prohibit neutral labor contracts

from treating employees on military leave equally with those on non-

military leave with respect to the loss of benefits due to absence

from work.   The House report, in most relevant part, states that:

     Current law protects Reserve and National Guard personnel
     from termination from their civilian employment or other
     forms of discrimination based on their military
     obligations. Section 4311(a) would reenact the current
     prohibition   against   discrimination   which   includes
     discrimination against applicants for employment, (see
     Beattie v. The Trump Shuttle, Inc., 758 F. Supp. 30
     (D.D.C. 1991)), current employees who are active or
     inactive members of Reserve or National Guard units,
     current employees who seek to join Reserve or National
     Guard units (December 20, 2004 Boyle v. Burke, 925 F.2d
     497 (1st Cir. 1991)), or employees who have a military
     obligation in the future such as a person who enlists in
     the Delayed Entry Program which does not require leaving
     the job for several months. See Trulson v. Trane Co.,
     738 F.2d 770, 775 (7th Cir. 1984).
H.R. Rep. 103-65(I)(April 28, 1993). The Senate report likewise

does not indicate that Congress intended to prohibit such neutral




                                 22
labor contract provisions.    The report, in most pertinent part,

provides:

     New section 4311(a) would specify the relationship to
     service that would bring individuals within the VRR law
     and also specifies the actions of employers that would
     constitute violations of that law. Specifically, as to
     individuals, the section would provide that individuals
     who are members of, perform, have performed, apply to
     perform, or have an obligation to perform service in the
     uniformed services would be covered by the law. The
     section would provide that such individuals may not be
     denied initial employment, reemployment, retention,
     promotion, or any benefit of employment by an employer on
     the basis of the relationship to service.
 S. Rep. 103-158 (October 18, 1993).

     The legislative history of §§ 4311(a) and 4316(b)(1) does not

mention West. 609 F.2d 147.   On the other hand, that legislative

history expresses an intent to codify in § 4316(b)(1) the Monroe-

Waltermyer line of cases with respect to non-seniority rights and

benefits to which persons absent from civilian employment by reason

of service in the uniformed services are entitled.               West is

inconsistent with and was expressly disapproved by Monroe and

Waltermyer.25    Therefore,   we        must   conclude   that   USERRA’s

codification of Monroe and Waltermyer legislatively overruled West.




      25
       Monroe, 452 U.S. at 551 n.1 (recognizing that the Sixth
Circuit’s opinion in Monroe conflicted with West and affirming
the Sixth Circuit), Waltermyer, 804 F.2d at 821 (noting that West
was “substantially weakened” by Monroe).



                                   23
              C. Section 4316(b)(1) Governs This Case

     Section 4316(b)(1) of USERRA provides that an employee who is

absent from employment for military service is deemed to be on leave

of absence and “entitled to such rights and benefits not determined

by seniority...generally provided by the employer to employees

having similar seniority, status, and pay who are on furlough or

leave of absence under a contract, agreement, policy, practice or

plan....”   Reading § 4316(b)(1) together with § 4311(a) and            other

USSERA provisions, the legislative history, preceding statutes, and

pertinent jurisprudence, we conclude that Congress intended by §

4316(b)(1) to clarify and codify the interpretation of VRRA §

2021(b)(3) by the Supreme Court in Monroe and the Third Circuit in

Waltermyer, requiring employers, with respect to rights and benefits

not determined by seniority, to treat employees taking military

leave,   equally,   but   not   preferentially,   in   relation    to   peer

employees taking comparable non-military leaves generally provided

under the employer’s contract, policy, practice or plan.          Although,

the “equal, but not preferential” requirement          arose out of the

Courts’ interpretation of VRRA § 2021(b)(3)’s prohibition against

denial of employment rights because of military obligations, which

has been enhanced and continued by USERRA § 4311(a), Congress

decided to adopt new § 4316(b)(1) to provide more specifically and

affirmatively for the accrual of non-seniority rights and benefits




                                    24
by employees while on military duty, rather than continue to rely

on the general prohibition against service-related denials of

benefits for that purpose.           Congress sought by § 4316(b)(1) to

guarantee a measure of equality of treatment with respect to

military and non-military leaves and to strike an appropriate

balance between benefits to employee-service persons and costs to

employers.     USERRA does not authorize the courts to add to or

detract from that guarantee or to restrike that balance.

       For these reasons, we conclude that the district court erred

in deciding that § 4311(a), rather than § 4316(b)(1), must be

applied in this case.        Because the district court gave several

reasons for its interpretation, we will set them forth before

commenting on each.

