Moss v. United Airlines, Inc. et alMEMORANDUMN.D. Ill.July 29, 2019IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MICHAEL MOSS, individually and on behalf of all others similarly situated, Plaintiff, v. UNITED AIRLINES, INC.; UNITED CONTINENTAL HOLDINGS, INC.; UNITED AIR LINES, INC.; and CONTINENTAL AIRLINES, INC. Defendants. Case No. 1:16-cv-08496 Honorable Thomas M. Durkin MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Case: 1:16-cv-08496 Document #: 93 Filed: 07/29/19 Page 1 of 21 PageID #:613 TABLE OF CONTENTS Page i PRELIMINARY STATEMENT ............................................................................................. 1 STATEMENT OF FACTS ..................................................................................................... 3 A. The Parties ........................................................................................... 3 B. Sick and Vacation Time Accrual for United P ilots ................................. 3 C. Letter of Agreement 38 (LOA 38) ......................................................... 4 ARGUMENT ......................................................................................................................... 5 I. COUNTS I AND II, FOR SICK TIME AND VACATION TIME ACCRUAL, SHOULD BE DISMISSED .......................................................... 5 A. Vacation And Sick Time Accrual Are Non-Seniority Based Benefits And Thus Are Not Covered By USERRA Section 4316(a)..................................................................................... 7 B. Section 4316(b)(1) Does Not Require United To Provide Sick And Vacation Accrual Benefits For Pilots On Military Leave For More Than 90 Days, Because United Does Not Generally Provide Such Accrual Benefits To Pilots On Comparable Leaves Of Absence. ............ 8 1. Jury Duty .................................................................................. 9 2. Association Leaves of Absence (ALAs) ....................................10 3. Sick Leave and Vacation...........................................................12 C. No Prior Accrual Policy For United Pilots Provides Support For Counts I and II .....................................................................................13 II. COUNT III, FOR A PENSION PAYMENT UNDER LOA 38, SHOULD BE DISMISSED .............................................................................................14 CONCLUSION .....................................................................................................................15 Case: 1:16-cv-08496 Document #: 93 Filed: 07/29/19 Page 2 of 21 PageID #:613 TABLE OF AUTHORITIES Page(s) ii Cases Aiello v. Detroit Free Press, Inc., 570 F.2d 145 (6th Cir. 1978) .............................................................................................7, 8 Alabama Pwr. Co. v. Davis, 431 U.S. 581 (1977)............................................................................................................. 6 Brown v. Ill. Cent. R.R. Co., 254 F.3d 654 (7th Cir. 2001) ...............................................................................................13 Carder v. Continental Airlines, Inc., 2014 WL 1356094 (S.D. Tex. Apr. 7, 2014), aff'd, 595 F. App'x 293 (5th Cir. 2014).............14 Coffy v. Republic Steel Corp., 447 U.S. 191 (1980)..........................................................................................................6, 8 Crews v. City of Mt. Vernon, 567 F.3d 860 (7th Cir. 2009) ........................................................................................ passim DeLee v. City of Plymouth, 773 F.3d 172 (7th Cir. 2014) ................................................................................................ 6 Dunderdale v. United Airlines, Inc., 807 F.3d 849 (7th Cir 2015) ................................................................................................. 5 Foster v. Dravo, 420 U.S. 92 (1975)............................................................................................................... 7 Gross v. PPG Indus., Inc., 636 F.3d 884 (7th Cir. 2011) ................................................................................................ 9 Harris N.A. v. Hershey, 711 F.3d 794 (7th Cir. 2013) ................................................................................................ 5 Huntsman v. Southwest Airlines, Co., 3:17-cv-03972-JD, ECF 37 (N.D. Cal. Sept. 13, 2018) .......................................................... 2 LiPani v. Bohack Corp., 546 F.2d 487 (2d Cir. 1976) ................................................................................................. 8 Miller v. Southwest Airlines, 926 F.3d 898 (7th Cir. 2019) ...............................................................................................12 Said v. Nat’l R.R. Passenger Corp., 2019 WL 3238568 (D.D.C. July 18, 2019)...........................................................................12 Case: 1:16-cv-08496 Document #: 93 Filed: 07/29/19 Page 3 of 21 PageID #:613 TABLE OF AUTHORITIES (continued) Page(s) iii Tice v. Am. Airlines, Inc., 288 F.3d 313 (7th Cir. 2002) ...............................................................................................12 Tully v. Dep't of Justice, 481 F.3d 1367 (Fed. Cir. 2007) ............................................................................................ 