United States District Court, E.D. Washington
ORDER GRANTING MOTION TO DISMISS; CLOSING
STANLEY A. BASTIAN UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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
following facts are taken from Plaintiff's Complaint:
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.
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.
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.
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.
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 §
Services Employment and Reemployment Rights Act
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. §
38 U.S.C. § 4312 & 4313
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)
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).
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.
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.”).
38 U.S.C. § 4316
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