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Krzyminski v. Spokane County

United States District Court, E.D. Washington

December 9, 2019




         Before the Court is Defendant's Motion to Dismiss Under 12(b)(6), ECF No. 23. A hearing on the motion was held on December 5, 2019, in Spokane, Washington. Plaintiff was represented by Matthew Z. Crotty and Thomas G. Jarrard. Defendant was represented by Paul M. Ostroff and Michael T. Kitson.

         Plaintiff Thomas Krzyminski is suing Defendant Spokane County under the Uniform Services Employment and Reemployment Rights Act of 1994 (“USERRA”) for alleged violations of the statute relating to missed contributions to the PERS 2 retirement plan after he returned from active duty in 2009. ECF No. 19. Plaintiff is bringing three claims: (1) under § 4318 for failing to make contributions and denying Plaintiff the right to make contributions to the retirement plan by failing to give timely and adequate notice to the plan administrator and denying his service credit for periods of military service; (2) under §§ 4312 and 4313 for failing to properly reemploy Plaintiff in the position of employment with like seniority, status, pay and pension benefits he would have enjoyed if his employment with Defendant had not been interrupted by his military service; and (3) under §§ 4316 and 4334 by failing to provide adequate or timely notice of the mandatory restorative pension rights that Plaintiff is entitled to under USERRA. Id.

         Plaintiff asks the Court to (1) declare that Defendant's denial of Plaintiff the right to make contributions to a retirement plan, and the failure to give timely and adequate notice to the plan administrator as required under the USERRA was unlawful and violated 38 U.S.C. § 4318; (2) order that Defendant take all steps necessary to give Plaintiff all retirement rights and benefits he is allowed under USERRA; and (3) order such other relief as may be just and proper. Id. He is also seeking economic damages, double damages, and reasonable attorney and expert fees.

         Motion Standard

         Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires the plaintiff to allege facts that add up to “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts do not require “heightened fact pleading of specifics, ” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

         In deciding whether the plaintiff has stated a claim upon which relief can be granted, the court must assume that the plaintiff's allegations are true and must draw all reasonable inferences in the plaintiff's favor. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).

         Plaintiff's Complaint

         The following facts are taken from Plaintiff's Complaint:

         Plaintiff works as an attorney for Spokane County. During the relevant time period, he was also a member of the Washington Air National Guard. He was mobilized on June 1, 2008 in support of Operation Enduring Freedom (“OEF”). He served on active duty in support of OEF from June 1, 2008 through September 30, 2009 and received an honorable discharge.

         On November 3, 2009, Plaintiff informed Defendant's Human Resources (“HR”) that he had returned from military leave. He asked HR whether his previously existing benefits would be reinstated.

         Plaintiff has a membership in the Public Employees' Retirement System Plan (PERS 2) retirement plan. Defendant did not tell Plaintiff that he needed to make any employee contributions to the plan, nor did Defendant allocate the amount of employer or employee make-up pension contributions. Defendant did not inform the Department of Retirement Systems (“DRS”) of Plaintiff's reemployment within 30 days of his return to work. Defendant also failed to give Plaintiff pension service credit. Specifically, Plaintiff has not received any pension service credit for the July 2008 to October 2009 time period.

         During the mid-2016 timeframe, Plaintiff discovered that Defendant did not provide him with pension service credit for the July 2008 to October 2009 time period when he was on military leave of absence. Plaintiff notified HR of these omissions and HR told him to contact the DRS to rectify the situation. Plaintiff notified DRS of the issue and requested that he be given pension service credit. DRS told Plaintiff that his claim was untimely because he missed the five-year statutory cut-off required under state law. DRS gave Plaintiff the option of purchasing the credit for approximately $85, 000.

         Plaintiff appealed the DRS's decision, which was denied. DRS concluded that Plaintiff failed to make his employee contribution to his PERS 2 account within five years of his return to work as required by Wash. Rev. Code § 41.40.710.

         Uniform Services Employment and Reemployment Rights Act (USERRA)

         Federal law provides protections for persons who leave civilian careers and employment to serve in the uniform services. 38 U.S.C. § 4301. Congress enacted ESERRA (1) “to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service”; (2) “to minimize the disruption” to the lives of servicemembers and their employers “by providing for the prompt reemployment of such persons upon their completion of such service”; and (3) to prohibit discrimination against servicemembers. 38 U.S.C. § 4301(a).

         1. 38 U.S.C. § 4312 & 4313

         Section 4312 of USERRA provides a right to reemployment for members of the armed services who comply with statutory notification requirements. 38 U.S.C. § 4312; Wallace v. City of San Diego, 479 F.3d 616, 625 (9th Cir. 2007). Compensatory damages for failing to reemploy a person in violation of section 4312 are governed by § 4323(d)(1)(B), which imposes no time limit. Wallace, 479 F.3d at 625; see also Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 304 (4th Cir. 2006)

         For returning veterans who were deployed for over 90 days, reemployment is to “the 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, or a position of like seniority, status and pay, the duties of which the person is qualified to perform.” 38 U.S.C. § 4313(a)(2)(A).

         Regulations promulgated under USERRA note that generally, “the employee is entitled to reemployment in the job position that he or she would have attained with reasonable certainty if not for the absence due to uniformed service.” 20 C.F.R. § 1002.191. This position is referred to as the “escalator position.” Id. The principle behind the escalator position is that, if not for the period of uniformed service, the employee could have been promoted (or, alternatively, demoted, transferred, or laid off) due to intervening events. Id. The escalator principle requires that the employee be reemployed in a position that reflects with reasonable certainty the pay, benefits, seniority, and other job perquisites, that he or she would have attained if not for the period of service. Id. Depending upon the specific circumstances, the employer may have the option, or be required, to reemploy the employee in a position other than the escalator position. Id.

         The reemployment rights protected by §§ 4312 and 4313 apply only at the instant of reemployment; other sections of USERRA operate to protect employees after they are properly reemployed. Francis, 452 F.3d 299 at 304. (“In short, § 4312 requires an employer to rehire covered employees; § 4311 then operates to prevent employers from treating those employees differently after they are rehired; and § 4316 prevents employers from summarily dismissing those employees for a limited period after they are rehired. While combining to form comprehensive protection from the point of rehire to untimely dismissal, each provision is nonetheless functionally discrete.”).

         2. 38 U.S.C. § 4316

         Section 4316(b)(1) requires employees on military leave to be provided with comparable rights and benefits to which those on non-military absences are entitled. 38 U.S.C § 4316(b)(1). If a right and benefit is not provided to an employee on a non-military related absence, the right or benefit ...

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