Clarkson v. Alaska Airlines Inc

[4] 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON [6] 7 CASEY CLARKSON, NO. 2:19-CV-0005-TOR 8 Plaintiff, ORDER GRANTING DEFENDANTS’ 9 v. MOTION FOR SUMMARY JUDGMENT 10 ALASKA AIRLINES, INC., HORIZON AIR INDUSTRIES, INC., 11 and ALASKA AIRLINES PENSION/BENEFITS 12 ADMINISTRATIVE COMMITTEE, 13 Defendants. 14 BEFORE THE COURT is Defendants’ Motion for Summary Judgment 15 (ECF No. 136). This matter was submitted for consideration without oral 16 argument. The Court has reviewed the record and files herein, and is fully 17 informed. For the reasons discussed below Defendants’ Motion for Summary 18 Judgment (ECF No. 136) GRANTED. The parties’ remaining motions are 19 DENIED as moot; the trial and all hearings are VACATED as moot. [20] 1 BACKGROUND 2 This matter arises from Plaintiff Casey Clarkson’s class action filed against 3 Defendants Alaska Airlines, Inc. (“Alaska”) and Horizon Air Industries, Inc. 4 (“Horizon”) on January 7, 2019. ECF No. 1. The following facts are not in 5 dispute except where noted. Plaintiff was employed as an airline pilot for Horizon 6 from November 2013 to November 2017, and thereafter was employed by Alaska. 7 ECF No. 161 at 3, ¶¶ 2–3. During Plaintiff’s employment with both Horizon and 8 Alaska, he was an active member of the Washington Air National Guard. Id. at ¶ 9 4. Plaintiff typically performed military duty for approximately 10–12 days per 10 month from November 2013 through June 2018. Id. at 3, ¶ 5. 11 While employed by Horizon, Plaintiff took the following periods of military 12 leave: June 8–July 8, 2017; September 9–14, 2017; and October 1–26, 2017. Id. at 13 56, ¶ 97; at 56–57, ¶¶ 99–102. Before taking military leave in June 2017, Plaintiff 14 was employed as a turboprop Captain; upon return from leave in July 2017, 15 Plaintiff was once again employed as a turboprop Captain. Id. at 56, ¶ 98. There is 16 no evidence in the record that Horizon employed Plaintiff in any position other 17 than a turboprop Captain during the relevant time period. 18 For each of the months Plaintiff took military leave while employed by 19 Horizon, he received 2.45 flight credit hours per day for each day he was on leave 20 pursuant to Horizon’s Virtual Credit policy, which was implemented in May 2017. 1 Id. at ¶ 97; at 57, ¶¶ 99–102. The Virtual Credit policy applied to all forms of 2 leave, military or otherwise. ECF No. 161 at 56, ¶ 97. Plaintiff’s virtual credits 3 were combined with his earned credits to determine his flight schedules, which 4 were built and assigned using a Preferential Bidding System (“PBS”). Id. at 49– 5 50, ¶¶ 91–92. Plaintiff generated the minimum required credit hours to be assigned 6 a Line Holder schedule for each month he took military leave, with the exception 7 of July 2017; in that month, he was assigned a Reserve schedule. Id. at 58, ¶ 103.1 8 The schedule to which a pilot was assigned was based, in part, on a pilot’s 9 ability to meet a certain threshold of credit hours. Id. at 52, ¶ 95. Line Holder 10 schedules required at least 70 credit hours. Id. If a pilot could not meet the 7011 credit hour minimum, a pilot would be assigned a Reserve schedule. Id. 12 Pilots assigned to Line Holder schedules fly specific trips whereas pilots assigned 13 to Reserve schedules are on call for specific days. Id. at 28, ¶ 53. According to the 14 Collective Bargaining Agreements (“CBAs”), a turboprop pilot assigned to a Line 15 Holder schedule was guaranteed a minimum pay of 70 credit hours. Id. at 50, ¶ 93; [16] 1 Plaintiff claims, without explanation, his Line Holder status for the months [17] of June, September, and October was “of lesser status” than it would have been [18] had he not taken military leave. ECF No. 161 at 38, ¶ 103. Plaintiff’s assertion is [19] not supported by the record. [20] 1 ECF No. 138-8 at 12. Reserve schedules were guaranteed a minimum pay of 73 2 credit hours. Id. In addition to provisions governing scheduling and 3 compensation, the CBAs also governed leaves of absence, specifically for jury 4 duty, sick leave, bereavement leave, military leave, and personal leave, and any 5 compensation awarded during those leave periods. ECF No. 161 at 4–14, ¶¶ 7–28; 6 49–50, ¶¶ 91–92. 7 The parties dispute whether Defendants’ compensation practices for the 8 covered forms of leave, including Horizon’s Virtual Credit policy, comply with the 9 Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 10 U.S.C. § 4301 et seq. Plaintiff alleges Defendants practices violate USERRA by 11 continuing to pay employees who take comparable non-military leave their full 12 wages but failing to pay employees who take military leave their full wages. ECF 13 No. 31 at 14, ¶ 37; at 16, ¶ 41. Plaintiff also alleges Defendant Horizon’s Virtual 14 Credit policy forced Plaintiff into a lesser status than he held prior to his military 15 leave, thereby denying Plaintiff certain seniority-based rights and benefits that 16 would have accrued but for his military leave. Id. at 15 , ¶ 39–40. Defendants 17 argue they are not required to pay employees who take military leave nor do they 18 provide any rights or benefits to employees who take non-military leave that are 19 not also provided to employees who take military leave. ECF No. 136 at 7–8. [20] 1 DISCUSSION 2 I. Legal Standard 3 The Court may grant summary judgment in favor of a moving party who 4 demonstrates “that there is no genuine dispute as to any material fact and that the 5 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In ruling 6 on a motion for summary judgment, the court must only consider admissible 7 evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002). The 8 party moving for summary judgment bears the initial burden of showing the 9 absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 10 317, 323 (1986). The burden then shifts to the non-moving party to identify 11 specific facts showing there is a genuine issue of material fact. See Anderson v. 12 Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “The mere existence of a scintilla 13 of evidence in support of the plaintiff’s position will be insufficient; there must be 14 evidence on which the jury could reasonably find for the plaintiff.” Id. at 252 . 15 For purposes of summary judgment, a fact is “material” if it might affect the 16 outcome of the suit under the governing law. Id. at 248 . Further, a dispute is 17 “genuine” only where the evidence is such that a reasonable jury could find in 18 favor of the non-moving party. Id. The Court views the facts, and all rational 19 inferences therefrom, in the light most favorable to the non-moving party. Scott v. 20 Harris, 550 U.S. 372, 378 (2007). Summary judgment will thus be granted 1 “against a party who fails to make a showing sufficient to establish the existence of 2 an element essential to that party’s case, and on which that party will bear the 3 burden of proof at trial.” Celotex, 477 U.S. at 322 . 