9 White v. United Airlines, Inc., 1:19-cv-00114, ECF No. 44 (N.D. Ill. July 10, 2019) ................................................. 3, 10, 15 Woodall v. American Airlines, Inc., 3:06-cv-00072-M, ECF 58 (N.D. Tex. July 17, 2008)....................................................... 2, 14 Statutes 38 U.S.C. § 4316(a) ................................................................................................................. 6 38 U.S.C. § 4316(b)(1) ............................................................................................... 6, 8, 9, 12 Other Authorities Office of Labor-Management Standards (“OLMS”), OLMS Interpretive Manual, Labor- Management Reporting and Disclosure Act of 1959, 248.005...............................................11 Rules Fed. R. Civ. P. 56(a) ................................................................................................................ 5 Regulations 20 C.F.R. § 1002.15.......................................................................................................... 10, 13 20 C.F.R. § 1002.150(c)........................................................................................................... 7 20 C.F.R. § 1002.2 .................................................................................................................. 6 20 C.F.R. § 1002.212............................................................................................................... 6 70 Fed. Reg. 75246-01............................................................................................................. 7 Case: 1:16-cv-08496 Document #: 93 Filed: 07/29/19 Page 4 of 21 PageID #:613 1 PRELIMINARY STATEMENT United Airlines, Inc.’s (“United”) commitment to supporting personnel in the uniformed services is reflected in a set of robust military leave policies and protections for pilots like Plaintiff Michael Moss. Yet, in the present case, a class of United pilots (“Plaintiffs”) allege that United violated the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301 et seq. (“USERRA”) with respect to: (1) sick and vacation time accrual for pilots on long-term military leaves of absence; and (2) a single pension contribution triggered by a one-time payment to approximately 1600 pilots in April 2016. The Court has certified three sub-classes in connection with these claims: Sick Time (Count I); Vacation Time (Count II); and Pension Pay (Count III). All three claims fail as a matter of law. Counts I and II should be dismissed in light of the generous sick and vacation time accruals which United already provides to pilots on military leaves of absence. Although pilots generally must satisfy minimum work and availability requirements in each bid period (a period of approximately one calendar month) in order to accrue sick and vacation time for that bid period, United provides a grace period to pilots on military leave; thus, for any military leave of 90 days or less, pilots remain in “active” employment status and therefore receive full sick/vacation accruals during their absence. After 90 days on military leave, the pilot is simply subject to the generally-applicable sick and vacation accrual rules set forth in the collective bargaining agreement (“CBA”) between United and the Air Line Pilots Association, International (“Association”). United’s 90-day grace period for sick and vacation accrual stands out for the strong protections it provides to pilots on military leave. By contrast, in 2008, in urging for approval of a settlement of a class-action lawsuit brought by the Department of Justice (“DOJ”) alleging that the sick and vacation accrual policies at another airline (American Airlines) violated USERRA, Case: 1:16-cv-08496 Document #: 93 Filed: 07/29/19 Page 5 of 21 PageID #:613 2 the DOJ argued that a 16-day grace period provided “substantial benefits” to the class and was “fair because it captures the vast majority of military leaves taken by American’s pilots.” Woodall v. American Airlines, Inc., 3:06-cv-00072-M, ECF 58 at 4, 17 (N.D. Tex. July 17, 2008). Significantly, the DOJ opposed settlement objectors’ request for an 89-day grace period, arguing that “to extend vacation and sick leave accrual to military leaves of up to 89 days in length could be viewed as preferential treatment rather than equal treatment.” (Id. at 21 [emphasis added].) Additionally, in a pending proposed settlement of pilot sick accrual claims at Southwest Airlines, the parties there have agreed to a 14-day grace period. See Huntsman v. Southwest Airlines, Co., 3:17-cv-03972-JD, ECF 37 (N.D. Cal. Sept. 13, 2018). United’s 90-day grace period is thus an outlier in the airline industry ‒ to the benefit of the pilots. Not only is United’s 90-day grace period favorable to its pilots relative to pilots at other airlines, the policy treats pilots