Labor & Employment Law Daily Wrap Up, USERRA, VETERANS—E.D. Pa.: USERRA claims of airlines pilots alleging they were short-changed on short-term military leave earnings decertified, (Aug 25, 2025)

By Ronald Miller, J.D.

To permit a class of pilots simply to prove their case with average times under such circumstances would improperly enlarge the substantive rights of those pilots under USERRA and abridge the defenses available to opposing parties.

On remand from the Third Circuit, American Airlines was granted its motion to decertify Rule 23(b)(2) and Rule 23(b)(3) subclasses of pilots which sought to enjoin the employer from failing to compensate short-term military leave the same as jury duty and bereavement leave for purposes of “eligible earnings” under the employer’s profit-sharing plan, ruled a federal district court in Pennsylvania. Here, there are no common answers on comparability for all class members due to the disparate lengths of military leave. Thus, the court agreed with the airline that allowing the introduction of statistical evidence on duration to support commonality and thus liability here in this class action would violate the Rules Enabling Act (Scanlan v. American Airlines Group, Inc., No. 18-4040 (E.D. Pa. Aug. 20, 2025)).

USERRA claims. USERRA prohibits discrimination against persons because of their service in the uniformed services. It provides that those on leave of absence while performing military service are entitled to the same “rights and benefits... as are generally provided by the employer of the person to employees having similar seniority, status, and pay who are on... leave of absence under a contract, agreement, policy, or plan in effect.

American Airlines pilots alleged that the employer violates Section 4316(b)(1) with respect to its profit-sharing plan. The airline deposits a certain percentage of its profits into the plan and divides the pie among the pilots based on their earnings. It does not credit pilots for any time on short-term military leave in calculating earnings for the purposes of the profit-sharing plan despite doing so for those on jury duty and bereavement leave. Thus, the pilots who take short-term military leave receive a lesser share than they would otherwise receive. The pilots also assert that the airline violates Section 4316(b)(1) when it fails to pay pilots while they are on short-term military leave but does so while on jury duty or bereavement leave. Short-term military leave is defined as 16 days or fewer.

Class certification. On October 8, 2021, the court first certified a class of current and former pilots under Rule 23(b)(2). The court concluded that class treatment of pilots alone was appropriate because the employer has standard leave policies that govern this entire work group. On April 6, 2022, the court amended the class to certify a subclass of retired pilots under Rule 23(b)(3).

Following discovery, the airline moved for summary judgment, arguing that short-term military leave was not comparable to jury duty and bereavement leave. The airline asserted that the undisputed facts demonstrated that pilots collectively “have some control over when they perform [military] service” and for this reason, it was not comparable to jury duty or bereavement leave. On November 2, 2022, the court granted the motion for summary judgment.

Comparability. The Third Circuit reversed. It held that there were genuine disputes of material fact for the jury to decide on the issue of comparability. It also agreed that frequency of leave, in addition to duration, purpose, and control, may be considered by the jury in deciding whether short-term military leave is sufficiently similar to jury duty and bereavement leave.

Motion to decertify. On remand, the airline argued that the subclasses should be decertified on the ground that there is no common question or answer under Rule 23(a). Specifically, it asserted that comparability under USERRA can only be properly resolved by individually comparing the length of time of each occasion each pilot takes short-term military leave with the average time of a jury duty leave or bereavement leave. According to the airline, the pilots may not be permitted to prove their case for the subclasses as a whole simply by comparing a statistical average length of military leave of all pilots with the average length of jury duty leave or bereavement leave for all pilots when there is such disparity in the length of each instance of military leave.

Here, the district court found the Supreme Court’s decision in Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016), to be instructive. It allowed the use of statistical evidence there and rejected the employer’s position to impose a broad rule that representative or statistical evidence cannot be used in class actions. The employer could not be heard to complain about representative or statistical evidence when it failed to keep detailed records of the employees’ hours in violation of statutory mandates. Furthermore, representative evidence sometimes is the “only practicable means to collect and present relevant data” to establish liability.

Statistical evidence. In the present case, no one disputes that the records of the individual class members are available in this action. Moreover, the evidence here establishes without dispute that some pilots have single instances of 16 consecutive days on military leave while others record single instances of only one day on military leave. No reasonable juror could find that sixteen days and one day are roughly equal in duration.

Since these disparities are not roughly equal, the statistical evidence of 3.3 days for the average duration at a single stretch for all pilots’ military leave cannot support the existence of a critical common question for class action treatment under Rule 23(a). The duration of each occurrence when a pilot takes leave must be evaluated on its own for purposes of comparison with the average annual duration of jury duty of 1.8 days and bereavement leave of 2.7 days. These are individual questions.

Here, there are no common answers on comparability for all class members due to the disparate lengths of military leave. Thus, the court agreed with the airline that allowing the introduction of statistical evidence on duration to support commonality and thus liability here in this class action would violate the Rules Enabling Act.

Control. Then there was the factor of control, that is the ability of a pilot to choose when to take military leave. It is a factor along with duration, frequency, and purpose that is to be considered by the jury in deciding whether military leave is comparable to jury duty leave and bereavement leave. This factor cannot be quantified by the use of averages. The issue of control is an individual question as the answer is not susceptible to generalized, claim-wide proof.

Accordingly, the court granted the airline’s motion to decertify the Rule 23(b)(2) and Rule 23(b)(3) subclasses.

The case is No. 18-4040.

Judge: Bartle, H.

Attorneys: Adam Harrison Garner (The Garner Firm) and Matthew Z. Crotty (Riverside NW Law Group) for James P. Scanlan and Carla Riner. Anton Metlitsky (O’Melveny & Myers) for American Airlines Group, Inc. and American Airlines, Inc.

Companies: American Airlines Group, Inc.; American Airlines, Inc.

Cases: USERRAVeterans Discrimination ClassActions EmployeeLeave Procedure PensionBenefitPlans PennsylvaniaNews GCNNews