4 II. Count IV—Paid Leave Claim 5 Count IV alleges Defendants fail to provide Plaintiff and other members of 6 the Paid Leave Class the same rights and benefits for military leave that Defendant 7 provides to other employees who take non-military leave in violation of 38 U.S.C. 8 § 4316(b). ECF No. 31 at 28–29. Defendants move for summary judgment as to 9 Count IV on the grounds that neither USERRA nor its federal regulations require 10 employers to pay employees who take military leave. ECF No. 136 at 12. 11 Specifically, Defendants argue there are no “rights and benefits” as defined by the 12 applicable CBAs that are provided to employees who take non-military leave that 13 are not also provided to employees who take military leave. Id. Defendants 14 further argue military leave is not comparable to any other forms of leave provided 15 in the applicable CBAs for the purposes of determining entitlement to “rights and 16 benefits” under USERRA. Id. at 18. 17 Plaintiff asserts employees who take non-military leave are provided the 18 benefit of Loss of Pay protection while employees who take military leave are not 19 afforded the same, resulting in lost wages. ECF No. 150 at 18. Plaintiff also 20 argues there are genuine issues of material fact as to whether other forms of non1 military leave are comparable to military leave in terms of duration, purpose, and 2 flexibility. Id. at 21–22. 3 A. Rights and Benefits 4 USERRA provides that a person who is absent from employment due to 5 military service is entitled to the same non-seniority rights and benefits that are 6 generally provided to other employees who take leave as provided in an 7 employment contract, agreement, policy, practice, or plan. 38 U.S.C. § 8 4316(b)(1)(B). The statute defines “rights and benefits”, “benefit”, and “benefit of 9 employment” as: 10 the terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account, or interest 11 (including wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, 12 or practice and includes . . . vacations, and the opportunity to select work hours or location of employment. [14] 38 U.S.C. § 4303 (2). The Department of Labor (“DOL”), which promulgated final 15 regulations to implement USERRA, further clarified “non-seniority rights and 16 benefits . . . are those that the employer provides to similarly situated employees by 17 an employment contract, agreement, policy, practice, or plan.” 20 C.F.R. § 18 1002.150(a). The parties dispute the scope of the statute’s definition of “rights and 19 benefits.” 20 While this issue is not widely litigated, there seem to be two competing 1 views among the courts as to whether the definition of “rights and benefits” 2 includes a requirement for paid military leave. Some courts have found “the 3 definition of ‘rights and benefits’ under USERRA embraces paid leave.” White v. 4 United Airlines, Inc., 987 F.3d 616, 621 (7th Cir. 2021). Other courts have 5 concluded “the text of the [USERRA] Act unambiguously excludes paid military 6 leave from its definition of ‘rights and benefits.’” Travers v. FedEx Corp., 473 F. 7 Supp. 3d 421, 426 (E.D. Pa. 2020). The disagreement among the courts centers on 8 statutory interpretation. 9 Both the Travers and White courts addressed the “rights and benefits” issue 10 on motions to dismiss. Notably, the White court concluded an “important inquiry” 11 for remand was whether the plaintiff could demonstrate that his military leave was 12 comparable to any other leave of absence for which his employer provided paid 13 leave, which would be a question of fact. White, 987 F.3d at 625 . In this case, 14 Plaintiff’s claims survived a motion to dismiss because the Court was unable to 15 decide the “rights and benefits” issue without further evaluation of evidence 16 outside the pleadings. ECF No. 30 at 19–20. The present motion for summary 17 judgment provides the evidence needed. 18 Here, Defendants argue Plaintiff’s claim should be dismissed as a matter of 19 law, following the holding in Travers. ECF No. 136 at 13. They further argue 20 Plaintiff’s claims cannot survive the factual inquiry implied by the White court 1 because the CBAs do not provide the benefit Plaintiff seeks: the right to receive 2 pay while on military leave. Id. Plaintiff alleges the benefit is the “Loss of Pay” 3 protection that is provided for other comparable non-military leave. ECF No. 150 4 at 18. Plaintiff argues this protection establishes the continued receipt of wages 5 while on leave, a benefit provided to non-military employees and denied for 6 military employees. Id. at 20. 7 Both parties’ arguments would require the Court to adopt an interpretation of 8 the “rights and benefits” definition. However, the Court need not make such a 9 determination. As the White court indicated, a factual inquiry as to whether the 10 military leave is comparable to other forms of covered leave is also required for a 11 claim under § 4316(b). White, 987 F.3d at 625 ; see also 20 C.F.R. § 1002.150 . 12 Therefore, the Court will limit its ruling to the facts of this particular case and 13 declines to adopt a specific interpretation of the “rights and benefits” definition. 14 B. Comparable Forms of Leave 15 The Department of Labor has identified several factors to assist in evaluating 16 whether non-military leave is comparable to military leave. 20 C.F.R. § 17 1002.150(b). Those factors include the duration of the leave, the purpose of the 18 leave, and the ability of the employee to choose when to take the leave. Id. Of 19 those factors, the duration of the leave “may be the most significant.” Id. 20 Here, Defendants argue the other forms of non-military leave covered by the 1 relevant CBAs—jury duty, bereavement, and sick—are not comparable to military 2 leave. ECF No. 136 at 18. Plaintiff alleges there are issues of fact as to whether 3 any of the other non-military leaves are comparable. ECF No. 150 at 21. 4 i. Duration 5 As an initial matter, the parties dispute whether there are distinct categories 6 of military leave. Defendants argue that neither USERRA nor the relevant CBAs 7 contemplate different categories of military leave based on duration. ECF No. 136 8 at 23. Thus, the Court should consider military leave as a general category of 9 leave. Plaintiff claims that the CBAs and USERRA do, in fact, distinguish 10 between short-term military leave (30 days or less) and long-term military leave 11 (31 days or more). ECF No. 150 at 24–24. Therefore, the Court should take more 12 individualized approach and consider each specific military leave period as either 13 long-term or short-term based on its length. Id. at 23 . 