Eric White v. UAL

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2546
ERIC WHITE, on behalf of himself and others similarly situated,
Plaintiff-Appellant,
v.
UNITED AIRLINES, INC. and UNITED CONTINENTAL HOLDINGS,
INC.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 19 C 114 — Charles R. Norgle, Judge.
____________________
ARGUED SEPTEMBER 21, 2020 — DECIDED FEBRUARY 3, 2021
____________________
Before WOOD, BRENNAN, and SCUDDER, Circuit Judges.
WOOD, Circuit Judge. In 1994, Congress passed the Uni-
formed Services Employee and Reemployment Rights Act
(USERRA) with the goal of prohibiting civilian employers
from discriminating against employees because of their mili-
tary service. 38 U.S.C. § 4301(a). At issue in this case is a matter
of first impression in the courts of appeals: whether
USERRA’s mandate that military leave be accorded the same
2 No. 19-2546
“rights and benefits” as comparable, nonmilitary leave re-
quires an employer to provide paid military leave to the same
extent that it provides paid leave for other absences, such as
jury duty and sick leave. The district court answered that
question in the negative and dismissed the suit. We read the
statute differently. We find that paid leave falls within the set
of “rights and benefits” defined by the statute, and so we re-
verse and remand for further proceedings.
I
Eric White has been employed as a commercial airline pi-
lot since 2005, first for Continental Airlines and then for
United Airlines following United’s acquisition of Continental
in 2010. White has also served as a member of the United
States Air Force since 2000, first on active duty and now on
reserve duty. As a reservist he is required to attend periodic
military-training sessions to remain ready in the event he is
called back into active duty. White has taken periods of short-
term military leave, usually for a day or two at a time, during
which he did not receive pay from United.
Under United’s collective bargaining agreement, pilots re-
ceive pay when they take other short-term leaves of absence,
such as jury duty or sick leave. United also maintains a profit-
sharing plan for its pilots. Under the plan, pilots are credited
with a share of the company’s profit based on the wages they
earn over the relevant period. Because these credits are based
on wages, pilots who take paid sick leave or paid leave for
jury duty earn credit toward their profit-sharing plan, while
pilots who take short-term military leave do not.
In January 2019, White initiated this class action against
United Continental Holdings (“UCH”) and its wholly owned
No. 19-2546 3
subsidiary, United Airlines, Inc. (“UAL”) (collectively,
“United”), alleging that United’s failure to provide paid leave
and profit-sharing-plan credit to reservists on military leave
denies them “rights and benefits” that are given for compara-
ble, nonmilitary leaves, thereby violating USERRA, 38 U.S.C.
§ 4316(b)(1). The district court dismissed White’s complaint.
It rejected White’s interpretation of the statute because it
feared that it would create a de facto universal requirement
that private employers pay for military leave, contrary to the
settled understanding of the statute. See, e.g., Miller v. City of
Indianapolis, 281 F.3d 648, 650 (7th Cir. 2002); see also 20 C.F.R.
§ 1002.7(c). In the alternative, the court held as a matter of law
that jury duty and military leave are not comparable for the
purposes of USERRA, and so the statute’s equal-benefits rule
does not apply. It did not reach White’s class allegations.1
II
We evaluate de novo a district court’s grant of a motion to
dismiss. Mueller v. City of Joliet, 943 F.3d 834, 836 (7th Cir.
2019). In addition, this case concerns a question of statutory
interpretation, which we likewise consider de novo. United
States v. Miller, 883 F.3d 998, 1003 (7th Cir. 2018). On a motion
to dismiss, we accept all well-pleaded facts as true and draw
all reasonable inferences in the plaintiff’s favor. Burger v. Cnty.
of Macon, 942 F.3d 372, 374 (7th Cir. 2019). We note as well that
1 Federal Rule of Civil Procedure 23(c)(1)(A) requires the district court
to decide whether to certify a proposed class “[a]t an early practicable
time.” It does not condition certification on a winning case by the pro-
posed class representative; indeed, such a rule would amount to one-way
intervention, which the Rule was designed to end. Whether a class is
proper is a threshold issue that is distinct from the ultimate merit of a
claim.
