Employee Has Valid USERRA Claim Against FedEx After Being Denied Higher Bonus After Having Been Deployed

Huhmann v. Federal Express Corporation - Ninth Circuit Court of Appeals

Facts:  Dale Huhmann ("Huhmann") was hired by Federal Express ("FedEx") in 2001 as a pilot.  (From 1985 until he retired in 2006, Huhmann was commissioned as an officer in the United States Air Force Reserve).  In early 2003, Huhmann was selected to begin training in a "wide-body" aircraft that would qualify him for a higher pay grade.  However, on February 7, 2003, he was mobilized for active Air Force duty and was deployed overseas until August 31, 2006.

After completing his military service, Huhmann returned to active pay status with FedEx on December 1, 2006 and began training to become a first officer on the wide-body aircraft, as originally planned before he was deployed.  Huhmann did not fail any portion of his training or evaluation and was activated as capable of flying the wide-body aircraft on February 22, 2007.

Note, Huhmann is a member of the bargaining unit represented by the Air Line Pilots Association ("ALPA").  While Huhmann was still on active duty, FedEx and ALPA agreed that on the day a proposed collective bargaining agreement ("CBA") was signed, pilots employed by FedEx (including those on military leave) that had been on active pay status on FedEx's payroll during a specified time would receive a full signing bonus applicable to their pay grade.  Pilots on military leave were able to receive their signing bonuses upon returning to employment with FedEx.  Upon Huhmann's return, he was paid $7,400.00 as a signing bonus (compared to the $17,700.00 he would have received if here were certified as being able to fly a wide-body aircraft).  Huhmann subsequently filed suit against FedEx and alleged his employer had violated the Uniformed Services Employment and Reemployment Rights Act ("USERRA") when it failed to pay him the $17,700.00 signing bonus).  After a bench trial, judgment was entered for Huhmann.  FedEx appealed.

Holding:  In this type of USERRA claim, Huhmann was required to show that his protected status (as a result of his military service) was a substantial or motivating factor in the adverse employment action.  FedEx could then avoid liability if it established that it would have taken the same action without regard to Huhmann's protected status.  In this case, the Court of Appeals held that it had been established that Huhmann's military service was the cause of his "adverse employment action":  receiving a smaller bonus.

In addition, two doctrines are utilized by a court to aid in this USERRA analysis:  the "escalator principle" and the "reasonable certainty test".  The escalator principle provides that a returning service member not be removed from the progress (the "escalator") of his career trajectory, but rather should be returned to a "position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service."  The reasonable certainty test aids in determining the returning service member's position on the "escalator" such as the position the service member would have been "reasonably certain" to have obtained absent military service.  When jointly considered, the escalator and reasonable certainty principles guarantee that progress in the returning service member's overall career trajectory not be set back by his service.

Based upon both principles, the Court of Appeals agreed that the district court properly held that Huhmann would have been entitled to the higher bonus, had he not been deployed for military service.  Since Huhmann's bonus was based on his job position (and since FedEx was required to reemploy him in the "job position that he...would have attained with reasonable certainty," had he not been deployed), that logically lead to the reasonable certainty test being utilized to determine whether it was "reasonably certain" that Huhamann would have attained a higher status and been entitled to the bigger bonus.  

In essence, a two part framework is used for applying the reasonable certainty test:  As a matter of foresight, whether it was reasonably certain that advancement would have occurred and as a matter of hindsight, if the advancement did in fact occur.  (FedEx conceded the point as to the hindsight prong).  Based upon the facts in the record, the Court of Appeals agreed with the district court that it was reasonably certain that Huhmann would have become certified to fly the wide-body aircraft prior to when the CBA was signed and therefore would have been owed the bonus according to that higher status.  As noted, prior to his deployment, he was accepted into the wide-body aircraft training program.  While some pilots fail this training, the Court pointed out that given Huhmann's diverse and long experience as a military and civilian pilot, past job performance, etc., it was reasonably certain as a matter of foresight that he would have successfully completed the training.

Judgment:  The Court of Appeals affirmed the judgment of the lower court in favor of an employee who brought a USERRA claim against his employer after he was improperly denied a higher bonus upon returning to work after having been deployed.

The Takeaway:  Very interesting case, right?  While some USERRA cases tend to be rather cut and dry, this one was a bit more subjective and dependent upon the Court's analysis of the facts based upon the escalator principle and reasonable certainty test.  With that being said, while the Court's analysis was subjective, I think it reached the proper conclusion here.  Given that FedEx conceded a portion of claim, that left the Court with only really having to consider the foresight prong.  However, as the Court pointed out, there were sufficient facts in the record to establish with reasonable certainty that Huhmann would have become certified to fly the wide-body aircraft had he not been deployed prior to his training.

Majority Opinion Judge:  Judge Bea

Date:  November 2, 2017

Opinion:  http://hr.cch.com/ELD/HuhmannFedEX110217.pdf