14 With regard to whether the CBAs distinguish between short-term and long15 term military leave, Plaintiff cites to deposition testimony from both Alaska and 16 Horizon representatives, and a Letter of Agreement between Defendants and the 17 pilots’ union. Id. at 24–25. Alaska’s representative stated it was her understanding 18 that “short-term leave would be something under 30 days.” ECF No. 150-2 at 19. 19 She went on to say other forms of leave, such as sick and personal, could also fall 20 under the category of short-term leave. ECF No. 138-2 at 10–11. Horizon’s 1 representative stated she had seen the term “short-term military leave” on crew 2 members’ schedules, specifically pilots’ schedules. ECF No. 138-3 at 7. She also 3 stated there were two different codes used to differentiate between short-term and 4 long-term military leaves, but she could not recall what the duration difference was 5 between the two. Id. Her personal understanding was short-term leave generally 6 applied to leave of less than a week and anything longer would be considered long7 term leave. Id. She further clarified there was no policy to differentiate between 8 general short-term and long-term. Id. The Letter of Agreement between 9 Defendants and the pilots’ union defines “extended military service” as “a period 10 of 31 days or more consecutive leave.” ECF No. 150 at 25. 11 Plaintiff also argues the DOL regulations contemplate a comparison of 12 individual military leaves by emphasizing the statute’s use of “a” and “an” in its 13 illustrative examples of comparator leaves. The relevant portion of the statute 14 states: “For instance, a two-day funeral leave will not be ‘comparable’ to an 15 extended leave for service in the uniformed service.” 20 C.F.R. § 1002.150 (b). 16 Plaintiff cites to three other sections within USERRA, which include distinctions 17 between short-term and long-term military leave. ECF No. 150 at 25. This is a 18 curious argument given Plaintiff’s advocacy for the White holding, which 19 specifically declined to read unwritten words into a specific statutory provision. 20 See White, 987 F.3d at 624 (declining to compare different but related titles of 1 federal law to avoid inconsistency and accepting the language Congress chose 2 when drafting the statute rather than reading “extratextual considerations” into the 3 law). 4 Finally, Plaintiff cites to caselaw from the Seventh, Fifth, and Federal 5 Circuits to support his position. As the Court previously stated, it is not inclined to 6 apply the Seventh Circuit’s White holding to this case, as the Ninth Circuit has not 7 yet spoken on the issue. In Plaintiff’s Fifth Circuit case, Rogers v. City of San 8 Antonio, the court did not reach the issue of comparability under § 4316, but 9 instead remanded the issue for further proceedings. Rogers v. City of San Antonio, [10] 392 F.3d 758 , 771–72 (5th Cir. 2004). Insofar as the holding contains the phrase 11 “comparable to each plaintiff’s military leaves,” this Court does not read the phrase 12 so narrowly as to create a particular standard that must be applied when evaluating 13 comparability of leaves. See id at 772. Moreover, the following sentence in the 14 holding refers to military leave more generally rather than an individualized 15 analysis. Id. (“. . . there is a disputable issue as to whether sick leave . . . is 16 comparable to military leave.”). The Court reads the holding to be more 17 illustrative of the factual inquiry required for the comparability analysis rather than 18 a particular standard that should be applied. 19 In Tully v. Department of Justice out of the Federal Circuit, a single service 20 member’s two and a half year-long leave of absence was held incomparable to the 1 typically brief duration of absence for court duty, notably because the duration 2 factor “reflects a significant difference in the character of the two forms of leave.” 3 Tully v. Dep't of Just., 481 F.3d 1367, 1371 (Fed. Cir. 2007) (emphasis added). 4 That court’s reference to the “character” of the two forms of leave implies a more 5 categorical comparison rather than the individualized analysis that Plaintiff would 6 prefer. Finally, analyzing military leave durations on an individualized basis 7 contravenes Plaintiff’s own argument on class certification. See ECF No. 73 at 8 26–27 (stating the comparability factors “do not require individualized 9 determinations as to specific class members”) (citation omitted). Thus, the Court 10 finds the more generalized approach the appropriate standard, particularly when 11 the issue is presented as a class claim. 12 In support of their comparability arguments, Defendants provided data from 13 the class period regarding the duration of leaves. ECF No. 136 at 21–22. 14 Defendants also provided data for leave frequency with its duration analysis. Id. 15 Plaintiff objects to the frequency analysis, arguing the DOL regulations compare 16 only length of leave. ECF No. 150 at 23. However, the DOL regulations are not 17 an exhaustive list. Furthermore, while the Court agrees duration and frequency are 18 separate measures, frequency is useful in the duration analysis, particularly in a 19 class setting. 20 // 1 a. Bereavement and Jury Duty Leave 2 Bereavement and jury duty leave are two categories of leave covered by the 3 CBAs. ECF No. 161 at 4–14, ¶¶ 7–28. During the relevant class period, 4 Defendant Alaska’s CBA section on Leaves of Absence provided up to seven days 5 for bereavement leave (unpaid or using accrued paid sick days), and Defendant 6 Horizon’s CBA provided up to three days of bereavement leave. Id. at 19, ¶ 32. 7 Defendant Horizon’s CBA covers jury duty under Leaves of Absence, while 8 Defendant Alaska’s CBA covers jury duty as a separate section. ECF No. 136 at 9 20. 10 The data reflects the short-term duration of both bereavement leave and jury 11 duty. From October 2008 through December 2020, the longest period of jury duty 12 leave at Horizon (excluding leaves above the 95th percentile of leave length) was 13 five days and the longest period of bereavement leave was three days. ECF NO. 14 161 at 25–26, ¶ 47. The average length of jury duty and bereavement leave at 15 Horizon was four days. Id. at 24, ¶ 44. From October 2004 through December 16 2020, the longest jury duty leave at Alaska was six days (excluding leaves above 17 the 99th percentile). Id. at 26, ¶ 48. The same is true for bereavement leave. Id. 18 Conversely, the longest military leave at Alaska from October 2004 through 19 December 2020 (excluding leaves above the 99th percentile) was 185 days. Id. at 20 24–25, ¶ 45. At Horizon, the longest military leave between October 2008 and 1 December 2020 was 70 days (excluding leaves above the 95th percentile). Id. at 2 25, ¶ 46. For Alaska, the 90th percentile duration for military leave between 3 October 2004 and December 2020 was nine days. Id. at 26, ¶ 49. Only 25 separate 4 bereavement leaves and four jury duty absences at Alaska exceed nine days. Id. 5 At Horizon, the 90th percentile duration of military leave between October 2008 6 and December 2020 was 24 days. ECF No. 161 at 27, ¶ 51. Not a single jury duty 7 absence or bereavement leave exceeded 11 days. Id. 8 Regarding frequency, of the Alaska pilots who took military leave in the 9 relevant class period, the average total number of military leaves was 47 and the 10 average number of military leave days was 511. Id. at 23, ¶ 40. Of the Horizon 11 pilots who took military leave in the relevant class period, the average total number 12 of military leaves was 17 and the average number of military leave days was 560. 