A federal appeals panel has cleared an airline pilot to resume approach on a lawsuit accusing Alaska Airlines of violating federal law by refusing to pay him and other pilots when they are on short-term military duty, even though they pay pilots for other forms of short-term leave, such as jury duty or bereavement.
On Feb. 1, a three-judge panel of the U.S. Ninth Circuit Court of Appeals sided with plaintiff Casey Clarkson in his dispute with his employer, Alaska Airlines.
The decision overturned the decision U.S. District Judge Thomas O. Rice, of the Eastern District of Washington.
The decision was authored by Circuit Judge Richard A. Paez. Circuit Judge Bridget S. Bade concurred in the decision, along with U.S. District Judge Haywood S. Gilliam Jr., of the Northern California District Court, who was sitting on the panel by designation.
The case centered on language in a federal law, known as the Uniformed Services Employment and Reemployment Rights Act. The law requires employers to treat leave from work for military duty as it treats non-military furloughs or leaves of absence.
In deciding how to treat military leave, the law requires employers to give “the most favorable treatment accorded to any comparable form of leave when he or she performs service” in the military.
Clarkson filed his class action complaint against Alaska Airlines in 2019, claiming the airline failed “to pay pilots who took short-term military leave while paying pilots who took comparable non-military leaves.”
The lawsuit would have included any Alaska Airlines pilots who took short-term military leave of 30 days or less since October 2004.
Alaska Airlines fought the lawsuit by claiming Clarkson’s military leave was not the same as other forms of non-military leave, such as jury duty, sick leave or bereavement.
Alaska Airlines “contend that pilots take military leave to pursue a parallel career” and that pilots “have near total control over when to take military leave.”
Clarkson disagreed, saying the military service “allows pilots to perform a civic duty and public service,” and the U.S. Armed Forces decide when service members serve.
In court, Judge Rice sided with the airline, and granted summary judgment to the airlines, which would have grounded the lawsuit.
The judges on the Ninth Circuit, however, said Rice got the law wrong in cutting the case short.
“… The airlines rely on the very rationale that Congress sought to prohibit: ‘The fact that military duty leave happens much more frequently … than, say, jury duty leave, means that providing paid military leave is substantially more costly and burdensome to operations than providing paid jury duty leave.’
“But Congress enacted USERRA to ‘prohibit discrimination against persons because of their service in the uniformed services, regardless of whether those anti-discrimination protections increase employers’ costs and burdens,” the judges said.
The appeals panel said the judge should have left to a jury the question of whether short-term military service is comparable to those other forms of paid leave.
And the appeals judges directed the lower court to consider whether Clarkson’s claims could be disqualified under the pilots’ collective bargaining agreement.
Alaska Airlines has been represented by attorney Anton Metlitsky and others with the firm of O’Melveny & Myers, of Washington, D.C.; New York; and Los Angeles.
Clarkson has been represented by attorney Jonathan E. Taylor, of Gupta Wessler, of Washington, D.C.