FedEx Can’t Trim Returning Air Force Pilot’s Bonus

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By Patrick Dorrian

Federal Express improperly awarded a lower bonus under a collective bargaining agreement to a pilot who missed work time for military duty, a federal appeals court in California ruled.

The Nov. 2 decision by the U.S. Court of Appeals for the Ninth Circuit addresses a novel question of the law governing the rights of military members returning to work from active duty. Unlike most cases brought under federal military leave law, the ruling concerns the employment benefits a returning service member is entitled to rather than the law’s protection of his or her job while away from work.

The court found that Dale Huhmann established that he would have reached a higher pay grade with FedEx if he hadn’t been deployed overseas by the Air Force from February 2003 through Aug. 31, 2006, the court said. As a result, FedEx should have treated him as having reached that higher level when it paid him a bonus under an agreement the company entered with Huhmann’s union, the Air Line Pilots Association, during Huhman’s absence from work, the court said ( Huhmann v. Fed. Express Corp. , 9th Cir., No. 15-56744, judgment affirmed 11/2/17 ).

The Ninth Circuit rejected FedEx’s argument that the trial judge erred by looking to two principles regularly applied to reemployment claims under the Uniformed Services Employment and Reemployment Rights Act.

The lower court was correct to focus on whether it was reasonably certain Huhmann would have reached the higher pay grade if not for his military service, Judge Carlos T. Bea said. The “reasonable certainty test” has been embraced as an aid in determining under USERRA whether a worker’s military leave was a substantial factor in a returning military member’s loss of employment or benefits, Bea said.

It’s also helpful in analyzing an “intersecting” USERRA doctrine, the Ninth Circuit added. Under the “escalator principle,” it said, a returning service member can’t be detoured from the career trajectory he or she was on prior to being called to service.

FedEx failed to identify any language in the law or cases interpreting it holding that “the reasonable certainty test and escalator principle are available exclusively for analysis of” USERRA claims alleging a failure to reemploy, Bea said.

“It’s my understanding” that the court’s ruling on those two points is one of first impression, Huhmann’s lawyer, Brian J. Lawler, told Bloomberg Law Nov. 2.

“The court didn’t buy FedEx’s argument,” finding that the right to reemployment under USERRA necessarily extends to the full benefits when returning to a job, Lawler said. He is with Pilot Law P.C. in San Diego.

FedEx didn’t immediately respond Nov. 2 to Bloomberg Law’s request for comment.

Evidence Supports Judgment

The decision affirms a lower court judgment upping Huhmann’s bonus to $17,700 from the $7,400 FedEx paid him and awarding him the legal fees he had to pay to protect his right to be free from military status discrimination.

The trial judge awarded roughly $227,000 in attorneys’ fees as well as litigation costs and expenses, Lawler said. He indicated that Huhmann’s win before the Ninth Circuit means he’s also entitled to his legal fees and costs on appeal.

The appeals court rejected FedEx’s argument that the trial judge erred in finding that Huhmann’s trial evidence satisfied the reasonable certainty test and escalator principle. Huhmann had been set to begin training for the higher-paying position less than two weeks after he was deployed, and he quickly passed the training upon his return, the court said.

FedEx also missed the mark with its argument that federal labor law required that Huhmann’s claim should have been heard in arbitration rather than in court, because his right to the bonus arose under a collective bargaining agreement. Huhmann’s claim didn’t arise under the CBA, but instead was based on “the independent legal right under USERRA to be returned to the position and status at FedEx he would have enjoyed had he not left for military service,” the Ninth Circuit said.

Judges Andrew D. Hurwitz and J. Frederick Motz joined the opinion.

In-house counsel Jane M. Flynn in Irvine, Calif., represented FedEx.

To contact the reporter on this story: Patrick Dorrian in Washington at

To contact the editor responsible for this story: Terence Hyland at

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