13 Id. at 24, ¶ 43. Conversely, of the Alaska pilots who took jury duty leave, over 14 half only took such leave once. Id. at 23, ¶ 41. Of the Alaska pilots who took 15 bereavement leave, over a quarter only took such leave once. Id. Similarly, two16 thirds of the Horizon pilots who took jury duty or bereavement leave during the 17 class period did so only once. Id. at 24, ¶ 44. Plaintiff himself has never taken any 18 jury duty or bereavement leave. Id. at 3, ¶ 6. On the other hand, he estimated 19 taking 10–12 days of military leave per month from November 2013 through June 20 2018. Id. at 2, ¶ 5. 1 b. Sick Leave 2 Sick leave is another category of non-military leave covered by the CBAs. 3 Id. at 44–45, ¶ 76. Sick leave is paid to the extent a pilot has accrued paid sick 4 days to cover the leave of absence; otherwise, sick leave is unpaid. Id. at 45, ¶ 78. 5 The longest sick leave at Alaska between September 2013 and December 2020, 6 excluding leave above the 99th percentile, was five days. ECF No. 161 at 46, ¶ 80. 7 During the same timeframe, the longest period of military leave, excluding leave 8 above the 99th percentile was, 122 days. Id. at 45–46, ¶ 79. For Horizon, the 9 longest sick leave between February 2010 and December 2020, excluding leave 10 above the 95th percentile, was four days, compared to the longest military leave, 11 excluding leave above the 95th percentile, was 58 days. Id. at 46–47, ¶¶ 81–82. 12 The average number of sick days per pilot between February 2010 and December 13 2020 was 33, compared to an average of 359 days per pilot for military leave. Id. 14 at 47, ¶ 83. 15 Given the significant differences in duration and frequency, military leave is 16 not comparable to jury duty, bereavement leave, and sick leave. See also Hoefert 17 v. Am. Airlines, Inc., 438 F. Supp. 3d 724 , 741 (N.D. Tex. 2020) (citing Moss v. 18 United Airlines, Inc., 420 F. Supp. 3d 768 , 774 (N.D. Ill. 2019)). 19 // 20 // 1 ii. Purpose 2 Defendants argue the purpose of military leave under the CBAs is not 3 comparable to the purposes of other forms of leave under the CBAs because pilots 4 who serve as reservists in the military do so to fulfill a “parallel career.” ECF No. 5 136 at 28. Plaintiff disagrees, asserting the purpose of military leave is to allow 6 employees to serve the public and to fulfill a public safety function. ECF No. 150 7 at 29–31. Plaintiff argues jury duty, bereavement leave, sick leave, and vacation 8 leave also fulfill a public service and public safety function. Id. 9 Very few courts have addressed the issue of leave purposes. In terms of sick 10 leave, one court found military leave differed in purpose “because military 11 absences are forward looking, whereas sick leave is backward looking.” Hoefert, 12 438 F. Supp. 3d at 739. Stated another way, military leave is provided as the need 13 arises; sick leave is accrued or earned for work already performed. Id. 14 Additionally, the court found sick leave differed because the employer could buy 15 back unused sick days and because sick days were capped at a certain number, but 16 military leave was not. Id. 17 Another court came to a different conclusion regarding an employer’s jury 18 duty leave policy. That court held an employer’s policies for military leave and 19 jury duty leave were comparable in purpose where the employer provided pay for 20 both types of leave, albeit at different rates; the purpose behind the policies was to 1 make an employee whole after taking leave. See Brill v. AK Steel Corp., No. 2:092 CV-534, 2012 WL 893902 , *6 (S.D. Ohio Mar. 14, 2012). However, the court did 3 not address the general purposes of military leave and jury duty leave themselves. 4 Here, the evidence supports Defendants’ position that a significant purpose 5 of military leave under the CBAs is to allow employees to pursue parallel careers. 6 Several employees at Horizon and Alaska, including Plaintiff, acknowledged 7 having “parallel careers” was common. ECF No. 161 at 36–39, ¶¶ 66, 68. In 8 addition to military careers, other careers included “engineers, consultants, [and] 9 lawyers.”2 Id. at 37–39, ¶ 68. The ability to pursue parallel careers affords 10 Defendants’ employees the opportunity to fulfill other professional careers and [12] 13 2 If an employee takes time off to pursue a non-military parallel career, they 14 must use unpaid personal leaves of absence or accrued vacation days. ECF No. 15 161 at 37–38, ¶ 68. Plaintiff does not allege personal leave is comparable to 16 military leave. However, Plaintiff disputes the fact that employees must use 17 personal leave to pursue parallel careers; he asserts they can use sick leave or 18 vacation leave as well. Id. Vacation days can be used to the extent they have 19 accrued; Plaintiff’s citation to the record does not support his assertion that sick 20 days may be used to pursue parallel careers. Id. 1 earn additional income. The same cannot be said of the other forms of leave 2 provided in the CBAs. 3 a. Jury Duty 4 Jury duty is also incomparable to military leave for the same reason. The 5 purpose of jury duty is to fulfill a compulsory duty to the courts; it is not a parallel 6 career. Id. at 41–42, ¶ 73. To the extent a servicemember’s duty is also 7 compulsory when called to serve, the compensation and frequency of jury duty is 8 not comparable to military leave. In particular, any compensation provided by the 9 government for jury duty is not comparable to the pay received for military 10 service. ECF No. 161 at 41–42, ¶ 73. Under the Horizon CBA, employees who 11 receive compensation from a court for jury duty are required to forfeit the pay to 12 receive their regular salary. Id. at 42–44, ¶¶ 74–75. Alaska’s CBA does not 13 contemplate jury duty under its leaves of absence; rather, it is covered under the 14 CBA’s “General” provisions, which indicates Alaska intended to treat jury duty 15 leaves differently than any other forms of leave. Id. at 21, ¶ 37 . 16 b. Bereavement Leave 17 Bereavement leave is not comparable to military leave either in terms of 18 purpose. The purpose of bereavement leave is to allow an employee time to grieve 19 following the death of a loved one. ECF Nos. 136 at 29–30; 150 at 30–31. 