Synoracki v. Alaska Airlines Inc ( 2022 )

1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE 7 LEO SYNORACKI, on behalf of himself and all others similarly situated, Cause No. C18-1784RSL 8 Plaintiff, 9 ORDER GRANTING v. DEFENDANTS’ MOTION FOR 10 SUMMARY JUDGMENT ALASKA AIRLINES, INC., et al., 11 Defendants. 12 13 This matter comes before the Court on “Defendants’ Motion for Summary Judgment.” 14 Dkt. # 49. Plaintiff asserts that defendants violated the Uniformed Services Employment and 15 Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. § 4301, et. seq., when they 16 17 (1) denied the accrual of sick time during periods of military leave and (2) denied the accrual of 18 vacation time during the first 90 days of military leave. The Court certified a sub-class for both 19 the sick time and vacation time claims. Defendants argue that the claims fail as a matter of law. 20 Summary judgment is appropriate when, viewing the facts in the light most favorable to 21 the nonmoving party, there is no genuine issue of material fact that would preclude the entry of 22 23 judgment as a matter of law. The party seeking summary dismissal of the case “bears the initial 24 responsibility of informing the district court of the basis for its motion” (Celotex Corp. v. 25 Catrett, 477 U.S. 317, 323 (1986)) and “citing to particular parts of materials in the record” that 26 show the absence of a genuine issue of material fact (Fed. R. Civ. P. 56(c)). Once the moving 27 ORDER GRANTING DEFENDANTS’ 1 party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to 2 designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. 3 at 324. The Court will “view the evidence in the light most favorable to the nonmoving party . . . 4 and draw all reasonable inferences in that party’s favor.” Colony Cove Props., LLC v. City of 5 Carson, 888 F.3d 445, 450 (9th Cir. 2018). Although the Court must reserve for the trier of fact 6 7 genuine issues regarding credibility, the weight of the evidence, and legitimate inferences, the 8 “mere existence of a scintilla of evidence in support of the non-moving party’s position will be 9 insufficient” to avoid judgment. City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th 10 Cir. 2014); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Factual disputes whose 11 resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion 12 for summary judgment. S. Cal. Darts Ass’n v. Zaffina, 762 F.3d 921, 925 (9th Cir. 2014). In 13 14 other words, summary judgment should be granted where the nonmoving party fails to offer 15 evidence from which a reasonable fact finder could return a verdict in its favor. Singh v. Am. 16 Honda Fin. Corp., 925 F.3d 1053, 1071 (9th Cir. 2019). 17 Having reviewed the memoranda, declarations, and exhibits submitted by the parties, 18 having heard the arguments of counsel, and taking the evidence in the light most favorable to 19 20 plaintiff, the Court finds as follows: 21 BACKGROUND 22 Plaintiff and the class he represents are current or former employees of defendant Alaska 23 Airlines, Inc.,1 who are or were military service members. During the class period, plaintiff was 24 25 1 Defendant Alaska Air Group, Inc., is the parent of Alaska Airlines, Inc., and alternatively seeks 26 dismissal of plaintiff’s claims on the ground that it is not, and has never been, the employer for purposes of USERRA. Plaintiff has not opposed this request. 27 ORDER GRANTING DEFENDANTS’ 1 a member of the Reserve Component of the United States Air Force. In that role, he took 2 approximately 71 military leaves of absences, some of which lasted months at a time and which 3 together totaled over 2,500 days.2 Plaintiff retired from the Reserves as a Lieutenant Colonel on 4 April 1, 2017. 5 Since the beginning of the class period on October 10, 2004, employment as a pilot for 6 7 Alaska Airlines has been governed by a collective bargaining agreement (“CBA”). The CBA 8 governs the accrual of sick and vacation hours, but the provisions have changed over time as 9 discussed below. 10 11 12 13 2 Plaintiff had twenty service-related absences that exceeded a month: 14 a. January 9, 2001 – April 15, 2002 (97 days) b. December 4, 2002 – March 4, 2003 (90 days) 15 c. July 1, 2005 – 28 May, 2006 (11 months) 16 d. October 1, 2006 – November 15, 2006 (46 days) e. November 25, 2006 – September 30, 2007 (10 months) 17 f. November 1, 2007 – January 26, 2008 (87 days) g. March 10, 2008 – September 30, 2008 (204 days) 18 h. October 6, 2008 – February 23, 2009 (140 days) 19 i. April 1, 2009 – June 30, 2009 (90 days) j. September 16 2009 – May 2, 2010 (8 months) 20 k. September 1, 2010 – June 30, 2011(10 months) l. January 3, 2012 – March 6, 2012 (64 days) 21 m. April 1, 2012 – May 31, 2012 (61 days) n. December 1, 2012 – February 28, 2013 (90 days) 22 o. March 27, 2013 – May 31, 2013 (65 days) 23 p. January 16, 2014 – April 15, 2014 (90 days) q. October 20, 2014 – January 18, 2015 (91 days) 24 r. January 24, 2015 – April 2, 2015 (69 days) s. November 1, 2015 – March 10, 2016 (131 days) 25 t. October 21, 2016 – February 28, 2017 (131 days) 26 Dkt. # 56 at ¶ 8. 27 ORDER GRANTING DEFENDANTS’ 1 A. Sick Leave (Section 14 of the CBA) 2 Prior to May 2009, Alaska Airlines pilots accrued sick time for each month of their 3 employment, regardless whether they were on a leave of absence (military or otherwise). Since 4 May 2009, however, a pilot accrues sick time “for each Month he receives compensation from 5 Alaska Airlines for six (6) or more hours of work performed.” Dkt. # 50-1 at 42. Pilots on 6 7 military leave accrue sick leave for each month in which they “perform work for Alaska Airlines 8 without regards to the six (6) hour threshold.” Id. 9 B. Vacation (Section 7 of the CBA) 10 Throughout the class period, Alaska Airlines pilots have accrued vacation time in any 11 month in which they satisfy a specified work requirement. Prior to May 2005, pilots had to work 12 15 days in a month to accrue vacation time. Between May 2005 and July 2013, pilots accrued 13 14 vacation time in any month in which they either worked 15 days or received 37.5 hours of 15 compensation. After July 2013, pilots accrue vacation only in the months in which they have 16 received 37.5 hours of compensation. 17 C. USERRA 18 USERRA provides in relevant part that “[a] person who ... has an obligation to perform 19 20 service in a uniformed service shall not be denied ... any benefit of employment by an employer 21 on the basis of that ... performance of service ... or obligation.” 38 U.S.C. § 4311(a). For 22 purposes of the Act, benefits of employment are either seniority-based or non-seniority based. 23 With regards to seniority-based benefits, an employee returning from military service “is entitled 24 to the seniority and other rights and benefits determined by seniority that the person had on the 25 date of the commencement of service in the uniformed services plus the additional seniority and 26 27 ORDER GRANTING DEFENDANTS’ 1 rights and benefits that such person would have attained if the person had remained continuously 2 employed.” 38 U.S.C. § 4316(a). Thus, if a benefit is based or determined on seniority, the 3 benefit accrues as though the employee were continuously employed, regardless of the length of 4 the military service. 20 C.F.R. § 1002.210. See Fishgold v. Sullivan Drydock & Repair Corp., 5 328 U.S. 275, 284-85 (1946) (holding that the returning service member “does not step back on 6 7 the seniority escalator at the point he stepped off. He steps back on at the precise point he would 8 have occupied had he kept his position continuously during the war.”). With regards to benefits 9 that are not determined with reference to seniority, the returning employee is “entitled to such 10 other rights and benefits . . . as are generally provided by the employer of the person to 11 employees having similar seniority, status, and pay who are on furlough or leave of absence[.]” 12 38 U.S.C. § 4316(b)(1)(B). 13 14 1. Characterization of Sick Time Benefit 15 A benefit is considered a “seniority-based benefit” when “the nature of the benefit [is] a 16 reward for length of service, rather than a form of short-term compensation for services 17 rendered.” Coffy v. Republic Steel Corp., 447 U.S. 191, 197-98 (1980). See 20 C.F.R. 18 § 1002.212(a). Of course, any money or benefit paid based on a unit of time worked (be it an 19 20 hour or a year) can be characterized as either compensation or a reward for longevity. See Moss 21 v. United Airlines, Inc., 420 F. Supp.3d 768, 771 (N.D. Ill. 2019). “This does not mean, 22 however, that employers and unions are empowered by the use of transparent labels and 23 definitions to deprive a veteran of substantial rights guaranteed by the Act.” Accardi v. 24 Pennsylvania R. Co., 383 U.S. 225, 229 (1966). In order to safeguard Congress’ intent to 25 “preserve for the returning veterans the rights and benefits which would have automatically 26 27 ORDER GRANTING DEFENDANTS’ 1 accrued to them had they remained in private employment rather than responding to the call of 2 their country,” the term “seniority-based benefit” is not limited by a narrow, technical definition. 3 Id. 4 Case law in this area suggests that the key factor in determining whether a benefit is 5 seniority-based is whether the benefit is forward-looking (i.e., offering an incentive for longevity 6 7 with the company) as opposed to backward-looking (i.e., providing compensation for work 8 already performed). Moss, 420 F. Supp.3d at 771. Benefits such as pensions (Alabama Power 9 Co. v. Davis, 431 U.S. 581, 593-94 (1977)), annual bonuses (DeLee v. City of Plymouth, Ind., 10 773 F.3d 172 (7th Cir. 2014)), severance pay (Accardi, 383 U.S. at 230), and supplemental 11 unemployment pay (Coffy, 447 U.S. at 205) have been found to be seniority-based benefits: they 12 often vest only after a certain amount of time on the job, accumulate without regard to the 13 14 number of hours worked, and/or provide a level of economic security that is tied to the length of 15 service. In contrast, vacation benefits that are earned based on the amount of work performed in 16 a certain period are not based on seniority: to hold otherwise would grant to service members 17 returning from years of service the accumulated vacation benefits, which would be “sharply 18 inconsistent with the common conception of a vacation as a reward for and respite from a 19 20 lengthy period of labor.” Foster v. Dravo Corp., 420 U.S. 92, 101 (1975). See also 20 C.F.R. 21 § 1002.150(c) (“As a general matter, accrual of vacation leave is considered to be a non-seniority 22 benefit that must be provided by an employer to an employee on a military leave of absence only 23 if the employer provides that benefit to similarly situated employees on comparable leaves of 24 absence.). 25 Plaintiff concedes that vacation time under the CBA is not seniority-based. Dkt. # 57 at 6. 26 27 ORDER GRANTING DEFENDANTS’ 1 He argues, however, that sick time is different for two reasons. First, an Alaska Airlines pilot 2 need only work for six hours in a month, which plaintiff asserts is a paltry amount that divorces 3 the benefit from the work requirement and instead rewards mere time on the payroll. Plaintiff 4 argues that, by requiring so little in exchange for an award of sick time, Alaska Airlines 5 effectively made the award automatic and treats pilots as continuously employed. Second, 6 7 plaintiff argues that a sick time benefit is more akin to the supplemental employment benefits 8 which the Supreme Court found were seniority-based in Coffy than to vacation benefits. 9 The Supreme Court has identified two requirements of seniority-based rights and benefits. 10 Coffy, 447 U.S. at 197-98. As discussed above, the benefit must be provided as a reward for 11 length of service rather than as a form of short-term compensation for services rendered. In 12 addition, “the service member’s receipt of the benefit, but for his or her absence due to service, 13 14 must have been reasonably certain.” Uniformed Services Employment and Reemployment 15 Rights Act of 1994, As Amended, 70 Fed. Reg. 75246-01, 75276 (Dec. 19, 2005) (citing Coffy, 16 447 U.S. at 197-98; Alabama Power, 431 U.S. 581 (1977); S. Rep. No.103-158, at 57 (1993); 17 Goggin v. Lincoln, St. Louis, 702 F.2d 698, 701 (8th Cir. 1983)). The regulations implementing 18 USERRA add a third consideration, derived from McKinney v. Missouri-Kansas-Texas R.R. Co., 19 20 357 U.S. 265 (1958), which requires an evaluation of the employer’s “actual custom or practice” 21 in conferring or withholding a benefit to ensure that written policies or contracts do not obscure 22 the true nature of the benefit. 20 C.F.R. § 1002.212(c). 23 Plaintiff has not raised a triable issue of fact regarding the essential function or real nature 24 of the sick time benefit. Sick leave is generally intended to provide income for periods of time 25 when the employee or a family member is ill and the employee is unable to work. 20 C.F.R. 26 27 ORDER GRANTING DEFENDANTS’ 1 § 1002.153. It is a benefit to be earned and used during the course of employment, without 2 regard to seniority or length of service. In fact, the CBA front-loads the award of sick time to 3 new hires so that the benefit is available to them immediately, a practice that is not in keeping 4 with traditional seniority-based awards. Dkt. # 50-2 at 21.3 As with the vacation benefit, sick 5 time accrues only if the pilot satisfies the work requirement specified in the CBA.4 “[T]he 6 7 presence of a work requirement is strong evidence that the benefit in question was intended as a 8 form of compensation.” Foster, 420 U.S. at 99. While military pilots can accrue sick time in a 9 month in which they perform as little as one hour of work (i.e., they need not hit the six hour 10 threshold), the benefit is still conditioned on work being performed within the relevant time 11 period. In this context, both Congress and the courts have recognized sick time accrual as a form 12 of compensation that is not based on seniority. S. Rep. No. 103-158, at 93 (1993); LiPani v. 13 14 Bohack Corp., 546 F.2 487, 491 (2nd Cir. 1976); Hoefert v. Am. Airlines, Inc., 438 F. Supp.3d 15 724, 736 (N.D. Tex. 2020); Moss, 420 F. Supp.3d at 775. See Aiello v. Detroit Free Press, Inc., 16 17 3 Although the sick time award does not have to be used immediately (and is therefore properly 18 characterized as a type of deferred compensation), it begins to accrue as soon as employment begins and 19 can be taken as soon as it is awarded. In Coffy, on the other hand, an employee had to complete two years of continuous service in order to be eligible for supplemental unemployment benefits, and the 20 amount of benefits was ultimately determined based on calculations having nothing to do with hours worked (namely, the hourly wage rate, the number of dependents, the amount of state unemployment 21 compensation paid, and the level of funding in the plan). 447 U.S. at 198-99. While there are obvious 22 distinctions between the purposes for which vacation and sick time are awarded, they are more similar to each other than the type of benefits that take years to vest or that come into play only after an employee 23 has been thrown out of work or has retired. 24 4 Plaintiff takes issue with the way compensable work is defined in the CBA, but Alaska Airlines’ alleged willingness to compensate pilots for testifying in court, using vacation time, serving on 25 a jury, etc., does not change the fact that it requires an exchange of work for the sick time benefit. The 26 CBA explicitly excludes from sick time accrual months in which compensation received relates solely to non-work activities, such as reimbursement of expenses and profit-sharing. Dkt. # 50-2 at 20. 27 ORDER GRANTING DEFENDANTS’ 1 570 F.2d 145, 148 (6th Cir. 1978) (finding that a veteran returning from military absence “is not 2 entitled to benefits which require more than continued status, such as a work requirement 3 demanding actual performance on the job”). 4 Nevertheless, plaintiff argues that the work requirement at issue here is “so insubstantial 5 that it appears plainly designed to measure time on the payroll rather than hours on the job.” 6 7 Foster, 420 U.S. at 99. Plaintiff makes no attempt to explain why this would be so. Under the 8 CBA, both vacation time and sick time are offered in exchange for hours worked during the pay 9 period. Sick time, in particular, is not linked to longevity of service in any way. Nor does 10 plaintiff explain why a six-hour requirement is insubstantial. Alaska Airlines pilots are 11 guaranteed only 75 hours of work per month, so a six-hour requirement is 8% of the guarantee. 12 In Foster, the case on which plaintiff relies for the concept that courts must engage in a 13 14 quantitative analysis when determining the real nature of a benefit, the Supreme Court found that 15 a work requirement of only one hour/week for less than half the year was substantial enough to 16 find that a vacation benefit was not based on seniority or longevity. 420 U.S. at 99. Nor is there 17 any reason to suspect that Alaska Airlines’ current sick leave benefit was designed to reflect or 18 reward longevity rather than to compensate work already performed. Defendant affirmatively 19 20 changed its sick leave accrual policy in 2009, abandoning the automatic accrual of sick time as 21 long as a pilot was employed and instead requiring compensation for work performed. As 22 plaintiff acknowledges, a benefit that does not accrue with seniority is not a seniority-based 23 benefit. Where, as here, sick time is expressly conditioned on and earned by the performance of 24 work in the relevant time period and there is no indication that the benefit is designed to reward 25 or calculated based on the length of service with the company, the benefit is not a seniority- 26 27 ORDER GRANTING DEFENDANTS’ 1 based benefit for purposes of § 4316(a). In the absence of a showing that Alaska Airlines’ actual 2 custom or practice varies from that set forth in the CBA, defendant is entitled to summary 3 judgment on this issue.5 4 2. Comparable Forms of Leave 5 Uniformed service members are entitled to accrue non-seniority-based benefits, such as 6 7 vacation and sick time, while on military leave if the employer generally provides those benefits 8 to similarly-situated employees on other, comparable forms of furlough or leave of absence. 38 9 U.S.C. § 4316(b); 20 C.F.R. § 1002.150(b). This requirement gives life to the employer’s duty 10 not to discriminate against an employee because he or she is in the uniformed services. 11 It “requir[es] employers, with respect to rights and benefits not determined by 12 seniority, to treat employees taking military leave, equally, but not preferentially, 13 in relation to peer employees taking comparable non-military leaves generally 14 provided under the employer’s contract, policy, practice or plan.” Rogers v. City of San Antonio, 392 F.3d 758, 769 (5th Cir. 2004); accord Crews v. City of Mt. 15 Vernon, 567 F.3d 860, 865–66 (7th Cir. 2009); Tully v. Dep’t of Justice, 481 F.3d 16 1367, 1369-70 (Fed. Cir. 2007). This standard of 17 equal-but-not-preferential-treatment is consistent with the Supreme Court’s interpretation of a related provision of the prior statute in Monroe v. Standard Oil 18 Co., 452 U.S. 549, 560-62 (1981); see also Sandoval v. City of Chi., 560 F.3d 703, 19 705 (7th Cir. 2009) (“accommodation ... is fundamentally different from an 20 equal-treatment norm”). 21 Dorris v. TXD Servs., LP, 753 F.3d 740, 744-45 (8th Cir. 2014). 22 Plaintiff argues that he is entitled to benefits under § 4316(b) because Alaska Airlines 23 24 5 Plaintiff asserts that he did not accrue sick leave in December 2005, in the midst of an eleven- 25 month military leave that occurred fifteen years ago. This individual wrong cannot save the class claims. 26 Nor has plaintiff come forward with evidence to contradict defendant’s showing that he was, in fact, awarded sick leave in December 2005. 27 ORDER GRANTING DEFENDANTS’ 1 allows pilots on jury duty and sick leave to accrue vacation and sick time. That provision entitles 2 service members “to such other rights and benefits . . . as are generally provided by the employer 3 . . . to employees having similar seniority, status, and pay who are on furlough or leave of 4 absence under a contract, agreement, policy, practice, or plan . . . .” The regulations 5 implementing USERRA state in relevant part: 6 7 (b) If the non-seniority benefits to which employees on furlough or leave of absence are entitled vary according to the type of leave, the employee must be 8 given the most favorable treatment accorded to any comparable form of leave 9 when he or she performs service in the uniformed services. In order to determine 10 whether any two types of leave are comparable, the duration of the leave may be the most significant factor to compare. For instance, a two-day funeral leave will 11 not be “comparable” to an extended leave for service in the uniformed service. In 12 addition to comparing the duration of the absences, other factors such as the 13 purpose of the leave and the ability of the employee to choose when to take the leave should also be considered. . . . 14 15 20 C.F.R. § 1002.150. 16 a. Jury Duty 17 The CBA provides that, with proper notice and the submission of paperwork, a pilot 18 called to serve on or be available for jury duty will be compensated. See, e.g., Dkt. # 50-2 at 36. 19 Alaska Airlines acknowledges that, if a pilot receives pay during a jury duty absence, he or she 20 21 also accrues vacation time. Dkt. # 58 at 14.6 Although jury duty and military leave are 22 comparable as far as their purpose (service to the government) and the employee’s limited ability 23 24 6 Plaintiff has not shown that pilots accrue sick time when on jury duty. After 2009, the CBA 25 provides that benefit only when compensation is received for "work performed.” Assuming pilots accrue 26 sick time when serving on or available for jury duty, the vacation time analysis set forth in the text applies. 27 ORDER GRANTING DEFENDANTS’ 1 to control when such leave is necessary, the duration of the two types of leaves differs 2 significantly. There is no indication that plaintiff has served on a jury during his sixteen-year 3 tenure with Alaska Airlines. In contrast, plaintiff was called for military duty approximately 70 4 times during the same period. Twenty of those leaves exceeded 45 days in length. Five of his 5 extended leaves surpassed six months. No Alaska Airlines pilot has been absent for jury duty for 6 7 longer than twenty consecutive days since the class period began, with the average jury-related 8 absence being just less than three days. 9 The case law in this area generally reflects the specific facts presented. Where a service 10 member files an individual lawsuit seeking to recover a benefit he or she would have earned 11 during weekend drills and annual training, courts have found that the service at issue is 12 comparable to jury duty. See Waltermyer v. Aluminum Co. of Am., 804 F.2d 821, 821-22 (3rd 13 14 Cir. 1986); Schmauch v. Honda of Am. Mfg., Inc., 295 F. Supp.2d 823, 836-39 (S.D. Ohio 2003). 15 Where a service member sues on behalf of a putative class and his longest military leave was 16 twenty-five days, the leaves have been deemed comparable. See Duffer v. United Continental 17 Holdings, Inc., 173 F. Supp.3d 689, 704-05 (N.D. Ill. 2016). But where service members sue 18 individually or on behalf of a class for benefits that would have accrued during periods of 19 20 military leave measured in years, the two types of leave have been found not comparable based 21 on the first factor of 20 C.F.R. § 1002.150(b) - duration. See Tully v. Dep’t of Justice, 481 F.3d 22 1367, 1368-70 (Fed. Cir. 2007). To the extent the comparison to be made focuses on the duration 23 of the military leave that is actually at issue in the case, plaintiff’s military leaves far exceed any 24 jury duty leaves taken by plaintiff or other Alaska Airlines pilots. Because plaintiff has filed this 25 lawsuit on behalf of a class, the duration of other class members’ military leaves are also 26 27 ORDER GRANTING DEFENDANTS’ 1 relevant. Some of the other pilots’ military leaves have lasted years. Thus, the most significant 2 factor in determining whether the two leaves are comparable militates against such a finding. 3 Plaintiff, apparently recognizing the problem, seeks to limit his requested relief - and the 4 scope of the comparison - to the first ninety days of each military leave. He essentially requests 5 that the Court ignore record evidence of extended absences and/or arbitrarily divide military 6 7 leaves at the ninety-day point so that he can argue that military leave is comparable to jury duty. 8 But there is nothing in the CBA, USERRA, or the implementing regulations that suggests that 9 military leave can be chopped up so as to create comparators. Rather, the regulations refer to the 10 “type” or “form” of leave, implying a more categorical comparison than plaintiff now seeks.7 In 11 this case, plaintiff sought benefits associated with all military leave incurred by a class of Alaska 12 Airlines pilots, placing before the Court the full range and extent of military leave. In these 13 14 circumstances, the Court finds that a more universal comparison between the types of leaves in 15 all of their various manifestations “is the appropriate standard, particularly when the issue is 16 presented as a class claim.” Clarkson v. Alaska Airlines, Inc., C19-0005TOR, 2021 WL 17 2080199, at *5 (E.D. Wash. May 24, 2021). 18 Plaintiff has not met his burden of showing that military leave, as experienced by the 19 20 class and evidenced by the record, is comparable to jury duty. 21 22 23 7 The Court has not considered whether a plaintiff, as master of the complaint, can define the 24 character of the military leave for comparison purposes by limiting his or her request for recovery of benefits to specific, shorter military leaves. The implementing regulations leave open the possibility of 25 comparing a single military leave to other types of leave: the example provided in 20 C.F.R. 26 § 1002.150(b) compares “a two-day funeral” with “an extended leave for service in the uniformed service.” 27 ORDER GRANTING DEFENDANTS’ 1 b. Sick Leave 2 Pilots who take sick leave to recover from an illness or injury continue to accrue sick and 3 vacation leave in certain circumstances.8 To that extent, they are treated more favorably than 4 pilots who have taken a military leave of absence. From these basic facts, plaintiff argues that he 5 is entitled to accrue sick time and vacation time under § 4316(b)(1). That provision entitles 6 7 service members to be treated as if they are on “furlough or leave of absence” while performing 8 military service (§ 4316(b)(1)(A)) and requires the employer to provide the same sort of non- 9 seniority benefits that are “generally provided” to other employees “who are on furlough or leave 10 of absence under a contract, agreement, policy, practice, or plan” (§ 4316(b)(1)(B)). According 11 to the implementing regulations, the focus of the inquiry is on “the non-seniority benefits to 12 which employees on furlough or leave of absence are entitled.” 20 C.F.R. § 1002.150(b). 13 14 Therein lies the problem for plaintiff’s argument. Neither common usage nor the governing 15 CBAs equate sick leave with a furlough or a leave of absence. 16 Sick leave is earned ahead of time in exchange for work already performed. Instead of 17 paying a higher hourly rate and expecting employees to save for the proverbial rainy day, Alaska 18 Airlines promises future compensation via sick leave hours that accrue in “banks” or “accounts” 19 20 to be used when an employee is ill or injured. An employee with banked hours is entitled to use 21 them for the purposes for which they were granted. Although the employee is required to give 22 notice, he or she need not obtain permission. See Dkt. # 50-1 at 44. The benefit is offered to 23 24 8 If a pilot works 6 hours in a month despite the illness/injury or if he or she receives at least 32 hours and thirty minutes of sick leave compensation during the pay period, the pilot accrues additional 25 sick leave benefits. Dkt. # 50-1 at 42. Since at least July 2013, pilots accrue vacation if they have 26 received 37.5 hours of compensation, which presumably could include compensation paid out of sick leave banks. 27 ORDER GRANTING DEFENDANTS’ 1 promote the interests of the employer: by compensating employees who stay home when they are 2 ill or when they submit to an annual physical examination, sick leave gives sick employees the 3 chance to recover, safeguards the health of co-workers, and promotes the overall health of the 4 workforce. Dkt. # 50 at ¶ 21; Dkt. # 50-1 at 46. When an employee is furloughed or granted a 5 leave of absence, on the other hand, permission to be absent from work must generally be 6 7 granted. See, e.g., Dkt. # 50-1 at 38.9 The entitlement was not previously earned, and the leave 8 does not generally benefit the employer. 9 As a form of deferred compensation, sick leave is not a furlough or leave of absence and 10 does not, therefore, fall within the ambit of § 4316(b)(1)(B). In the alternative, the Court finds 11 that the purposes of the two types of absences, as discussed above, are not comparable under 20 12 C.F.R. § 1002.150(b). Although the duration of sick leave (both hypothetically and in practice) is 13 14 significantly longer than jury duty absences and therefore more comparable to military leave,10 15 sick leave must be earned and banked before it can be used, with a cap of 1,000 hours.11 Military 16 17 9 Permission to take military leave is automatically granted. Dkt. # 50-1 at 39. 18 19 10 The average length of military leave absences during the relevant time frame was 12.8 days, whereas the average length of absences due to illness or injury was 7.1 days. Dkt. # 50 at ¶ 12. In 20 addition, pilots can bank or accrue up to 1,000 hours of sick time which, given the guaranteed hours airline pilots have in a month, can generate compensation (and the accrual of sick and vacation time 21 benefits) for over a year. 22 11 Plaintiff points out that if a pilot is too sick to work, he or she will have continuing absences 23 even if all accrued leave has been expended. At that point, however, the leave is unpaid and neither sick leave nor vacation leave accrue. In those circumstances, the absent pilots are treated no more favorably 24 with regards to the accrual of benefits than pilots on military leave. If the sick or injured pilot is eligible for insurance payments under Alaska Airlines’ long-term disability plan, his or her sick leave and 25 vacation balances are preserved until their return to active service, but the benefits do not continue to 26 accrue during a long-term disability leave. Dkt. # 55-3 at 13. 27 ORDER GRANTING DEFENDANTS’ 1 leaves of absence, on the other hand, are unlimited and have extended far beyond the maximum 2 sick time benefit could conceivably allow. The Court finds, in the alternative, that military 3 absences and sick absences are not comparable. See Hoefert, 438 F. Supp.3d at 739. 4 5 For all of the foregoing reasons, defendants’ motion for summary judgment is 6 7 GRANTED. The Clerk of Court is directed to enter judgment in favor of defendants and against 8 plaintiff. 9 10 Dated this 31st day of May, 2022. 11 12 Robert S. Lasnik United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ORDER GRANTING DEFENDANTS’