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Airline improperly delayed rehiring reservist at end of tour, but USERRA discrimination claim fails

By Ronald Miller, J.D.

The airline did not offer the employee reemployment in an appropriate position until more than two months after it learned he would likely need to be rehired in a non-pilot position.

American Airlines violated USERRA when it delayed rehiring an Air Force reservist returning from a tour of duty because he had been unable to obtain medical clearance from the FAA to return to his position as a pilot, ruled the Fourth Circuit. The appeals court noted that the airline learned on August 20, 2015 of the employee’s medical condition that made him ineligible to fly. The employee had a rehire date of September 1, so it had two weeks to find him an appropriate position. Because the airline delayed for over two months before offering him an alternative position, it did not “promptly” rehire him as required by USERRA. However, the employee’s discrimination claim failed because the airline’s failure to reemploy him on September 1, 2015, was unrelated to his service in the Air Force (Harwood v. American Airlines, Inc., July 6, 2020, Neimeyer, P.).

End of tour of duty. The employee was employed as a pilot for American Airlines. From June 2013 to August 31, 2015, he took leave to serve a tour of duty with the Air Force Reserve. Near the end of his tour, he contacted the airline to inform it that he intended to return to work upon completion of his duty. In response to the employee’s inquiry, the airline confirmed that he would be reemployed in his requested position as of September 1, 2015, and that his retraining would begin on September 5.

Thereafter, the employee disclosed that he had been diagnosed with atrial fibrillation (a condition involving an irregular heartbeat) and therefore was unable to secure the required medical clearance from the Federal Aviation Administration (FAA) to serve as a pilot. He requested a waiver of the certification requirement, but was not cleared for flight at that time. As a consequence, the airline informed him that it could not rehire him as a pilot, but that it could “explore other paths.”

Despite his lack of a medical certificate, the employee stated he would like to be reemployed as a pilot and pointed out that he had a sick leave balance of 854 hours he could use while he tried to obtain clearance to fly.

Alternative position. The airline offered the employee an alternative position on October 22, 2015, which he initially turned down. During the interim period, he remained on active duty and received income and benefits from the military. After several months, the employee accepted the alternative position and was rehired by the airline on January 25, 2016. On the same day, he also obtained a waiver from the FAA that entitled him to serve again as a pilot, and the next day, the employee was reassigned to a pilot position.

The employee brought his action under USERRA to recover damages incurred from September 1, 2015 to January 25, 2016, due to the airline’s failure to reemploy him promptly, as required by the Act. He also claimed that during the rehiring, the airline discriminated against him on the basis of his uniformed service.

Lower court judgment. The district court dismissed the employee’s discrimination claim. With regard to that claim, the district court read Section 4311 as protecting veterans from discrimination after they have been reemployed. It found that the employee failed to plead facts that he was discriminated against after his January 2016 reemployment. While it granted judgment in favor of the employee on his claim that the airline failed to rehire him promptly, it rejected the employee’s claim that the airline acted willfully, which would have entitled him to liquidated damages. The lower court entered a money judgment in favor of the employee for $50,184 and denied his motion for an injunction.

Issues on appeal. On appeal, the employee contended that the district court erred in (1) dismissing his discrimination claim; (2) determining that the airline’s violations were not willful; (3) denying his request for injunctive relief; and (4) reducing his damage award by the income he received from the Air Force. The airline cross-appealed, contending that the district court erred (1) in concluding that it did not rehire the employee promptly, and (2) alternatively, in determining the period of time for which he was entitled to damages in the form of backpay.

Discrimination claim. Section 4311 broadly prohibits discrimination in the hiring, rehiring, and retaining of service members. To succeed on a claim under Section 4311(a), a service member must demonstrate (1) that his employer took an adverse employment action against him; (2) that he performed as a member of a uniformed service; and (3) that the employer’s adverse action was taken “on the basis of” that service. The Fourth Circuit found that the plain text of Section 4311 reads more broadly than the interpretation given by the district court. Rather, Section 4311’s protection against discriminatory action also applies explicitly to “initial employment” and “reemployment.”

Nevertheless, the appeals court affirmed the district court’s decision to dismiss the employee’s Section 4311 claim because the complaint’s factual allegations of discriminatory intent were far to attenuated to make them relevant to the airline’s conduct in 2015. The airline’s failure to reemploy the employee in September 2015 because he did not possess a valid medical certificate was unrelated to his service in the Air Force.

Prompt reemployment. The airline contended that the district court erred in finding it liable under Sections 4312 and 4313 because it was required to reemploy the employee promptly after he satisfied the requirements for reemployment. According to the airline, it fully complied with the statutory scheme by first ensuring that the Section 4312 criteria were satisfied and then proceeding under Section 4313 to identify an appropriate reemployment position. Thus, the employer contended that it was under no obligation to rehire the employee until it had identified a proper position.

Under the statutory scheme created by Sections 4312 and 4313, eligible returning service members must be promptly reemployed in an appropriate position for which they are qualified.

In this instance, it was clear that the employee was not qualified at the time his tour ended to perform the duties of the escalator position—without medical clearance, the employee was ineligible to serve as a pilot. However, he was eligible for other positions that met the requirements of Section 4313. Thus, the question was whether the airline acted sufficiently promptly to meet its burden under that section to reemploy the employee in an appropriate position as soon as practicable under the circumstances.

The airline determined as early as August 3 that the employee qualified for reemployment under Section 4312. Further, it was on notice as of August 20 that the employee had not obtained medical clearance for a pilot position. Thus, it had nearly two weeks to identify an appropriate alternative position for him for his September 1 start date. The district court did not err in concluding that “promptly” entailed employment by September 1, as promised by the airline.

Accordingly, the appeals court affirmed the district court’s order finding that the airline violated USERRA when it failed to reemploy the employee on September 1.