20 Granting employees time to grieve, particularly pilot employees, helps ensure they 1 will be mentally prepared to safely operate an aircraft upon their return to work. 2 ECF No. 161 at 39, ¶ 69. Plaintiff’s argument that this safety concern shares a 3 common purpose with military leave because both serve public interests is 4 attenuated, at best. ECF No. 150 at 30. 5 c. Sick Leave and Vacation Leave 6 Plaintiff’s arguments regarding sick leave and vacation leave fail for the 7 same reason. A purpose of sick leave is to protect passengers and other employees 8 from illness and to ensure the pilot is mentally and physically fit to fly. ECF No. 9 161 at 45, ¶ 77. Employees take sick leave to recover and rest. Id. Similarly, 10 employees take vacation leave do so for rest and recuperation to avoid burnout. 11 ECF No. 150 at 31. The same is certainly not true of military leave, which is 12 physically and mentally demanding. Again, Plaintiff’s attempt to anchor public 13 safety concerns as the comparable function of military leave, sick leave, and 14 vacation leave is unpersuasive. 15 The significantly different purposes between military leave and other forms 16 of leave covered by the CBAs leave no genuine dispute of material fact as to 17 comparability. 18 iii. Ability to Choose When to Take Leave 19 Defendants argue the flexible nature of a reservist’s schedule supports a 20 finding of incomparability because reservists have the ability, to a certain degree, 1 to choose when to take leave; they do not have such flexibility with other forms of 2 leave. ECF No. 136 at 24. Plaintiff argues Defendants overstate the amount of 3 flexibility in a pilot’s military duty schedule. ECF No. 150 at 32. 4 Pilots at Horizon and Alaska do not work traditional Monday–Friday 5 schedules; instead, they are scheduled to fly certain trips (Line Holder schedules) 6 or are on-call for specific days (Reserve schedules). ECF No. 161 at 28, ¶¶ 52–53. 7 Their flight schedules are released in advance of each month and they typically end 8 up flying around half the days of any given month. ECF No. 161 at 28–29, ¶¶ 52– 9 54. Whether a pilot is scheduled for Line Holder assignment or Reserve 10 assignment depends on the pilot’s seniority and bid preferences. Id. at 28, ¶ 54 . 11 Pilots submit their bid preferences well in advance of each flying month. Id. The 12 CBAs require pilots to provide notice of any known absences. Id. at 29, ¶ 55 . 13 Defendants’ scheduling systems then schedules pilots’ flights around those 14 absences. Id. at ¶ 56 . 15 This system of bidding for preferred schedules, paired with the 16 nontraditional work schedule, lends itself well for reservists. Reservists typically 17 receive their military duty schedules months in advance. Id. at 30, ¶ 58 . To the 18 extent there is any scheduling conflict, pilots can then work with the bidding 19 system and other pilots to ensure their flight schedules for Defendants 20 accommodate their military leave schedules. Id. at 30, ¶ 57 ; at 31, ¶ 60. Jury duty, 1 bereavement, and sick leave tend to occur with little to no notice, which makes 2 advance planning for those leaves more difficult. 3 Additionally, reservists have a certain degree of control over their military 4 duty schedules. ECF No. 136 at 26. For example, if a pilot’s training flight 5 conflicted with his own squadron, he could switch to a different squadron 6 performing the same training. Id. Reservists can also work with their military unit 7 scheduler to accommodate scheduling preferences, to a certain degree. ECF No. 8 161 at 31, ¶ 60. The degree of flexibility depends on the type of training, nature of 9 the missions, availability of instructors, and other factors. ECF No. 150 at 32. 10 Jury duty, bereavement, and sick leave do not typically allow for such flexibility. 11 While certain deaths may be foreseeable (e.g., a person suffering a terminal illness) 12 and some medical appointments can be scheduled with flexibility, it is more likely 13 that death and illness will occur unexpectedly. Similarly, jury duty also arises 14 without significant notice. While pilots can sometimes be excused from jury duty, 15 they have far less control over that rescheduling process than they do over the 16 process to schedule their reservist and flight duties. ECF No. 136 at 27. 17 Finally, military leave is automatically granted. ECF No. 161 at 32–33, ¶ 18 61. This is not true of bereavement, sick leave, and vacation. Bereavement leave 19 is granted with discretion or may be taken using unpaid personal leave or accrued 20 sick days. Id. at 39–40, ¶¶ 70–71. Likewise, sick leave and vacation are not 1 automatically granted, but can be taken using accrued paid days or by taking 2 unpaid personal leave. Id. at 45, ¶ 78 ; at 47, ¶ 84. 3 Because pilots have a greater degree of control over their ability to take 4 military leave and schedule around such leave, military leave is not comparable to 5 other forms of leave covered by the CBAs. 6 Based on the foregoing, there are no genuine issues of material fact as to 7 whether military leave is comparable to other forms of leave covered by the CBAs; 8 they are not comparable. Therefore, Defendants are entitled to summary judgment 9 with respect to Count IV. 10 III. Counts I–III—Virtual Credit Claims 11 Counts I–III pertain to Defendant Horizon’s Virtual Credit policy. Plaintiff 12 seeks relief in his individual capacity for these claims. Count I alleges Defendant’s 13 Virtual Credit policy provided Plaintiff with fewer credit hours than he would have 14 received but for his military leave, thereby failing to properly reemploy Plaintiff 15 upon his return, in violation of 38 U.S.C. §§ 4312 (a), 4313(a)(1). ECF No. 31 at 16 23–24. Count II alleges Defendant’s Virtual Credit policy failed to treat military 17 leave as continuous employment, thereby denying Plaintiff his seniority-based 18 rights and benefits, in violation of 38 U.S.C. § 4316 (a). Id. at 25 . Count III alleges 19 the application of Defendant’s Virtual Credit policy led to Plaintiff’s demotion 20 following his return from military leave in violation of 38 U.S.C. § 4316 (c). Id. at 1 26. 2 A. Counts I and III 3 Defendants move for summary judgment on Counts I and III on the grounds 4 that Plaintiff was never “demoted” or “discharged,” he has no damages, and 5 because he lacks standing3 as he is no longer employed by Horizon. ECF No. 136 6 at 35–36. Plaintiff argues the Virtual Credit policy forced Plaintiff to take Reserve 7 schedule status, which he alleges is a lesser position than the Line Holder schedule 8 he previously held, and that Plaintiff was harmed by being forced to work 9 additional hours to achieve Line Holder status. ECF No. 150 at 40. 