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Huhmann v. Federal Express Corp.

United States Court of Appeals, Ninth Circuit

November 2, 2017

Dale Huhmann, an individual, Plaintiff-Appellee,
v.
Federal Express Corporation, DBA FedEx Express, a Delaware corporation, Defendant-Appellant.

          Argued and Submitted June 6, 2017 Pasadena, California

         Appeal from the United States District Court No. 3:13-cv-00787-BAS-NLS for the Southern District of California Cynthia A. Bashant, District Judge, Presiding

          Jane M. Flynn (argued), Federal Express Corporation, Irvine, California, for Defendant-Appellant.

          Brian J. Lawler (argued), Pilot Law P.C., San Diego, California, for Plaintiff-Appellee.

          Before: Carlos T. Bea and Andrew D. Hurwitz, Circuit Judges, and J. Frederick Motz, [*] District Judge.

         SUMMARY[**]

         Labor Law

         The panel affirmed the district court's judgment, after a bench trial, in favor of the plaintiff, who alleged that upon his return from military service, he was entitled to a higher signing bonus from his employer under the Uniformed Services Employment and Reemployment Rights Act.

         The panel held that arbitration was not required because the right awarded by USERRA neither arose out of nor relied on an interpretation of the parties' collective bargaining agreement, and so the parties' dispute was not a "minor dispute" under the Railway Labor Act.

         The panel held that in analyzing the plaintiff's USERRA claim, the district court correctly considered first, whether the plaintiff had established that his military service was a "substantial or motivating factor" to cause an adverse employment action, and second, whether the defendant employer had established an affirmative defense that it would have taken the same action without regard to the military service. The panel held that the district court properly used the reasonable certainty test, asking whether it was reasonably certain that the plaintiff would have qualified for a higher bonus had he not left for military service, as an aid to the burden-shifting analysis. The district court also properly relied on the escalator principle, which provides that a returning service member should not be removed from the progress of his career trajectory. The panel concluded that the district court did not clearly err in finding that the plaintiff was reasonably certain to have achieved the higher bonus status had he not left for his military service, both as a matter of hindsight and as a matter of foresight. The panel also affirmed the district court's conclusion that the bonus was, in part, a seniority-based benefit, and the plaintiff's claim was not barred by 38 U.S.C. § 4316(b)(1).

          OPINION

          BEA, CIRCUIT JUDGE.

         We are called upon to decide to what benefits a returning service member is entitled when resuming a civilian career. The Uniformed Services Employment and Reemployment Rights Act (USERRA) guarantees that an individual who departs for military service shall not be denied any "benefit of employment" due to that service. 38 U.S.C. § 4311(a). Dale Huhmann argues that, when he returned from service in the United States Air Force, FedEx Express (FedEx) improperly paid him a $7, 400 bonus instead of the $17, 700 bonus he would have earned had he not served. For the reasons that follow, the district court's decision which awarded Huhmann the higher signing bonus, in addition to attorney's fees, is affirmed.

         I.

         Dale Huhmann was commissioned as an officer in the United States Air Force Reserve in 1985 and retired in 2006. Huhmann was hired by FedEx in 2001 to pilot a Boeing 727 aircraft, a "narrow body" aircraft for pay grade purposes. Pay grade at FedEx is in part determined by the aircraft the pilot flies and the role the pilot has in flying it. Huhmann was later selected by FedEx for training to be a first officer on a McDonnell Douglas MD-11 aircraft, a "wide-body" aircraft that would qualify him for a higher pay grade. That training was to begin on February 19, 2003. However, on February 7, 2003, Huhmann was mobilized for active Air Force duty. He was deployed overseas until August 31, 2006.

         After completing his military service, Huhmann returned to active pay status at FedEx payroll on December 1, 2006. Upon his return, Huhmann was given the option to continue to work as a second officer on the narrow-body 727 aircraft (727-SO) or to receive training for one of ten other open positions. He chose to enter training to become a first officer on the wide-body MD-11 (MD-11-FO), as he had been selected by FedEx to do prior to his Air Force mobilization.