       The district court decided that “[s]ection 4316 is inapplicable

to   this   case[,   because]   it    only   applies    to   a   person   who    is

reemployed under this chapter or who is absent on furlough or leave

of   absence.”26     The   district    court   stated    that      §   4316     “is

specifically tailored to apply to a reservist or veteran returning

to employment from active duty rather than reservists...who have

been    away   for   relatively      short   periods    [for]     drilling      and




       26
       211 F. Supp. 2d. at 838 (footnotes and internal quotations
omitted).



                                       25
training[.]”27      Furthermore,   the   court   stated,   “the   anti-

discrimination provisions (now § 4311(a-c), formerly, § 2021(b)(3))

were specifically added ‘to protect the rights of reservists which

had been found to be inadequately protected’ under the provision

cited by the City (§ 4316, formerly VRRA § 2024(d)).”28     Concluding

that this case should be analyzed and decided under USERRA’s          §

4311(a) anti-discrimination provision, the district court identified

West, 609 F.2d 147, decided under VRRA § 2021(b)(3), as our Circuit

precedent that must be applied in deciding claims under the USERRA

for non-seniority benefits by employees returning from service in

the uniformed services.29   The district court read West to hold that

VRRA § 2021(b)(3) “requires that employers, in applying collective

bargaining agreements which grant a benefit of employment based on

‘presence’ rather than on ‘hours actually worked,’ should treat

reservists as if they were ‘constructively present’ during their

reserve duty.”30

     We believe that the district court was mistaken in each of its

reasons for deciding that § 4311(a) must be applied in this case



     27
          Id.
     28
          Id. (quoting Carney, 602 F.2d 763).
     29
          Id. at 839 n.63, 841 n.82, 842, 844 n.106.
     30
          Id. at 842.



                                   26
and, consequently, also mistaken in using the West “constructive

presence” theory to decide the firefighters’ claims. We will discus

the erroneous points of the district court’s decision in the order

set forth in its opinion.

     First, § 4316(b)(1) is fully applicable to reservists’ short

absences from civilian employment for weekend drills or two-week

annual training.     In USERRA, the term “service in the uniformed

services”   means   “the    performance      of   duty   on    a   voluntary   or

involuntary basis in a uniformed service under competent authority.”

38 U.S.C. § 4303(13).       It includes “active duty, active duty for

training, initial active duty for training, inactive duty training,

full-time National Guard duty,” medical examinations to determine

fitness for duty, and performance of funeral honors duty.               Id.    The

term “uniformed services” means “the Armed Forces, the Army National

Guard and the Air National Guard when engaged in active duty for

training, inactive duty training, or full-time National Guard

duty[.]” 38 U.S.C. § 4303(16).        Thus, both of these terms apply to

members of the uniformed services who participate in inactive duty

training    for   weekend    drills    and    two-week        annual   training.

Consequently, § 4316(b)(1), which applies to “a person who is absent

from a position of employment by reason of service in the uniformed




                                      27
services” is fully applicable to reservists during their weekend and

two-week military duty sessions.31

     Second,“reemployment” is not formally defined in § 4303, but

§§   4312–4313,    providing   for    USERRA      reemployment   rights   and

positions, plainly apply to “any person whose absence from a

position of employment is necessitated by reason of service in the

uniformed    services.”    38 U.S.C. § 4312.       As noted in the previous

paragraph,   the   terms   “service    in   the   uniformed   services”   and

“uniformed services” apply to “inactive duty training,” which refers

to reservists and their two week and weekend training periods.

Further, USERRA makes specific provisions for the reemployment of

a person whose period of service in the uniformed services was less

than 31 days. 38 U.S.C. § 4312(e)(1)(A); 4313 (a)(1).               Thus, a

reservist who returns to his or her job after weekend drill is

“reemployed” just as much as one who is reinstated after a period

of service of two years.32




      31
      See Gordon v. Wawa Inc., 388 F.3d 78, 81 (3d Cir. 2004)
(construing “service in the uniformed services” as applicable to
a reservist’s “weekend Reserve duties” with respect to his duty
under USERRA § 4312(e) to report to his employer upon completion
of his period of service).
      32
       See Proposed Regulation, summary, 69 F.R. No. 181 at 56270
(explaining that employees are “reemployed” when they return to
work after a weekend or two years) and 56274 (explaining that
USERRA considers employees to be “reemployed” whether they are
gone for more or less than 31 days).



