A group of former Delta Air Lines Inc. pilots has filed a petition for an en banc hearing of the dismissal of their military bias suit under the Uniformed Services Employment and Reemployment Rights Act (USERRA). The group argues that the three-judge panel applied the wrong legal standard in upholding the lower court’s summary judgment order in favor of Delta. The case is Adam McLean, et al. v. Delta Air Lines, Inc., No. 24-11946 (11th Cir.).
The pilots, who filed the USERRA suit in 2017 in a Georgia federal district court, alleged that Delta constructively discharged pilots serving in the military reserves, failed to pay adequate pension contributions while on military leave, and denied them vacation-time accrual benefits.
After the district court dismissed the case on Delta’s summary judgment motion, the Eleventh Circuit panel unanimously upheld the dismissal on de novo review. According to the panel, although the pilots may have established a prima facie case of discriminatory constructive discharge based on their military status, Delta had legitimate, nondiscriminatory reasons for their termination. More specifically, the pilots’ alleged abuse of Delta’s sick leave policies was a valid reason for their termination. Even if Delta erred in finding that the pilots violated its policies, the panel pointed out that “an employer who fires an employee under the mistaken but honest impression that the employee violated a work rule is not liable for discriminatory conduct.”
Likewise, the panel rejected the pilots’ arguments concerning pension contributions and vacation time accrual during their military leave. Since the pilots’ monthly flight hours varied, USERRA permitted Delta to use its chosen pension calculation formula, or one based on average compensation over the past 12 months. Similarly, the panel found that Delta’s treatment of military leave and voluntary overstaffing leave of absences was different, and thus not violative of USERRA.
The two lead plaintiffs, McLean and Doyle, worked as Delta pilots for almost 10 years while also serving as U.S. Air Force reservists. Delta provides paid military leave and bans pilots from working while under military orders. Furthermore, Delta provides paid sick leave to pilots and makes pension contributions during military leave, using a specific formula.
At some point, Delta investigated alleged abuse of sick and military leave policies. Its investigation revealed that McLean called in sick to Delta on 11 days but still performed military duties on those same days. McLean also made 25 false reports of military duty to avoid scheduling flights with Delta, failed to report military orders over 100 times, and flew for the military while simultaneously on standby for Delta. These incidents led to McLean receiving over $53,000 in unearned salary and benefits. When Delta advised McLean that it intended to terminate him, McLean resigned.
Doyle’s investigation revealed similar issues, such as skiing and flying for the military while on sick leave from Delta. The airline also suspected him of stringing sick, military, and vacation leave to maximize his time off. After McLean and Doyle allegedly were pressured to resign or be fired, they filed suit under USERRA.
In requesting an en banc hearing, the pilots argue that the panel misapplied the USERRA motivating-factor standard. They also claim the panel failed to properly consider Delta’s overall hostility toward pilots who serve in the military.
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