Adam McLean and James Doyle flew for Delta for nearly a decade while simultaneously serving as Air Force reservists. In separate investigations — Delta investigated Doyle in 2015 and McLean in 2017 — the airline determined that both pilots had taken paid sick leave while simultaneously performing military flight duties, among other policy violations. Delta notified McLean it intended to fire him, listing sick-leave abuse and military-leave misuse as independent grounds for termination; he resigned rather than contest the decision. Doyle resigned before Delta finished its investigation. Both then sued Delta under the Uniformed Services Employment and Reemployment Rights Act, claiming the airline pushed them out because of their military service and also shortchanged them on pension contributions and vacation-time accrual.
On the constructive-termination claim, the Eleventh Circuit assumed without deciding that the pilots were constructively terminated, and accepted that they had established a prima facie case that military status was at least a motivating factor. The court held, however, that Delta satisfied the second step of the burden-shifting framework by showing undisputed evidence that it would have taken the same action for a legitimate, standalone reason — sick-leave abuse — regardless of the pilots' military status. Delta's investigation of McLean documented one admitted instance and at least ten other times when he took paid sick leave and then flew military jets the same day, plus twenty-five instances in which he falsely informed Delta he had military duty, and Delta calculated he received at least $53,628.70 in unearned pay and benefits. Doyle, similarly, told a supervisor he had gone skiing over New Year's while on sick leave with the flu, and his military records showed he flew test flights for the Air Force on a day he called in sick with a knee injury.
The pilots argued that Delta's real reason for pushing them out was its concurrent duty policy — which bars pilots from performing military duty while also being paid by Delta — and that because that policy applies only to military personnel, any termination based on it is necessarily discriminatory under the Act. The court rejected that argument, holding that the concurrent duty policy and the sick-leave policy are distinct: sick leave is available only when a medical condition prevents a pilot from flying, and abusing it is a separate offense from concurrent duty violations. The court also rejected the pilots' contention that their denials of wrongdoing created a triable issue, noting that the relevant question at the second step is whether the employer would have acted on its stated reason, not whether the employee actually committed the underlying misconduct.
On the pension-contribution claim, the court held that because McLean's and Doyle's hours varied considerably from month to month — McLean's ranging from seventy to ninety-nine hours in months without leave, Doyle's from seventy-two to 104 — their compensation was not reasonably certain. Under 38 U.S.C. § 4318(b)(3)(B), Delta was therefore required to contribute to their pensions based on their average rate of compensation over the preceding twelve months. The pilots' expert had calculated the average compensation rate for Delta's non-military pilots as a group, but the court held that analysis was immaterial because the statute focuses on the individual employee's compensation. The undisputed evidence showed Delta's average-line-value formula actually produced pension contributions greater than what the Act required.
On the vacation-time claim, the pilots argued that Delta violated the Act's rights-and-benefits provision by allowing pilots on known leaves of absence to accrue vacation time while denying that benefit to pilots on long-term military leave. The court held the two types of leave were not comparable on any of the relevant factors: duration (known leaves are offered one month at a time; Doyle's long-term military leave ran more than three years), purpose (known leaves are offered to senior pilots when Delta is overstaffed and needs to reduce labor costs and the pilot remains recallable, while long-term military leave is for active military service and Delta cannot recall the pilot), and the ability to choose when to take leave (known leaves are optional; military leave is ordered). The court also declined to consider the pilots' late-raised argument that long-term military leave was comparable to Delta's special conflict military leave, holding that a plaintiff may not amend a complaint through argument in a summary judgment brief.
The panel — Chief Judge William Pryor and Circuit Judges Luck and Brasher, with Judge Luck writing — affirmed summary judgment for Delta on all three claims.