Michael Moss v. UAL ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3246
MICHAEL MOSS, individually and on behalf of all others simi-
larly situated,
Plaintiff-Appellant,
v.
UNITED AIRLINES, INC., et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16-cv-08496 — Thomas M. Durkin, Judge.
____________________
ARGUED SEPTEMBER 13, 2021 — DECIDED DECEMBER 14, 2021
____________________
Before RIPPLE, ROVNER, and SCUDDER, Circuit Judges.
RIPPLE, Circuit Judge. Michael Moss brought this class ac-
tion against United Airlines (“United”) under the Uniformed
Services Employment and Reemployment Rights Act
(“USERRA”). This statute requires employers to provide
employees on military leave any seniority-based benefit the
employee would have accrued but for the military leave.
USERRA also requires employers to provide employees on
2 No. 20-3246
military leave any nonseniority-based benefits that the em-
ployer provides to employees on a comparable leave of ab-
sence. This latter provision is not at issue in this appeal.
The district court granted summary judgment to United
Airlines on Mr. Moss’s claim that the company had violated
USERRA by denying sick-time accrual in excess of ninety
days to military reservist employees. The district court held
that sick-time accrual was not a seniority-based benefit with-
1
in the meaning of the statute.
We now affirm the judgment of the district court. The
district court correctly determined that United’s sick-time
accrual is not a seniority-based benefit. For a benefit to be
seniority-based, the benefit must be a reward for length of
service. Sick leave is not such a reward.
I
BACKGROUND
A.
From April 1, 2005, to 2010, United Air Lines pilots, who
also served in the reserve components of the Armed Forces
of the United States and were called periodically to active
duty, accrued sick time throughout their entire military
leave. In contrast, Continental Pilots, who served the Coun-
try in the same capacity, accrued sick time only through the
first thirty days of their military leave during the same peri-
od.
1 The court further held that military leave was not comparable to other
forms of leave offered by United. This part of the district court’s holding
is not at issue on this appeal.
No. 20-3246 3
In 2010, these two airlines began a merger process. They
first became wholly owned subsidiaries of United Continen-
tal Holdings. During this stage, the separate bargaining
agreements of each legacy airline continued to govern for
two years. In March 2013, United and Continental merged
2
into a single entity—United Airlines. Nevertheless, the poli-
cies of the two legacy airlines continued in effect until Unit-
ed Airlines standardized the sick-time policy in 2014: “[A]ll
pilots only accrued sick time during the first ninety (90) days
3
of military leave.”
The operative collective bargaining agreement sets forth
United Airlines’ post-standardization policy: “[F]or each Bid
Period of Active Employment, five (5) hours of sick leave
shall be deposited into a Pilot’s sick leave bank up to a max-
4
imum of 1300 hours.” “Active Employment” is when “a Pi-
lot is available for assignment, on sick leave or on vacation
5
for any part of a Bid Period.” A Bid Period is, essentially,
one month. Therefore, all pilots accrue a consistent five
hours of sick time per Bid Period. Two final provisions on
United’s sick-time policy are also relevant: (a) “Sick leave
with pay shall be granted only in cases of actual sickness[,]”
2Before the merger, “United Air Lines” had a space; following the mer-
ger, the space was removed: “United Airlines.”
3 R.95-1 at 4. We will refer to pilots or leave policies from before 2014 as,
for example, the “legacy United pilots” or “legacy Continental leave.”
Anything after 2014 will be the “modern” or “current” era.
4 R.94-2 § 13-A-1.
5 Id. § 2-A.
4 No. 20-3246
and (b) “upon separation of employment, a Pilot shall not
6
receive payment for any balance in his sick leave bank.”
United Air Lines hired Michael Moss, the plaintiff, in ear-
ly 2000. On September 16, 2009, United Air Lines placed
Mr. Moss on furlough, but he was hired by Continental on
January 24, 2012. He continued working at United Airlines
through the merger process. Throughout the relevant time
period, he also held a commission as a Lieutenant Colonel in
the Reserve Component of the United States Marine Corps.
B.
On August 30, 2016, Mr. Moss brought this action against
United Airlines, alleging violations of USERRA. Count I (the
only Count at issue on appeal) alleged that United violated
USERRA by denying sick-time accrual to pilots on military
leave because (a) sick time is a seniority-based benefit and
thus should have continuously accrued; or (b) sick-time ac-
crual was available to pilots on comparable periods of leave.
