MICHAEL MOSS, individually and on behalf of all others similarly situated v. UNITED AIRLINES, INC.,et al.

Chicago, IL - Uniformed Services Employment and Reemployment Rights Acte lawyer represented defendant with dicrimination claim.

From April 1, 2005, to 2010, United Air Lines pilots, who

also served in the reserve components of the Armed Forces

of the United States and were called periodically to active

duty, accrued sick time throughout their entire military

leave. In contrast, Continental Pilots, who served the Country in the same capacity, accrued sick time only through the

first thirty days of their military leave during the same period.

1 The court further held that military leave was not comparable to other

forms of leave offered by United. This part of the district court's holding

is not at issue on this appeal.

No. 20-3246 3

In 2010, these two airlines began a merger process. They

first became wholly owned subsidiaries of United Continental Holdings. During this stage, the separate bargaining

agreements of each legacy airline continued to govern for

two years. In March 2013, United and Continental merged

into a single entity—United Airlines.2 Nevertheless, the policies of the two legacy airlines continued in effect until United Airlines standardized the sick-time policy in 2014: "[A]ll

pilots only accrued sick time during the first ninety (90) days

of military leave.”3

The operative collective bargaining agreement sets forth

United Airlines' post-standardization policy: "[F]or each Bid

Period of Active Employment, five (5) hours of sick leave

shall be deposited into a Pilot's sick leave bank up to a maximum of 1300 hours.”4 "Active Employment” is when "a Pilot is available for assignment, on sick leave or on vacation

for any part of a Bid Period.”5 A Bid Period is, essentially,

one month. Therefore, all pilots accrue a consistent five

hours of sick time per Bid Period. Two final provisions on

United's sick-time policy are also relevant: (a) "Sick leave

with pay shall be granted only in cases of actual sickness[,]”

2 Before the merger, "United Air Lines” had a space; following the merger, the space was removed: "United Airlines.”

3 R.95-1 at 4. We will refer to pilots or leave policies from before 2014 as,

for example, the "legacy United pilots” or "legacy Continental leave.”

Anything after 2014 will be the "modern” or "current” era.

4 R.94-2 § 13-A-1.

5 Id. § 2-A.

4 No. 20-3246

and (b) "upon separation of employment, a Pilot shall not

receive payment for any balance in his sick leave bank.”6



United Air Lines hired Michael Moss, the plaintiff, in early 2000. On September 16, 2009, United Air Lines placed

Mr. Moss on furlough, but he was hired by Continental on

January 24, 2012. He continued working at United Airlines

through the merger process. Throughout the relevant time

period, he also held a commission as a Lieutenant Colonel in

the Reserve Component of the United States Marine Corps.

B.

On August 30, 2016, Mr. Moss brought this action against

United Airlines, alleging violations of USERRA. Count I (the

only Count at issue on appeal) alleged that United violated

USERRA by denying sick-time accrual to pilots on military

leave because (a) sick time is a seniority-based benefit and

thus should have continuously accrued; or (b) sick-time accrual was available to pilots on comparable periods of leave.

Count II made the same allegations about vacation time accrual; Count III addressed the same alleged violations with

respect to pension payments.

The district court certified classes for each Count. The

sick-time class for Count I is comprised of:

All past and present pilots employed by the

Company from April 1, 2005, to the present,

who: (i) did not accrue sick time while on periods of military leave from April 1, 2005, to the

present; and (ii) were not at the maximum sick

6 Id. § 13-A-5; Id. § 13-B.

No. 20-3246 5

leave accrual level of 1,300 hours at the time of

their military leave(s) of absence or at any time

thereafter.7

The parties moved for summary judgment. United asked

for summary judgment on all counts; Mr. Moss only asked

for summary judgment on Counts I and II.

