Huhmann v. Fed. Express Corp.

• Decision Date: 02 November 2017
• Docket Number: No. 15-56744.,15-56744.
• Citation: 874 F.3d 1102
• Parties: Dale HUHMANN, an individual, Plaintiff-Appellee, v. FEDERAL EXPRESS CORPORATION, dba FedEx Express, a Delaware corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

874 F.3d 1102

Dale HUHMANN, an individual, Plaintiff-Appellee,

v.FEDERAL EXPRESS CORPORATION, dba FedEx Express, a Delaware corporation, Defendant-Appellant.

No. 15-56744.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 6, 2017—Pasadena, California

Filed November 2, 2017

Jane M. Flynn (argued), Federal Express Corporation, Irvine, California, for Defendant-Appellant.

Brian J. Lawler (argued), Pilot Law P.C., San Diego, California, for Plaintiff-Appellee.

Before: Carlos T. Bea and Andrew D. Hurwitz, Circuit Judges, and J. Frederick Motz,^* District Judge.

OPINION

BEA, Circuit Judge:

We are called upon to decide to what benefits a returning service member is entitled when resuming a civilian career. The Uniformed Services Employment and Reemployment Rights Act (USERRA) guarantees that an individual who departs for military service shall not be denied any "benefit of employment" due to that service. 38 U.S.C. § 4311(a). Dale Huhmann argues that, when he returned from service in the United States Air Force, FedEx Express (FedEx) improperly paid him a $7,400 bonus instead of the $17,700 bonus he would have earned had he not served. For the reasons that follow, the district court's decision which awarded Huhmann the higher signing bonus, in addition to attorney's fees, is affirmed.

I.

Dale Huhmann was commissioned as an officer in the United States Air Force Reserve in 1985 and retired in 2006. Huhmann was hired by FedEx in 2001 to pilot a Boeing 727 aircraft, a "narrow body" aircraft for pay grade purposes. Pay grade at FedEx is in part determined by the aircraft the pilot flies and the role the pilot has in flying it. Huhmann was later selected by FedEx for training to be a first officer on a McDonnell Douglas MD-11 aircraft, a "wide-body" aircraft that would qualify him for a higher pay grade. That training was to begin on February 19, 2003. However, on February 7, 2003, Huhmann was mobilized for active Air Force duty. He was deployed overseas until August 31, 2006.

After completing his military service, Huhmann returned to active pay status at FedEx payroll on December 1, 2006. Upon his return, Huhmann was given the option to continue to work as a second officer on the narrow-body 727 aircraft (727-SO) or to receive training for one of ten other open positions. He chose to enter training to become a first officer on the wide-body MD-11 (MD-11-FO), as he had been selected by FedEx to do prior to his Air Force mobilization.

Huhmann's MD-11-FO training began on December 4, 2006, virtually immediately after his return to FedEx. Training consisted of ground school sessions on the MD-11 and its systems, training in flight simulators, and flying an MD-11 aircraft with a flight instructor. The final step was a validation flight or "check ride" during which an instructor carefully observed the candidate's performance flying the MD-11 before later approving or rejecting his certification. Some pilots who enter the MD-11-FO training program are unable to complete it. Huhmann did not fail any evaluation step during his training and was activated as an MD-11-FO on February 22, 2007.

Huhmann is a member of the bargaining unit represented by the Air Line Pilots Association (ALPA). On August 26, 2006, while Huhmann was still on air force active duty, FedEx issued a letter to ALPA (the Bonus Letter) that offered a signing bonus to FedEx crewmembers if the union ratified a proposed collective bargaining agreement (CBA) then being negotiated. This Bonus Letter explained that pilots employed by FedEx on the day the CBA was signed (including those on military leave) who had been on active pay status on FedEx's payroll during the entire "amendable period" (from June 1, 2004 until the day the CBA was signed, which occurred on October 30, 2006) would receive the full signing bonus applicable to their pay grade.

The Bonus Letter specified that military leave would be deemed equivalent to active pay status on FedEx's payroll during the amendable period for purposes of qualifying for the signing bonus. Pilots on military leave would receive their signing bonuses upon returning to employment with FedEx. The Bonus Letter also specified that a pilot's signing bonus pay grade would be determined by the highest crew status the pilot held during the amendable period. The signing bonus for a 727-SO was $7,400, while that for an MD-11-FO was $17,700.