Count II made the same allegations about vacation time ac-
crual; Count III addressed the same alleged violations with
respect to pension payments.
The district court certified classes for each Count. The
sick-time class for Count I is comprised of:
All past and present pilots employed by the
Company from April 1, 2005, to the present,
who: (i) did not accrue sick time while on peri-
ods of military leave from April 1, 2005, to the
present; and (ii) were not at the maximum sick
6 Id. § 13-A-5; Id. § 13-B.
No. 20-3246 5
leave accrual level of 1,300 hours at the time of
their military leave(s) of absence or at any time
7
thereafter.
The parties moved for summary judgment. United asked
for summary judgment on all counts; Mr. Moss only asked
for summary judgment on Counts I and II.
The district court granted United’s motion as to Counts I
and II. The district court first addressed Count II (vacation
accrual) and held that “the ‘real nature’ of vacation days in
this case is not a reward for length of service. Thus, vacation
days are not a seniority-based benefit under the collective
7 R.68 at 7. When the class definition sweeps within it individuals who
could not have suffered injury, it is too broad. See Kohen v. Pac. Inv.
Mgmt. Co., 571 F.3d 672, 677 (7th Cir. 2009). In TransUnion LLC v. Ramirez,
141 S. Ct. 2190, 2205 (2021), the Supreme Court reminded us that “Article
III grants federal courts the power to redress harms that defendants
cause plaintiffs, not a freewheeling power to hold defendants accounta-
ble for legal infractions.” Id. at 2205 (quoting Casillas v. Madison Ave. As-
socs., Inc., 926 F.3d 329, 332 (7th Cir. 2019)). It also made clear that plain-
tiffs must “maintain their personal interest in the dispute at all stages of
litigation.” Id. at 2208. Article III standing, the irreducible constitutional
minimum, requires a plaintiff to have suffered an injury in fact. Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992).
Although it did not have the benefit of TransUnion when it focused
on the class definition issue, the district court nevertheless examined the
necessity of injury in fact. On this record, we are not prepared to say that
the district court erred. Nevertheless, we note that the advent of
TransUnion sets the stage for a renewed examination of the intersection
of the demands of Article III and the requirements of Rule 23 of the Fed-
eral Rules of Civil Procedure.
6 No. 20-3246
8
bargaining agreement.” In reaching this conclusion, the dis-
trict court rejected Mr. Moss’s argument that vacation-time
accrual is a seniority-based benefit because it “accrues solely
9
with the passage of time.” Noting that “this is true of any
employment benefit,” the court concluded that this charac-
teristic “is not particularly informative, let alone dispositive,
10
of whether vacation day accrual is seniority-based.”
The court then concluded that “[s]ince vacation days are
not a seniority-based benefit, Plaintiffs are entitled to only
the ‘other’ benefits ‘generally provided,’ to employees on
11
‘comparable leaves of absence.’” The district court disa-
greed with Mr. Moss that United’s jury duty, association
leave, and sick leave are “‘comparable’ to military leave,
such that vacation time accrual should be available to mili-
12
tary leave longer than 90 days.”
8 R.106 at 8; cf. Ala. Power Co. v. Davis, 431 U.S. 581, 589 (1977) (“If the
benefit … is in the nature of a reward for length of service, it is a ‘perqui-
site of seniority.’”); Accardi v. Penn. R.R. Co., 383 U.S. 225, 230 (1966)
(“The use of the label ‘compensated service’ cannot obscure the fact that
the real nature of these payments was compensation for loss of jobs.”).
9 R.106 at 7 (quoting R.95 at 11).
10 Id. at 8.
11 Id. at 9 (first quoting 38 U.S.C. § 4316(b)(1)(B); and then quoting Crews
v. City of Mt. Vernon, 567 F.3d 860, 865 (7th Cir. 2009)).
12 Id. at 10–13. Mr. Moss has dropped this argument from his appeal.
Instead, he argues that United’s legacy military leave policy should be
compared to Continental’s legacy military leave policy.
No. 20-3246 7
Having disposed of Count II (vacation accrual), the dis-
trict court turned to Count I, the sick-time accrual claim, and
entered summary judgment for United. It stated:
Likely because there is no material difference
in the accrual of “sick time” and “vacation
time” under the collective bargaining agree-
ment, Plaintiffs’ arguments on Count I mirror
their arguments on Count II. Therefore, the
Court grants summary judgment to Defend-
ants on Count I for the same reasons it grants
summary judgment to Defendants on
13
Count II.