The district court granted United's motion as to Counts I

and II. The district court first addressed Count II (vacation

accrual) and held that "the 'real nature' of vacation days in

this case is not a reward for length of service. Thus, vacation

days are not a seniority-based benefit under the collective

7 R.68 at 7. When the class definition sweeps within it individuals who

could not have suffered injury, it is too broad. See Kohen v. Pac. Inv.

Mgmt. Co., 571 F.3d 672, 677 (7th Cir. 2009). In TransUnion LLC v. Ramirez,

141 S. Ct. 2190, 2205 (2021), the Supreme Court reminded us that "Article

III grants federal courts the power to redress harms that defendants

cause plaintiffs, not a freewheeling power to hold defendants accountable for legal infractions.” Id. at 2205 (quoting Casillas v. Madison Ave. Assocs., Inc., 926 F.3d 329, 332 (7th Cir. 2019)). It also made clear that plaintiffs must "maintain their personal interest in the dispute at all stages of

litigation.” Id. at 2208. Article III standing, the irreducible constitutional

minimum, requires a plaintiff to have suffered an injury in fact. Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560 (1992).

Although it did not have the benefit of TransUnion when it focused

on the class definition issue, the district court nevertheless examined the

necessity of injury in fact. On this record, we are not prepared to say that

the district court erred. Nevertheless, we note that the advent of

TransUnion sets the stage for a renewed examination of the intersection

of the demands of Article III and the requirements of Rule 23 of the Federal Rules of Civil Procedure.

6 No. 20-3246

bargaining agreement.”8 In reaching this conclusion, the district court rejected Mr. Moss's argument that vacation-time

accrual is a seniority-based benefit because it "accrues solely

with the passage of time.”9 Noting that "this is true of any

employment benefit,” the court concluded that this characteristic "is not particularly informative, let alone dispositive,

of whether vacation day accrual is seniority-based.”10

The court then concluded that "[s]ince vacation days are

not a seniority-based benefit, Plaintiffs are entitled to only

the 'other' benefits 'generally provided,' to employees on

'comparable leaves of absence.'”11 The district court disagreed with Mr. Moss that United's jury duty, association

leave, and sick leave are "'comparable' to military leave,

such that vacation time accrual should be available to military leave longer than 90 days.”12

8 R.106 at 8; cf. Ala. Power Co. v. Davis, 431 U.S. 581, 589 (1977) ("If the

benefit ... is in the nature of a reward for length of service, it is a 'perquisite of seniority.'”); Accardi v. Penn. R.R. Co., 383 U.S. 225, 230 (1966)

("The use of the label 'compensated service' cannot obscure the fact that

the real nature of these payments was compensation for loss of jobs.”).

9 R.106 at 7 (quoting R.95 at 11).

10 Id. at 8.

11 Id. at 9 (first quoting 38 U.S.C. § 4316(b)(1)(B); and then quoting Crews

v. City of Mt. Vernon, 567 F.3d 860, 865 (7th Cir. 2009)).

12 Id. at 10–13. Mr. Moss has dropped this argument from his appeal.

Instead, he argues that United's legacy military leave policy should be

compared to Continental's legacy military leave policy.

No. 20-3246 7

Having disposed of Count II (vacation accrual), the district court turned to Count I, the sick-time accrual claim, and

entered summary judgment for United. It stated:

Likely because there is no material difference

in the accrual of "sick time” and "vacation

time” under the collective bargaining agreement, Plaintiffs' arguments on Count I mirror

their arguments on Count II. Therefore, the

Court grants summary judgment to Defendants on Count I for the same reasons it grants

summary judgment to Defendants on

Count II.13

The district court then addressed potential objections

based upon the collective bargaining agreement's different

policies on the accrual of sick time and the accrual of vacation time. The court explained that "the numbers of hours or

days accrued, and the rates of accrual” are "differences in

the 'particular formulas' by which accrual is 'calculated,' and

thus are not material to the Court's analysis.”14

The parties subsequently settled Count III, and the district court approved that settlement on October 19, 2020. After the approval of the settlement, the district court entered

13 Id. at 13–14 (footnote omitted). Mr. Moss contends that the district

court's treatment of Count I violated Circuit Rule 50 for not adequately

documenting the reasons for the grant of summary judgment. We disagree. The district court's rationale was clear from the record and the

court's opinion. See Stoller v. Pure Fishing Inc., 528 F.3d 478, 480 (7th Cir.

