On December 4, 2019, the 7th Circuit held that the plain language of the Uniformed Service Members Employment and Reemployment Rights Act ("USERRA") covers full-time National Guard duty. Mueller v. City of Joliet, No. 18-3609 (7th Cir. Dec. 4, 2019). USERRA prohibits discrimination against those in "service in a uniformed service." In this case, a Police Sergeant took a leave of absence to report for active duty in the Illinois National Guard Counterdrug Task Force. When the Police Department placed him on unpaid leave, he resigned from his National Guard position and sued the City of Joliet and his supervisors for employment discrimination under USERRA. The issue on appeal was whether USERRA protected his National Guard duty.
The plaintiff claimed that the Department's denial of compensation and benefits while he was on National Guard duty amounted to illegal, anti-military discrimination. The defendants moved to dismiss on the ground that his National Guard counterdrug duty was authorized under Illinois law and not covered by USERRA. The district court judge agreed and dismissed the complaint. On appeal, the plaintiff argued that "service in the uniformed services" explicitly covers full-time National Guard duty, including counterdrug activities. The 7th Circuit agreed and reversed the order of the district court, on the basis of the plain language of the statute. The USERRA employment discrimination section states that those in "service 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. The statute defines "service in the uniformed services" as "the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority" and includes...full-time National Guard duty. The statutory language, which contemplates the plaintiff's service as "Full-Time National Guard duty," made it clear that Congress intended for the plaintiff's service to be covered by USERRA.