The district court then addressed potential objections
based upon the collective bargaining agreement’s different
policies on the accrual of sick time and the accrual of vaca-
tion time. The court explained that “the numbers of hours or
days accrued, and the rates of accrual” are “differences in
the ‘particular formulas’ by which accrual is ‘calculated,’ and
14
thus are not material to the Court’s analysis.”
The parties subsequently settled Count III, and the dis-
trict court approved that settlement on October 19, 2020. Af-
ter the approval of the settlement, the district court entered
13 Id. at 13–14 (footnote omitted). Mr. Moss contends that the district
court’s treatment of Count I violated Circuit Rule 50 for not adequately
documenting the reasons for the grant of summary judgment. We disa-
gree. The district court’s rationale was clear from the record and the
court’s opinion. See Stoller v. Pure Fishing Inc., 528 F.3d 478, 480 (7th Cir.
2008).
14 R.106 at 13 n.6 (quoting Ala. Power, 431 U.S. at 592).
8 No. 20-3246
final judgment, and Mr. Moss timely appealed the grant of
summary judgment on Count I, the sick-time accrual claim.
II
DISCUSSION
“We review the district court’s grant of summary judg-
ment de novo.” Flexible Steel Lacing Co. v. Conveyor Accesso-
ries, Inc., 955 F.3d 632, 643 (7th Cir. 2020). “Summary judg-
ment is appropriate when ‘there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). Here the
facts are not disputed.
We also note that it is well established that any “interpre-
tative doubt is to be resolved in the veteran’s favor,” Brown
v. Gardner, 513 U.S. 115, 118 (1994), and that “provisions for
benefits to members of the Armed Services are to be con-
strued in the beneficiaries’ favor,” King v. St. Vincent’s Hosp.,
502 U.S. 215, 220 n.9 (1991).
A.
USERRA is the modern iteration of a line of statutes de-
signed to protect employment and reemployment rights of
those who serve in the Armed Forces. First, the Selective
Training and Service Act of 1940 required private employers
to reemploy qualified military veterans to their previous po-
sition or “to a position of like seniority, status, and pay.”
Pub. L. No. 76-783, § 8(b)(3)(C), 54 Stat. 885, 890 (codified at
50 U.S.C. § 301 et seq. (repealed 1955)). In an early case inter-
preting the Selective Training and Service Act, the Supreme
Court gave breath to what has become known as the “escala-
tor principle”: “[The returning servicemember] does not step
back on the seniority escalator at the point he stepped off.
No. 20-3246 9
He steps back on at the precise point he would have occu-
pied had he kept his position continuously during the war.”
Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284–
85 (1946). This principle was codified in the Veterans’
15
Reemployment Rights Act and continues to be a founda-
tional principle of seniority-based reemployment rights un-
der USERRA.
Enacted in 1994, USERRA serves three purposes:
(1) to encourage noncareer service in the uni-
formed services by eliminating or minimizing
the disadvantages to civilian careers and em-
ployment which can result from such service;
(2) to minimize the disruption to the lives of
persons performing service in the uniformed
services as well as to their employers, their fel-
low employees, and their communities, by
providing for the prompt reemployment of
such persons upon their completion of such
service; and
(3) to prohibit discrimination against persons
because of their service in the uniformed ser-
vices.
38 U.S.C. § 4301. USERRA was not intended to change or
disrupt the longstanding caselaw developed under the pre-
decessor statutes. Congress viewed the existing law protect-
15The Veterans’ Reemployment Rights Act was enacted as part of the
Vietnam Era Veterans’ Readjustment Assistance Act of 1974. Pub. L.
No. 93-508, § 404, 88 Stat. 1578, 1594 (1974).
10 No. 20-3246
ing veterans’ rights and the cases interpreting those laws as
“successful,” and intended them to remain in full effect, to
the extent consistent with USERRA. 20 C.F.R. § 1002.2.
B.
1.
Mr. Moss first submits that he is entitled to sick-pay cred-
it during his time of military service because sick pay is a
seniority benefit of his employment with United. He views
sick time as a future-oriented benefit because it provides
economic security in case of illness. In support of this charac-
terization, Mr. Moss notes that sick-time accrual does not
expire annually, can only be used if an employee is sick, and
is not paid out at the end of an employee’s employment. The
work requirement is, in his view, illusory because the benefit
accrues without the performance of actual work; working
additional hours cannot increase the sick time accrued.