in military service favorably compared to United pilots on some of the other types of leave and what plaintiffs seek in this lawsuit would constitute even more preferential treatment. United has never “generally provided” other pilots on leaves of absence over 90 days with sick or vacation accruals ‒ much less any absence that is “comparable” to such a long-term military leave, as would be required to establish a claim under the relevant provision of USERRA, 38 U.S.C. § 4316(b)(1). See Crews v. City of Mt. Vernon, 567 F.3d 860, 864-65 (7th Cir. 2009). Accordingly, Counts I and II should be dismissed. Count III, which challenges the so-called “pension portion” of a one-time payment made in April 2016 to approximately 1600 United pilots ‒ a payment wholly unrelated to pilots’ military status ‒ also fails. The payment at issue was provided to a specific group of previously- furloughed pilots pursuant to CBA Letter of Agreement 38 (“LOA 38”) and was calculated by using those pilots’ pay hours during the period from December 2012 through February 2016. Case: 1:16-cv-08496 Document #: 93 Filed: 07/29/19 Page 6 of 21 PageID #:613 3 Plaintiffs do not challenge this underlying payment ‒ nor could they, as USERRA does not require employers to pay employee wages for time spent on military leave.1 Plaintiffs merely assert that United violated USERRA via the so-called “pension portion” of the LOA 38 payments. But the only “pension portion” of the payments was an automatic, 16% pension contribution that United uniformly pays to all pilots alongside any wage payment. That pension contribution formula does not distinguish between pilots based on whether or not they performed military service, and Count III should therefore be dismissed. STATEMENT OF FACTS A. The Parties United, a commercial air carrier, is a wholly-owned subsidiary of United Airlines Holdings, Inc. (which, until June 27, 2019, was known as United Continental Holdings, Inc.). (Defendants’ Statement of Undisputed Material Facts [“Defs. SMF”] at ¶ 1.)2 In its current incarnation, United was formed in connection with the October 2010 merger involving United Air Lines, Inc. and Continental Airlines, Inc. (“Continental”). (Id.) Plaintiffs are current or former United pilots and military service members. (Id. at ¶ 4.) Plaintiffs are represented for collective bargaining purposes by the Association. (Id. at ¶ 5.) B. Sick and Vacation Time Accrual for United Pilots Under the terms of the CBA, pilots who satisfy the specified minimum work and availability requirements in a bid period generally accrue sick and vacation time for that bid period. (Defs. SMF at ¶¶ 5, 10, 15.) The relevant CBA provisions are found in Section 11 1 This principle was recently reaffirmed by Judge Norgle in another case involving United pilots. See White v. United Airlines, Inc., 1:19-cv-00114, ECF No. 44 (N.D. Ill. July 10, 2019). 2 Because United Airlines Holdings, Inc./United Continental Holdings, Inc. is not and has never been Plaintiffs’ employer, (Defs. SMF at ¶ 2), summary judgment should be granted to it on all claims. United Air Lines, Inc. and Continental should be dismissed because they no longer exist. (See id. ¶ 1-2.) Case: 1:16-cv-08496 Document #: 93 Filed: 07/29/19 Page 7 of 21 PageID #:613 4 (Vacation) and Section 13 (Sick Leave). (Id. at ¶ 5.) As detailed in Section 12 of the CBA (Leaves of Absence), United pilots are permitted to take a variety of leaves of absence. (Id.) United provides pilots on military leave with a 90-day grace period such that these pilots remain on active status for 90 days, and therefore continue to accrue sick and vacation time, even though the pilots do not satisfy the generally-applicable minimum work and availability requirements. (Defs. SMF at ¶¶ 11, 16).) Only after this 90-day period ‒ that is, only if a pilot reaches the 91st day of a single military leave ‒ does the pilot become subject to the generally- applicable sick and vacation policies set forth in the CBA, including the minimum work and availability requirements for accrual. (Id.) Prior to January 2014, the sick and vacation time policies for United pilots on military leave varied, based on whether the pilot was covered by the legacy United or legacy Continental policies. (Defs. SMF at ¶ 32.) Under the legacy United policies, pilots accrued sick time during all periods of military leave and pilots were given one full bid period on military leave before there was any change to their employment status for purposes of vacation accrual. (Id. at ¶ 33- 37.) Under the legacy Continental policies, vacation time was subject to the same 90-day grace period that currently applies to all United pilots and sick time accrued for pilots on military leave unless their absence exceeded a full bid period. (Id. at ¶ 38-42.) C. Letter of Agreement 38 (LOA 38) LOA 38, executed by United and the Association in January 2016, added a number of provisions to the pilot CBA. (Defs. SMF at ¶ 28.) LOA 38.C (“Furlough Credit”) adjusted the length of service (also known as a “longevity date”) for a group of United pilots who had: (1) previously