10 USERRA §§ 4312 and 4313 apply at the time a service member returns from 11 military leave and seeks reemployment. Butts v. Prince William Cty. Sch. Bd., 844 12 F.3d 424 , 430 (4th Cir. 2016). Section 4312 guarantees reemployment if the 13 returning service member satisfies the criteria set forth in that section. Id.; 38 14 U.S.C. § 4312 (a)(1)–(3). Section 4313 then sets forth the rights to which the 15 service member is entitled upon reemployment, specifically, the right to 16 reemployment in the same position previously held prior to the military leave. 38 17 U.S.C. § 4313 (a)(1)–(4). [18] 3 Neither party briefed the issue of standing. Therefore, the Court will not [19] address the issue. [20] 1 The parties dispute whether Reserve schedule assignment is an inferior 2 employment position to Line Holder schedules and whether Reserve assignment 3 has lesser rights and benefits. ECF Nos. 136 at 35; 150 at 40. Defendants contend 4 Plaintiff was reemployed in his same position as a turboprop Captain upon his 5 return from military leave. ECF No. 136 at 36. Plaintiff does not dispute he was a 6 turboprop Captain both before and after his military leave but argues the Reserve 7 schedule assignment he received in July 2017 was an inferior status than Line 8 Holder assignment. ECF No. 150 at 39. 9 The applicable CBA defines “POSITION” as a “Pilot’s classification as 10 either a Captain or First Officer in an Equipment Type.” ECF No. 136 at 35. The 11 CBA describes a “DOWNGRADE” as occurring when a “Pilot is Reduced from 12 his Seat as a Captain and is awarded as a First Officer.” Id. Line Holder and 13 Reserve Line refer to the type of schedule a pilot receives during a Bid Period, 14 which is the “time frame in Calendar Days that coincides with a Pilot’s schedule.” 15 ECF Nos. 161 at 28, ¶ 53; 138-8 at 4; at 5; at 10. Line Holder or line flying refers 16 a pilot who is assigned specific trips during the Bid Period. ECF Nos. 161 at 28, ¶ 17 53; 138-8 at 7. Reserve Line or reserve flying refers to pilots who are on call for 18 flight assignments. Id. The type of schedule a pilot receives is based on seniority 19 and bidding preferences. ECF No. 161 at 28, ¶ 54. 20 Pilots submit their bidding preferences (e.g., a preferred location, specific 1 days off, specific flights, etc.) in advance of the next Bid Period using Defendant’s 2 Preferential Bidding System (“PBS”). Id. at 29, ¶ 55 . The PBS scheduler then 3 creates a flight schedule for each pilot by taking into account each pilot’s 4 preferences and any known absences. Id. at ¶ 56 . If the PBS scheduler can build a 5 schedule for a pilot with at least 70 combined hours (actual flight hours and virtual 6 credit hours), the pilot is assigned Line Holder status. ECF No. 136 at 34. If the 7 PBS scheduler cannot build a schedule with at least 70 combined hours, the pilot 8 may be assigned Reserve status. Id. Pilots can also bid to take Reserve status 9 during the bidding process. ECF No. 161 at 53, ¶ 96. 10 Defendant’s Virtual Credit Policy provided pilots who needed to take leave, 11 whether for military duty or otherwise, with 2.45 hours of Virtual Credit to count 12 toward the combined flight hours. Id. at 56, ¶ 97 . Alternatively, pilots could 13 adjust their assigned schedule to accommodate absences by trading with other 14 pilots or through an open system that allowed pilots to pick up or drop trips, as 15 necessary. Id. at 30, ¶ 57 . 16 Generally, USERRA supersedes a CBA that limits or eliminates any rights 17 provided by USERRA. See 38 U.S.C. § 4302 . However, to the extent a CBA does 18 not directly contradict USERRA, the CBA should be considered when determining 19 an employee’s appropriate reemployment position. Hogan v. United Parcel Serv., [20] 648 F. Supp. 2d 1128 , 1142–43 (W.D. Mo. 2009) (citing Fishgold v. Sullivan 1 Drydock & Repair Corp., 328 U.S. 275 (1946)). In fact, the regulations 2 contemplate CBAs when analyzing whether a reemployment position includes the 3 same seniority, status, and rate of pay. 20 C.F.R. § 1002.193 (a). In relevant part, 4 the regulations state, “[t]he seniority rights, status, and pay of an employment 5 position include those established (or changed) by a collective bargaining 6 agreement, employer policy, or employment practice.” Id. The parties here do not 7 argue the CBAs directly contradict USERRA; therefore, they are relevant 8 considerations. 9 The parties dispute the relative merits of being assigned Line Holder or 10 Reserve schedules. Plaintiff argues Line Holder schedules are more predictable 11 and provide greater certainty of days off and were “usually provided a 74–80 hour 12 schedule in 2017 and thus made more money than reserve pilots.” ECF No. 150 at 13 40. Defendant argues Reserve schedules provide a greater minimum pay guarantee 14 and more flexibility. ECF No. 136 at 36. 15 The Court finds a pilot’s assignment to a Reserve schedule is not a demotion 16 as contemplated by the statute and regulations. Plaintiff generally retained the 17 same “opportunities for advancement, working conditions, job location, shift 18 assignment[,] . . . responsibility, and geographic location” upon reemployment. 19 Serricchio v. Wachovia Sec. LLC, 658 F.3d 169, 183 (2d Cir. 2011). Plaintiff was 20 a Captain of a turboprop aircraft when he left for military leave and he was 1 reemployed as a Captain of a turboprop aircraft when he returned. ECF No. 161 at 2 56, ¶ 98. The evidence shows Plaintiff did not experience a significant change in 3 job duties or responsibilities. His pay remained the same based on the number of 4 flight hours Plaintiff flew during a bid period. Plaintiff does not allege he was 5 forced to relocate, that his working conditions changed, or that he was denied 6 opportunities for advancement. Plaintiff’s subjective preference for a certain flight 7 schedule cannot overcome the evidence that he was reemployed in the same 8 position he held prior to his military leave. Thus, Defendants are entitled to 9 summary judgment as to Counts I and III. 10 Plaintiff’s arguments regarding loss of pay or loss of credit hours due to 11 receiving a Reserve schedule are not relevant under §§ 4312 and 4313, which 12 apply only at the instant of reemployment; Plaintiff’s alleged damages are better 13 addressed under § 4316, which applies to actions or conditions after successful 14 reemployment. Lisdahl v. Mayo Found. for Med. Educ. & Rsch., 698 F. Supp. 2d 15 1081, 1104 (D. Minn. 2010). 16 B. Count II 17 Defendants seek summary judgment as to Count II on the grounds that the 18 benefit Plaintiff seeks—Line Holder assignment—is not a seniority-based benefit 19 under the statute and because he was not disadvantage by Horizon’s Virtual Credit 20 policy. ECF No. 136 at 37. Plaintiff argues Line Holder assignment is a seniority1 based benefit because it provides a greater minimum pay guarantee and a more 2 predictable schedule, which is not provided to Reserve Line assignments. ECF No. 3 150 at 42. 