Deployed Police Officers Have No Right To Take Promotional Examinations Where They Are Deployed

Juan Sandoval and Sidney Pennix are Chicago police officers. When the City scheduled a promotional examination for the position of sergeant on March 25, 2006, Sandoval was deployed in El Salvador and Pennix was deployed in Iraq. Both asked for the opportunity to take the test outside the United States.

Ernst & Young administers Chicago 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 on the eligibility lists; and both filed suit as soon as the first person was promoted from the list.

Sandoval and Pennix argued that they would have done better on the examinations had they been offered locations closer to the places where they were stationed. They had argued that the Uniformed Services Employment and Reemployment Rights Act (USERRA) protects “benefits of employment,” and that they “incurred higher costs, and more risk, to take their tests than did persons not serving with military units, and would have scored higher had the tests been more convenient.”

A federal court of appeals dismissed the lawsuit. The Court observed that “what Sandoval and Pennix want is not the same treatment as everyone else (an anti-discrimination norm), but 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. USERRA does not require accommodation, which is fundamentally different from an equal-treatment norm.

“The opportunity to take a test that is required for promotion is a benefit for 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 USERRA. 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 accommodation.”

Sandoval v. City of Chicago, 2009 WL 804665 (7th Cir. 2009).

This article appears in the May 2009 issue