These considerations, considered together, demonstrate, in
his view, that United’s sick-time accrual is a perquisite of
seniority and therefore should have accrued while Mr. Moss
was on military leave.
United disagrees. In its view, sick-time accrual is not a
seniority-based benefit for two main reasons. First, all em-
ployees earn the same amount of sick time. There is no vest-
ing threshold; employees start to accrue sick time on their
first day of work. Second, employees can only use sick time
when they are actually sick. Employees cannot bank time
over years knowing that the time can be used for a longer
vacation later, thus incentivizing them to keep working.
In assessing these views, we begin, as we always do, with
the words of the statutory provision:
No. 20-3246 11
A person who is reemployed under this chap-
ter is entitled to the seniority and other rights
and benefits determined by seniority that the
person had on the date of the commencement
of service in the uniformed services plus the
additional seniority and rights and benefits
that such person would have attained if the
person had remained continuously employed.
38 U.S.C. § 4316(a). Thus, returning servicemembers step
back onto the seniority escalator where they would have
been but for the military service; they receive any seniori-
ty-based benefits to which they would have been entitled
had they remained continuously employed.
A right and benefit is seniority-based if the right (1)
“would have accrued, with reasonable certainty, had the
veteran been continuously employed by the private employ-
er”; and (2) if “it is in the nature of a reward for length of
16
service.” Ala. Power Co. v. Davis, 431 U.S. 581, 589 (1977);
DeLee v. City of Plymouth, 773 F.3d 172, 177–78, 180 (7th Cir.
2014) (applying the Alabama Power test); see also 20 C.F.R.
§ 1002.212 (listing the factors set forth in the Alabama Power
17
test, along with one factor not relevant here, as interpretive
guidance to determine if a benefit is seniority-based).
16Although Alabama Power pre-dates USERRA, the Alabama Power test
and pre-USERRA case law remain in full effect to the extent consistent
with USERRA. See, e.g., Crews, 567 F.3d at 865 (citing 20 C.F.R. § 1002.2).
17Whether United had an “actual custom or practice to provide or with-
hold the right or benefit as a reward for length of service” only applies
where the actual practice differs from the practice on paper. 20 C.F.R.
(continued … )
12 No. 20-3246
The Supreme Court of the United States, like the district
court in this case, has pointed out that although the princi-
ples set forth in Alabama Power are straightforward, their ap-
plication in a practical setting is not always easy. See Coffy v.
Republic Steel Corp., 447 U.S. 191, 203 (1980) (“[E]ven the
most traditional kinds of seniority privileges could be as eas-
ily tied to a work requirement as to the more usual criterion
of time as an employee.” (quoting Ala. Power, 431 U.S. at
592)). As the district court noted, the difficulty is rooted in
the practical reality that there is an “inherent tie between
time and work” and a lack of an “objective difference be-
tween a ‘work requirement’ (or ‘compensation for services
rendered’) and ‘time as an employee’ (or ‘length of service’),
18
because employees spend their time working.”
The Supreme Court wrestled with this conceptual prob-
lem in Foster v. Dravo Corp., 420 U.S. 92 (1975). There, Foster
worked for his employer at the beginning of 1967, left for
military service, and was reemployed for the remainder of
1968. Id. at 94–95. Although he did not meet the required
twenty-five weeks of work for vacation benefits, he asked
his employer for the vacation time accrued during both
years. Id. at 95. The Supreme Court did not sustain his claim;
( … continued)
§ 1002.212(c); see also id. (“Provisions of an employment contract or poli-
cies in the employee handbook are not controlling if the employer’s ac-
tual custom or practice is different from what is written in the contract or
handbook.”). Here there is no allegation that United’s actual practice of
providing sick time differed from that written in the collective bargain-
ing agreement.
