10-1405 Gross v. PPG Industries, Inc.

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Employment
USERRA

An employer’s calculation of differential pay does not violate USERRA.

“[T]he calculation employed by PPG does not amount to an adverse employment action. PPG considered his RESOLVE complaint and determined that
its calculation of differential pay conformed with both USERRA and its internal Attack on America Policy. As discussed above, Gross suffered no loss of pay or benefits as a result of his 2004-05 deployment, and PPG was entirely within its rights to interpret its policy as it did. Moreover, on a temporal level it is difficult if not impossible to understand how PPG’s calculation of Gross’s military pay in 2004-05 could have been caused by his RESOLVE complaint some time after he returned from his deployment. At best, Gross seems to be arguing that the continued refusal to calculate the pay as he wished following his complaint amounted to retaliation.

For the reasons outlined above, this argument too goes nowhere-the calculation, which left Gross in the same financial position while deployed as if he had never left-can hardly be considered a materially adverse employment action. See Stephens v. Erickson, 569 F.3d 779, 790 (7th Cir. 2009) (‘Federal law protects an employee only from retaliation that produces an injury, and, therefore, an employer’s retaliatory conduct is actionable only if it would be materially adverse to a reasonable employee.’); Cole v. Illinois, 562 F.3d 812, 816-17 (7th Cir. 2009) (‘[N]ot everything that makes an employee
unhappy is an actionable adverse action.’) (internal quotations and citation omitted). Thus, whether considered on the merits or as a result of failure to raise the claim below, Gross’s retaliation claim fails as a matter of law and PPG is entitled to summary judgment.”

Affirmed.

10-1405 Gross v. PPG Industries, Inc.

Appeal from the United States District Court for the Eastern District of Wisconsin, Stadtmueller, J., Rovner, J.

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