         Huhmann's MD-11-FO training began on December 4, 2006, virtually immediately after his return to FedEx. Training consisted of ground school sessions on the MD-11 and its systems, training in flight simulators, and flying an MD-11 aircraft with a flight instructor. The final step was a validation flight or "check ride" during which an instructor carefully observed the candidate's performance flying the MD-11 before later approving or rejecting his certification. Some pilots who enter the MD-11-FO training program are unable to complete it. Huhmann did not fail any evaluation step during his training and was activated as an MD-11-FO on February 22, 2007.

         Huhmann is a member of the bargaining unit represented by the Air Line Pilots Association (ALPA). On August 26, 2006, while Huhmann was still on air force active duty, FedEx issued a letter to ALPA (the Bonus Letter) that offered a signing bonus to FedEx crewmembers if the union ratified a proposed collective bargaining agreement (CBA) then being negotiated. This Bonus Letter explained that pilots employed by FedEx on the day the CBA was signed (including those on military leave) who had been on active pay status on FedEx's payroll during the entire "amendable period" (from June 1, 2004 until the day the CBA was signed, which occurred on October 30, 2006) would receive the full signing bonus applicable to their pay grade.

         The Bonus Letter specified that military leave would be deemed equivalent to active pay status on FedEx's payroll during the amendable period for purposes of qualifying for the signing bonus. Pilots on military leave would receive their signing bonuses upon returning to employment with FedEx. The Bonus Letter also specified that a pilot's signing bonus pay grade would be determined by the highest crew status the pilot held during the amendable period. The signing bonus for a 727-SO was $7, 400, while that for an MD-11-FO was $17, 700.

         Upon Huhmann's return to FedEx, he was paid $7, 400 as a signing bonus. He then filed this suit against FedEx. The operative first amended complaint alleged that FedEx had violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) (38 U.S.C. §§ 4301- 4335) when it failed to pay him the signing bonus owed to an MD-11-FO, [1] which Huhmann contended he would have been awarded had he not left for military duty. After a bench trial, the district court entered judgment for Huhmann.

         An employee making a claim under § 4311(a) "first has the burden of showing, by a preponderance of the evidence, that his or her protected status was a substantial or motivating factor in the adverse employment action; the employer may then avoid liability only by showing, as an affirmative defense, that the employer would have taken the same action without regard to the employee's protected status." Wallace v. City of San Diego, 479 F.3d 616, 624 (9th Cir. 2007) (internal quotation marks and citation omitted). The district court found that Huhmann's military leave was a substantial factor in Huhmann's receipt of the smaller signing bonus, and determined that FedEx could not demonstrate that it would have denied Huhmann the higher signing bonus absent Huhmann's military leave.

         In performing this analysis, the district court relied on two intersecting doctrines - the "escalator principle" and the "reasonable certainty test" - used to determine the status or position to which a returning service member is entitled. See 20 C.F.R. § 1002.2; Rivera-Melendez v. Pfizer Pharm., LLC, 730 F.3d 49, 54 (1st Cir. 2013). The "escalator principle" provides that a returning service member not be removed from the progress ("escalator") of his career trajectory, but rather return to a "position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service." 38 U.S.C. § 4313(a)(2)(A). The "reasonable certainty test" aids in determining the returning service member's position on the "escalator, " inquiring into the position a returning service member would have been "reasonably certain" to have attained absent the military service. 20 C.F.R. § 1002.191.

         Courts applying the "reasonable certainty test" use both a forward-looking and a backward-looking approach. First, the court determines whether it appears, as a matter of foresight, that individuals like a given claimant who successfully completed training would have obtained a certain position had employment not been interrupted by military service. The court next analyzes whether, as a matter of hindsight, a particular claimant either has, or would have, completed the necessary prerequisites for a position. See Tilton v. Mo. Pac. R.R. Co., 376 U.S. 169, 181 (1964) ("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."); see also Pomrening v. United Air Lines, Inc., 448 F.2d 609, 613 (7th Cir. 1971) ("First, it must appear, as a matter of foresight, that pilot trainees who successfully completed United's training course were regularly advanced to flight officer status. Second, it must appear, as a matter of hindsight, that Pomrening would have ...


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