Juan Sandoval v. City of Chicago ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2699
JUAN S ANDOVAL and SIDNEY P ENNIX,
Plaintiffs-Appellants,
v.
C ITY OF C HICAGO, ILLINOIS,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 2835—Suzanne B. Conlon, Judge.
A RGUED F EBRUARY 23, 2009—D ECIDED M ARCH 30, 2009
Before E ASTERBROOK, Chief Judge, and K ANNE and
E VANS, Circuit Judges.
E ASTERBROOK, Chief Judge. Two of Chicago’s police
officers filed this suit under the Uniformed Services
Employment and Reemployment Rights Act, 38 U.S.C.
§§ 4301–35. They want to be sergeants. This position
requires a competitive examination, which all candidates
take simultaneously to curtail the risks of cheating. Chi-
cago scheduled an exam for March 25, 2006. Juan Sandoval
2 No. 08-2699
and Sidney Pennix then were on military duty—Sandoval
in El Salvador and Pennix in Iraq. Both asked for an
opportunity to take the test outside the United States.
Ernst & Young administers Chicago’s civil-service exams
outside Chicago. Both Sandoval and Pennix were offered
the opportunity to sit for the exam in Ernst & Young’s
closest offices (San Salvador for Sandoval, Frankfurt for
Pennix). Both accepted this offer without protest; both
passed and were placed in the eligibility list; and both
filed suit as soon as the first person was promoted from
that list.
Sandoval and Pennix contend that they would have
done better, and been promoted earlier, had the tests
been offered closer to the places where they were sta-
tioned. They say that Chicago should have arranged for the
military to administer the exam on base. They also seek
compensation for what they describe as the cost and
danger of reaching San Salvador or Frankfurt from their
military-duty stations. The district court granted sum-
mary judgment for Chicago, however, after concluding
that Chicago did not discriminate against persons serving
in the military. 2008 U.S. Dist. L EXIS 46521 (N.D. Ill.
June 13, 2008).
Jurisdiction is the first question. Suits against private
employers under the Uniformed Services Employment
and Reemployment Rights Act may be filed in federal
court, but suits against states must be filed in state
court. Compare 38 U.S.C. §4323(b)(2) with (b)(3). We
held in Velasquez v. Frapwell, 165 F.3d 593 (7th Cir. 1999),
that this means only state court: §4323(b) is designed to
No. 08-2699 3
avoid problems under the eleventh amendment with
federal suits against states. See Seminole Tribe v. Florida, 517
U.S. 44 (1996). But §4323(i) defines “private employer” to
include a subdivision of a state for the purpose of §4323.
So the holding of Velasquez concerns only suits against
states themselves. Chicago is a “political subdivision” of
Illinois, and subject-matter jurisdiction is established.
Sandoval and Pennix rely on 38 U.S.C. §4311(a), which
provides that a person serving in the military may not
be “denied . . . any benefit of employment . . . on the basis
of that” service. Plaintiffs say that they incurred
higher costs, and more risk, to take their tests than did
persons not serving with military units; they maintain
that they would have scored higher had the tests been
more convenient. The problem with this view is that
§4311 is an anti-discrimination rule—its caption reads
“Discrimination against persons who serve in the uni-
formed services and acts of reprisal prohibited”. See
Velazquez-Garcia v. Horizon Lines of Puerto Rico, Inc., 473
F.3d 11, 17 (1st Cir. 2007); Miller v. Indianapolis, 281 F.3d
648, 650–51 (7th Cir. 2002). Sandoval and Pennix were
not turned away because they were on active duty; to
the contrary, Chicago arranged for each to take the test
outside the United States. Section 4311(a) requires
Chicago to treat persons on military service the same as
other employees, which it did. If plaintiffs had been on
vacation, or on leave to attend college abroad, they
would have been treated exactly as they were. So where
is the discrimination?
What Sandoval and Pennix want is not the same treat-
ment as everyone else (an anti-discrimination norm), but
4 No. 08-2699
better treatment than those who are attending college
or otherwise outside Chicago when a test is offered. In
other words, they seek an accommodation rather than
equal treatment. But §4311 does not require accommoda-
tion, which is fundamentally different from an equal-
treatment norm. See University of Alabama v. Garrett,
531 U.S. 356 (2001); Employment Division v. Smith, 494
U.S. 872 (1990).
The opportunity to take a test that is required for pro-
motion is a “benefit of employment” that Chicago may
not deny to persons in the armed services. Because
Chicago extended that opportunity to Sandoval and
Pennix on the same terms available to persons not in
military service, it complied with its obligations under
§4311(a). Congress is free to require employers to do
more—and perhaps Chicago would have done more
voluntarily had Sandoval or Pennix asked for on-base
administration of the test—but the statute on the
books forbids discrimination without requiring accom-
modation. Another section of the Act drives home the
point by requiring employers to treat persons on leave
for military service the same as persons who are on
leave for other reasons. 38 U.S.C. §4316. A requirement of
equal treatment is incompatible with a demand for pre-
ferential treatment. See Tully v. Department of Justice, 481
F.3d 1367, 1369–70 (Fed. Cir. 2007); Rogers v. San Antonio,
392 F.3d 758, 764 (5th Cir. 2004).
Plaintiffs do not give any thought to the costs that their
(belated) request for on-base administration would have
imposed on Chicago and the military. When requiring
No. 08-2699 5
accommodation, Congress usually sets limits on the
expense and inconvenience that an employer must bear
to provide that benefit. See, e.g., Trans World Airlines,
Inc. v. Hardison, 432 U.S. 63 (1977) (discussing the
accommodation-of-religion clause in Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §2000e–2(a)(1)); Vande
Zande v. Wisconsin Department of Administration, 44
F.3d 538 (7th Cir. 1995) (discussing the accommodation re-
quirement in the Americans with Disabilities Act, 42
U.S.C. §12112(b)(5)(A)). Section 4311(a) does not set a
cap on cost, however, because it does not require accom-
modation in the first place.
Plaintiffs’ remaining arguments have been considered
but do not require discussion. The judgment is affirmed.
3-30-09