18 R.106 at 4 (emphasis omitted).
No. 20-3246 13
it decided that the vacation benefits at issue were properly
characterized as “short-term compensation for work per-
formed.” Id. at 100. In reaching that decision, the Supreme
Court considered the work requirement, the option to earn
more vacation time through overtime, and the pro rata pay-
out if an employee left his employment early. In the final
analysis, however, the nature of the benefit, the “common
conception of a vacation as a reward for and respite from a
lengthy period of labor” convinced the Court that the statu-
tory provision protecting seniority rights did not apply. Id. at
101. Foster did not hold that all vacation-time accrual was a
nonseniority benefit. The Court explicitly noted that “the
statute should be applied only where it clearly appears that
vacations were intended to accrue automatically as a func-
tion of continued association with the company.” Id.
In Alabama Power, by contrast, the Court reasoned that
the pension plans at issue were seniority based because their
“true nature” was a reward for length of service. 431 U.S. at
593. “The most significant factor pointing to this conclusion
is the lengthy period required for pension rights to vest in
the employee.” Id. In Coffy, the Court considered the case of
an individual who had been laid off after his return from a
period of military service. He received supplemental unem-
ployment benefits for twenty-five weeks. Coffy, 447 U.S. at
193. Had his civilian work history not been interrupted by a
period of military service, he would have received fifty-two
weeks of supplemental unemployment benefits. Id. at 193–
94. The Supreme Court held the unemployment benefits
were seniority based: Their essential function “is to provide
economic security for regular employees in the event they
are laid off. Protection against layoff is, of course, one of the
traditional attributes of seniority.” Id. at 200. Furthermore,
14 No. 20-3246
the employees in Coffy were only entitled to the benefits if
they had worked two continuous years prior to being termi-
nated. Id. at 198–99. Thus, the benefits were a “reward for
length of service.” Id. at 205.
Two of our fellow circuits already have addressed the
question we face today. Although each court understanda-
bly focused on the facts of the case before it, the reasoning of
each court is helpful. In LiPani v. Bohack Corp., 546 F.2d 487,
490 (2d Cir. 1976), our colleagues in the Second Circuit char-
acterized sick leave as a form of deferred compensation of
the same general nature as vacation pay. The sick time at is-
sue there was predicated upon a work requirement: “one
week of paid vacation accrues after ‘six months of continu-
ous working service.’” Id. Also, there was no relationship
between seniority and the benefits; all employees earned the
same amount of sick time during each year of employment.
Id. at 490–91. The Tenth Circuit came to the same conclusion,
holding sick-time accrual to be nonseniority-based because it
was tied to a work requirement. Jackson v. Beech Aircraft
Corp., 517 F.2d 1322, 1326 (10th Cir. 1975), overruled on other
grounds by Ala. Power, 431 U.S. 581; see also Hoefert v. Am. Air-
lines, Inc., 438 F. Supp. 3d 724, 735–36 (N.D. Tex. 2020) (hold-
ing sick-time accrual to not be a seniority-based benefit
where tied to a “month of service”).
2.
We now assess United’s sick-time accrual policy under
the decisional matrix provided by Alabama Power. We first
ask whether the right “would have accrued, with reasonable
certainty, had the veteran been continuously employed by
the private employer.” This factor—synthesized in Alabama
Power from the existing caselaw—asks whether the benefit
No. 20-3246 15
was awarded automatically or subject to discretion. See
McKinney v. Mo.-Kan.-Tex. R.R. Co., 357 U.S. 265, 272 (1958)
(holding that a discretionary promotion was not a perquisite
of seniority); see also Ala. Power, 431 U.S. at 585 (citing
McKinney in explaining the development of the two-prong
test); Coffy, 447 U.S. at 199.
We answer this question in the affirmative. Mr. Moss
would have continued to accrue sick time with reasonable
certainty if he had been employed continuously by United.
Notably, there is no discretion involved. Had Mr. Moss not
been on military leave, it was reasonably certain that he
would have accrued sick time.
Having determined that the first prong of the two-part
conjunctive test is satisfied, we turn to the second prong:
Whether the benefit is a reward for length of service. Here,
we think it clear that the sick pay in question is not such a
reward. A benefit is seniority-based if the “real nature” of
the benefit is a “reward for length of service” rather than
“compensation for services rendered.” Ala. Power, 431 U.S. at588–89. Our inquiry is therefore whether the benefit is
backward-looking compensation for work performed or a
future-oriented longevity incentive.