                                      28
     Third, the district court mistakenly thought that VRRA §

2024(d) was the precursor of USERRA §4316(b)(1).               However, USERRA

§4316(b)(1) had no true predecessor and deals with a different

subject    (non-seniority        rights    of   persons   absent   for   military

service)       from   VRRA   §   2024(d)   (reemployment    rights).      VRAA   §

4301(b)(1) was somewhat similar to USERRA § 4316(b)(1) but not a

true precursor.        See S. Rep. 103-158 (1993).        VRAA § 2021(b)(3) was

added     to    protect      against   discrimination      (such   as    punitive

discharges, demotions, et. al.) not protected against by VRAA §

2024(d).       See legislative history of USERRA , supra.          Thus, VRRA §

2021(b)(3) was not added to cure a deficiency in a prior provision

similar to USERRA § 4316(b)(1).

     Finally, as we have noted, West and its “constructively

present” theory of interpretation was disapproved by the Supreme

Court in Monroe and legislatively overruled in the codification

of Monroe and Waltermyer by USERRA § 4316(b)(1).



                                           2.

     Applying § 4316(b)(1) to the summary judgment record in this

case, we conclude that the district court’s judgment must be

reversed and summary judgment granted for the City on the following

claims: (1) lost straight-time pay; (2) lost overtime opportunities;

and (3) missed upgrading opportunities.               From our review of the




                                           29
record we have determined that there is no type of non-military

leave available to any employee under which an employee can accrue

or receive the foregoing kinds of benefits.        Hence, insofar as the

record shows, there is no type of leave under which these benefits

may accrue that is comparable to any military leave.

     We further conclude that the district court’s summary judgment

with respect to: (1) bonus day leave; (2) perfect attendance leave;

and (3) the twenty-seven hour cap on lost overtime must be reversed

and the case remanded for further proceedings on these claims.

There are genuinely disputable issues as to the material facts of

whether involuntary non-military leaves, not generally for extended

durations, for jury duty, bereavement, and line of duty injury leave

(provided that the employee returns to work in the following shift),

under which employees may accrue or receive bonus day leave and

perfect     attendance   leave   benefits,   are   comparable   to   each

plaintiff’s military leaves taken for service in the uniformed

services.    For the same reason, there is a disputable issue as to

whether sick leave, under which employees receive the benefit of the

twenty-seven hour cap for the first shift of sick leave they use,

is comparable to military leave.         Thus, we reverse and remand on

this claim also.

     We also conclude that the summary judgment in favor of Anthony

Rogers must be reversed because the record does not contain adequate




                                    30
evidence to support the judgment.     The City must be granted summary

judgment on this claim.

                                 3.

     We must determine the period of time, pre-filing, during which

damages accrued so as to be recoverable under USERRA.    The district

court referred the issues regarding the statute of limitations,

laches, and equitable estoppel to a magistrate judge and the parties

consented to the magistrate judge’s jurisdiction pursuant to 28

U.S.C. § 636(c) for that purpose.     The parties filed cross-motions

for partial summary judgment.    The magistrate judge held that the

four-year statute of limitations in 28 U.S.C. § 1658 applies to

plaintiffs’ causes of action and that plaintiffs’ claims are not

barred by the equitable defenses of laches or estoppel.33         The

district court certified   this issue for appeal under 28 U.S.C. §

1292(b), and the City appeals the district court’s holding.

     Section 4323 of USERRA does not provide a time limit for

bringing a claim for relief, stating only that “[n]o State statute

of limitations shall apply to any proceeding under this chapter.”

38 U.S.C. § 4323(I). The City argues that this court should borrow

the two-year statute of limitations contained in the Fair Labor

Standards Act (“FLSA”).    29 U.S.C. § 255(a).    However, the City’s



     33
       172 L.R.R.M. (BNA) 2240, 2003 WL 1566502 (W.D. Tex. March
4, 2003).



                                 31
argument that plaintiffs’ claims are “strongly analogous” to FLSA

claims is without merit.       The City cites no case authority under

USERRA or any previous statute governing veterans’ employment and

reemployment rights in which a court borrowed the FLSA statute of

limitations.     Furthermore, the purposes of the two acts are not

similar.    Congress passed the FLSA, pertaining to minimum wages and

working conditions, for the purpose of improving nationwide labor

conditions,34 and USERRA for       the purpose of encouraging military

service    by   protecting    uniformed   service   members’   rights   and

benefits.35     Plaintiffs’ claims involve neither the violation of

FLSA standards nor any similar standard.            For these reasons, we

reject the City’s argument that we should borrow the two-year

federal statute of limitations from the FLSA.

     Plaintiffs presented arguments in both this court and the

district court that 28 U.S.C. § 1658, the four-year uniform and

general statute of limitations for federal causes of action not

governed by an explicit statute of limitations, should apply.

