Martin v. State

1

CHRISTINA MARTIN, JASON LONGORIA, CHARLES ARNOLD, JOHN SAGER, DARREL NASH, ERIK THOMAS, DARIN FOSTER, and LUIS GONZALEZ on behalf of themselves and all others similarly situated, Appellants, v. THE STATE OF WASHINGTON, THE WASHINGTON STATE PATROL, JEFFREY DEVERE, JAY CABEZUELA, TIMOTHY WINCHELL, and JOHN BATISTE, Respondents.

No. 38332-6-III

Court of Appeals of Washington, Division 3

April 27, 2023

UNPUBLISHED OPINION

Siddoway, J.

At issue on appeal is what remained of a class action proceeding following a substantial settlement in 2017. Claims under 38 U.S.C. § 4316 that were excluded from settlement of the lawsuit brought against the Washington State Patrol (WSP) by current and former WSP employees were dismissed on summary judgment.

A proposed representative of the class appeals the trial court's dismissal of the claims and its denial of the motion to substitute her as class representative. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Two claims remained following the multimillion-dollar settlement of other claims asserted in this class action brought on behalf of hundreds of current and former troopers and higher-ranking officers of the WSP. In addition to being active or former WSP employees, the class members are veterans who were called away from their civilian employment for active duty tours. The two remaining claims arise under the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301-35 (USERRA). Among the purposes of USERRA are to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers that can result from such service, and to prohibit discrimination against persons because of their service in the uniformed services. 38 U.S.C § 4301(a)(1), (3).

For service members whose civilian employment is interrupted by a period of service in the uniformed services, 38 U.S.C § 4316(a) protects their entitlement to "the seniority, and other rights and benefits determined by seniority," that the person had on the commencement of service and would have attained had they remained continuously employed.

38 U.S.C. § 4316(d) permits service members to use paid leave (vacation, annual or similar leave) during their period of uniformed service. It also forbids employers from requiring the use of such leave during that service. Among the paid leave available to the WSP's employees is 21 days of paid military leave each year that RCW 38.40.060(1) guarantees to public employees.

At issue under the two USERRA provisions is how a WSP time and activity report (TAR) policy is applied to employees who elect to use paid leave once a period of leave exceeds 15 days. The policy-TAR § 2.020-was created by WSP Chief Financial Officer Bob Maki "to ensure all WSP employees are treated equally while on any type of long-term leave." Clerk's Papers (CP) at 316-17 (emphasis omitted). It achieves this by providing that the official WSP workweek is 8 hours a day, 5 days a week, and for employees who are on leave longer than 15 days (other than Family Medical Leave Act leave) the workweek shall be Monday through Friday, 8 a.m. to 5 p.m. In a declaration filed below, Mr Maki explained:

4. The default schedule for all WSP employees is 5 days a week, 8 hours a day. Due to scheduling demands, and to provide employees with flexibility, WSP allows 'alternate schedules,' subject to management approval. Alternate schedules can include, but are not limited to, employees working 4 days a week, 10 hours a day. It can also include employees working night shifts or swing shifts. Many employees on night shifts and swing shifts are entitled to shift differential compensation.

5. Before the implementation of TAR § 2.020, employees taking long-term leave that were on night or swing shifts would demand shift differential even when they were taking leave and not working hours which would warrant payment of shift differential. TAR § 2.020 resolved this problem by switching all employees to the default 5 day 8 hour schedule after taking 15 consecutive days of long-term leave.

6. The plain language of TAR § 2.020 shows that it applies to all WSP employees taking any type of long term leave, with the exception of FMLA^[1] leave. In fact, employees taking shared leave, approved temporary disability status, or long-term leave without pay change their schedules pursuant to TAR § 2.020 more often than employees taking paid Military Leave.

CP at 317 (emphasis omitted).