2008).

14 R.106 at 13 n.6 (quoting Ala. Power, 431 U.S. at 592).

8 No. 20-3246

final judgment, and Mr. Moss timely appealed the grant of

summary judgment on Count I, the sick-time accrual claim.

II

DISCUSSION

"We review the district court's grant of summary judgment de novo.” Flexible Steel Lacing Co. v. Conveyor Accessories, Inc., 955 F.3d 632, 643 (7th Cir. 2020). "Summary judgment is appropriate when 'there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a

matter of law.'” Id. (quoting Fed. R. Civ. P. 56(a)). Here the

facts are not disputed.

We also note that it is well established that any "interpretative doubt is to be resolved in the veteran's favor,” Brown

v. Gardner, 513 U.S. 115, 118 (1994), and that "provisions for

benefits to members of the Armed Services are to be construed in the beneficiaries' favor,” King v. St. Vincent's Hosp.,

502 U.S. 215, 220 n.9 (1991).

A.

USERRA is the modern iteration of a line of statutes designed to protect employment and reemployment rights of

those who serve in the Armed Forces. First, the Selective

Training and Service Act of 1940 required private employers

to reemploy qualified military veterans to their previous position or "to a position of like seniority, status, and pay.”

Pub. L. No. 76-783, § 8(b)(3)(C), 54 Stat. 885, 890 (codified at

50 U.S.C. § 301 et seq. (repealed 1955)). In an early case interpreting the Selective Training and Service Act, the Supreme

Court gave breath to what has become known as the "escalator principle”: "[The returning servicemember] does not step

back on the seniority escalator at the point he stepped off.

No. 20-3246 9

He steps back on at the precise point he would have occupied had he kept his position continuously during the war.”

Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284–

85 (1946). This principle was codified in the Veterans'

Reemployment Rights Act15 and continues to be a foundational principle of seniority-based reemployment rights under USERRA.

Enacted in 1994, USERRA serves three purposes:

(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

persons performing service in the uniformed

services as well as to their employers, their fellow employees, and their communities, by

providing for the prompt reemployment of

such persons upon their completion of such

service; and

(3) to prohibit discrimination against persons

because of their service in the uniformed services.

38 U.S.C. § 4301. USERRA was not intended to change or

disrupt the longstanding caselaw developed under the predecessor statutes. Congress viewed the existing law protect15 The Veterans' Reemployment Rights Act was enacted as part of the

Vietnam Era Veterans' Readjustment Assistance Act of 1974. Pub. L.

No. 93-508, § 404, 88 Stat. 1578, 1594 (1974).

10 No. 20-3246

ing veterans' rights and the cases interpreting those laws as

"successful,” and intended them to remain in full effect, to

the extent consistent with USERRA. 20 C.F.R. § 1002.2.

B.

1.

Mr. Moss first submits that he is entitled to sick-pay credit during his time of military service because sick pay is a

seniority benefit of his employment with United. He views

sick time as a future-oriented benefit because it provides

economic security in case of illness. In support of this characterization, Mr. Moss notes that sick-time accrual does not

expire annually, can only be used if an employee is sick, and

is not paid out at the end of an employee's employment. The

work requirement is, in his view, illusory because the benefit

accrues without the performance of actual work; working

additional hours cannot increase the sick time accrued.

These considerations, considered together, demonstrate, in

his view, that United's sick-time accrual is a perquisite of

seniority and therefore should have accrued while Mr. Moss

was on military leave.