4 No. 19-2546
we may affirm on any ground supported by the record, so
long as the issue was adequately raised before the district
court. Fid. & Deposit Co. of Md. v. Edward E. Gillen Co., 926 F.3d
318, 324 (7th Cir. 2019).
White raises three issues on appeal. His first assertion is
that the continued receipt of one’s wages during a leave of
absence qualifies without further ado as one of the “rights and
benefits” of employment contemplated by section 4316(b)(1).
Next, he argues that United’s profit-sharing plan, which cred-
its pilots with a share of the company’s profit based on the
wages they earn over a relevant period, also falls within the
scope of section 4316(b)(1). Finally, he contends that the dis-
trict court erred in holding as a matter of law that jury duty
and military leave are not comparable. United responds with
an alternate theory for partial affirmance: it says that we must
at least dismiss the claims against United Continental Hold-
ings, because UCH is not an “employer” within the meaning
of USERRA and so is not a proper defendant.
As a preliminary matter, we conclude that White’s profit-
sharing-plan claim rises or falls with his paid-leave claim.
Both hinge on whether United’s pilots are entitled to their
wages while on military leave. We therefore focus on the
question whether paid leave counts as one of the “rights and
benefits” of employment under USERRA.
III
We begin, as usual, with the statutory text. Section
4316(b)(1) provides:
[A] person who is absent from a position of employ-
ment by reason of service in the uniformed services
shall be—
No. 19-2546 5
(A) deemed to be on furlough or leave of absence
while performing such service; and
(B) entitled to such other rights and benefits not de-
termined by seniority as are generally provided by
the employer of the person to employees having
similar seniority, status, and pay who are on fur-
lough or leave of absence under a contract, agree-
ment, policy, practice, or plan in effect at the com-
mencement of such service or established while
such person performs such service.
38 U.S.C. § 4316(b)(1). Section 4303(2) defines “rights and ben-
efits” as
the terms, conditions, or privileges of employment, in-
cluding any advantage, profit, privilege, gain, status,
account, or interest (including wages or salary for work
performed) that accrues by reason of an employment
contract or agreement or an employer policy, plan, or
practice and includes rights and benefits under a pen-
sion plan, a health plan, an employee stock ownership
plan, insurance coverage and awards, bonuses, sever-
ance pay, supplemental unemployment benefits, vaca-
tions, and the opportunity to select work hours or lo-
cation of employment.
38 U.S.C. § 4303(2).
The Department of Labor has promulgated final regula-
tions, after notice and comment, that implement USERRA.
See 38 U.S.C. § 4331(a). The regulation provides:
If the non-seniority benefits to which employees on
furlough or leave of absence are entitled vary accord-
ing to the type of leave, the employee must be given
6 No. 19-2546
the most favorable treatment accorded to any compa-
rable form of leave when he or she performs service in
the uniformed services. In order to determine whether
any two types of leave are comparable, the duration of
the leave may be the most significant factor to com-
pare. For instance, a two-day funeral leave will not be
“comparable” to an extended leave for service in the
uniformed service. In addition to comparing the dura-
tion of the absences, other factors such as the purpose
of the leave and the ability of the employee to choose
when to take the leave should also be considered.
20 C.F.R. § 1002.150(b).
White argues that section 4303(2) defines the term “rights
and benefits” broadly, and under this definition paid leave—
i.e., compensation at the normal rate during a leave of
absence—is included. We agree with him.