Upon Huhmann's return to FedEx, he was paid $7,400 as a signing bonus. He then filed this suit against FedEx. The operative first amended complaint alleged that FedEx had violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) ( 38 U.S.C. §§ 4301 – 4335 ) when it failed to pay him the signing bonus owed to an MD-11-FO,¹ which Huhmann contended he would have been awarded had he not left for military duty. After a bench trial, the district court entered judgment for Huhmann.

An employee making a claim under § 4311(a)"first has the burden of showing, by a preponderance of the evidence, that his or her protected status was a substantial or motivating factor in the adverse employment action; the employer may then avoid liability only by showing, as an affirmative defense, that the employer would have taken the same action without regard to the employee's protected status." Wallace v. City of San Diego , 479 F.3d 616, 624 (9th Cir. 2007) (internal quotation marks and citation omitted). The district court found that Huhmann's military leave was a substantial factor in Huhmann's receipt of the smaller signing bonus, and determined that FedEx could not demonstrate that it would have denied Huhmann the higher signing bonus absent Huhmann's military leave.

In performing this analysis, the district court relied on two intersecting doctrines—the "escalator principle" and the "reasonable certainty test"—used to determine the status or position to which a returning service member is entitled. See 20 C.F.R. § 1002.2 ; Rivera-Melendez v. Pfizer Pharm., LLC , 730 F.3d 49, 54 (1st Cir. 2013). The "escalator principle" provides that a returning service member not be removed from the progress ("escalator") of his career trajectory, but rather return to a "position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service." 38 U.S.C. § 4313(a)(2)(A). The "reasonable certainty test" aids in determining the returning service member's position on the "escalator," inquiring into the position a returning service member would have been "reasonably certain" to have attained absent the military service. 20 C.F.R. § 1002.191.

Courts applying the "reasonable certainty test" use both a forward-looking and a backward-looking approach. First, the court determines whether it appears, as a matter of foresight, that individuals like a given claimant who successfully completed training would have obtained a certain position had employment not been interrupted by military service. The court next analyzes whether, as a matter of hindsight, a particular claimant either has, or would have, completed the necessary prerequisites for a position. See Tilton v. Mo. Pac. R.R. Co. , 376 U.S. 169, 181, 84 S.Ct. 595, 11 L.Ed.2d 590 (1964) ( "This requirement is met if, as a matter of foresight, it was reasonably certain that advancement would have occurred, and if, as a matter of hindsight, it did in fact occur."); see also Pomrening v. United Air Lines, Inc. , 448 F.2d 609, 613 (7th Cir. 1971) ("First, it must appear, as a matter of foresight, that pilot trainees who successfully completed United's training course were regularly advanced to flight officer status. Second, it must appear, as a matter of hindsight, that Pomrening would have probably completed his training in the normal course had it not been interrupted by his military service."). The reasonable certainty test applies to discretionary promotions. See 70 Fed. Reg. 75,246, 75,271 (Dec. 19, 2005), available at 2005 WL 3451172.

Together, the escalator and reasonable certainty principles guarantee that progress in the returning service member's overall career trajectory has not been set back by his service. Applying these principles, the district court found that Huhmann would have been entitled to the higher bonus. The court found that it was reasonably certain that Huhmann would have become an MD-11-FO pilot prior to October 30, 2006 (the date the CBA was signed) and therefore would have been owed the bonus accorded to that higher status. The court found that the "process to qualify as [an MD-11-FO] is not an easy one, requires passing difficult exams at each stage of training, and some trainee pilots fail, trainees are given multiple opportunities to pass, and each pilot who passes qualifies as [an MD-11-FO]." But, the court noted, Huhmann did, in fact, pass all of the required tests, completed his training in approximately three months, and became employed as an MD-11-FO. It therefore determined that Huhmann was owed the higher signing bonus, along with attorney's fees and litigation costs.

FedEx timely appealed.

II.

The district court's findings of fact after a bench trial are reviewed for clear error, and its conclusions of law are reviewed de novo. OneBeacon Ins. Co. v. Haas Indus., Inc. , 634 F.3d 1092, 1096 (9th Cir. 2011).

III.

FedEx makes four arguments on appeal. We address each in turn.

III.A

FedEx first argues that this case should have been decided by an arbitrator.

FedEx is an air carrier subject to the Railway Labor Act (RLA), which mandates arbitration of "minor disputes," including disputes over the meaning of language within a collective bargaining agreement. 45 U.S.C. § 153 ; see Wolfe v. BNSF Ry. Co. , 749 F.3d 859, 863 n.1 (9th Cir. 2014) ; Hawaiian Airlines, Inc. v. Norris , 512 U.S. 246, 253, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994). FedEx argues that because the Bonus Letter was treated as part of the CBA by FedEx and ALPA and...