United disagrees. In its view, sick-time accrual is not a

seniority-based benefit for two main reasons. First, all employees earn the same amount of sick time. There is no vesting threshold; employees start to accrue sick time on their

first day of work. Second, employees can only use sick time

when they are actually sick. Employees cannot bank time

over years knowing that the time can be used for a longer

vacation later, thus incentivizing them to keep working.

In assessing these views, we begin, as we always do, with

the words of the statutory provision:

No. 20-3246 11

A person who is reemployed under this chapter is entitled to the seniority and other rights

and benefits determined by seniority that the

person had on the date of the commencement

of service in the uniformed services plus the

additional seniority and rights and benefits

that such person would have attained if the

person had remained continuously employed.

38 U.S.C. § 4316(a). Thus, returning servicemembers step

back onto the seniority escalator where they would have

been but for the military service; they receive any seniority-based benefits to which they would have been entitled

had they remained continuously employed.

A right and benefit is seniority-based if the right (1)

"would have accrued, with reasonable certainty, had the

veteran been continuously employed by the private employer”; and (2) if "it is in the nature of a reward for length of

service.” Ala. Power Co. v. Davis, 431 U.S. 581, 589 (1977);16

DeLee v. City of Plymouth, 773 F.3d 172, 177–78, 180 (7th Cir.

2014) (applying the Alabama Power test); see also 20 C.F.R.

§ 1002.212 (listing the factors set forth in the Alabama Power

test, along with one factor not relevant here,17

as interpretive

guidance to determine if a benefit is seniority-based).

16 Although Alabama Power pre-dates USERRA, the Alabama Power test

and pre-USERRA case law remain in full effect to the extent consistent

with USERRA. See, e.g., Crews, 567 F.3d at 865 (citing 20 C.F.R. § 1002.2).

17 Whether United had an "actual custom or practice to provide or withhold the right or benefit as a reward for length of service” only applies

where the actual practice differs from the practice on paper. 20 C.F.R.

(continued ... )

12 No. 20-3246

The Supreme Court of the United States, like the district

court in this case, has pointed out that although the principles set forth in Alabama Power are straightforward, their application in a practical setting is not always easy. See Coffy v.

Republic Steel Corp., 447 U.S. 191, 203 (1980) ("[E]ven the

most traditional kinds of seniority privileges could be as easily tied to a work requirement as to the more usual criterion

of time as an employee.” (quoting Ala. Power, 431 U.S. at

592)). As the district court noted, the difficulty is rooted in

the practical reality that there is an "inherent tie between

time and work” and a lack of an "objective difference between a 'work requirement' (or 'compensation for services

rendered') and 'time as an employee' (or 'length of service'),

because employees spend their time working.”18

The Supreme Court wrestled with this conceptual problem in Foster v. Dravo Corp., 420 U.S. 92 (1975). There, Foster

worked for his employer at the beginning of 1967, left for

military service, and was reemployed for the remainder of

1968. Id. at 94–95. Although he did not meet the required

twenty-five weeks of work for vacation benefits, he asked

his employer for the vacation time accrued during both

years. Id. at 95. The Supreme Court did not sustain his claim;

( ... continued)

§ 1002.212(c); see also id. ("Provisions of an employment contract or policies in the employee handbook are not controlling if the employer's actual custom or practice is different from what is written in the contract or

handbook.”). Here there is no allegation that United's actual practice of

providing sick time differed from that written in the collective bargaining agreement.

18 R.106 at 4 (emphasis omitted).

No. 20-3246 13

it decided that the vacation benefits at issue were properly

characterized as "short-term compensation for work performed.” Id. at 100. In reaching that decision, the Supreme

Court considered the work requirement, the option to earn

more vacation time through overtime, and the pro rata payout if an employee left his employment early. In the final

analysis, however, the nature of the benefit, the "common

conception of a vacation as a reward for and respite from a

lengthy period of labor” convinced the Court that the statutory provision protecting seniority rights did not apply. Id. at

101. Foster did not hold that all vacation-time accrual was a

nonseniority benefit. The Court explicitly noted that "the

statute should be applied only where it clearly appears that

vacations were intended to accrue automatically as a function of continued association with the company.” Id.

