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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JEREMMY SORENSON, an
individual,
RANDAL REEP, an individual,
RANDAL SMITH, an individual,
ADAM MCLEAN, an individual,
and JAMES DOYLE, an
individual, on behalf of themselves
and all others similarly situated,
Plaintiffs,
vs.
DELTA AIRLINES, INC., a
Delaware Corporation,
Defendant.
Civil Action No. 1:17-cv-00541-
ELR
DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR LACK OF STANDING
AND FOR FAILURE TO STATE A CAUSE OF ACTION
Plaintiffs Randal Reep (“Reep”), Adam McLean (“McClean”), James Doyle
(“Doyle”), Randal Smith (“Smith”) and Jeremy Sorenson (“Sorenson”) are current
or former pilots for Defendant Delta Air Lines, Inc. (“Delta”). They allege that Delta
violated the Uniformed Services Employment and Reemployment Rights Act of
1994, 38 U.S.C. §§ 4301 et. seq. (“USERRA”). Pursuant to Fed. R. Civ. P. 12(b)(1)
and (6), Delta moves to dismiss Plaintiffs’ First Amended Complaint (“FAC”).
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Plaintiffs assert a variety of vague and conclusory alleged USERRA
violations with no factual allegations to support the claims. In some cases, one or
more of the Plaintiffs assert claims on behalf of other pilots and thus do not have
standing. In all cases, the alleged claims do not plausibly state a cause of action.
Pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6), Delta files this motion to
dismiss Plaintiff’s First Amended Complaint. In support of this Motion, Delta files
an accompanying brief in support and, as a second exhibit to this Motion, a copy of
an unpublished federal court decision.
Respectfully submitted,
s/Thomas J. Munger
Georgia Bar No. 683850
s/Benjamin A. Stone
Georgia Bar No. 529609
MUNGER & STONE, LLP
999 Peachtree Street, NE
Suite 2850
Atlanta, Georgia 30309
Telephone: (404) 815-0829
Facsimile: (404) 815-4687
E-mail: [email protected]
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CERTIFICATE OF COMPLIANCE
Pursuant to Local Rule 7.1D of the Local Rules for the United States District
Court for the Northern District of Georgia, I hereby certify that the foregoing has
been prepared in Times New Roman, 14-point font, as permitted by Local Rule
5.1B
Respectfully submitted,
s/Thomas J. Munger
Georgia Bar No. 529609
MUNGER & STONE, LLP
999 Peachtree Street, NE
Suite 2850
Atlanta, Georgia 30309
Telephone: (404) 815-0829
Facsimile: (404) 815-4687
E-mail: [email protected]
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JEREMMY SORENSON, an
individual,
RANDAL REEP, an individual,
RANDAL SMITH, an individual,
ADAM MCLEAN, an individual,
and JAMES DOYLE, an
individual, on behalf of themselves
and all others similarly situated,
Plaintiffs,
vs.
DELTA AIRLINES, INC., a
Delaware Corporation,
Defendant.
Civil Action No. 1:17-cv-00541-
ELR
CERTIFICATE OF SERVICE
This is to certify that I have this 6th day of April, 2017 served the foregoing
DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED
COMPLAINT FOR FAILURE TO STATE A CAUSE OF ACTION AND
LACK OF STANDING with the Clerk of Court using the CM/ECF system which
will automatically send e-mail notification of such filing to: Joseph Coomes, Brian
J. Lawler, Charles M. Billy, Gene Stonebarger, and Crystal Matter.
s/Thomas J. Munger
Georgia Bar No. 529609
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JEREMMY SORENSON, an individual,
RANDAL REEP, an individual,
RANDAL SMITH, an individual,
ADAM MCLEAN, an individual,
and JAMES DOYLE, an individual, on
behalf of themselves and all others
similarly situated,
Plaintiffs,
vs.
DELTA AIRLINES, INC., a Delaware
Corporation,
Defendant.
Civil Action No. 1:17-cv-
00541-ELR
BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS
PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR LACK OF
STANDING AND FOR FAILURE TO STATE A CAUSE OF ACTION
INTRODUCTION
Plaintiffs Randal Reep (“Reep”), Adam McLean (“McLean”), James Doyle
(“Doyle”), Randal Smith (“Smith”) and Jeremy Sorenson (“Sorenson”) are current
or former pilots for Defendant Delta Air Lines, Inc. (“Delta”). They allege that Delta
violated the Uniformed Services Employment and Reemployment Rights Act of
1994, 38 U.S.C. §§ 4301 et. seq. (“USERRA”). Pursuant to Fed. R. Civ. P. 12(b)(1)
and (6), Delta moves to dismiss Plaintiffs’ First Amended Complaint (“FAC”).
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In general, USERRA allows qualified members of the military or military
reserves to be absent from work on military leave at their employer to engage in
military duties and to be re-employed after such leave. Unless it is exempt leave
under USERRA, an employee has a maximum of 5 years of cumulative military
leave before he or she loses the right to re-employment. USERRA also includes
provisions regarding an employer’s treatment of benefits and benefits accrual for an
employee who has returned from military leave.
