Moss v. United Airlines, Inc.

20 F.4th 375

Michael MOSS, individually and on behalf of all others similarly situated, Plaintiff-Appellant,

v.UNITED AIRLINES, INC., et al., Defendants-Appellees.

No. 20-3246

United States Court of Appeals, Seventh Circuit.

Argued September 13, 2021

Decided December 14, 2021

Brian J. Lawler, Attorney, Pilot Law, P.C., San Diego, CA, Gene J. Stonebarger, Attorney, Stonebarger Law APC, Folsom, CA, for Plaintiff-Appellant.

Chris Hollinger, Attorney, O'Melveny & Myers LLP, San Francisco, CA, Aparna B. Joshi, Grace Leeper, Tristan Morales, Attorneys, O'Melveny & Myers LLP, Washington, DC, Anton Metlitsky, Attorney, O'Melveny & Myers LLP, for Defendants-Appellees.

Before Ripple, Rovner, and Scudder, Circuit Judges.

Ripple, Circuit Judge.

Michael Moss brought this class action against United Airlines ("United") under the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). This statute requires employers to provide employees on military leave any seniority-based benefit the employee would have accrued but for the military leave. USERRA also requires employers to provide employees on military leave any nonseniority-based benefits that the employer provides to employees on a comparable leave of absence. This latter provision is not at issue in this appeal.

The district court granted summary judgment to United Airlines on Mr. Moss's claim that the company had violated USERRA by denying sick-time accrual in excess of ninety days to military reservist employees. The district court held that sick-time accrual was not a seniority-based benefit within the meaning of the statute.¹

We now affirm the judgment of the district court. The district court correctly determined that United's sick-time accrual is not a seniority-based benefit. For a benefit to be seniority-based, the benefit must be a reward for length of service. Sick leave is not such a reward.

IBACKGROUND

A.

From April 1, 2005, to 2010, United Air Lines pilots, who also served in the reserve components of the Armed Forces of the United States and were called periodically to active duty, accrued sick time throughout their entire military leave. In contrast, Continental Pilots, who served the Country in the same capacity, accrued sick time only through the first thirty days of their military leave during the same period.

In 2010, these two airlines began a merger process. They first became wholly owned subsidiaries of United Continental Holdings. During this stage, the separate bargaining agreements of each legacy airline continued to govern for two years. In March 2013, United and Continental merged into a single entity—United Airlines.² Nevertheless, the policies of the two legacy airlines continued in effect until United Airlines standardized the sick-time policy in 2014: "[A]ll pilots only accrued sick time during the first ninety (90) days of military leave."³

The operative collective bargaining agreement sets forth United Airlines' post-standardization policy: "[F]or each Bid Period of Active Employment, five (5) hours of sick leave shall be deposited into a Pilot's sick leave bank up to a maximum of 1300 hours."⁴ "Active Employment" is when "a Pilot is available for assignment, on sick leave or on vacation for any part of a Bid Period."⁵ A Bid Period is, essentially, one month. Therefore, all pilots accrue a consistent five hours of sick time per Bid Period. Two final provisions on United's sick-time policy are also relevant: (a) "Sick leave with pay shall be granted only in cases of actual sickness[,]" and (b) "upon separation of employment, a Pilot shall not receive payment for any balance in his sick leave bank."⁶

United Air Lines hired Michael Moss, the plaintiff, in early 2000. On September 16, 2009, United Air Lines placed Mr. Moss on furlough, but he was hired by Continental on January 24, 2012. He continued working at United Airlines through the merger process. Throughout the relevant time period, he also held a commission as a Lieutenant Colonel in the Reserve Component of the United States Marine Corps.

B.

On August 30, 2016, Mr. Moss brought this action against United Airlines, alleging violations of USERRA. Count I (the only Count at issue on appeal) alleged that United violated USERRA by denying sick-time accrual to pilots on military leave because (a) sick time is a seniority-based benefit and thus should have continuously accrued; or (b) sick-time accrual was available to pilots on comparable periods of leave. Count II made the same allegations about vacation time accrual; Count III addressed the same alleged violations with respect to pension payments.

