Labor & Employment Law Daily Wrap Up, DISCRIMINATION—N.D. Ill.: Pilot who faced discrimination because of military status not entitled to reemployment under USERRA, (May 6, 2025)

By Molly Platnick

The court dismissed the pilot’s claim his former employer violated his reemployment rights by refusing to reinstate him or accommodate his disability but found he alleged sufficient facts to plead his military status was a motivating factor in the airline’s decision not to reinstate him.

A federal court in Illinois granted in part and denied in part an airline’s motion to dismiss in an action brought by a former pilot who was not reemployed after taking military leave. The pilot alleged the airline failed to reemploy him in violation of USERRA and the Illinois Service Member Employment and Reemployment Rights Act (ISERRA) when it terminated his employment and recall rights. The court found he did not plausibly allege his military service was less than five years and he could not state a USERRA reemployment claim (Bumpus v. United Airlines, Inc., No. 23 CV 03900 (N.D. Ill. May 2, 2025)).

Military leave. The employee started working as a pilot for the airline in June 2000 and in 2001 began a leave of military absence to serve in the Air Force Reserve. He alleged he planned to return to work for the airline in 2003 and at the beginning of 2002 was notified he would be furloughed the following month.

He alleged that he notified the airline he would stay in the Air Force while furloughed, but the airline administratively returned him from his military leave, changed his employment status to “active,” and furloughed him from his pilot position. As a result, he was given a seven-year recall window, later extended to 10 years under a new collective bargaining agreement. The employee claimed the airline did not tell him when it changed his status in 2002, and he did not learn until 2021.

Recall notice. The employee was hospitalized for an unspecified medical condition in 2006 and shortly thereafter received a recall notice from the airline. He received another notice the following year, which he accepted, but alerted the airline he would not be able to fly because of his medical condition. The airline did not offer him an alternative position and furloughed him again eight months after he accepted the recall.

In September 2013, the airline offered the employee a final recall to his pilot position, which he declined. In 2019, he requested to continue working with the airline but was rejected and informed his employment and recall rights had been terminated in 2007. The employee brought this case claiming the airline (1) violated his reemployment rights when it refused to reinstate him starting in 2007 and discriminated against him because he was a servicemember.

Reemployment rights. The issue, said the court, was whether the airline violated the pilot’s right to reemployment when it refused to reinstate him after he accepted the recall offer. Employees are entitled to reemployment under USERRA if the” cumulative length of the absence…from a position of employment with that employer by reason of service in the uniformed services does not exceed five years.”

Here, the court looked to the period from when the employee started his military absence to when he was terminated (2001-2007) to determine whether he had exceeded the five-year limit. Even viewed in the light most favorable to the employee, the facts alleged did not plausibly suggest he was absent for less than five years. The court was not persuaded by the pilot’s “novel argument” his military absence did not count towards the five-year limitation because it did not “conflict” with his work obligations.

Citing the Department of Labor’s interpretations of USERRA, the court explained the statute only applies to a person who “while privately employed, intends to engage in military service in some capacity that does not conflict with their employment duties” and “applies to a current ‘employee,’ not someone who was formerly employed and is seeking to be reemployed.” Because the pilot’s military leave lasted from 2001-2007, over five years, the court concluded he could not state a USERRA reemployment claim.

Discrimination. The employee also alleged the airline discriminated against him because of his military status and medical condition. Under USERRA, an employer discriminates against an employee if their service status is a “motivating factor” in an employment action. The court emphasized that military status need not be the sole factor in the action, only a motivating one. Here, the employee alleged, in 2007, the airline did not grant him a personal leave of absence for his medical condition that it extended to other pilots who were similarly situated but had not served in the armed forces. In 2019 and 2020, the pilot said, the airline’s decision to not recall him was based in part on his military service; he pointed to 111 pilots with the same level of seniority who were reinstated. The court accepted this as enough factual information at the pleading stage to allege military status was a motivating factor, even if there were other considerations.

The case is No. 23 CV 03900.

Judge: Coleman, S.

Attorneys: Lee R. Seham (Seham, Seham, Meltz & Petersen) for William Michael Bumpus. Jason Matthew Zarrow (O'Melveny & Myers) for United Airlines Inc.

Companies: United Airlines, Inc.

Cases: Discrimination USERRAVeterans IllinoisNews