Alternatively, they now argue for the first time on appeal that no




      34
           29 U.S.C. § 202.
      35
           38 U.S.C. § 4301.



                                     32
statute of limitations applies to USERRA claims and that their

claims are not barred by either laches or estoppel.36

     Because plaintiffs took the position before the magistrate

judge that the four-year residual statute of limitations of § 1658

applied to their claims, and the court rendered judgment to that

effect, plaintiffs have waived any claim to relief beyond four years

prior to the date on which their complaint was filed.37                Plaintiffs

have thus limited their claim to relief and this court will not

consider their argument that no statute of limitations applies.

     The        City   also   argues   that    regardless   of   the   applicable

limitations period for plaintiffs’ claims, those claims are barred

by the equitable doctrines of laches and estoppel.                  The district

court        determined   that   the   plaintiffs’   damages     claims   are   not

affected by those equitable affirmative defenses.

     In order to invoke the doctrine of laches, the City must show

an inexcusable delay in asserting a right and undue prejudice to the

City as a result of that delay.38                 To invoke the doctrine of

        36
       See, however, Proposed Regulations, summary, 69 F.R. No.
181 at 56281 (“The Department [of Labor] has long taken the
position that no Federal statute of limitations applied to
actions under USERRA.”).
        37
             Vela v. City of Houston, 276 F.3d 659, 678 (5th Cir. 2001)
        38
        Westchester Media v. PRL USA Holdings, Inc., 214 F.3d
658, 668 (5th Cir. 2000); Miller v. City of Indianapolis, 281
F.3d 648, 654 (7th Cir. 2002) (applying laches to USERRA claims);
Wallace v. Hardee’s of Oxford, Inc., 874 F.Supp. 374, 377 (M.D.



                                          33
equitable     estoppel,     the   City   must    show   that   it    relied    on   a

representation by plaintiffs, changed its position based on that

reliance, and that it was prejudiced because of that change in

position.39    Essential to both of those claims is a showing by the

City that it was prejudiced by plaintiffs’ failure to bring their

claims earlier.      Because the district court properly found that the

City did not introduce any summary judgment evidence either that any

“delay” in plaintiffs asserting their claims was inexcusable or that

the City was prejudiced by such delay, plaintiffs’ claims are not

barred by the equitable doctrines of laches or estoppel.

     The City’s only allegations of prejudice are that at least one

of the named plaintiffs no longer works for the City, that potential

witnesses may be retired or unavailable, and that the City had

already fulfilled its monetary liability to Plaintiffs by paying

them under the CBA.         Not only has the City presented no summary

judgment evidence of such prejudice, but similar allegations of

prejudice     have   been    held   to   be     insufficient    in    the     USERRA

framework.40


Ala. 1995) (invoking that same standard in the context of a
USERRA claims).
      39
      Lauderdale County Sch. Dist. v. Knight, 24 F.3d 671, 691
(5th Cir. 1994).
      40
      See Wallace, 874 F. Supp. at 377 (employer not unduly
prejudiced by the cost of defending VRRA suit now instead of
earlier and by continuing to conduct its normal business



                                         34
      Considering that the plaintiffs limited their claims for

damages to the four-year period before the filing of their suits in

the district court and that the City has not shown that it was

prejudiced because of an inexcusable delay on plaintiffs’ part, we

affirm the district court’s ruling that plaintiffs’ claims for

damages, if any, were not barred but are limited to recovery of

damages commencing on October 4, 1995, four years preceding the

filing of their claim.

                              Conclusion

      The district court’s judgment on the statute of limitations,

laches, and equitable estoppel claims is AFFIRMED.        Otherwise, the

district court’s judgment is REVERSED. Judgment is rendered for the

City dismissing plaintiffs’ claims for (1) lost straight-time pay;

(2)   lost   overtime   opportunities;     and   (3)   missed   upgrading

opportunities.   Judgment is also rendered for the City dismissing

Anthony Rogers’ individual claim.      The case is REMANDED for further

proceedings on the plaintiffs’ claims for (1) bonus day leave; (2)



operation); Novak v. Mackintosh, 937 F. Supp. 873, 880 (D.S.D.
1996) (no prejudice in VRRA claim when there was no evidence that
the employer changed its position in any way that would have
occurred if there had not been delay). The City’s allegation
that it will be prejudiced by having to pay additional
compensation to Plaintiffs above the amount bargained for in the
CBA between the parties is similarly not a sufficient allegation
of prejudice, as Plaintiffs’ right to recover in this case is
governed by statute rather than the CBA. Carney, 602 F.2d at
763.



                                  35
perfect attendance leave; and (3) the twenty-seven hour cap on lost

overtime.




                                36