been furloughed; and (2) received a limited adjustment to their longevity date as part of a separate LOA executed in 2012. (Id.) LOA 38 provided these pilots with a longevity date which gave them full credit for their time spent on furlough. (Id.) Case: 1:16-cv-08496 Document #: 93 Filed: 07/29/19 Page 8 of 21 PageID #:613 5 Additionally, LOA 38 provided a one-time payment to these approximately 1600 pilots on April 1, 2016, to reflect the adjustment to their longevity dates. (Defs. SMF at ¶ 29.) That payment was calculated by subtracting the wages these pilots received for work performed between December 2012 and February 2016 from the (higher) wages they would have received based upon their newly-updated longevity dates. (Id. at ¶ 29.) Under the terms of the CBA, any wage payment is automatically accompanied by a 16% pension contribution. (Id. at ¶ 29.) Accordingly, any pilot who received a one-time payment under LOA 38 also received a corresponding 16% pension contribution. (Id. at ¶ 30.) This 16% contribution was the only “pension portion” of the LOA 38 payment process. (Id.) LOA 38.C “was not specific to military pilots” and, indeed, had nothing to do with military service. (Defs. SMF at ¶ 31.) Pilots who were eligible for a longevity-date adjustment and one-time payment under LOA 38 received such an adjustment and payment ‒ without regard to whether they were serving or had served in the uniformed services. (Id.) ARGUMENT Summary judgment should be granted if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Dunderdale v. United Airlines, Inc., 807 F.3d 849, 853 (7th Cir 2015). To defeat summary judgment, the opposing party must come forward with “specific facts showing that there is a genuine issue for trial.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013). I. COUNTS I AND II, FOR SICK TIME AND VACATION TIME ACCRUAL, SHOULD BE DISMISSED Count I alleges that United’s 90-day grace period for sick time accrual violates USERRA Section 4316(a) or, in the alternative, Section 4316(b). (First Amended Class Action Complaint (“FAC”) (ECF 76) ¶¶ 72-80.) Count II makes the same allegations with respect to United’s 90- Case: 1:16-cv-08496 Document #: 93 Filed: 07/29/19 Page 9 of 21 PageID #:613 6 day grace period for vacation time accrual. (Id. ¶¶ 81-88.) USERRA Section 4316 distinguishes between seniority-based and non-seniority based benefits for “persons absent from employment for service in a uniformed service.” USERRA Section 4316(a) provides that, when employees return from a military service absence, they are entitled to “all of the seniority and seniority-based benefits that they would have attained had they remained continuously employed.” DeLee v. City of Plymouth, 773 F.3d 172, 175 (7th Cir. 2014) (citing 38 U.S.C. § 4316(a)). USERRA § 4316(b), on the other hand, applies to non- seniority based benefits, and provides that employees on a military leave of absence are “deemed to be on furlough or leave of absence while performing such [military] service” and are “entitled to such other rights and benefits not determined by seniority as are generally provided by the employer to similarly situated employees who take a leave of absence comparable to the military leave.” Crews, 567 F.3d at 864-65 (quoting 38 U.S.C. § 4316(b)(1)) (emphasis added; punctuation omitted). Under USERRA Section 4316(a), a benefit is seniority-based if (1) there is “a reasonable certainty that the benefit would have accrued if the employee had not gone into the military service,” and (2) “the nature of the benefit must be ‘a reward for length of service,’ rather than a form of ‘short-term compensation for services rendered.’” Coffy v. Republic Steel Corp., 447 U.S. 191, 197-98 (1980) (quoting Alabama Pwr. Co. v. Davis, 431 U.S. 581, 589 (1977)); see also 20 C.F.R. § 1002.212 (describing factors used to determine whether benefits are seniority-based benefits under USERRA).3 As demonstrated below, sick and vacation accrual for United pilots are non-seniority 3 It is appropriate to rely on cases arising under USERRA’s predecessor statutes, because “[i]n enacting USERRA, Congress emphasized USERRA’s continuity with” those statutes. See 20 C.F.R. § 1002.2. Case: 1:16-cv-08496 Document #: 93 Filed: 07/29/19 Page 10 of 21 PageID #:613 7 based benefits under USERRA. Accordingly, Counts I and II cannot be maintained under Section 4316(a), which only applies to seniority-based benefits. Counts I and II cannot be maintained under Section 4316(b)(1), because the non-seniority based benefit that Plaintiffs seek here – a grace period greater than 90 days for sick and vacation accrual – is not “generally provided by [United] to similarly situated employees who take a leave of absence comparable to the military leave.” See Crews, 567 F.3d at 864-65. A. Vacation And Sick Time Accrual Are Non-Seniority Based Benefits And Thus Are Not Covered By USERRA Section 4316(a). It is black-letter law under USERRA that vacation time accrual is a non-seniority based benefit. In USERRA’s implementing regulations, the United States Department of Labor (“DOL”) expressly stated: “As a general matter, accrual of vacation leave is considered to be a nonseniority benefit that must be provided by an employer to an employee on a military leave of absence only if the employer provides that benefit to similarly situated employees on comparable leaves of absence.” 