United States District Court, E.D. Washington
ORDER DENYING DEFENDANTS ALASKA AIRLINES, INC. AND
HORIZON AIR INDUSTRIES, INC.'S MOTION TO DISMISS
O. Rice Chief United States District Judge.
THE COURT is Defendant Alaska Airlines, Inc. and Horizon Air
Industries, Inc.'s (“Defendants”) Motion to
Dismiss. ECF No. 18. This matter was submitted without oral
argument. The Court has reviewed the record and files herein,
and is fully informed. For the reasons discussed below,
Defendants' Motion to Dismiss (ECF No. 18) is
January 7, 2019, Plaintiff Casey Clarkson initiated this
class action against Defendants Alaska Airlines, Inc.
(“Alaska”) and Horizon Air Industries, Inc.
(“Horizon”) under the Uniformed Services
Employment and Reemployment Rights Act
(“USERRA”), 38 U.S.C. § 4301 et
seq. ECF No. 1. The allegations raised in
Plaintiff's Complaint revolve around one central
issue-the reemployment position and benefits a service member
is entitled when returning to a civilian job following
periods of short-term military leave. Plaintiff asserts that
Horizon and Alaska have adopted and applied certain policies
to servicemember-pilots who take short-term military leave
that violate USERRA's requirements and protections. This
class action hinges on the alleged illegality of these
April 17, 2019, Alaska and Horizon filed a Motion to Dismiss,
which is presently before the Court. ECF No. 18. Alaska and
Horizon move the Court to dismiss all counts against them for
failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). ECF No. 18. On May 21, 2019, Plaintiff
submitted a response to Defendants' motion. ECF No. 24.
Defendants timely filed a reply brief in support of their
motion on June 11, 2019. ECF No. 29.
following facts are drawn from Plaintiff's Complaint and
are accepted as true for purposes of the instant motion only.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007). In November 2013, Plaintiff was hired by Horizon to
work as a turboprop passenger aircraft pilot. ECF No. 1 at
¶ 42. Plaintiff worked for Horizon until he was hired by
Alaska to pilot a 737 passenger jet in November 2017.
Id. at ¶ 13. Plaintiff is currently employed by
working as a commercial pilot for Horizon and Alaska,
Plaintiff also served in the Washington Air National Guard.
Id. Plaintiff's membership in the National Guard
required him to take several periods of short-term military
leave throughout his employment with both Defendants.
Id. As noted, Horizon and Alaska have implemented
certain policies regarding employees who take short-term
military leave, discussed further below, which Plaintiff
claims violate various provisions of USERRA.
Horizon's “Virtual Credit” Policy
with Horizon, Plaintiff identifies two interacting policies
that allegedly result in several violations of USERRA. First,
Horizon divides its turboprop pilots into the following three
categories: Regular Line holders, Reduced Line holders, and
Reserve Line holders. Id. at ¶ 39. According to
Plaintiff, Regular Line holders make more money and have a
more predictable schedule than Reserve or Reduced Line
holders. Id. Regular Line holders receive a 70-hour
per month minimum guarantee, meaning a Regular Line holder is
guaranteed at least 70 hours of pay per month. To attain
Regular Line holder status, a pilot must work at least 70
hours per month. Id. at ¶ 4. If a pilot works
less than 70 hours per month, however, the pilot loses his
Regular Line holder status and becomes a Reserve Line holder.
since at least May 2017, Horizon has used a “virtual
credit” policy to determine the position a pilot
returns to following periods of qualifying leave, including
short-term military leave. at ¶¶ 3, 38. Under the
“virtual credit” policy, Horizon credits its
pilots 2.45 hours of work per day for each day of qualifying
military leave. at ¶ 38. Plaintiff notes that Horizon
does not, however, give its pilots full credit for the flight
hours pilots would have flown during periods of military
he was unable to receive full credit for the hours he would
have worked during periods of military leave, Plaintiff
alleges that Horizon's “virtual credit”
policy caused him to lose his Regular Line holder status.
Plaintiff first went on military leave as a Horizon employee
from June 8, 2017, through June 8, 2018. at ¶ 43.
According to his Complaint, Plaintiff was on military leave
for 22 days in June 2017 and 7 days in July 2017. at
¶¶ 43-44. When Plaintiff returned to work from
military leave, Horizon credited Plaintiff 53.9 hours of work
for June 2017 (22 days of leave x 2.45 “virtual
credit” hours per day). at ¶ 43. However, when
combined with the hours Plaintiff actually worked that month,
the total amount of hours accrued for June 2017 was less than
the Regular Line requirement of 70 hours per month. Horizon
also credited Plaintiff 17.1 hours of work for July 2017 (7
days of military leave x 2.45 “virtual credit”
hours per day). Id. at ¶ 44. Adding the
“virtual credit” hours to those Plaintiff
actually worked in July, Plaintiff again accrued less than 70
total hours that month. Id. Because Plaintiff did
not reach the 70-hour threshold to remain a Regular Line
holder in July 2017, Plaintiff “was accordingly demoted
to Reserve Line holder in the following month.”
Id. at ¶ 45.
August 2017, Plaintiff worked more than 70 hours and returned
to his Regular Line holder status. Id. at ¶ 46.
However, Plaintiff was again required to take short-term
military leave the following month from September 26 to
September 30, 2017. Id. Plaintiff was allocated
12.25 hours of virtual credit for the 5 days of military
leave. Id. Receiving only 12.25 hours of virtual
credit for that period of military leave, Plaintiff did not
meet the 70-hour threshold to remain a Regular Line holder
and was again demoted from Regular Line holder to Reserve
Line holder. Id.
October 2017, Plaintiff was again required to take military
leave. Id. at ¶ 47. However, unlike months
prior, Plaintiff was able to meet the 70-hour threshold to
maintain his Regular Line holder status by working extra days
when he was not on military leave. Id. Accordingly,
Plaintiff was able “to be a Regular Line holder in the
following month.” Id.
alleges that Horizon's act of demoting him from Regular
Line holder status to Reserve Line holder status adversely
affected various benefits of employment to which he was
entitled, including his wages and work schedule in the months
following the periods of military leave. Id. at
¶ 48. Plaintiff claims that other Horizon pilots who are
subject to the same “virtual credit” policy have
been similarly harmed by the policy, which results in pilots
either being demoted from Regular Line holder to Reserve Line
holder or working additional hours to avoid demotion as a
result of their short-term military leave. Id. at
Horizon and Alaska's Non-Payment of Wages During Military
Plaintiff asserts that both Horizon and Alaska apply a
uniform policy and practice of refusing to pay
servicemember-employees their regular wages or salaries
during periods of short-term military leave, while paying the
regular wages or salaries of its employees who take
comparable forms of non-military leave, such as jury duty and
bereavement leave. Id. at ¶¶ 55-57.
each year of his employment with Horizon from 2013 to 2017,
Plaintiff took one or more periods of short-term military
leave. Id. at ¶ 55. And during each period of
military leave, Plaintiff alleges that Horizon applied its
policy of refusing to pay regular wages to employees who take
short-term military leave, even though other Horizon
employees were eligible to receive their regular wages or
salaries during jury duty leave, bereavement leave, or sick
leave, consistent with Horizon's policies. Id.
at ¶ 56. ...