When Congress furnishes a statutory definition for a term,
the specialized meaning it selects takes priority over the eve-
ryday meaning of words. See Samantar v. Yousuf, 560 U.S. 305,
315 (2010). Section 4303(2)’s definition of “rights and benefits”
captures all “terms, conditions, or privileges,” with no ex-
press limitations. Congress filled the rest of the definition
with expansive and illustrative words such as “including”
and “any.” See Smith v. Berryhill, 139 S. Ct. 1765, 1774 (2019)
(“Congress’ use of the word ‘any’ suggests an intent to use
[the accompanying] term expansive[ly].” (second alteration in
original)); Bloate v. United States, 559 U.S. 196, 207 (2010) (ex-
plaining that the word “including” is “an expansive or illus-
trative term”). An employer’s policy of paying employees
during a leave of absence is a “term, condition, or privilege of
employment.” The language in USERRA that follows
No. 19-2546 7
confirms this reading, by specifying that receiving pay from
one’s employer is an “advantage, profit, privilege, or gain” of
employment. This essentially ends our inquiry. “[W]hen Con-
gress chooses not to include any exceptions to a broad rule,
courts apply the broad rule.” Bostock v. Clayton Cnty., 140 S.
Ct. 1731, 1747 (2020).
United pushes back against this reading. Its primary argu-
ment is that the statute does indeed suggest an important lim-
itation, through the parenthetical in section 4303(2). That pas-
sage confirms that the term “rights and benefits” “(includ[es]
wages or salary for work performed).” (Emphasis added.)
Aha!, says United: if it just covers work performed, then it must
exclude work not performed for the employer. It supports this
interpretation in two ways: through the expressio unius est ex-
clusio alterius canon, and through the rule against redun-
dancy. If Congress had intended otherwise, United con-
cludes, it would have written the parenthetical to read “in-
cluding wages or salary” without the qualifier.
It is not a bad point, but in the end we are not persuaded.
First is the uncomfortable fact that the word “including” in-
side a parenthetical makes a phrase illustrative, not exclusion-
ary. See Chickasaw Nation v. United States, 534 U.S. 84, 89
(2001); United States v. Coscia, 866 F.3d 782, 792 (7th Cir. 2017).
It would be peculiar to read inclusive language embedded
within a broadly worded definition as performing an exclu-
sionary function.
Second, we are loath to place as much weight as United
does on the expressio unius canon, which we have character-
ized as “much-derided” and “disfavored.” Dahlstrom v. Sun-
Times Media, LLC, 777 F.3d 937, 943 (7th Cir. 2015); Exelon Gen-
eration Co., LLC v. Local 15, Int’l Bhd. of Elec. Workers, 676 F.3d
8 No. 19-2546
566, 571 (7th Cir. 2012). It is especially inapt where, as here,
applying the canon would contradict the surrounding text.
After all, a parenthetical is just that—a parenthetical—“and it
cannot be used to overcome the operative terms of the stat-
ute.” Chickasaw Nation, 534 U.S. at 95 (internal quotation omit-
ted).
Third, while United may be correct that our interpretation
renders the phrase “for work performed” surplusage, the
presence of some redundance is rarely fatal on its own to a
statutory reading. Our task is to discern the meaning of the
statute. As the Supreme Court recently explained in Rimini
Street, Inc. v. Oracle USA, Inc., 139 S. Ct. 873 (2019), redun-
dance provides “a clue as to the better interpretation” but is
not always dispositive. “Sometimes,” the Court said, “the bet-
ter overall reading of the statute contains some redundancy.”
Id. at 881. This strikes us as just such a situation. There is a
straightforward explanation for the parenthetical’s verbosity
that comes from the statutory history: when USERRA was
passed in 1994, the text of the parenthetical read: “(other than
wages or salary for work performed).” Pub. L. No. 103-353,
§ 2(a), 108 Stat. 3149, 3150 (1994) (emphasis added). That is,
section 4303(2) originally excluded on-the-job compensation
from the definition of “rights and benefits.” In 2010, Congress
amended the statute to overrule an Eighth Circuit decision
that had interpreted the parenthetical to condone wage dis-
crimination under a different section of USERRA. See 156
Cong. Rec. S7656, S7662 (daily ed. Sept. 28, 2010) (discussing
Gagnon v. Sprint Corp., 284 F.3d 839, 853 (8th Cir. 2002)). The
amendment struck the words “other than” and replaced them
with “including,” leaving us with the definition we have to-
day. See Veterans’ Benefits Act of 2010, Pub. L. No. 111-275,
Title VII, § 701(a), 124 Stat. 2864, 2887.