20 C.F.R. § 1002.150(c). Indeed, because “the Supreme Court has held that vacation accrual, rather than being a perquisite of seniority, is a form of short-term compensation for work performed,” the DOL “has long viewed the accrual of vacation leave as a non-seniority based benefit.” 70 Fed. Reg. 75246-01 at 75263 (citing Foster v. Dravo, 420 U.S. 92 (1975)). Additionally, under Section 11 of the CBA, United pilots on active status accrue vacation time in each bid period; but, if a pilot fails to satisfy the applicable minimum work requirements, he/she loses the vacation accrual for that bid period. (Defs. SMF at ¶¶ 9-10.) This constitutes “a substantial work requirement since it correlates the vacation benefits to the amount of work actually performed by the employee,” as opposed to a benefit that would accrue based on the mere passage of time. See Aiello v. Detroit Free Press, Inc., 570 F.2d 145, 149 (6th Cir. 1978). Accordingly, vacation accrual for United pilots is not a seniority-based benefit and therefore is Case: 1:16-cv-08496 Document #: 93 Filed: 07/29/19 Page 11 of 21 PageID #:613 8 not covered by USERRA Section 4316(a). The same conclusion follows naturally for sick time accrual. As with vacation accrual, sick time accrual for United pilots is “conditioned upon a work requirement demanding actual performance on the job,” Aiello, 570 F.2d at 150, because United pilots only accrue sick time for months of active service as a United pilot. (See Defs. SMF at ¶ 15.) Accordingly, sick time also is “a form of short-term compensation for services rendered,” Coffy, 447 U.S. at 200, and is therefore a non-seniority based benefit. See, e.g., LiPani v. Bohack Corp., 546 F.2d 487, 490 (2d Cir. 1976) (in case arising under predecessor to USERRA, finding “sick leave benefits under the [CBA] are a form of deferred compensation of the same general nature as vacation pay.”) B. Section 4316(b)(1) Does Not Require United To Provide Sick And Vacation Accrual Benefits For Pilots On Military Leave For More Than 90 Days, Because United Does Not Generally Provide Such Accrual Benefits To Pilots On Comparable Leaves Of Absence. According to Plaintiffs, United is obligated by USERRA Section 4316(b)(1) to provide sick and vacation accruals for an unlimited period of military leave because United allegedly provides such accruals to pilots on jury duty, Association Leave of Absence (“ALA”), sick leave, and vacation. (See FAC ¶¶ 72-88.) Plaintiffs are wrong. Section 4316(b)(1) only requires United to provide pilots on military leaves with “such other rights and benefits not determined by seniority as are generally provided by the employer to similarly situated employees who take a leave of absence comparable to the military leave.” Crews, 567 F.3d at 864-65 (quoting 38 U.S.C. § 4316(b)(1)) (emphasis added; punctuation omitted). The benefit Plaintiffs seek – a grace period longer than 90 days for sick and vacation accruals – is not “generally provided” by United for any “leave of absence comparable to [pilots’] military leave.” None of the four non- Case: 1:16-cv-08496 Document #: 93 Filed: 07/29/19 Page 12 of 21 PageID #:613 9 military absences cited by Plaintiffs supports a contrary conclusion.4 1. Jury Duty Plaintiffs allege that pilots on jury duty accrue sick and vacation time. (FAC at ¶ 37.) That is true, but since 2005 (i.e., the start-date for the certified Sick Time and Vacation Time sub-classes), United has never once had a pilot who received sick and vacation accrual for a period of jury duty longer than 90 days. (Defs. SMF at ¶ 20.) Indeed, not a single pilot since 2005 has had a jury duty last more than 30 days. (Id.) Therefore, based on United’s jury duty accrual policy, Section 4316(b)(1) cannot require United to provide sick and vacation time accrual beyond the current 90-day grace period for military leaves – United has never “provided,” much less “generally provided,” such a benefit to pilots on jury duty. See 38 U.S.C. § 4316(b)(1). Moreover, the fact that jury duty has not generally (indeed, has never) resulted in an absence greater than 90 days for United pilots also means that jury duty is not “comparable” to the long-term military leaves at issue in this case. See Crews, 567 F.3d at 864-65; Tully v. Dep't of Justice, 481 F.3d 1367, 1369-71 (Fed. Cir. 2007) (employee was not “denied a benefit generally available to employees,” even though the benefit (holiday pay) was provided to employees on jury duty, because of “the difference between the typically brief duration of an absence for court duty and [plaintiff’s] two and a half year absence for active service in the Army,” which “reflects a significant difference in the character of the two forms of leave.”); 4 If Counts I and II are analyzed under USERRA’s general anti-discrimination provision (see FAC ¶¶ 19, 25), 38 U.S.C. § 