In Alabama Power, by contrast, the Court reasoned that

the pension plans at issue were seniority based because their

"true nature” was a reward for length of service. 431 U.S. at

593. "The most significant factor pointing to this conclusion

is the lengthy period required for pension rights to vest in

the employee.” Id. In Coffy, the Court considered the case of

an individual who had been laid off after his return from a

period of military service. He received supplemental unemployment benefits for twenty-five weeks. Coffy, 447 U.S. at

193. Had his civilian work history not been interrupted by a

period of military service, he would have received fifty-two

weeks of supplemental unemployment benefits. Id. at 193–

94. The Supreme Court held the unemployment benefits

were seniority based: Their essential function "is to provide

economic security for regular employees in the event they

are laid off. Protection against layoff is, of course, one of the

traditional attributes of seniority.” Id. at 200. Furthermore,

14 No. 20-3246

the employees in Coffy were only entitled to the benefits if

they had worked two continuous years prior to being terminated. Id. at 198–99. Thus, the benefits were a "reward for

length of service.” Id. at 205.

Two of our fellow circuits already have addressed the

question we face today. Although each court understandably focused on the facts of the case before it, the reasoning of

each court is helpful. In LiPani v. Bohack Corp., 546 F.2d 487,

490 (2d Cir. 1976), our colleagues in the Second Circuit characterized sick leave as a form of deferred compensation of

the same general nature as vacation pay. The sick time at issue there was predicated upon a work requirement: "one

week of paid vacation accrues after 'six months of continuous working service.'” Id. Also, there was no relationship

between seniority and the benefits; all employees earned the

same amount of sick time during each year of employment.

Id. at 490–91. The Tenth Circuit came to the same conclusion,

holding sick-time accrual to be nonseniority-based because it

was tied to a work requirement. Jackson v. Beech Aircraft

Corp., 517 F.2d 1322, 1326 (10th Cir. 1975), overruled on other

grounds by Ala. Power, 431 U.S. 581; see also Hoefert v. Am. Airlines, Inc., 438 F. Supp. 3d 724, 735–36 (N.D. Tex. 2020) (holding sick-time accrual to not be a seniority-based benefit

where tied to a "month of service”).

2.

We now assess United's sick-time accrual policy under

the decisional matrix provided by Alabama Power. We first

ask whether the right "would have accrued, with reasonable

certainty, had the veteran been continuously employed by

the private employer.” This factor—synthesized in Alabama

Power from the existing caselaw—asks whether the benefit

No. 20-3246 15

was awarded automatically or subject to discretion. See

McKinney v. Mo.-Kan.-Tex. R.R. Co., 357 U.S. 265, 272 (1958)

(holding that a discretionary promotion was not a perquisite

of seniority); see also Ala. Power, 431 U.S. at 585 (citing

McKinney in explaining the development of the two-prong

test); Coffy, 447 U.S. at 199.

We answer this question in the affirmative. Mr. Moss

would have continued to accrue sick time with reasonable

certainty if he had been employed continuously by United.

Notably, there is no discretion involved. Had Mr. Moss not

been on military leave, it was reasonably certain that he

would have accrued sick time.

Having determined that the first prong of the two-part

conjunctive test is satisfied, we turn to the second prong:

Whether the benefit is a reward for length of service. Here,

we think it clear that the sick pay in question is not such a

reward. A benefit is seniority-based if the "real nature” of

the benefit is a "reward for length of service” rather than

"compensation for services rendered.” Ala. Power, 431 U.S. at

588–89. Our inquiry is therefore whether the benefit is

backward-looking compensation for work performed or a

future-oriented longevity incentive.