The district court certified classes for each Count. The sick-time class for Count I is comprised of:

All past and present pilots employed by the Company from April 1, 2005, to the present, who: (i) did not accrue sick time while on periods of military leave from April 1, 2005, to the present; and (ii) were not at the maximum sick leave accrual level of 1,300 hours at the time of their military leave(s) of absence or at any time thereafter.⁷

The parties moved for summary judgment. United asked for summary judgment on all counts; Mr. Moss only asked for summary judgment on Counts I and II.

The district court granted United's motion as to Counts I and II. The district court first addressed Count II (vacation accrual) and held that "the ‘real nature’ of vacation days in this case is not a reward for length of service. Thus, vacation days are not a seniority-based benefit under the collective bargaining agreement."⁸ In reaching this conclusion, the district court rejected Mr. Moss's argument that vacation-time accrual is a seniority-based benefit because it "accrues solely with the passage of time."⁹ Noting that "this is true of any employment benefit," the court concluded that this characteristic "is not particularly informative, let alone dispositive, of whether vacation day accrual is seniority-based."¹⁰

The court then concluded that "[s]ince vacation days are not a seniority-based benefit, Plaintiffs are entitled to only the ‘other’ benefits ‘generally provided,’ to employees on ‘comparable leaves of absence.’ "¹¹ The district court disagreed with Mr. Moss that United's jury duty, association leave, and sick leave are " ‘comparable’ to military leave, such that vacation time accrual should be available to military leave longer than 90 days."¹²

Having disposed of Count II (vacation accrual), the district court turned to Count I, the sick-time accrual claim, and entered summary judgment for United. It stated:

Likely because there is no material difference in the accrual of "sick time" and "vacation time" under the collective bargaining agreement, Plaintiffs' arguments on Count I mirror their arguments on Count II. Therefore, the Court grants summary judgment to Defendants on Count I for the same reasons it grants summary judgment to Defendants on Count II.¹³

The district court then addressed potential objections based upon the collective bargaining agreement's different policies on the accrual of sick time and the accrual of vacation time. The court explained that "the numbers of hours or days accrued, and the rates of accrual" are "differences in the ‘particular formulas’ by which accrual is ‘calculated,’ and thus are not material to the Court's analysis."¹⁴

The parties subsequently settled Count III, and the district court approved that settlement on October 19, 2020. After the approval of the settlement, the district court entered final judgment, and Mr. Moss timely appealed the grant of summary judgment on Count I, the sick-time accrual claim.

IIDISCUSSION

"We review the district court's grant of summary judgment de novo." Flexible Steel Lacing Co. v. Conveyor Accessories, Inc. , 955 F.3d 632, 643 (7th Cir. 2020). "Summary judgment is appropriate when ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ " Id. (quoting Fed. R. Civ. P. 56(a) ). Here the facts are not disputed.

We also note that it is well established that any "interpretative doubt is to be resolved in the veteran's favor," Brown v. Gardner , 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994), and that "provisions for benefits to members of the Armed Services are to be construed in the beneficiaries' favor," King v. St. Vincent's Hosp. , 502 U.S. 215, 220 n.9, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991).

A.

USERRA is the modern iteration of a line of statutes designed to protect employment and reemployment rights of those who serve in the Armed Forces. First, the Selective Training and Service Act of 1940 required private employers to reemploy qualified military veterans to their previous position or "to a position of like seniority, status, and pay." Pub. L. No. 76-783, § 8(b)(3)(C), 54 Stat. 885, 890 (codified at 50 U.S.C. § 301 et seq. (repealed 1955)). In an early case interpreting the Selective Training and Service Act, the Supreme Court gave breath to what has become known as the "escalator principle": "[The returning servicemember] does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war." Fishgold v. Sullivan Drydock & Repair Corp. , 328 U.S. 275, 284–85, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946). This principle was codified in the Veterans' Reemployment Rights Act¹⁵ and continues to be a foundational principle of seniority-based reemployment rights under USERRA.

Enacted in 1994, USERRA serves three purposes:

(1) to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service;

(2) to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemployment of such persons upon their completion of

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