4 Section 4316 requires that employees who are reemployed following 5 military service must be provided the same “seniority and other rights” that the 6 employee was provided prior to the military service, plus any additional “seniority 7 and other rights and benefits” the employee would have attained had the employee 8 been continuously employed. 38 U.S.C. § 4316 (a). USERRA defines “seniority” 9 as “longevity in employment together with any benefits or employment which 10 accrue with, or are determined by, longevity in employment.” 38 U.S.C. § 11 4303(12). The USERRA regulations similarly define a “seniority-based right or 12 benefit” as “one that accrues with, or is determined by, longevity in employment.” [13] 20 C.F.R. § 1002.212 . 14 The regulations set forth three factors to consider when assessing whether a 15 right or benefit is seniority-based: (1) whether the right or benefit is a reward for 16 length of service rather than a form of short-term compensation for work 17 performed; (2) whether it is reasonably certain the employee would have received 18 the right or benefit had the employee remained continuously employed during the 19 military service; and (3) whether it is the employer’s custom or practice to provide [20] 1 or withhold the right or benefit as a reward for length of service. Id. A CBA is not 2 controlling if the employer’s practice or custom differs from the written policy. Id. 3 Prior to the enactment of USERRA, the Supreme Court analyzed seniority4 based rights and benefits under the predecessor statutes and indicated the 5 determination of a whether right or benefit was seniority-based was best assessed 6 by understanding the “true nature” of the benefit rather than looking only to an 7 employee’s longevity with an employer. Hoefert, 438 F. Supp. 3d at 735 n.7 8 (citing Alabama Power Co. v. Davis, 431 U.S. 581, 592 (1977)). In that context, if 9 the “true nature” of the benefit is a future-oriented longevity benefit, it is seniority- 10 based. Id. For example, a pension plan that is tied to an employee’s longevity 11 with a company can be viewed as “an exchange of financial security for an 12 employee’s long-term commitment to an employer.” Id. If it is a backward- 13 looking compensation for work already performed, like vacation accrual, it is not 14 seniority-based because those benefits “do not incentivize longevity of 15 employment, but rather compensate for . . . the effort an employee has expended in 16 the past.” Id.; see also Huhmann v. Fed. Express Corp., 874 F.3d 1102, 1111 (9th 17 Cir. 2017) (finding a signing bonus for a new collective bargaining agreement was 18 a seniority-based benefit because the award amount was determined by an 19 employee’s longevity with the company). 20 Here, the parties dispute whether the assignment of Line Holder was a 1 seniority-based benefit. The Court finds the “true nature” analysis helpful, despite 2 its application under the USERRA predecessor. As previously discussed, 3 Defendant assigns pilot schedules using the monthly PBS scheduler. ECF Nos. 4 161 at 49, ¶ 91; 138-8 at 24. Several weeks prior to the issuance of schedules, 5 pilots submit their schedule preferences, including any known absences. ECF No. 6 161 at 29, ¶ 55. Pilots are then assigned to a Reserve or Line flying schedule based 7 on their availability to fly during a Bid Period, as indicated by their bidding 8 preferences, and their seniority with the company. Id. at 50, ¶ 92. Turboprop 9 pilots are assigned to Line Holder schedules if the PBS system can create a flight 10 schedule with at least 70 credit hours. Id. at 53, ¶ 96. If the PBS system cannot 11 create a schedule with at least 70 credit hours, a turboprop pilot is assigned to 12 Reserve flying. Id. A pilot’s seniority, calculated from the first calendar day a 13 pilot reports for initial ground school training, contributes to a pilot’s ability to bid 14 for certain schedules. Id. at 50, ¶ 92; ECF No. 150-9 at 3. 15 Based on the evidence, the true nature of an assignment to a Line Holder 16 schedule is based on a work requirement, not seniority. While a pilot’s seniority is 17 a contributing factor to the bidding process and subsequent assignment, there is no 18 evidence to suggest a particular schedule is awarded as a financial incentive in 19 exchange for a pilot’s long-term commitment to employment with Defendant. 20 Rather, the determinative factor is whether a pilot is able to meet the minimum 70 1 credit hour requirement for Line Holder status. Notably, a pilot’s schedule as 2 either a Reserve or Line Holder is not permanent but subject to adjustment for each 3 Bid Period based on the pilot’s availability, which supports a finding that the 4 schedules are based on a work requirement. See ECF No. 138-8 at 22–39. 5 Moreover, pilots can adjust their schedules once they are issued by adding or 6 dropping trips, as necessary, to meet the minimum requirement or to accommodate 7 a leave of absence. ECF No. 161 at 30, ¶ 57. For example, Plaintiff took military 8 leave in June, July, September, and October 2017. Id. at 58, ¶ 103. He was 9 assigned a Reserve schedule in July 2017 but was able to pick up additional flights 10 in the other months to achieve the minimum number of hours required for Line 11 Holder assignment. Id. Thus, the award of a Line or Reserve schedule is based on 12 the ability to complete the requisite amount of work, which supports the conclusion 13 that the award of a particular schedule is not a seniority-based right or benefit. See 14 id. at 53, ¶ 96. 15 Considering the factors set forth in the regulations also supports a finding 16 that the assignment of Line Holder is not a seniority-based benefit. Plaintiff claims 17 the first factor is satisfied because he does not seek compensation for hours 18 worked, but rather the “rights and benefits” to which he is entitled, specifically the 19 higher in-practice pay guarantee of 74–80 hours and the more predictable schedule. 20 ECF No. 150 at 42. However, as with the assignment of Line Holder itself, there is 1 no evidence to suggest the Line Holder minimum pay guarantee, whether 70 hours 2 or 74–80 hours, and the more predictable schedule are awarded based on a pilot’s 3 longevity with the company. Rather, these “rights and benefits” are merely 4 characteristics of the Line Holder schedule. Moreover, there is evidence to suggest 5 a pilot’s assignment to a particular schedule may also be more subjective rather 6 than an objective award based on length of service. See ECF No. 161 at 51–52, ¶ 7 94. 