Clarkson v. Alaska Airlines, Inc.

CASEY CLARKSON, Plaintiff, v. ALASKA AIRLINES, INC., HORIZON AIR INDUSTRIES, INC.,and ALASKA AIRLINES PENSION/BENEFITS ADMINISTRATIVE COMMITTEE, Defendants.

NO. 2:19-CV-0005-TOR

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

May 24, 2021

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

BEFORE THE COURT is Defendants' Motion for Summary Judgment (ECF No. 136). This matter was submitted for consideration without oral argument. The Court has reviewed the record and files herein, and is fully informed. For the reasons discussed below Defendants' Motion for Summary Judgment (ECF No. 136) GRANTED. The parties' remaining motions are DENIED as moot; the trial and all hearings are VACATED as moot.

BACKGROUND

This matter arises from Plaintiff Casey Clarkson's class action filed against Defendants Alaska Airlines, Inc. ("Alaska") and Horizon Air Industries, Inc. ("Horizon") on January 7, 2019. ECF No. 1. The following facts are not in dispute except where noted. Plaintiff was employed as an airline pilot for Horizon from November 2013 to November 2017, and thereafter was employed by Alaska. ECF No. 161 at 3, ¶¶ 2-3. During Plaintiff's employment with both Horizon and Alaska, he was an active member of the Washington Air National Guard. Id. at ¶ 4. Plaintiff typically performed military duty for approximately 10-12 days per month from November 2013 through June 2018. Id. at 3, ¶ 5.

While employed by Horizon, Plaintiff took the following periods of military leave: June 8-July 8, 2017; September 9-14, 2017; and October 1-26, 2017. Id. at 56, ¶ 97; at 56-57, ¶¶ 99-102. Before taking military leave in June 2017, Plaintiff was employed as a turboprop Captain; upon return from leave in July 2017, Plaintiff was once again employed as a turboprop Captain. Id. at 56, ¶ 98. There is no evidence in the record that Horizon employed Plaintiff in any position other than a turboprop Captain during the relevant time period.

For each of the months Plaintiff took military leave while employed by Horizon, he received 2.45 flight credit hours per day for each day he was on leave pursuant to Horizon's Virtual Credit policy, which was implemented in May 2017.Id. at ¶ 97; at 57, ¶¶ 99-102. The Virtual Credit policy applied to all forms of leave, military or otherwise. ECF No. 161 at 56, ¶ 97. Plaintiff's virtual credits were combined with his earned credits to determine his flight schedules, which were built and assigned using a Preferential Bidding System ("PBS"). Id. at 49-50, ¶¶ 91-92. Plaintiff generated the minimum required credit hours to be assigned a Line Holder schedule for each month he took military leave, with the exception of July 2017; in that month, he was assigned a Reserve schedule. Id. at 58, ¶ 103.¹

The schedule to which a pilot was assigned was based, in part, on a pilot's ability to meet a certain threshold of credit hours. Id. at 52, ¶ 95. Line Holder schedules required at least 70 credit hours. Id. If a pilot could not meet the 70-credit hour minimum, a pilot would be assigned a Reserve schedule. Id. Pilots assigned to Line Holder schedules fly specific trips whereas pilots assigned to Reserve schedules are on call for specific days. Id. at 28, ¶ 53. According to the Collective Bargaining Agreements ("CBAs"), a turboprop pilot assigned to a Line Holder schedule was guaranteed a minimum pay of 70 credit hours. Id. at 50, ¶ 93;ECF No. 138-8 at 12. Reserve schedules were guaranteed a minimum pay of 73 credit hours. Id. In addition to provisions governing scheduling and compensation, the CBAs also governed leaves of absence, specifically for jury duty, sick leave, bereavement leave, military leave, and personal leave, and any compensation awarded during those leave periods. ECF No. 161 at 4-14, ¶¶ 7-28; 49-50, ¶¶ 91-92.