Alabama Power instructs that the "most significant factor

pointing to th[e] conclusion [that the pension payment is a

reward for length of service] is the lengthy period required

for pension rights to vest in the employee.” Id. at 593 (emphasis added). United's sick-time accrual policy has no vesting period. From their first day at United, all pilots earn five

16 No. 20-3246

hours per Bid Period.19 A lack of a vesting threshold suggests sick-time accrual is not tied to seniority but is deferred

compensation designed to cover those periods when an employee is unable to report for work because of illness, an

event inherent in the human condition.

Nor do United employees accrue more sick time the

longer they have been at the company. Here, all employees

earn the same five hours per Bid Period, day in and day out,

without regard to how long they have been employed. This

consideration also suggests sick time to not be a product of

seniority. See LiPani, 546 F.2d at 490 (finding persuasive the

lack of relationship between seniority and sick-time accrual).

The fact that sick time is not seniority-based becomes

clearer by comparing its real nature to that of other benefits.20 Pensions, severance pay, and supplemental unemployment benefits incentivize workers to continue working

19 Also, we note that United provides for accelerated accrual for a pilot

who uses more than 255 hours of sick leave because of a single illness

and for "fronted” hours for new-hire pilots. R.94-2 § 12-A-1-a to -b.

Mr. Moss does not suggest these facts are relevant, nor do they influence

our analysis.

20 During the enactment of USERRA, the Director of the Office of Veterans' Employment, Reemployment, and Training testified before Congress that: "Various courts have also found that the returning servicemember is not entitled to benefits such as ... sick days ... which have

been determined to be short term compensation for work performed.”

Letter from Hary Puente-Duany, Dir., Off. of Veterans' Emp.,

Reemployment & Training, to Hon. John D. Rockefeller, Chairman,

Comm. on Veterans' Affs., reprinted in S. Rep. 103-158, at 93 (1993).

No. 20-3246 17

at a company.21 These benefits look to the future—they give

a reason to stay at a job and have accordingly been properly

held to be perquisites of seniority. On the other hand, sick

time is a respite. Without sick time, the employee would

have had to go to work ill; with sick time, the employee has

a respite, a break from their work, as compensation for the

services they have rendered.

Mr. Moss counters that attributes of United's sick leave

point to characterizing it as seniority-based. Specifically, he

notes that United sick-time accrual does not expire annually,

can only be used if an employee is sick, and is not paid out

at the end of an employee's employment. We think that

these considerations, whether considered separately or together, reaffirm that sick time is more properly characterized

as a period designed to allow the working employee a respite and to encourage the sick employee to stay away from

the workplace. As Mr. Moss points out, sick time does not

expire annually. This feature might suggest an incentive to

remain at a company (so the employee does not lose their

banked time), but that consideration is certainly reduced in

importance because employees cannot take sick time without actually being sick. Sick time therefore cannot be used to

augment an employment transition, or to extend a vacation.

Moreover, in the ordinary course of human events, sick time

21 Ala. Power, 431 U.S. at 593–94 (pension payments); Accardi, 383 U.S. at

230 (severance pay); Coffy v. Republic Steel Corp., 447 U.S. 191, 205–06

(1980) (supplemental unemployment benefits).

18 No. 20-3246

will be used periodically. It is generally not regarded as protection against long-term illness or disability.22

By contrast, supplemental unemployment benefits, like

those at issue in Coffy, provide economic security based on

seniority. Supplemental unemployment benefits promise income where otherwise the employee would not have received any. In this way, supplemental unemployment benefits encourage employees to stay with an employer based on

the promise of the future benefit. Sick time however offers a

brief respite earned on a pro rata monthly basis, in compensation for labor, to recover and then come back to work. Sick

time does not provide economic security in the same way

that supplemental unemployment benefits do. It only offers

a brief respite.

United's sick-time accrual policy contains, moreover, a

work requirement. Benefits conditioned on a bona fide work

requirement are more likely to be compensation than a reward for long service. "Generally, the presence of a work requirement is strong evidence that the benefit in question was

intended as a form of compensation.” Foster, 420 U.S. at 99.