8 As to the second factor, Plaintiff does not specifically argue, or offer any 9 evidence, that he was “reasonably certain” to achieve Line status had he not taken 10 military leave. Rather, Plaintiff argues he was required to work on his days off or 11 to take longer trips in order “to maintain my monthly minimum pay guarantee for 12 Regular Line Holders.” ECF Nos. 150 at 43; 73-22 at 3, ¶ 6. First, Plaintiff’s 13 argument implies he is entitled to the minimum pay for Line Holders, which 14 mischaracterizes any minimum pay guarantee outlined in the CBA. The CBA 15 provides that a turboprop Line pilot who is available to fly for an entire Bid Period 16 will be guaranteed a minimum 70 credit hour pay, while a turboprop Reserve pilot 17 who is available to fly for an entire Bid Period will be guaranteed a minimum 73 18 credit hour pay. ECF No. 138-8 at 12. A pilot is entitled to the Line Holder 19 minimum pay guarantee if a pilot is assigned to that flight schedule; a pilot is not 20 otherwise guaranteed, much less entitled to, the Line Holder minimum pay 1 guarantee. ECF No. 161 at 53, ¶ 96. Plaintiff’s argument regarding the higher in2 practice pay guarantee of 74–80 hours is not relevant to the inquiry; if Plaintiff 3 cannot achieve the 70-hour minimum for Line Holder, he is not entitled to the Line 4 Holder minimum, regardless of the in-practice amount. 5 Second, even if Plaintiff had to fly on his days off to make up for lost hours, 6 the Virtual Credit policy allowed Plaintiff to average fewer hours per day to make 7 up those losses. ECF No. 136 at 38–39. Additionally, the Virtual Credit policy did 8 not deny Plaintiff those benefits because Plaintiff did, in fact, receive Line Holder 9 status for three out of the four months when he took military leave by making up 10 the lost hours. ECF No. 161 at 58, ¶ 103. Thus, it is difficult to see how Plaintiff 11 was harmed by the application of the Virtual Credit policy. 12 Regarding the third factor, Plaintiff claims Defendant withholds the rights 13 and benefits (i.e., the Line Holder minimum pay-guarantee and predictable 14 schedule) from pilots placed on Reserve status. ECF No. 150 at 42. Plaintiff’s 15 contention is not supported by the evidence. Defendant does not “withhold” the 16 Line Holder minimum pay guarantee or more predictable schedules from Reserve 17 Status pilots; again, pay and flight days or routes are simply characteristics of a 18 particular schedule assignment. Schedules are primarily allotted based on a pilot’s 19 availability to perform work within a Bid Period, not a pilot’s length of service 20 with Defendant. 1 Finally, the Court is unpersuaded by Plaintiff’s letter from the Department of 2 Labor (“DOL”) concluding that Defendant’s Virtual Credit policy violated 3 USERRA, and that Plaintiff was entitled “to damages at his premium rate.” ECF 4 Nos. 150 at 43–44; 73-25 at 3. The investigator’s legal conclusions are not 5 supported by the evidence nor are they supported by the purpose of USERRA. See [6] 20 C.F.R. §§ 1002.7 (a) (“USERRA establishes a floor, not a ceiling, for the 7 employment and reemployment rights and benefits of those it protects.”); 8 1002.7(c) (“. . . USERRA does not require an employer to pay an employee for 9 time away from work performing service . . .”). Moreover, the DOL does not have 10 authority to enforce compliance with USERRA. 20 C.F.R. § 1002.290 . Rather, if 11 a complainant’s dispute with his or her employer cannot be resolved by the DOL 12 after it concludes its investigation, the complainant may then initiate his or her own 13 civil action in district court. 38 U.S.C. § 4323 (a)(3); see also Int'l Longshore & 14 Warehouse Union v. Solis, No. C 11-1939 SI, 2011 WL 3667474 , at *1 (N.D. Cal. 15 Aug. 22, 2011). 16 The “notes and conclusions of a single USDOL investigator” contained in an 17 investigative letter do not rise to the level of an opinion letter or policy statement 18 issued by the agency. Koellhoffer v. Plotke-Giordani, 858 F. Supp. 2d 1181 , 1191 19 (D. Colo. 2012). Therefore, Plaintiff’s DOL letter is not entitled to any deference. 20 The investigation letter outlines the relief to which the DOL believed Plaintiff was 1 entitled, including a recalculation of Plaintiff’s military leave of absence during 2 June and July 2017 at 3.0 credits per day or a 4.2 daily minimum but not less than 3 the value of trips dropped for those months, and $3,190.14 in pay differential at 4 150% “as if he had picked the time up as overtime or ‘premium pay’.” ECF No. 5 73-25 at 3. This is precisely the type of compensation and differential pay the 6 DOL expressly does not require employers to provide. See 70 Fed. Reg. 75246 -01, 7 75,292 (Dec. 19, 2005) (to be codified at 20 C.F.R. pt. 1002) (“employees absent 8 from employment for military service are not required to be compensated by their 9 civilian employer during that service”); id. at 75,249 (“The term ‘differential pay’ 10 refers to payments by employers to their employees absent to perform military 11 service, and this pay is neither required by nor addressed in USERRA.”). 12 Granting Plaintiff an increased recalculation and “premium pay” would 13 effectively allow Plaintiff to earn double income for his military service from both 14 the United States military and Defendant. USERRA requires only equal, but not 15 preferential treatment of employees who take military leave. Crews v. City of Mt. 16 Vernon, 567 F.3d 860, 865 (7th Cir. 2009). Thus, Plaintiff is not entitled to 17 compensation from Defendant beyond what is already provided by the Virtual 18 Credit policy. 19 Based on the foregoing, the Court finds there are no genuine issues of 20 material facts as to whether the assignment of Line Holder status is a seniority1 based right or benefit. No reasonable fact finder could conclude the assignment of 2 a pilot’s schedule, based primarily on availability to fly in a Bid Period, was 3 anything other than a bona fide work requirement. Therefore, Defendants are 4 entitled to summary judgment as to Count II. 5 IV. Liquidated Damages 6 Defendants seek summary judgment on Plaintiff’s claim for liquidated 7 damages. ECF No. 136 at 40. Plaintiff contends there is sufficient evidence to 8 support a finding that Defendants willfully violated USERRA. ECF No. 150 at 44. 9 A court may require an employer to pay liquidated damages if the court determines 10 the employer willfully failed to comply with the USERRA provisions. 38 U.S.C. § 11 4323(d)(1)(C). Having determined Defendants did not violate the USERRA 12 provisions at issue, Plaintiff’s arguments for liquidated damages are moot. 13 Defendants are entitled to summary judgment on Plaintiff’s claim for liquidated 14 damages. 15 ACCORDINGLY, IT IS HEREBY ORDERED: 16 1. Defendant’s Motion for Summary Judgment (ECF No. 136) is 17 GRANTED. 18 2. The parties remaining motions are DENIED as moot; the trial and all 19 other hearings and deadlines are VACATED as moot. [20] 1 The District Court Executive is directed to enter this Order, enter Judgment 2|| for Defendants, furnish copies to counsel, and CLOSE the file. 3 DATED May 24, 2021. 5 ‘THOMAS CK <=> United States District Judge [20] ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY