20 F.4th 375
7th Cir.2021Background
- Michael Moss, a United pilot and Marine Corps reservist, sued United Airlines under USERRA alleging denial of sick-time accrual during military leave beyond 90 days; the district court granted summary judgment to United and certified a class of affected pilots.
- Prior to the 2014 standardization, legacy United pilots accrued sick time throughout military leave while legacy Continental pilots accrued only for the first 30 days; after merger United standardized accrual to the first 90 days of military leave.
- The collective bargaining agreement provides five hours of sick leave per Bid Period (month) for each "Bid Period of Active Employment," with a 1,300-hour maximum, no payout at separation, and accrual conditioned on Active Employment.
- Moss argued sick time is a seniority-based benefit under 38 U.S.C. § 4316(a); United argued sick time is nonseniority deferred compensation tied to a work requirement and thus not protected by the seniority rule.
- The district court held (1) sick-time accrual is not seniority-based and (2) military leave is not comparable to other leaves for accrual purposes; Moss appealed only the sick-time seniority ruling to the Seventh Circuit.
- The Seventh Circuit affirmed: sick-time accrual is not a reward for length of service but a form of compensation with a bona fide work requirement and no vesting or seniority-tiered accrual.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sick-time accrual is a seniority-based benefit under USERRA §4316(a) | Moss: sick time is future-oriented seniority benefit (doesn't expire annually, usable only when sick, not paid out) | United: sick time is deferred compensation tied to a work requirement; equal accrual for all; no vesting or seniority tiers | Held: Not seniority-based; accrual is compensation for work (respite), no reward-for-length-of-service characteristics |
| Whether non-seniority benefits must be provided by comparing legacy United and Continental military-leave policies | Moss (on appeal): compare legacy United military leave to legacy Continental military leave | United: issue not properly raised below | Held: Argument waived on appeal; court takes no position on that inter-military-leave comparison under §4316(b) |
Key Cases Cited
- Alabama Power Co. v. Davis, 431 U.S. 581 (1977) (two-part test: accrual certainty and whether benefit is a reward for length of service)
- Coffy v. Republic Steel Corp., 447 U.S. 191 (1980) (supplemental unemployment benefits held seniority-based; protects economic security tied to length of service)
- Foster v. Dravo Corp., 420 U.S. 92 (1975) (vacation characterized as short-term compensation for work when linked to work requirements)
- Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275 (1946) (escalator principle: reemployed servicemember returns to place on seniority "escalator" they would have occupied)
- LiPani v. Bohack Corp., 546 F.2d 487 (2d Cir. 1976) (sick leave characterized as deferred compensation similar to vacation pay)
- Jackson v. Beech Aircraft Corp., 517 F.2d 1322 (10th Cir. 1975) (sick-time accrual tied to a work requirement is nonseniority-based)
- Accardi v. Penn. R.R. Co., 383 U.S. 225 (1966) (illusory work requirements cannot convert payments into seniority perquisites)
- DeLee v. City of Plymouth, 773 F.3d 172 (7th Cir. 2014) (applies Alabama Power framework to determine seniority status of benefits)