Alabama Power instructs that the “most significant factor
pointing to th[e] conclusion [that the pension payment is a
reward for length of service] is the lengthy period required
for pension rights to vest in the employee.” Id. at 593 (em-
phasis added). United’s sick-time accrual policy has no vest-
ing period. From their first day at United, all pilots earn five
16 No. 20-3246
19
hours per Bid Period. A lack of a vesting threshold sug-
gests sick-time accrual is not tied to seniority but is deferred
compensation designed to cover those periods when an em-
ployee is unable to report for work because of illness, an
event inherent in the human condition.
Nor do United employees accrue more sick time the
longer they have been at the company. Here, all employees
earn the same five hours per Bid Period, day in and day out,
without regard to how long they have been employed. This
consideration also suggests sick time to not be a product of
seniority. See LiPani, 546 F.2d at 490 (finding persuasive the
lack of relationship between seniority and sick-time accrual).
The fact that sick time is not seniority-based becomes
clearer by comparing its real nature to that of other bene-
20
fits. Pensions, severance pay, and supplemental unem-
ployment benefits incentivize workers to continue working
19Also, we note that United provides for accelerated accrual for a pilot
who uses more than 255 hours of sick leave because of a single illness
and for “fronted” hours for new-hire pilots. R.94-2 § 12-A-1-a to -b.
Mr. Moss does not suggest these facts are relevant, nor do they influence
our analysis.
20During the enactment of USERRA, the Director of the Office of Veter-
ans’ Employment, Reemployment, and Training testified before Con-
gress that: “Various courts have also found that the returning service-
member is not entitled to benefits such as … sick days … which have
been determined to be short term compensation for work performed.”
Letter from Hary Puente-Duany, Dir., Off. of Veterans’ Emp.,
Reemployment & Training, to Hon. John D. Rockefeller, Chairman,
Comm. on Veterans’ Affs., reprinted in S. Rep. 103-158, at 93 (1993).
No. 20-3246 17
21
at a company. These benefits look to the future—they give
a reason to stay at a job and have accordingly been properly
held to be perquisites of seniority. On the other hand, sick
time is a respite. Without sick time, the employee would
have had to go to work ill; with sick time, the employee has
a respite, a break from their work, as compensation for the
services they have rendered.
Mr. Moss counters that attributes of United’s sick leave
point to characterizing it as seniority-based. Specifically, he
notes that United sick-time accrual does not expire annually,
can only be used if an employee is sick, and is not paid out
at the end of an employee’s employment. We think that
these considerations, whether considered separately or to-
gether, reaffirm that sick time is more properly characterized
as a period designed to allow the working employee a res-
pite and to encourage the sick employee to stay away from
the workplace. As Mr. Moss points out, sick time does not
expire annually. This feature might suggest an incentive to
remain at a company (so the employee does not lose their
banked time), but that consideration is certainly reduced in
importance because employees cannot take sick time with-
out actually being sick. Sick time therefore cannot be used to
augment an employment transition, or to extend a vacation.
Moreover, in the ordinary course of human events, sick time
21 Ala. Power, 431 U.S. at 593–94 (pension payments); Accardi, 383 U.S. at
230 (severance pay); Coffy v. Republic Steel Corp., 447 U.S. 191, 205–06
(1980) (supplemental unemployment benefits).
18 No. 20-3246
will be used periodically. It is generally not regarded as pro-
22
tection against long-term illness or disability.
By contrast, supplemental unemployment benefits, like
those at issue in Coffy, provide economic security based on
seniority. Supplemental unemployment benefits promise in-
come where otherwise the employee would not have re-
ceived any. In this way, supplemental unemployment bene-
fits encourage employees to stay with an employer based on
the promise of the future benefit. Sick time however offers a
brief respite earned on a pro rata monthly basis, in compen-
sation for labor, to recover and then come back to work. Sick
time does not provide economic security in the same way
that supplemental unemployment benefits do. It only offers
a brief respite.
United’s sick-time accrual policy contains, moreover, a
work requirement. Benefits conditioned on a bona fide work
requirement are more likely to be compensation than a re-
ward for long service. “Generally, the presence of a work re-
quirement is strong evidence that the benefit in question was
intended as a form of compensation.” Foster, 420 U.S. at 99.
Courts read through illusory and insubstantial work re-
quirements—the labels do not control. Compare Accardi v.
Penn. R.R. Co., 383 U.S. 225, 229–30 (1966) (explaining that
the “use of the label ‘compensated service’ cannot obscure”
the illusory nature of the work requirement), with Foster,
420 U.S. at 99 (explaining that providing additional benefits
22 United also offers Medical Leave, Company Offered Leaves of Ab-
sence, Family & Medical Leave, and Maternity/Paternity Leave. See
R.94-2 §§ 12-B, -C, -E, -F.