Courts read through illusory and insubstantial work requirements—the labels do not control. Compare Accardi v.

Penn. R.R. Co., 383 U.S. 225, 229–30 (1966) (explaining that

the "use of the label 'compensated service' cannot obscure”

the illusory nature of the work requirement), with Foster,

420 U.S. at 99 (explaining that providing additional benefits

22 United also offers Medical Leave, Company Offered Leaves of Absence, Family & Medical Leave, and Maternity/Paternity Leave. See

R.94-2 §§ 12-B, -C, -E, -F.

No. 20-3246 19

for overtime and pro rata payment for early termination

suggested that the work requirement was bona fide).

Here, the parties dispute whether the United sick leave

policy contains a legitimate work requirement. We believe

that it does. The collective bargaining agreement contains

the following provision: "for each Bid Period of Active Employment, five (5) hours of sick leave shall be deposited into

a Pilot's sick leave bank up to a maximum of 1300 hours.”23

"Active Employment” is defined as "a Pilot is available for

assignment, on sick leave or on vacation for any part of a Bid

Period.”24 A Bid Period is defined as "the period from the

first day of, to and including the last day of each of twelve

(12) thirty (30) or thirty-one (31) day periods.”25

Mr. Moss questions whether the requirement that a pilot

need only be available for assignment, on sick leave, or on

vacation, is sufficiently substantial to constitute a bona fide

work requirement. He submits that being "available for assignment” "for any part of a Bid Period” could be seen as

being no real requirement at all. United takes another view.

It sees the work requirement in the collective bargaining

agreement as a real effort to compensate pilots for work actually performed. It points out that the requirement excludes, among other things, personal leave, and thus requires the pilot to actually be working before earning sick

time.

23 R.94-2 § 13-A-1.

24 Id. § 2-A.

25 Id. § 2-I.

20 No. 20-3246

United has the better of the argument. By conditioning

sick-time accrual on "Active Employment,” United conditions accrual on work. Given the nature of a pilot's scheduling and the industry overall, counting "on call” time as

compensated time for purposes of the sick-time program is

reasonable.

In sum, sick time would have accrued with reasonable

certainty had Mr. Moss remained at United. There was no

discretion involved. There is no vesting period and no relationship between seniority and benefits. All United employees accrue the same five hours per Bid Period, from the new

hire to the most senior pilot. The real nature of sick-time accrual is to provide a respite from work, not to incentivize

longevity.

C.

USERRA also prohibits providing nonseniority-based

benefits to some employees on leave but not to employees

on comparable military leave. 38 U.S.C. § 4316(b)(1)(B).26

26 This subsection of the statute provides:

(b)(1) ... [A] person who is absent from a position of

employment by reason of service in the uniformed services shall be—

...

(B) entitled to such other rights and benefits not determined by seniority as are generally provided by the employer of the person to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or

plan in effect at the commencement of such service or established while such person performs such service.

(continued ... )

No. 20-3246 21

USERRA therefore mandates that if an employer offers nonseniority-based benefits to an employee taking leave, it must

provide to servicemembers on military leave the "most favorable” benefit offered to employees taking a comparable

leave. 20 C.F.R. § 1002.150(b).

In the district court, Mr. Moss argued that jury duty, association leave, and sick leave were comparable to military

leave such that servicemembers were to be afforded the most

favorable benefits that employees on those nonmilitary

leaves received. The district court held that jury duty, association leave, and sick leave were not comparable to military

leave. Mr. Moss does not renew that argument here, and we

therefore cannot consider it.

Now, Mr. Moss puts forth a new argument. He asks us to

compare legacy military United leave and legacy military

Continental leave. We cannot. Arguments not adequately

presented to the district court are waived on appeal. Fednav

Int'l Ltd. v. Cont'l Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010).

Because Mr. Moss did not adequately present this issue to

the district court, it is waived.

We hold that sick-time accrual is not a seniority-based benefit. Accordingly, we affirm the decision of the district court.



AFFIRMED