The parties dispute whether Defendants' compensation practices for the covered forms of leave, including Horizon's Virtual Credit policy, comply with the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301 et seq. Plaintiff alleges Defendants practices violate USERRA by continuing to pay employees who take comparable non-military leave their full wages but failing to pay employees who take military leave their full wages. ECF No. 31 at 14, ¶ 37; at 16, ¶ 41. Plaintiff also alleges Defendant Horizon's Virtual Credit policy forced Plaintiff into a lesser status than he held prior to his military leave, thereby denying Plaintiff certain seniority-based rights and benefits that would have accrued but for his military leave. Id. at 15, ¶ 39-40. Defendants argue they are not required to pay employees who take military leave nor do they provide any rights or benefits to employees who take non-military leave that are not also provided to employees who take military leave. ECF No. 136 at 7-8.

DISCUSSION

I. Legal Standard

The Court may grant summary judgment in favor of a moving party who demonstrates "that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment, the court must only consider admissible evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002). The party moving for summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party to identify specific facts showing there is a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252.

For purposes of summary judgment, a fact is "material" if it might affect the outcome of the suit under the governing law. Id. at 248. Further, a dispute is "genuine" only where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. The Court views the facts, and all rational inferences therefrom, in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). Summary judgment will thus be granted"against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

II. Count IV—Paid Leave Claim

Count IV alleges Defendants fail to provide Plaintiff and other members of the Paid Leave Class the same rights and benefits for military leave that Defendant provides to other employees who take non-military leave in violation of 38 U.S.C. § 4316(b). ECF No. 31 at 28-29. Defendants move for summary judgment as to Count IV on the grounds that neither USERRA nor its federal regulations require employers to pay employees who take military leave. ECF No. 136 at 12. Specifically, Defendants argue there are no "rights and benefits" as defined by the applicable CBAs that are provided to employees who take non-military leave that are not also provided to employees who take military leave. Id. Defendants further argue military leave is not comparable to any other forms of leave provided in the applicable CBAs for the purposes of determining entitlement to "rights and benefits" under USERRA. Id. at 18.

Plaintiff asserts employees who take non-military leave are provided the benefit of Loss of Pay protection while employees who take military leave are not afforded the same, resulting in lost wages. ECF No. 150 at 18. Plaintiff also argues there are genuine issues of material fact as to whether other forms of non-military leave are comparable to military leave in terms of duration, purpose, and flexibility. Id. at 21-22.

A. Rights and Benefits

USERRA provides that a person who is absent from employment due to military service is entitled to the same non-seniority rights and benefits that are generally provided to other employees who take leave as provided in an employment contract, agreement, policy, practice, or plan. 38 U.S.C. § 4316(b)(1)(B). The statute defines "rights and benefits", "benefit", and "benefit of employment" as:

the terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account, or interest (including wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes . . . vacations, and the opportunity to select work hours or location of employment.

38 U.S.C. § 4303(2). The Department of Labor ("DOL"), which promulgated final regulations to implement USERRA, further clarified "non-seniority rights and benefits . . . are those that the employer provides to similarly situated employees by an employment contract, agreement, policy, practice, or plan." 20 C.F.R. § 1002.150(a). The parties dispute the scope of the statute's definition of "rights and benefits."

While this issue is not widely litigated, there seem to be two competingviews among the courts as to whether the definition of "rights and benefits" includes a requirement for paid military leave. Some courts have found "the definition of 'rights and benefits' under USERRA embraces paid leave." White v. United Airlines, Inc., 987 F.3d 616, 621 (7th Cir. 2021). Other courts have concluded "the text of the [USERRA] Act unambiguously excludes paid military leave from its definition of 'rights and benefits.'" Travers v. FedEx Corp., 473 F. Supp. 3d 421, 426 (E.D. Pa. 2020). The disagreement among the courts centers on statutory interpretation.

Both the Travers and White courts addressed the "rights and benefits" issue on motions to dismiss. Notably, the White court concluded an "important inquiry" for remand was whether the plaintiff could demonstrate that his military leave was comparable to any other leave of absence...