No. 20-3246 19
for overtime and pro rata payment for early termination
suggested that the work requirement was bona fide).
Here, the parties dispute whether the United sick leave
policy contains a legitimate work requirement. We believe
that it does. The collective bargaining agreement contains
the following provision: “for each Bid Period of Active Em-
ployment, five (5) hours of sick leave shall be deposited into
23
a Pilot’s sick leave bank up to a maximum of 1300 hours.”
“Active Employment” is defined as “a Pilot is available for
assignment, on sick leave or on vacation for any part of a Bid
24
Period.” A Bid Period is defined as “the period from the
first day of, to and including the last day of each of twelve
25
(12) thirty (30) or thirty-one (31) day periods.”
Mr. Moss questions whether the requirement that a pilot
need only be available for assignment, on sick leave, or on
vacation, is sufficiently substantial to constitute a bona fide
work requirement. He submits that being “available for as-
signment” “for any part of a Bid Period” could be seen as
being no real requirement at all. United takes another view.
It sees the work requirement in the collective bargaining
agreement as a real effort to compensate pilots for work ac-
tually performed. It points out that the requirement ex-
cludes, among other things, personal leave, and thus re-
quires the pilot to actually be working before earning sick
time.
23 R.94-2 § 13-A-1.
24 Id. § 2-A.
25 Id. § 2-I.
20 No. 20-3246
United has the better of the argument. By conditioning
sick-time accrual on “Active Employment,” United condi-
tions accrual on work. Given the nature of a pilot’s schedul-
ing and the industry overall, counting “on call” time as
compensated time for purposes of the sick-time program is
reasonable.
In sum, sick time would have accrued with reasonable
certainty had Mr. Moss remained at United. There was no
discretion involved. There is no vesting period and no rela-
tionship between seniority and benefits. All United employ-
ees accrue the same five hours per Bid Period, from the new
hire to the most senior pilot. The real nature of sick-time ac-
crual is to provide a respite from work, not to incentivize
longevity.
C.
USERRA also prohibits providing nonseniority-based
benefits to some employees on leave but not to employees
26
on comparable military leave. 38 U.S.C. § 4316(b)(1)(B).
26 This subsection of the statute provides:
(b)(1) … [A] person who is absent from a position of
employment by reason of service in the uniformed ser-
vices shall be—
…
(B) entitled to such other rights and benefits not deter-
mined by seniority as are generally provided by the em-
ployer of the person to employees having similar senior-
ity, status, and pay who are on furlough or leave of ab-
sence under a contract, agreement, policy, practice, or
plan in effect at the commencement of such service or es-
tablished while such person performs such service.
(continued … )
No. 20-3246 21
USERRA therefore mandates that if an employer offers non-
seniority-based benefits to an employee taking leave, it must
provide to servicemembers on military leave the “most fa-
vorable” benefit offered to employees taking a comparable
leave. 20 C.F.R. § 1002.150(b).
In the district court, Mr. Moss argued that jury duty, as-
sociation leave, and sick leave were comparable to military
leave such that servicemembers were to be afforded the most
favorable benefits that employees on those nonmilitary
leaves received. The district court held that jury duty, asso-
ciation leave, and sick leave were not comparable to military
leave. Mr. Moss does not renew that argument here, and we
therefore cannot consider it.
Now, Mr. Moss puts forth a new argument. He asks us to
compare legacy military United leave and legacy military
Continental leave. We cannot. Arguments not adequately
presented to the district court are waived on appeal. Fednav
Int’l Ltd. v. Cont’l Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010).
Because Mr. Moss did not adequately present this issue to
the district court, it is waived.
( … continued)
38 U.S.C. § 4316(b).
Because we hold that Mr. Moss waived this argument, we take no
position on whether 38 U.S.C. § 4316(b)(1)(B) only prohibits providing a
benefit to an employee on civilian leave but not to an employee on com-
parable military leave or if it also prohibits providing a benefit to one
employee on military leave but not to another on a comparable military
leave.
22 No. 20-3246
Conclusion
We hold that sick-time accrual is not a seniority-based
benefit. Accordingly, we affirm the decision of the district
court.
AFFIRMED