It is unsurprising that under federal law, military servicemembers have the right to resume their civilian jobs when their service ends. But servicepeople also enjoy a right that most civilians don’t: The right to be placed not in the same position they held when their employment was interrupted, but the position they would have attained absent their military service.
This right underlies The Uniformed Services Employment and Reemployment Rights Act (USERRA), which guarantees that an individual who leaves his job for military service cannot be denied any “benefit of employment” as a result of that service, and a recent ruling by the Ninth Circuit Court of Appeals.
Dale H. was a pilot for FedEx Express when he was called up for Air Force Reserve duty in February 2003, during the Gulf War. Dale had piloted Boeing 727 aircraft, but just prior to his deployment had been selected for training as a first officer to fly MD-11 aircraft, at a higher pay grade.
Upon his return from service in late 2006, Dale resumed his FedEx job and successfully completed the MD-11 training, becoming an MD-11 First Officer in February 2007.
Several months before Dale returned to FedEx, the company and the pilots’ union had negotiated a collective bargaining agreement (CBA) whereby FedEx pilots than on “active pay status” would receive signing bonuses applicable to their pay grade, including employees on military leave.
Upon Dale’s return, he received the 727 pilot’s bonus of $7,400. He sued FedEx under USERRA, claiming he should have been paid the $17,700 bonus received by MD-11 pilots, which was denied him only as a result of his military service. Dale argued that but for his deployment, he would have completed his originally scheduled MD-11 training and been eligible for a signing bonus at that pay grade under the terms of the CBA.
Under Ninth Circuit precedent, if a USERRA claimant can show that his protected status was a substantial or motivating factor in the adverse employment action, the employer may avoid liability only by showing it would have taken the same action absent the employee’s protected status.
The federal district court entered judgment for Dale.
The appellate court found the district court properly applied the “escalator principle” and the “reasonable certainty test” required by federal regulations. “Together, [these] principles guarantee that progress in the returning service member’s overall career trajectory has not been set back by his service,” the court wrote, citing the 1964 U.S. Supreme Court decision Tilton v. Mo. Pac. R.R. Co. (376 U.S. 169):
“…Congress intended a reemployed veteran who, upon returning from military service, satisfactorily completes his interrupted training, to enjoy the seniority status which he would have acquired by virtue of continued employment but for his absence in military service. This requirement is met if, as a matter of foresight, it was reasonably certain that advancement would have occurred, and if, as a matter of hindsight, it did in fact occur.”
The Ninth Circuit continued, “applying these principles, [ ] it was reasonably certain [Dale] would have become an MD-11-FO pilot prior to the date the CBA was signed and therefore would have been owed the bonus accorded to that higher status,” due largely to the fact he did actually pass the required training upon his return and became an MD-11 pilot. FedEx offered no affirmative defense that it would have taken the same action absent Dale’s military service.
FedEx argued that advancement to an MD-11-FO position is based on skill, ability, and the discretion of flight instructors, not the “mere passage of time.” Therefore, reasonable certainty was not established since Dale could have failed the original training.
The court rejected this argument: “The relevant standard is a reasonable certainty, not absolute certainty.” Given Dale’s pilot experience and job performance, the comprehensive MD-11-FO training, and his earlier acceptance into the training program, the district court’s conclusion was not illogical.
“To exact such certainty as a condition for ensuring a veteran’s seniority rights would render these statutorily protected rights without real meaning,” the court added (quoting Tilton).
The case is Dale Huhmann v. Fed’l Express Corp., No. 15-56744 (9th Cir. 2017).
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