4311, those claims are plainly insufficient as a matter of law given that United pilots on military leave of absence are provided a 90-day grace period in which they continue to accrue sick and vacation time – a substantial pro-military accommodation relative to the sick and vacation policies that generally apply to United pilots. See Gross v. PPG Indus., Inc., 636 F.3d 884, 890 (7th Cir. 2011) (Section 4311’s anti-discrimination purpose serves to “protect military employees from discrimination, not provide them with preferential treatment.”). Case: 1:16-cv-08496 Document #: 93 Filed: 07/29/19 Page 13 of 21 PageID #:613 10 20 C.F.R. § 1002.15 (“[T]he duration of the leave may be the most significant factor to compare. For instance, a two-day funeral leave will not be ‘comparable’ to an extended leave for service in the uniformed service.”). Jury duty is also not “comparable” to military leave in light of the mandatory and universal nature of jury duty. As Judge Norgle recently held in granting United’s motion to dismiss another USERRA lawsuit under Section 4316: “[T]he Court disagrees with the contention that jury duty is comparable in nature—in the way that Congress intended—to reservist duties. Although both may be sporadic and uncontrollable in timing, all citizens (including those in reserve military roles) are subject to jury duty simply by nature of living in America, whereas military duties—which no doubt are honorable and likewise essential to our society—are voluntarily joined (in present times).” White, n.1 supra, ECF No. 44 at 4. 2. Association Leaves of Absence (ALAs) Plaintiffs allege that United pilots on “association leaves of absence (ALAs)” accrue sick and vacation time. (FAC ¶ 37). This is true, but with respect to one of the qualifying circumstances for an ALA,5 not one United pilot has ever received an ALA for this purpose. (Defs. SMF at ¶ 22.) The other qualifying circumstance, i.e., “to accept a full-time elected or appointed position with or for the Association,” is a form of leave that is not “comparable” to a military leave of absence, and, in any event, does not establish that United generally provides the sick and vacation time Plaintiffs seek. (See Defs. SMF at ¶¶ 21-27.) Only a small group of pilots, who work full-time in Association leadership positions or in 5 When the leave of absence is needed to allow a pilot “to staff an executive position with any agency or branch of the Federal Government directly connected with aviation; e.g., FAA, DOT, or Congressional Staff, or to serve as an elected member of the United States Congress (either as a Senator or Representative).” (Defs. SMF at ¶ 21.) Case: 1:16-cv-08496 Document #: 93 Filed: 07/29/19 Page 14 of 21 PageID #:613 11 negotiating or administering the CBA, go out on an ALA. (Defs. SMF at ¶¶ 23-24.) The benefits received by pilots on this form of ALA, especially this form of ALA in excess of 90 days, are thus not “generally” provided to United pilots, as required to establish a claim under Section 4316(b)(1). Moreover, not only are sick and vacation time accruals not “generally” provided to pilots on this form of ALA, the benefits are not even provided by United. Under the CBA, the Association is required to reimburse United for “all benefits and accruals” received by pilots on ALA. (Defs. SMF at ¶¶ 25-26.) Thus, the sick and vacation time accruals for pilots on ALAs are “provided by” the Association – United provides no such benefits to pilots on ALAs. Moreover, ALAs are not “comparable” to military leave because pilots on ALAs are performing duties related to their employment with United. Specifically, these pilots are performing full-time responsibilities directly tied to United’s relationship with its pilots and the Association, including negotiating, administering and resolving disputes under the CBA. (Defs. SMF at ¶ 24.)6 It is a well-recognized principle in labor law that employee responsibilities of this sort, while directly performed for the union, also provide substantial benefits to the employer. See, e.g., Office of Labor-Management Standards (“OLMS”), OLMS Interpretive Manual, Labor-Management Reporting and Disclosure Act of 1959, 248.005 (“[W]here a union officer [is] paid his regular wages [from his employer] while handling [contractual] grievances . . . the employee officer is being paid for work performed of value to the employer 6 For pilots who accept a position as a full-time local officer of the Association (i.e., an “MEC Officer”), the CBA provides that “[t]he Company shall not award vacation periods to MEC Officers during their term in office,” and that “at the end of his term in office, all vacation due to an MEC Officer in the current and prior vacation years shall be considered to have been awarded and taken.” (Defs. SMF at ¶ 27.) Any claim that Plaintiffs, while on military leave in excess of 90 days, must receive the benefits provided to pilots on an ALA would necessarily require that Plaintiffs be subject to this provision, which would eliminate their vacation accrual during periods of military leave. The fact that Plaintiffs do not request application of this vacation provision to military leaves demonstrates, at a minimum, that ALAs are not comparable to military leaves. Case: 1:16-cv-08496 Document #: 93 Filed: 07/29/19 Page 15 of 21 PageID #:613 12 who is interested in seeing to it that grievances are immediately adjusted.”). An employer receives no such benefit from an employee’s activities while on military leave, however laudable those activities may be. 3. Sick Leave and Vacation Plaintiffs also assert that Section 4316(b)(1) requires United to provide sick and vacation time accruals beyond the current 90-day grace period because pilots accrue sick and vacation time when they are out sick or on vacation. (See FAC ¶ 37.) This assertion is as circular as it sounds – and it is also without merit. Section 4316(b)(1) requires that employees on a military absence receive the non-seniority based benefits that are “generally provided” to employees on a comparable leave of absence or furlough. (Emphasis added.) Here, under Plaintiffs’ theory, paid sick and vacation time are non-seniority based benefits within the meaning of Section 4316(b)(1); paid sick and vacation time cannot simultaneously be a “leave of absence” under Section 4316(b)(1). Indeed, the CBA includes specific sections addressing vacation and sick benefits (Sections 11 and 13, respectively) and a separate section entitled “Leaves of Absence” (Section 12). (Defs. SMF at ¶ 5.) Among the items detailed in the Leaves of Absence section of the CBA are the benefits that accrue for particular leaves of absence. (Id.) Plainly, for United pilots, sick and vacation time are benefits; they are not “leaves of absence” which are “generally provided” by United “under a contract, agreement, policy, practice, or plan.” See 38 U.S.C. § 4316(b)(1). And Plaintiffs are not free to contend otherwise in this forum.7 7 “Arbitral boards established pursuant to the Railway Labor Act have exclusive jurisdiction to resolve disputes over the application of collective bargaining agreements in the railroad and airline industries.” Tice v. Am. Airlines, Inc., 288 F.3d 313, 314 (7th Cir. 2002); see also Miller v. Southwest Airlines, 926 F.3d 898 (7th Cir. 2019). Thus, in ruling on Defendants’ motion for summary judgment, the Court must disregard the fact that Plaintiffs disagree with United’s interpretation of the CBA ‒ i.e., that neither sick leave nor vacation is a “leave of absence” under the CBA. See, e.g., Said v. Nat’l R.R. Passenger Corp., 2019 WL 3238568, at *7-8 (D.D.C. July 18, 2019) (in statutory discrimination case, court lacks jurisdiction to consider evidence that “would necessarily require a jury to interpret [a] CBA Case: 1:16-cv-08496 Document #: 93 Filed: 07/29/19 Page 16 of 21 PageID #:613 13 In any event, sick and vacation time are not “comparable” to military leaves of absence. Sick and vacation time provide pilots with a respite from work or time to recover from an illness, whereas military leave allows pilots to perform work in the military and fulfill their service obligations. (Defs. SMF at ¶¶ 7, 9, 14.) Moreover, pilots can use sick or vacation time only to the extent it has been accrued (i.e., earned), whereas military leaves of absence are uncapped as to duration and available immediately upon employment. (Id.) Finally, pilots’ sick and vacation absences are generally much shorter, 4.4 and 8.7 days, respectively, than the average military absence, 27.4 days, id. at ¶¶ 8, 12, 17, and are thus distinguishable on the basis of duration. See 20 C.F.R. § 1002.15. Simply put, sick- and vacation-related absences are not “comparable leave[s] of absence” under Section 4316(b)(1). See also Crews, 567 F.3d at 864-65. C. No Prior Accrual Policy For United Pilots Provides Support For Counts I and II Although Counts I and II do not address any specific sick or vacation time policy prior to 2014, when the 90-day grace period became applicable to all United pilots, Plaintiffs assert, in conclusory fashion, that United’s sick and vacation accrual policies have violated USERRA at various times dating from 2005. (See, e.g., FAC ¶ 37.) Plaintiffs’ assertion is meritless. First, the legacy United sick policy and the legacy Continental vacation policy provided benefits to military pilots equal to or greater than United’s current 90-day grace period ‒ a policy which is clearly lawful. (See Sections I.A and I.B, supra.) The legacy United policy provided sick time accrual for the entire duration of all military leaves of absence and Continental provided the same 90-day grace period for accrual of vacation time that currently applies to United pilots. (Defs. SMF at ¶¶ 35, 42.) Rule . . . to determine whether the Rule applied to the plaintiff’s situation.”) (citing Brown v. Ill. Cent. R.R. Co., 254 F.3d 654, 664 (7th Cir. 2001). Case: 1:16-cv-08496 Document #: 93 Filed: 07/29/19 Page 17 of 21 PageID #:613 14 Second, the legacy United vacation policy and legacy Continental sick policy provided pilots on military leave with accrual benefits equal to or greater than the benefits which were provided to non-military pilots. Prior to 