No. 19-2546 9
We decline United’s invitation to read special significance
into Congress’s decision to fix the statute one way (i.e., replac-
ing “other than” with “including”) instead of another (e.g., de-
leting the entire parenthetical), absent any indication that the
drafting choice was intended to be meaningful. This easily
traced evolution of the law rules out any argument that the
2010 amendment (a measure intended to expand the definition
of benefits by closing a gap) had in fact shrunk the scope of the
definition sub silentio. Redundance happens all the time, and
the better view is that is all we are seeing here.
United next invites us to broaden our gaze to the rest of
USERRA and consider how the words “rights” and “benefits”
are used in other provisions of the Act. It points to sections
4323(d)(1)(B) and 4324(c)(2), which allow employees to
recover from their employers “for any loss of wages or
benefits” caused by a USERRA violation. 38 U.S.C.
§§ 4323(d)(1)(B), 4324(c)(2) (emphasis added). The use of the
word “or” in these provisions, United contends, indicates that
wages and benefits must have nonoverlapping meanings
throughout the statute. At the same time, United
acknowledges that “wages … for work performed” are
included in the definition of “rights and benefits.” It
nonetheless insists that the parenthetical in section 4303(2)
effects only a partial departure from the statutory baseline
that it believes is established in sections 4323 and 4324, to the
effect that wages are not benefits. Putting all this together,
United concludes that wages for work not performed—i.e.,
paid leave—are excluded. We reject this interpretation, both
because (as we have explained) the parenthetical in section
4303(2) is not exclusionary and because sections 4323 and
4324 do not establish a baseline crisply distinguishing
between wages and benefits.
10 No. 19-2546
In general, we presume that “identical words used in dif-
ferent parts of the same act are intended to have the same
meaning.” Sullivan v. Stroop, 496 U.S. 478, 484 (1990) (internal
quotation omitted). But that presumption is rebuttable, and
here we find that it “readily yields” to an alternative explana-
tion. Roberts v. Sea-Land Servs., Inc., 566 U.S. 93, 108 (2012).
Again, USERRA’s statutory history removes any ambiguity.
Sections 4323 and 4324 predate the 2010 amendment to
USERRA. Before 2010, some wages—namely “wages or salary
for work performed”—were expressly excluded from the defi-
nition of “benefits” under section 4303(2), and so it made
sense to list them separately. In 2010, Congress made a surgi-
cal change to the text of section 4303(2) to include wages for
work performed, but it left the other provisions untouched.
The presumption of consistent usage breaks down where a
different Congress changes the meaning of a term in one sec-
tion, but not others. The failure to maintain consistency (to the
extent that there is such a flaw) is just as likely to be an over-
sight as a significant policy statement. Cf. Gen. Dynamics Land
Sys., Inc. v. Cline, 540 U.S. 581, 595 n.8 (2004). United fails to
persuade us to read the section any other way.
Because the definition of “rights and benefits” under
USERRA embraces paid leave, we conclude that the district
court erred in dismissing White’s paid-leave claim as a matter
of law. This also means that White is entitled to move forward
with his (and the putative class’s) profit-sharing claim. Alt-
hough that is enough to resolve this part of the case, we think
No. 19-2546 11
it appropriate to add a word or two about United’s additional,
extratextual arguments.2
IV
United asks us to examine how White’s interpretation of
“rights and benefits” interacts with related provisions of fed-
eral law. It asserts that our reading of section 4303(2) conflicts
with a pre-USERRA statute that provides federal workers
with 15 days of paid military leave per year. See 5 U.S.C.
§ 6323. The conflict arises, says United, because federal law
has provided federal employees with paid leave for illness
and jury duty since before 1994. See 5 U.S.C. § 6307 (sick
leave); id. § 6322 (jury-duty leave). Adopting White’s interpre-
tation of USERRA, it argues, would require us to conclude
that when Congress passed USERRA, it quietly overrode sec-
tion 6323’s 15-day cap on such leave with respect to federal
employees. United reasons that this cannot be so, because after
USERRA was passed, Congress amended section 6323 to
2 It is our understanding that White and his fellow reservists receive
a stipend from the military while performing their reserve duties. Alt-
hough the amount of pay White receives from the military is not included
in the record before us, the parties’ submissions imply that the sum is less
than the compensation White would otherwise receive from United for
the same period. In this litigation, White argues that he should receive his
full regular wages while on military leave, not the differential between his
regular wage and the compensation he receives from the military. Because
United does not raise the argument, we need not determine at this time
whether USERRA requires United to pay White his full rate of compensa-
tion or only the differential between his regular pay and his military pay.
We note, however, that the government provides a (modest) stipend for
jury duty service, yet the Amended Complaint alleges that United pays
employees their full salaries and wages during jury-duty leave without
any offset.
12 No. 19-2546
cover additional groups of federal employees engaged in mil-
itary service. Those groups, however, already should have
been afforded paid leave under USERRA section 4316(b)(1).
We have two responses. First, the application of “whole
code canons” rests on a shaky foundation. See William N.
Eskridge Jr., Interpreting Law 118 (2016). Appeals to con-
sistency with other areas of the U.S. Code—especially differ-
ent titles of the Code—“represent a much greater risk of judi-
cially overriding legislative assumptions and policies, be-
cause legislators and their staff are not aware of these canons
or do not easily apply them.” Id. In short, these arguments
should be handled with caution.
Second, United exaggerates the inconsistency that exists.
USERRA section 4316(b)(1) sets forth an equality principle,
not a floor or a cap on benefits. And nothing in section 6323
indicates that it functions as a cap, rather than a floor. The lat-
ter statute says only that servicemembers who are federal em-
ployees accrue paid military leave “at a rate of 15 days per
fiscal year,” and, to the extent that any days go unused, the
days may roll over into the next fiscal year. This benefit is au-
tomatic under 5 U.S.C. § 6323. USERRA itself says nothing
about the specific benefits that an employer must provide. It
is up to the employee to demonstrate that any given stretch of
military leave is comparable to a form of nonmilitary leave
that is accorded a benefit. At most, section 6323 may eliminate
the need for federal-employee servicemembers to conduct
this case-by-case comparison, at least up to the first 15 days of
military leave. If a federal employee is required to take more
than 15 days of military leave in a given fiscal year, USERRA
section 4316(b)(1) permits paid leave to the extent that the
marginal days of military leave are “comparable” to leave
No. 19-2546 13
based on circumstances such as sick leave or jury duty. There
is nothing incompatible between section 6323 and USERRA.
United sets great store on two more extratextual argu-
ments: It insists that Congress did not realize that it was open-
ing the door to this kind of paid leave for military service, and
it predicts that our reading of the statute would effect a costly
sea-change for public and private employers, essentially mak-
ing our interpretation an “elephant[] in [a] mousehole[].”
Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 468 (2001).
Neither argument is persuasive. Both are in substantial
tension with the text of the statute. As the Supreme Court re-
cently reminded us in Bostock v. Clayton County, the language
that Congress chose when drafting the statute is the most im-
portant consideration in a case like this—when the meaning
of the text can be ascertained, it does not matter whether Con-
gress considered or anticipated the specific application at is-
sue. 140 S. Ct. at 1737. “The limits of the drafters’ imagination
supply no reason to ignore the law’s demands.” Id. Rather,
“[w]hen the express terms of a statute give us one answer and
extratextual considerations suggest another, it’s no contest”—
the written law prevails. Id.
The second point fails again to recognize that USERRA
mandates only equality of treatment; it does not specify how
generous or how parsimonious an employer’s paid leave pol-
icies must be. Amici and United argue that our interpretation
would unsettle previous expectations and increase payroll
burdens on small businesses, the airline industry, and state
and local governments. They point out that many states and
municipalities require employers to provide at least some
leave for illness and jury duty, and other private employers
do so voluntarily. Labor costs will increase, however, only to
14 No. 19-2546
the extent that a few employees will be taking paid leave for
one more purpose. Neither amici nor United makes any at-
tempt to quantify how many people we are talking about.
Less than one percent of employees in the national economy
are reservists. See U.S. Dep’t of Defense, 2018 Demographics:
Profile of the Military Community 63 (2016), https://down-
load.militaryonesource.mil/12038/MOS/Reports/2018-
demographics-report.pdf; Bureau of Labor Statistics, Employ-
ment Situation Summary Table A. Household data, seasonally ad-
justed (2020), https://www.bls.gov/news.release/empsit.a.htm.
Of those, some undoubtedly work for employers who do not
provide compensation for comparable forms of nonmilitary
leave, while others work for employers who already provide
paid military leave. Amici’s and United’s objection also ig-
nores the fact that only military leave comparable in duration
to nonmilitary leaves of absence is covered by USERRA. See
20 C.F.R. § 1002.150(b).
V
Our conclusion that this case was ended prematurely
leaves open an important inquiry on remand. For section
4316(b)(1)’s equal-treatment rule to apply, White must show
that any leave of absence for which his employer provides
paid leave is comparable to any given stretch of military leave.
20 C.F.R. § 1002.150(b); see also Waltermyer v. Aluminum Co. of
Am., 804 F.2d 821, 825 (3d Cir. 1986). This is primarily a ques-
tion of fact. See Rogers v. City of San Antonio, 392 F.3d 758, 771–
72 (5th Cir. 2004). The Department of Labor’s implementing
regulations list three factors that should be considered in the
comparability analysis. Among these, “the duration of the
leave may be the most significant factor to compare,” but
courts should also consider “the purpose of the leave” and
No. 19-2546 15
“the ability of the employee to choose when to take the leave.”
20 C.F.R. § 1002.150(b).
The district court cut off this analysis too soon. It rested its
holding on the observation that, “[a]lthough both may be spo-
radic and uncontrollable in timing, all citizens … are subject
to jury duty … whereas military duties … are voluntarily
joined.” This logic both ignores the text of the regulation and
impermissibly penalizes servicemembers for joining the mili-
tary, in direct contravention of USERRA’s core purpose. Com-
parability analysis is not affected by the fact that the service-
member has voluntarily signed up for military service (and
thus will be eligible for military leave at some point). For al-
most 50 years now, the United States has had an all-volunteer
force. Instead, what matters is an employee’s control over the
timing of her leave of absence—i.e., whether she has the option
to choose when to take a given stretch of leave.
At this stage in the litigation, we do not have enough
information about the frequency and duration of White’s
military-leave obligations, or those of his fellow reservist-
pilots, to say much more about this. Discovery may reveal that
all, none, or only part of those obligations are comparable to
jury duty or sick leave (or other short-term obligations) when
assessed with the help of section 1002.150(b). This is a matter
to be determined on remand.
VI
United raises one last argument for partial affirmance: that
White failed plausibly to allege that one of the defendants—
United Continental Holdings—falls within the scope of
USERRA. It asks that the suit be dismissed as to UCH, leaving
UAL—UCH’s wholly owned subsidiary—as the sole
16 No. 19-2546
defendant. Although the district court did not address this ar-
gument, we may consider it because United presented it
there. See Fid. & Deposit Co. of Md., 926 F.3d at 324.
The proper defendant in a USERRA action is the plaintiff’s
“employer.” USERRA defines “employer” as an “entity that
pays salary or wages for work performed or that has control
over employment opportunities,” including an “entity to
whom the employer has delegated the performance of
employment-related responsibilities.” 38 U.S.C. § 4303(4)(A).
In support of dismissal, United cites a number of district
court decisions for the proposition that a defendant counts as
a USERRA employer only if it has the authority to “hire and
fire” the plaintiff, or it has some “control over employment
opportunities” or “employment-related responsibilities.” Re-
lying on these cases, United argues that an entity that is not
involved in relevant personnel decisions is not an employer
under USERRA and so cannot be liable for USERRA viola-
tions. White’s complaint, United contends, fails to allege any
facts to support the proposition that UCH controls employ-
ment opportunities at UAL. United points out that the CBA
carefully draws a distinction between UAL and UCH: for ex-
ample, the parties to the CBA are listed as the pilots’ union
and UAL, and the CBA is signed only by UAL. And although
the CBA does acknowledge that UCH has agreed to be bound
by section 1 of the CBA, which concerns labor relations and
dispute resolution, UCH did not agree to be bound by any
other section. That includes all of those that are pertinent to
this litigation: section 3 (compensation), section 12 (leaves of
absence), section 13 (sick leave), and section 21.N (jury duty).
Only UAL is a party to those provisions. Finally, United
acknowledges that the UAL executives who negotiated the
No. 19-2546 17
CBA hold the same positions within UCH. It invokes United
States v. Bestfoods, 524 U.S. 51 (1998), however, for the propo-
sition that a parent corporation does not become subject to li-
ability for a subsidiary’s acts merely because the entities have
common officers or directors. Id. at 69.
White argues that the complaint alleges that UCH has at
least some control over employment opportunities at United.
He alleges that UCH participated in the CBA negotiations
through its officers, who wore both their United and UCH
hats; that UCH agreed during the negotiations that it is an af-
filiate of United and that it would be bound by section 1 of the
CBA; and that by participating in the negotiations UCH par-
ticipated in the decision not to pay for short-term military
leave while paying for jury duty and sick leave. White con-
cludes that the complaint plausibly alleges that UCH joined
in making the decisions being challenged in this litigation.
This is a close call, because of the lack of a clear standard
for determining whether an entity is an “employer” within
the USERRA context. Neither White nor United cites to any
circuit or Supreme Court precedent concerning this precise
question. We conclude, however, that for present purposes
White has alleged enough to keep UCH in the case. We offer
some preliminary thoughts here, but on remand the district
court also may wish to consult other statutes in which this is-
sue arises, such as Title VII of the Civil Rights Act of 1964 and
the National Labor Relations Act.
USERRA’s definition of “employer” includes any “entity
to whom the employer has delegated the performance of
employment-related activities.” 38 U.S.C. § 4303(4)(A)(i). This
implies that more than one entity may qualify as an
“employer” of the same employee. The use of the word
18 No. 19-2546
“delegate[]” suggests an intent to reach both direct and
indirect employers, including parent corporations if they pay
“salary or wages for work performed or [have] control over
employment opportunities.” 38 U.S.C. § 4303. White’s
complaint plausibly alleges that UCH exercised the requisite
level of control over the employment opportunities available
to White. UCH did separately sign section 1 of the CBA. In
this way, the complaint can be read to allege that the
individual negotiators wore their UCH hats. The text of
section 4303(4)(A)(i) does not require that an “employer” have
direct control over the matters that constitute a USERRA
violation; it says only that the employer must have control
over the plaintiff’s employment opportunities writ large.
UCH’s active participation in the CBA negotiations, and its
approval of the CBA section are relevant to that issue.
To be clear, the presence of common officers for UCH and
United alone does not create liability for UCH. But that fact,
added to the allegations in the complaint of active participa-
tion, may suggest some measure of control for purposes of
Section 4303(4)(A). Finally, we note that White’s burden will
be higher at later stages in the litigation. Discovery may reveal
facts that demonstrate that UCH exercises control over
White’s employment opportunities, or it may show that
UCH’s role was purely formal and unrelated to the critical is-
sues. We hold today only that White has alleged enough to
survive a motion to dismiss UCH.
The judgment of the district court is REVERSED and the case
is REMANDED for further proceedings consistent with this
opinion.