Plaintiffs do not allege that they were ever denied military leave or deemed
ineligible for re-employment. Instead, they assert a variety of vague and conclusory
alleged USERRA violations with no factual allegations to support the claims. In
some cases, one or more of the Plaintiffs assert claims on behalf of other pilots and
thus do not have standing. In all cases, the alleged claims do not plausibly state a
cause of action. For the reasons set forth below, Delta respectfully requests that this
lawsuit be dismissed.1
STATEMENT OF FACTS ALLEGED IN
THE FIRST AMENDED COMPLAINT
A. Reep’s, McLean’s and Doyle’s Allegations Of Their
Terminations Or Threatened Terminations_______
1 Plaintiffs also assert purported class action allegations. FAC, ¶ 98-109. While
those allegations would fail to meet the requirements of Fed. R. Civ. P 23 for
numerous reasons, because Plaintiffs fail to state any cause of action, dismissal of
their claims renders the class allegations to be moot.
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Reep alleges that he was employed as a Delta pilot from 1998 until his
termination on October 11, 2016. FAC, ¶¶ 48, 57. He alleges that, after informing
him that he was under investigation for his use of military leave, Delta issued him a
termination letter, rescinded that letter, accused him of abusing sick time and
terminated him “due to his use of military leave.” FAC, ¶¶ 54-57. He does not
allege any facts about the contents of his termination letter or his alleged termination.
McLean alleges that he was a Delta pilot from 2008 until he received a
termination letter and resigned in lieu of termination “due to his military obligations”
on February 22, 2017. FAC, ¶¶ 72, 80-83. He does not allege any facts regarding
the contents of his termination letter or his resignation.
Doyle alleges that he was hired as a Delta pilot starting in 2007, and that, on
May 4, 2016, he was placed on a leave of absence while Delta investigated his use
of military leave. FAC, ¶ 94. Doyle alleges that Delta “threatened to terminate
Doyle and to commence litigation to recover his pay and benefits because of his
Concurrent Duty.” FAC, ¶ 96. Doyle alleges that he then resigned on September 8,
2016. FAC, ¶ 96, 97.
The FAC contains a section setting forth five alleged causes of action, with
the fifth alleged cause of action including three separate counts. FAC, ¶¶ 110-199.
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However, this 89-paragraph section includes no allegation by Reep, McLean or
Doyle that their terminations or resignations violated USERRA.2
B. Smith’s Allegations About His Military Leave
Smith was employed as a Delta pilot on September 3, 2007. FAC, ¶ 59. On
December 17, 2008, he went on military leave. FAC, ¶ 63. On October 5, 2016,
(almost 8 years later and thus beyond the 5-year limit for which he had re-
employment rights under USERRA), he requested re-employment with Delta. FAC,
¶ 64. He alleges without any factual basis that his military leave from its start until
March 3, 2014 was legally exempt from the USERRA 5-year limit. FAC, ¶ 63. He
alleges he presented unspecified documentation to Delta and that Delta told him that
that documentation was not sufficient to establish his claimed exempt period of
leave. FAC, ¶ 65. He alleges that, on December 8, 2016, Delta placed him on an
unpaid leave pending investigation. FAC, ¶ 67.
Smith does not make any allegation explaining the basis for his claimed
exempt military leave or identify any documentation that he presented to Delta that
2 The only reference to terminations or threatened terminations in the alleged cause
of action section of the FAC is a general allegation asserting, “Pilots with military
service obligations that perform Concurrent Duty have been terminated, threatened
with termination and have been placed on administrative leave.” FAC, ¶ 181. Delta
addresses the FAC’s allegations about Delta’s alleged Concurrent Duty policy and
sets forth why the alleged policy is lawful under USERRA as a matter of law in
section F of the Argument section below.
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could have supported his conclusory allegation that part of his leave was exempt.
Smith does not allege he was denied re-employment in violation of USERRA.
C. Plaintiffs’ Boilerplate Harassment And Benefits Allegations
All of the Plaintiffs make boilerplate and conclusory allegations of alleged
USERRA violations. Plaintiffs each repeat a conclusory allegation stating only that
they have “been repeatedly harassed by [Delta] management in response to his
military leave obligations.” FAC, ¶¶ 39, 50, 61, 74, 88.3 None of the Plaintiffs
allege that Delta ever denied a military leave request from them (or any other pilot)
in violation of USERRA or ever unlawfully denied them (or any pilot) re-
employment after a leave in violation of USERRA.4
Finally, Plaintiffs assert boilerplate and non-factual allegations that, after
unspecified military leaves, they did not receive proper amounts of pension
3 Smith makes this boilerplate allegation even though he alleges he was only
employed by Delta from September 3, 2007 until December 2008. FAC, ¶¶ 59, 62.
Only Sorenson even attempts to add to this general allegation but only by adding the
similarly boilerplate and conclusory allegation that he “has been repeatedly
instructed to perform less military leave.” FAC, ¶ 39. He alleges no facts as to the
speaker, context or content of these alleged “instructions.” He also does not allege
that he received any adverse action for not taking “less military leave.” 4 Sorenson alleges that, following certain periods of military leave, he provided Delta
only a DD-214 form as evidence of his military service and that Delta did not accept
merely that form to determine whether the leave was exempt from the 5-year
limitation. FAC, ¶ 42. However, he does not allege that he was denied re-
employment (he alleges he is still employed by Delta) or that any of his leaves were
exempt, any factual basis for asserting they were exempt or that a DD-214 form
alone set forth the basis for exemption.
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contributions, sick leave accrual, vacation accrual and profit sharing payments.5
FAC, ¶¶ 39, 40, 41, 43, 50, 51, 53, 67-69, 74-77, 88-91.6
ARGUMENT AND CITATION OF AUTHORITY
A. Standards For Rule 12(b)(1) Motion For Lack Of Standing
Because standing is jurisdictional, a motion to dismiss for lack of standing is
a motion under Fed. R. Civ. P. 12(b)(1). Stalley v. Orlando Reginal Healthcare Sys.,
524 F.3d 1229, 1232 (11th Cir. 2008). In a claim under a federal statute, to have
standing, a plaintiff must show that he has suffered an injury-in-fact, i.e., a concrete
and particularized injury that is actual or imminent and not one that is conjectural or
hypothetical. Spokeo v. Robins, 136 S. Ct. 1540, 1548 (2016). One cannot rest
standing on a claim that the defendant has violated the statute with respect to other
people. Id. To be particularized, the injury “must affect the plaintiff in a personal
and individual way.” Id. To be concrete, the plaintiff’s actual injury “must be ‘de
facto’; that is that is must actually exist.” Id.
5 Plaintiffs refer to a “CBA” [collective bargaining agreement]. FAC, ¶ 117. While
not relied upon for this motion, the Court can take judicial notice that Delta pilots
are represented by the Air Line Pilots Association (“ALPA”), pursuant to the
Railway Labor Act, and are covered by a collective bargaining agreement. See, e.g.,
Delta Air Lines, Inc. v. Air Line Pilots Ass’n, 238 F.3d 1300 (11th Cir. 2001).
Plaintiffs do not allege that the Delta-ALPA CBA violates USERRA or that they
have filed a grievance alleging any alleged improper benefit calculations or accrual. 6 Sorenson concedes that Delta has fully complied with its obligation to make
pension contributions for him and did so months before this lawsuit was filed. FAC,
¶ 46. Thus, any such claim was moot before this lawsuit was filed.
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B. Standards For Rule 12(b)(6) Motion For Failure To Assert Facts That
Plausibly Support A Cause Of Action___________________________
To avoid dismissal under Fed. R. Civ. P. 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ogletree v. Necco, 2016 U.S. Dist. LEXIS 165566 * 13 (N.D. Ga.,
Nov. 9, 2016) (Baverman, MJ), adopted, 2016 U.S. Dist. LEXIS 165564 (N.D. Ga.,
Nov. 30, 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)).
“[A] court should not accept ‘conclusory allegations, unwarranted deductions
of facts or legal conclusions masquerading as facts.’” Ogletree, at * 13 (quoting
Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002)). “While
a complaint need not contain detailed factual allegations, mere ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not
do.’” Id. “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice” and are “not entitled to the assumption
of truth.” Iqbal, 556 U.S. at 678-79. “Rather, plaintiffs are required to make factual
allegations that are ‘enough to raise a right to relief above the speculative level.’”
Ogletree, at * 14 (quoting Twombly, 550 U.S. at 555). “Complaints must ‘contain
either direct or inferential allegations respecting all the material elements necessary
to sustain a recovery under some viable legal theory.’” Id. (quoting Fin. Sec.
Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282-83 (11th Cir. 2007)).
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C. Summary of USERRA
“Under the USERRA, a person who is a member of or who has performed in
a uniformed [military] service shall not be denied initial employment,
reemployment, retention in employment, promotion or any benefit of employment
by an employer on the basis of that member’s performance of service.” Ward v.
UPS, 580 Fed. Appx. 735, 737-738 (11th Cir. Sep. 11, 2014) (quoting 38 U.S.C. §
4311(a)). “An employer violates the USERRA if the employee’s membership in a
uniformed service is a ‘motivating factor’ in the employer’s adverse action, unless
the employer can prove that the action would have been taken in the absence of such
[membership].” Gambrill v. Cullman Cty. Bd. Of Educ., 395 Fed. Appx. 543, 545
(11th Cir. Aug. 31, 2016) (quoting 38 U.S.C. § 4311(c)).
D. Plaintiffs’ Pension Contribution, Sick Leave And Vacation Accrual And
Profit Sharing Claims (Causes of Action I through IV) Should Be
Dismissed.____________________________________________________
In Counts I-IV, Plaintiffs assert conclusory allegations that Delta violated
USERRA by denying them proper pension contributions, sick leave accrual,
vacation leave accrual and profit sharing payments. Plaintiffs fail to assert even the
barest factual allegations that could make this litany of boilerplate claims plausible.
1. Plaintiffs’ pension contribution claim
Plaintiffs first allege in a conclusory fashion that Delta violated USERRA in
making unspecified pension plan contributions to pilots returning from military
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leave. They allege only that the “manner in which (Delta) calculates and credits
military leave and implements its own ‘verification’ process to determine pension
contributions [(under its defined pension plan)] violates USERRA” (FAC, ¶¶ 116,
117), and that Delta provided more in pension contributions to some unidentified
pilots who have no military obligations than to other unidentified pilots who have
performed military service. FAC ¶ 121. None of the Plaintiffs allege any facts as to
how pension payments made violated USERRA, let alone that they were specifically
damaged by any conduct that would be impermissible under USERRA. Plaintiffs
do not identify a single pension contribution to any of them that was less than
required by USERRA. 7
Under USERRA, employees on military leave continue to accrue pension
benefits during their leave as if they were working for their employer throughout the
leave. 38 U.S.C. § 4318(3)(A); 38 U.S.C. § 4318(b)(1). There is no dispute here
7 Under USERRA, the amount to be contributed into a pension account is either “(A)
at the rate the employee would have received but for the period of service … or (B)
in the case that the determination of such rate is not reasonably certain, on the basis
of the employee’s average rate of compensation during the 12-month period
immediately preceding such period.” 38 U.S.C § 4318(b)(1)(B)(ii)(3). Thus, a
pension calculation for each pilot is case-by-case, fact-specific and varies based on
a variety of factors. Accordingly, Plaintiffs’ conclusory allegation that a pilot with
no military leave may have on some unspecified occasion received a higher
contribution than an unidentified pilot who had military leave is legally meaningless.
Similarly, Plaintiffs’ vague reference to a “verification” process is also legally
meaningless as USERRA expressly permits that an employer can verify that an
employee was on military leave. 20 C.F.R. § 1002.123.
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that where an employer contributes to an employee’s pension plan based on
continuing employment, after an employee returns from military leave, the employer
is obliged to make a pension calculation to determine the amount to contribute to the
employee’s pension plan based on the period of the military leave. Id.
However, Plaintiff’s boilerplate allegations do not provide any facts that
plausibly suggest a violation of the law. They are the exact type of “naked assertions
devoid of factual enhancement” described by in Twombly and Iqbal and cannot
benefit from the presumption of “truth” afforded to plaintiff’s allegation under FRCP
12(b)(6). Iqbal, 556 U.S. at 678-79.
The serious subject matter of USERRA makes compliance with basic
pleading standards all the more critical and accordingly courts routinely dismiss as
insufficient the type of classic “unadorned defendant harmed me” allegations
brought under USERRA, like those here. See e.g. Tartt v. Magna Health Sys., 2016
U.S. Dist. LEXIS 154356 ** 11-12 (N.D. Ill. Nov. 7, 2016) (USERRA claim where
plaintiff alleged conclusory allegations of denial of employment benefits required
under USERRA dismissed – plaintiff did not allege factual details for claim and
failed to give defendant adequate notice of the claims against them); Spurlin v.
Christwood, LLC, 2016 U.S. Dist. LEXIS 151850 (E.D. La. Nov. 2, 2016)
(conclusory allegations of USERRA violations without specific supporting factual
circumstances insufficient); Tukey v. United Airlines, Inc., 2015 U.S. Dist. LEXIS
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75277 (N.D. Cal. June 10, 2015) (same); Hunt v. Klein, 2011 U.S. Dist. LEXIS
14918 (S.D.N.Y. Feb. 10, 2011) (same).8
2. Plaintiffs’ other benefit claims
Plaintiffs’ claims in Counts II – IV that Delta violated USERRA with regard
to other benefits – namely vacation leave, sick leave and profit sharing – also do not
plausibly suggest any legal violation by Delta.
Fundamentally, USERRA seeks to ensure that an employee on military leave
is entitled to the same non-seniority based benefits provided to other employees on
similarly situated, non-military related leaves of absence. FAC, ¶ 127; 38 U.S.C. §
4316(b)(1)(B); 20 CFR § 1002.150. Here, the FAC does not even attempt to allege
that Plaintiffs received different non-military “benefits” because they were on
military leave. Initially, Plaintiffs at least tacitly concede that, as pilots, they do
accrue sick leave and vacation time for the first 30 days of military leaves. The FAC
only alleges that certain unnamed pilots have not accrued sick and vacation time
during periods of “long-term military leave,” defined as a military leave greater than
8 The FAC’s allegation that Delta has “paid later than 90 days following
reemployment pension contributions to pilots who have taken military leave . . .”
also does not state a cause of action. USERRA permits contributions more than 90
days after a pilot returns from military leave, including in circumstances where it is
“unreasonable” for the employer to make the contribution before that date. 20 CFR
§1002.262(a). Independently, the FAC pleads no alleged harm caused by any
alleged contribution that was made after 90 days. Thus, there is no standing or cause
of action on such a claim.
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30 days. Thus, the only proper USERRA comparison would be benefit accruals
under non-military leaves of over 30 days. “In order to determine whether any two
types of leave are comparable, the duration of the leave may be the most significant
factor to compare.” 20 CFR. §1002.150(b). See Tully v. DOJ, 481 F.3d 1367 (Fed.
Cir. 2007) (holiday pay not comparable to longer term military leave).
Plaintiffs generally allege that Delta pilots continue to accrue sick leave while
on other non-military short term leaves from Delta (such as jury duty leave).
However, they do not allege that pilots accrue such sick leave for any leaves in
excess of a month. Similarly impermissibly vague is Plaintiffs’ allegation that Delta
pilots on non-military leaves accrue vacation days during leaves longer than 30 days
“or were counted as eligible for additional vacation days provided for under bonus
plans.” FAC, ¶ 140. (emphasis added). Indeed, Plaintiffs’ use of the preposition
“or” in their allegation establishes that Plaintiffs have no facts to assert that any pilots
on any non-military leaves (let alone similarly situated leaves) accrue vacation after
a month of leave. Moreover, the reference to unspecified and undefined “bonus
plans” is so vague that it renders the allegation meaningless.
Finally, the FAC alleges in the most general terms that Delta made profit
sharing payments to Plaintiffs that are less than they would be if they were based on
their imputed income and that Delta has not properly calculated these profit sharing
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payments. FAC, ¶¶ 147, 149, 149, 150.9 Again, under Iqbal/Twombly those broad,
vague and unsupported allegations do not meet the standard necessary to support a
plausible cause of action that Delta has violated USERRA in regard to profit sharing
payment calculations to the Plaintiffs. Plaintiffs’ do not identify a single profit
sharing payment to any of them that was not calculated properly, much less provide
any factual assertion supporting the bald, boilerplate recitation that it was calculated
improperly under USERRA. Accordingly, they have not plausibly alleged a
USERRA violation with regard to benefit calculations or accruals.
E. Plaintiffs’ “General Harassment” Claim (Cause Of Action V, Count I)
Should Be Dismissed._________________________________________
At its heart, USERRA is an anti-discrimination statute which has been found
to be “very similar” to Title VII of the Civil Rights Act of 1964. Staub v. Proctor
Hosp., 132 S. Ct. 1186, 1191 (2011). Thus, USERRA hostile work environment
harassment claims are properly analyzed under Title VII standards. Dees v. Hyundai
Motor Mfg. Ala., LLC, 605 F. Supp. 2d 1220 (M.D. Ala. 2009).
Under that applicable standard, “[t]o plead a hostile work environment claim,
a plaintiff must show that: (1) he belongs to a protected group; (2) he has been
9 Notably, Sorenson does not even generally allege he has been underpaid a profit
sharing payment. Instead, he only claims that he has asked for a detailed calculation
of one of his payments and has not received one. FAC, ¶ 45. That assertion does
not even generally allege a USERRA violation as there is nothing in USERRA that
requires any “calculation” that he is requesting.
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subjected to unwanted harassment; (3) the harassment was based on his membership
in a protected group; (4) it was severe or pervasive enough to alter the terms and
conditions of employment and create a hostile or abusive working environment; and
(5) the employer is responsible for that environment under a theory of either
vicarious or direct liability.” Robinson v. City Of Atlanta, Case No. 1:10-cv-02036-
WSD-AJB, Dkt. No. 9 ** 7-8 (N.D. Ga. Dec. 20, 2010), adopted, Dkt. No. 10 (N.D.
Ga. March 14, 2011).
With respect to the fourth “severe or pervasive” requirement, the plaintiff
must establish that the work environment was “permeated with discriminatory
intimidation, ridicule, and insult” that was “sufficiently severe or pervasive to alter
the terms and conditions of employment.” Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993). Establishing that harassing conduct was sufficiently severe or pervasive
to alter an employee’s terms or conditions of employment includes a subjective and
an objective component. Edwards v. Ambient Healthcare of Ga. Inc., 2017 U.S.
App. LEXIS 321 * 4 (11th Cir. Jan. 9, 2017). “That is, the work environment must
be one that a reasonable person would find hostile or abusive and that the victim
subjectively perceives to be abusive.” Id. “In evaluating the objective severity of
the harassment, we look at the totality of the circumstances and consider: (1) the
frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is
physically threatening or humiliating, or a mere offensive utterance; and (4) whether
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the conduct unreasonably interferes with the employee’s job performance.” Id.
A hostile environment harassment claim that does not allege facts sufficient
to plausibly support a claim of severe and pervasive harassment must be dismissed
under Rule 12(b)(6). See e.g. Edwards (affirming dismissal of harassment claim
because facts did not sufficiently allege plausible claim of severe and pervasive
harassment); Enadeghe v. Ryla Teleservices, Inc., 2009 U.S. Dist. LEXIS 124578 *
10-12 (N.D. Ga. Dec. 27, 2009), adopted, 2010 U.S. Dist. LEXIS 9376 (N.D. Ga.
Feb. 3, 2010) (same).
Here, Plaintiffs’ FAC does not come even remotely close to meeting that well-
reasoned standard. Rather than asserting allegations that could plausibly suggest a
severe and pervasive hostile work environment, Plaintiffs simply allege in a
conclusory manner that they have been harassed because of their military
obligations. FAC, ¶¶ 39, 50, 61, 74, 88. Notably, the FAC does not specify a single
allegation of conduct or statement by anyone at Delta directed to or at any of the
Plaintiffs. The FAC makes allegations of “harassment” of unidentified other pilots
but does not specify any allegation of harassment against any of the Plaintiffs. FAC,
¶ 166.
Moreover, even if taken at face value, the alleged “harassment” of these
unnamed pilots consists of alleged comments suggesting, implying or stating that
these pilots were taking “too much” military leave. There is no allegation that would
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plausibly support any claim that any pilot (let alone Plaintiffs) were threatened
physically or otherwise by any such comments or that the comments were in any
way so abusive that they altered the pilot’s work environment. At most, these
allegations indicate that a small number of management pilots have expressed
unhappiness about a pilot taking military leave and have sought to discourage long-
term or conflicting leaves.
Such allegations fall well short of the type of abusive, physically threatening,
humiliating, and workplace-altering conduct that plausibly amounts to unlawful
actionable harassment. See Perez v. Denver Fire Dept., 2016 U.S. Dist. LEXIS
10114, at *13 (D. Col. Jan. 26, 2016) (a firefighter’s USERRA hostile environment
harassment claim dismissed under Rule 12(b)(6) because allegations that a chief had
written an internal correspondence to him expressing concern over his need for a 5-
month military leave and a lieutenant and captain stated, “What does he want to do,
be a firefighter or be a reservist[?],” would not plausibly support a hostile work
environment claim under the Twombly standard). See also Vegas-Colon v. Wyeth
Pharm., 625 F.3d 22, 32 (1st Cir. 2010) (supervisors’ frequent name-calling about
plaintiff’s military service, including calling plaintiff “little soldier” and “Rambo”
not sufficiently severe); Spann v. City of L.A., Civil Action No. 2:14-cv-01751 * 26
(C.D. Cal. July 24, 2015) (copy attached hereto as Exhibit “A”), affirmed, 2017 U.S.
App. LEXIS 2966 (9th Cir. Feb. 10, 2017) (supervisor asking plaintiff, “Is it really
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necessary to take so much military leave?” and at least 20 incidents where plaintiff
police officer called “colonel” in a sneering manner, officers stood at attention
before plaintiff stating, “Atten-hut” or “Reporting colonel,” derogatory reference to
his military leave in a company newsletter; and statement by lieutenant that most
military people are illiterate not sufficiently severe); Mock v. City Of Rome, 851 F.
Supp. 2d 428 (N.D.N.Y. March 29, 2012) (supervisor calling plaintiff’s wife and
inquiring about the legitimacy of plaintiff’s reservist duties; calling plaintiff’s
reserve unit and demanding his personnel records; supervisor drafting memo
requiring reservists to submit written statements of their duty time and stating that
no military leave days will be granted without a specific duty assignment; and other
alleged conduct not sufficiently severe to establish USERRA harassment); Bell v.
Bank of America, 2013 U.S. Dist. LEXIS 141097 ** 21-22 (E.D.N.C. July 12, 2013)
(USERRA hostile environment harassment allegations insufficient); Molina v.
Rimco, Inc., 2006 U.S. Dist. LEXIS 65471 ** 15-17 (D. P.R. Sept. 12, 2006)
(supervisor frequently questioned plaintiff about his military leaves asking him if he
could avoid his military duties should he be called for an extended period
insufficient); Otero v. N.M. Corr. Dept., 640 F. Supp. 2d 1346 (D. N.M. 2009)
(dismissing USERRA hostile environment claim).
The balance of Plaintiffs’ alleged “harassment” consist either of allegations
that either are facially meaningless (such as a bald allegation that Delta’s Military
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Leave Guidelines include unspecified provisions that violate USERRA (FAC, ¶
156)), or allegations that Delta engaged in conduct that, as a matter of law, is entirely
lawful, and in some cases, required under USERRA (such as contacting military
units to discuss individual military leave schedule10 or requiring that unnamed pilots
provide documentation about their leave). (FAC, ¶ 160). 11
Finally, the FAC makes conclusory allegations that unnamed pilots have been
pressured to perform military service on days off (rather than on days they are
scheduled to work for Delta) and have been asked about their military leaves.
However, again, such conduct is not illegal and could not reasonably amount to
illegal harassment. Spann, supra. at * 26 (USERRA does not shield service member
from inquiries regarding their military service).
10 USERRA’s regulations expressly permit employers to contact military units to
express concerns about “the timing, frequency or duration of an employee’s
requested military leave,” and Department of Defense regulations direct military
authorities to provide assistance to employers in addressing these types of
employment issues and are required to consider requests from employers “to adjust
scheduled absences from civilian employment to perform service.” 38 C.F.R. §
1002.104. 11 USERRA addresses documents that can be required when an individual seeks re-
employment after a military leave and says nothing that prohibits an employer from
requesting documents to, for instance, investigate possible fraud. 38 U.S.C. §
4312(f); 20 C.F.R. § 1002.123. Further, USERRA also does not prevent an
employer from requesting documents other than the DD-214 in considering a pilot’s
re-employment after a leave and, to the contrary, identifies types of documents other
than the DD-214 that can be requested. 20 C.F.R. § 1002.123(a) and (b). Among
other things, USERRA expressly allows an employer to seek documents (e.g.,
military orders in addition to a DD-214 form) to determine whether a leave is exempt
under the 5-year limit. 38 U.S.C. § 4312(f)(1)(C); 38 U.S.C. § 4312(c)(4).
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As such, Plaintiffs’ hodge-podge of allegations does not create a viable hostile
environment claim under USERRA and should be dismissed.
F. Plaintiffs’ “Concurrent Duty” Claim (Cause Of Action V, Count II)
Should Be Dismissed._______________________________________
Plaintiffs’ generalized allegations that Delta’s Military Leave policies violate
USERRA because they prohibit “Concurrent Duty” are based on misapplication of
USERRA and also should be dismissed. Indeed, if Plaintiffs’ allegations are
accepted as true, they serve only to establish that Delta’s Concurrent Duty policy is
lawful under USERRA as a matter of law.
As a threshhold matter, perhaps by design, the FAC’s description of the
Concurrent Duty policy is so convoluted that its vagueness and confusion alone
prevents the FAC from stating a cause of action that it violates USERRA.12 For
example, the allegation that the policy does not allow a pilot to simultaneously have
a day where they may have obligations to Delta and a day where they have military
12 Plaintiffs allege that (1) “[Delta’s] policies prohibit pilots from performing any
military obligations on the same calendar day they may have obligations to [Delta]
(“Concurrent Duty”), even if those military service obligations do not interfere with
or conflict with [Delta] employment obligations, or require an ‘absence’ from
[Delta]” and (2) “[Delta’s] Concurrent Duty policy requires that pilots inform
[Delta] of all military obligations, including those that occur on a pilot’s day off from
[Delta], those that do not interfere with a pilot’s [Delta] flight obligations, and which
do not require a person’s ‘absence’ from employment with [Delta].” FAC, ¶¶ 176,
177. Plaintiffs allege that Delta has threatened to terminate and has terminated pilots
for violating its Concurrent Duty policy. FAC, ¶ 182. Plaintiffs allege that the
Concurrent Duty policy results in “lost wages, lost benefits, lost opportunities for
military participation and pay . . . ” FAC, ¶ 184.
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obligations is not meaingfully decipherable without explaining what is meant by “a
day they may have obligations to Delta.” Plaintiffs notably do not allege that any
request for military leave has ever been denied by Delta because of the Concurrent
Duty policy. Under Rule 12(b)(6), neither a defendant nor a court should be required
to untangle and speculate about such convoluted and vague allegations – particularly
whereas here it appears that the vagueness was intentional because sufficient factual
detail would further reveal that the referenced policy is lawful under USERRA.
Under the best reading of the FAC’s convoluted description of the policy, the
phrase “a calendar day they may have obligations to [Delta],” can be interpreted as
referring to a day when a pilot is “on-call” at Delta, i.e., a day when the pilot is being
paid by Delta to be available to be called for flight duty at Delta (“on-call day”).
Thus, under this best reading, Plaintiffs appear to contend that Delta’s Concurrent
Duty Policy prohibits a pilot from being on a paid on-call day for Delta
simultaneously with a military obligation leave day.
Such a policy does not violate USERRA as a matter of black-letter law. There
is nothing in USERRA that requires Delta to allow a pilot to remain on active duty
at Delta, and be paid for an on-call day, when he or she is on military leave during
that same day. While USERRA requires Delta to provide a military leave to a pilot,
it expressly allows the leave to be unpaid. 20 C.F.R. § 1002.7(c); Monroe v.
Standard Oil Comp., 452 U.S. 549, 562 n. 13 (1981) (“The legislative history is
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barren of any indication that Congress intended employers to compensate employees
for work hours missed while fulfilling military reserve obligations, which would of
course amount to employee receipt of double compensation for such periods.”).13
Thus, Delta is permitted as a matter of law to prevent a pilot for having a paid on-
call day on a day when the pilot has military obligations and may (indeed must)
provide a military leave to that pilot for that day instead. Indeed, it is lawful under
USERRA to terminate an employee for violating an employer’s policy prohibiting
simultaneous employer paid-time with military leave time. See Escher v. BWXY 7-
12, LLC, 627 F.3d 1020 (6th Cir. 2010)(USERRA claim dismissed where plaintiff
did work for military at employer on employer worktime); Gannon v. AMTRAK,
422 F. Supp. 2d 504 (E.D. Pa. 2006)(USERRA claim dismissed where plaintiff
terminated after improperly receiving pay from employer during military leave ).
Moreover, contrary to an apparent premise of Plaintiffs’ claim that the alleged
Concurrent Duty policy violates USERRA, USERRA also does not require
employers “to provide a special work-scheduling preference” to allow the military
reservist to minimize his or her lost employer pay due to his military reserve periods.
Monroe, 452 U.S. at 562; Crews v. City of Mt. Vernon, 2008 U.S. Dist. LEXIS
13 While Monroe interpreted a predecessor military leave statute, the legislative
history of USERRA “necessarily indicates an intent to codify” in USERRA
Monroe’s “equal but not preferential” treatment of military leave. Rogers v. City
of San Antonio, 392 F.3d 758, 768 (5th Cir. 2004).
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41710 * 13 (S.D. Ill. May 27, 2008) (quoting Monroe, 452 U.S. at 561). See also
Sandoval v. City of Chicago, Ill., 560 F.3d 703, 704-705 (7th Cir. 2009) (USERRA
claim dismissed where plaintiffs sought an accommodation because of military
status rather than equal treatment).
Further, as a matter of both law and common sense, Plaintiffs’ contention that
they are not “absent” from Delta when they are on USERRA-protected military leave
is incorrect. A pilot who is on an on-call day for Delta (just like a doctor or other
professional who is on-call for their employer) is being compensated (i.e., is “on-
the-clock” for the employer) to be available to their employer during on-call day. In
other words, the pilot is being paid because he can be required to fly for Delta that
day. If such a pilot is on legally-protected military leave then, by definition, he or
she is not available to the employer, is absent from Delta due to that legally-protected
military leave, and thus cannot be required to fly for Delta on that day.
Plaintiffs’ allegation that Delta does not prohibit a pilot from having a paid
on-call day on a day when the pilot has other non-military and non-Delta
employment scheduled that day is legally meaningless. Whether a Delta pilot has a
shift at Kroger or plans to work out at the gym on a paid on-call day is immaterial.
Such a pilot is not on a Delta leave of absence of any kind – let alone a legally-
protected leave – simply because the pilot has non-Delta and non-military plans he
or she hopes to meet on an on-call day if he or she is not called to duty that day by
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Delta. If that pilot is called to fly by Delta on that on-call day, Delta can legally
require the pilot to fly because he or she has no legal protection. In direct contrast,
a pilot who performs military obligations on that on-call day cannot be legally
required to work for Delta and there is no legal reason Delta must pay him and
require him to work that day -- on-call or otherwise.
Stated another way, Delta gives preference to a pilot with military obligations
– as that pilot is provided with an unpaid leave of absence for an on-call day if he or
she has military obligations on that day, while a pilot with a shift at Kroger on that
day gets no such advantage and must report to Delta if called.14 The alleged
Concurrent Duty policy is lawful as a matter of law and thus Plaintiffs’ Cause of
Action Five, Count II fails to state a claim.15
G. Plaintiffs’ “Five-Year Limit” Claim (Cause of Action Five, Count III)
Should Be Dismissed._________________________________________
14 Separately, Plaintiffs’ claimed harm from the Concurrent Duty policy is that they
lost employment benefits from the military. But a benefit denial claim under
USERRA is limited to a claim of denial of benefits from the non-military employer
and not an alleged denial of pay or benefits from the military. Thomsen v. Dept. of
the Treasury, 169 F.3d 1378 (Fed. Cir. 1999); Madden v. Rolls-Royce Corp., 2008
U.S. Dist. LEXIS 21496 (S.D. Ind. March 18, 2008). 15 Similarly, the FAC’s allegation that Delta requires pilots to inform it of all military
obligation days fails to state a cause of action as nothing in USERRA prohibits such
a practice. Moreover, as the alleged Concurrent Duty policy is lawful, by definition,
it is certainly lawful to request all military obligation days to determine if a pilot has
violated Delta’s Concurrent Duty policy – a violation that would amount to fraud by
the pilot on Delta and possibly on the military.
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Under USERRA, an employee has reemployment rights “if such person’s
cumulative period of service in the uniformed services, with respect to the employer
relationship for which a person seeks reemployment, does not exceed five years…”
(“5-year limit”). 38 U.S.C. § 4312(c). Some military leaves are exempt from the 5-
year limit based on the orders that prompted the leave. Id. For an employer to
determine if a leave is exempt from the 5-year limit, an employer needs to at least
review the employee’s order(s) that prompted the leave. Id.
In its final count, the FAC generally alleges that Delta “has threatened to
terminate and terminated pilots for exceeding USERRA’s five-year limitation, even
though military service periods were exempt or did not require an ‘absence’ from
[Delta] employment.” FAC, ¶ 194. However, not one of the Plaintiffs alleges that
they were terminated for exceeding the 5-year limit. Thus, none of them have
standing to assert this claim.
Moreover, this allegation again fails to include facts sufficient to plausibly
state a cause of action. The FAC does not allege what particular leaves were exempt,
why they were allegedly exempt, what military orders the pilot provided to Delta to
prove a leave was exempt and why Delta did not treat any such leave as exempt.
This conclusory claim also fails to state a cause of action.
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IV. CONCLUSION
For the reasons stated herein, Delta respectfully requests that this lawsuit be
dismissed with prejudice.
Respectfully submitted,
s/Thomas J. Munger
Georgia Bar No. 683850
s/Benjamin A. Stone
Georgia Bar No. 529609
MUNGER & STONE, LLP
999 Peachtree Street, NE
Suite 2850
Atlanta, Georgia 30309
Telephone: (404) 815-0829
Facsimile: (404) 815-4687
E-mail: [email protected]
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CERTIFICATE OF COMPLIANCE
Pursuant to Local Rule 7.1D of the Local Rules for the United States District
Court for the Northern District of Georgia, I hereby certify that the foregoing has
been prepared in Times New Roman, 14-point font, as permitted by Local Rule
5.1B
Respectfully submitted,
s/Thomas J. Munger
Georgia Bar No. 529609
MUNGER & STONE, LLP
999 Peachtree Street, NE
Suite 2850
Atlanta, Georgia 30309
Telephone: (404) 815-0829
Facsimile: (404) 815-4687
E-mail: [email protected]
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JEREMMY SORENSON, an individual,
RANDAL REEP, an individual,
RANDAL SMITH, an individual,
JAMES MCLEAN, an individual,
and JAMES DOYLE, an individual, on
behalf of themselves and all others
similarly situated,
Plaintiffs,
vs.
DELTA AIRLINES, INC., a Delaware
Corporation,
Defendant.
Civil Action No. 1:17-cv-
00541-ELR
CERTIFICATE OF SERVICE
This is to certify that I have this 6th day of April, 2017 served the foregoing
BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS
PLAINTIFF’S FIRST AMENDED COMPLAINT FOR FAILURE TO
STATE A CAUSE OF ACTION AND LACK OF STANDING with the Clerk
of Court using the CM/ECF system which will automatically send e-mail
notification of such filing to: Joseph Coomes, Brian J. Lawler, Charles M. Billy,
Gene Stonebarger, and Crystal Matter.
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s/Thomas J. Munger
Georgia Bar No. 529609
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