When deposed, Mr. Maki testified that troopers work in the WSP's field operations bureau, and he estimated that more than half of them work four 10-hour day schedules rather than five 8-hour day schedules (hereafter sometimes referred to as "four tens" and "five eights" schedules). He rejected the characterization of four 10-hour days as the "customary" schedule, however, because the default five 8-hour day schedule is established by the collective bargaining agreement (CBA) for the WSP Troop Association. CP at 573-74. An employee must get permission from management to work an alternative schedule, such as four 10-hour days, and these requests will only be granted if the alternative schedule meets operational needs and is in the best interest of the agency. WSP management has also reserved the right under the CBA to rescind an alternative schedule at any time upon 30-days' notice.

The contention of the class is that application of TAR § 2.020 violates 38 U.S.C. § 4316(a) and (d) because it "require[s] the employee to exhaust their . . . paid military leave more quickly." See Br. of Appellants at 4. The position of the WSP is that where two differently-scheduled employees report for equivalent uniformed service, the policy better equalizes their paid leave. Were it not for the policy, the paid leave for two employees serving identical uniformed service would be 210 hours' paid leave (21 x 10) for the employee on a four tens schedule and 168 hours' paid leave (21 x 8) for the employee on the five eights schedule. TAR § 2.020 does not eliminate the discrepancy, but it reduces it.

The WSP's accounting witness, Sean Black, produced a report in which he explained that applying TAR § 2.020, the trooper on the four tens schedule receives 150 hours' pay for the first 15 days of military leave and 48 hours' pay for the remaining 6 days. By contrast, the trooper on the five eights schedule receives 120 hours' pay for the first 15 days of leave and 48 hours for the remaining 6 days. Using an assumed rate of pay of $30 per hour, the application of TAR § 2.020 reduces the discrepancy between the veterans' paid leave to $900 more for the trooper working a four tens schedule.

The parties filed cross motions for summary judgment on these remaining claims. The class members-recognizing that Christina Martin and the seven other original class representatives had not suffered an injury under the § 4316 claims-moved for leave to substitute trooper Barbara Werner as class representative.

In a declaration in support of the substitution motion and her standing, Trooper Werner testified that in September 2017, she received year-long orders to active duty at a time when she was assigned to work a four-day, ten-hour schedule. In early October 2017, she requested military leave pursuant to RCW 38.40.060. Thereafter, she testified, she was paid for military leave at the rate of four 10-hour shifts per week until the 15th day she was absent, when "WSP changed my work schedule to five 8-hour days a week." CP at 544. In November 2018, on her return from active duty, she was returned to her detachment's four day, 10-hour work schedule. She testified that the application of TAR § 2.020, by

charg[ing] for military leave as though I had a five day, 8-hour work schedule . . . caused my RCW 38.40.060 leave to dwindle at a rate of five days per week of absence, versus 4 days a week for my regularly scheduled work week.

21. When my RCW 38.40.060 leave balance was prematurely depleted, I was then required to substitute other forms of paid leave (or unpaid leave) to cover military days, or loose [sic] regular pay. This in fact happened, as I was required to take leave without pay starting in November 2, 2017.

CP at 545.

The WSP pointed to evidence that Trooper Werner did not request nor was she required to take consecutive days of paid military leave. It disputed on that basis that her leave was, in her words, "prematurely depleted." It pointed out that after Trooper Werner requested and was approved for a number of days of military leave in October 2017, she requested to use the six remaining days of her leave over a three-month period from November 2, 2017 to February 1, 2018.

The WSP also pointed to discovery revealing that other class members to whom TAR § 2.020 was applied after December 21, 2016, sometimes did not exhaust their military leave and did not necessarily use it right away or continuously. The situations of eight officers affected by TAR § 2.020 were discussed during Mr. Maki's deposition, revealing that four never exhausted their military leave, two others exhausted military leave in only some of the years they were eligible, and some requested to use their military leave intermittently rather than continuously. Br. of Resp'ts at 11-16.

Based on the evidence and argument, the trial court concluded that the statutory right to paid military leave provided by RCW 38.40.060 is a benefit of employment within the meaning of 38 U.S.C. § 4303(2). It held, however, that it is not a benefit based on seniority, which it must be to violate 38 U.S.C. § 4316(a). The court also held that because class members are not and have not been entitled to make their own schedule, no right based on seniority was violated.

As for the...