2014, legacy United pilots accrued vacation time during the first full bid period of a military leave of absence. (Defs. SMF at ¶ 37.) That is, United provided what was essentially a 30-day grace period for military leaves of absence ‒ although this grace period was shorter than the current 90-day period, it was nonetheless a significant grace period for pilots on military leaves. Cf., Woodall, ECF 58 at 17 (16-day grace period was “fair because it captures the vast majority of military leaves taken by American’s pilots.”) Prior to 2014, the Continental CBA provided that pilots “will accrue Sick Leave at the rate of five (5) hours each bid period”; only if a military leave covered an entire bid period or more would a Continental pilot stop accruing sick time. (Id. at ¶ 40.) Although the Continental CBA allowed pilots to accrue sick time while on an ALA, paid sick leave or vacation, Continental did not “generally provide” to pilots on any “comparable leave of absence” sick time accruals greater than what was provided to pilots on military leave. See Section I.B, supra.8 II. COUNT III, FOR A PENSION PAYMENT UNDER LOA 38, SHOULD BE DISMISSED Count III alleges that United violated USERRA by “underpaying the pension portion” of a one-time payment to a group of pilots under LOA 38 ‒ a payment that was wholly unrelated to military service. (See FAC ¶¶ 89-93.) As a factual matter, Plaintiffs’ attempt to carve out a “pension portion” of this payment is unavailing. Under LOA 38, United calculated this one-time payment for a specific group of previously-furloughed pilots, based on the difference between 8 In 2012, a group of legacy Continental pilots, represented by the same counsel as Plaintiff Moss, filed suit alleging that Continental had violated USERRA, including with respect to sick and vacation time benefits. Continental prevailed on those claims in the district court and in the court of appeals. See Carder v. Continental Airlines, Inc., 2014 WL 1356094 (S.D. Tex. Apr. 7, 2014), aff'd, 595 F. App'x 293 (5th Cir. 2014). The result in Carder should produce the same result here. Case: 1:16-cv-08496 Document #: 93 Filed: 07/29/19 Page 18 of 21 PageID #:613 15 the pay rates these pilots received for work performed from December 2012 to February 2016 and the pay rates they would have received following the adjustment in their longevity dates pursuant to LOA 38. There was no “pension portion” of the LOA 38 payment. Rather, under the CBA, any wage payment automatically results in a corresponding 16% pension contribution and this was true for the LOA 38 payments as well. There was no variation in the pension- contribution formula for any pilots who received the payment ‒ let alone a variation based on whether the pilot was a military service member. Accordingly, Count III fails under USERRA’s anti-discrimination provision (Section 4311). Count III fares no better under Section 4318, which addresses the pension contributions required after a pilot’s return from military service. Plaintiffs were not denied any pension contribution at the time of reemployment, and Count III makes no allegation to the contrary. Plaintiffs’ real objection to the LOA 38 payment has nothing to do with the pension contribution; rather, Plaintiffs disagree with the underlying wage-payment formula reflected in LOA 38. But as Judge Norgle recently reaffirmed, USERRA does not require United to pay pilots’ wages for periods of military leave. See White, note 1 supra, ECF No. 44. Plaintiffs cannot circumvent this well-established rule by artfully pleading Count III as a claim for a pension contribution rather than for a wage payment. CONCLUSION Defendants’ motion for summary judgment should be granted in its entirety. Case: 1:16-cv-08496 Document #: 93 Filed: 07/29/19 Page 19 of 21 PageID #:613 16 Dated: July 29, 2019. Respectfully submitted, /s/ Chris A. Hollinger Chris A. Hollinger (pro hac vice) O’MELVENY & MYERS LLP Two Embarcadero Center San Francisco, California 94111 Telephone: (415) 984-8700 Facsimile: (415) 984-8701 chollinger@omm.com Aparna B. Joshi Tristan Morales (pro hac vice) O’MELVENY & MYERS LLP 1625 Eye Street, NW Washington, D.C. 20006 Telephone: (202) 383-5300 Facsimile: (202) 383-5414 ajoshi@omm.com tmorales@omm.com Larry S. Kaplan lkaplan@kmazuckert.com Marnie A. Holz mholz@kmazuckert.com KMA ZUCKERT LLC 200 W. Madison Street, 16th Fl. Chicago, IL 60606 Tel: (312) 345-3035 Fax: (312) 345-3119 Attorneys for Defendants Case: 1:16-cv-08496 Document #: 93 Filed: 07/29/19 Page 20 of 21 PageID #:613 17 CERTIFICATE OF SERVICE I HEREBY CERTIFY that, on July 29, 2019, I caused a true and correct copy of the foregoing Memorandum of Law in Support of Defendants’ Motion for Summary Judgment to be filed with the Clerk of the Court using the CM/ECF system. Respectfully submitted, /s/ Chris A. Hollinger Chris A. Hollinger (pro hac vice) O’MELVENY & MYERS LLP Two Embarcadero Center San Francisco, California 94111 Telephone: (415) 984-8700 Facsimile: (415) 984-8701 chollinger@omm.com Attorneys for Defendants Case: 1:16-cv-08496 Document #: 93 Filed: 07/29/19 Page 21 of 21 PageID #:613
