UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CASEY CLARKSON, No. 21-35473

Plaintiff-Appellant, D.C. No. 2:19-cv- 00005-TOR v. ALASKA AIRLINES, INC.; OPINION HORIZON AIR INDUSTRIES, INC.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, District Judge, Presiding

Argued and Submitted October 21, 2022 Portland, Oregon

Filed February 1, 2023

Before: Richard A. Paez and Bridget S. Bade, Circuit Judges, and Haywood S. Gilliam, Jr., * District Judge.

Opinion by Judge Paez * The Honorable Haywood S. Gilliam, Jr., United States District Judge for the Northern District of California, sitting by designation. 2 CLARKSON V. ALASKA AIRLINES, INC.

SUMMARY **

Labor Law

The panel reversed the district court’s grant of summary judgment in favor of defendants Alaska Airlines, Inc., and Horizon Air Industries, Inc., and remanded, in a class action brought under the Uniformed Services Employment and Reemployment Rights Act (USERRA) by Casey Clarkson, a commercial airline pilot and military reservist. Clarkson alleged that because the airlines provided paid leave for non-military leaves, including jury duty, bereavement, and sick leave, the airlines were also required to pay pilots during short-term military leaves of thirty days or less. Under USERRA § 4316(b)(1), “a person who is absent from a position of employment by reason of service in the uniformed services” shall be “deemed to be on furlough or leave of absence” and shall be “entitled to such other rights and benefits not determined by seniority as are generally provided by the employer” to other employees on non- military furloughs or leaves of absence. Under 20 C.F.R. § 1002.150, the “non-seniority rights and benefits to which an employee is entitled during a period of service are those that the employer provides to similarly situated employees.” If the benefits vary according to the type of leave, the employee must be given “the most favorable treatment accorded to any comparable form of leave when he or she ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CLARKSON V. ALASKA AIRLINES, INC. 3

performs service in the uniformed services.” To determine whether types of leave are comparable, the duration of the leave must be considered, as well as the purpose of the leave and the ability of the employee to choose when to take the leave. The panel held that the district court erred in concluding that no reasonable jury could find military leave comparable to non-military leave. In reaching this conclusion, the district court erred by comparing all military leaves, rather than just the short-term military leaves at issue here, with the comparator non-military leaves. The district court also erred by disregarding factual disputes about each of the three factors in the comparability analysis: duration, purpose, and control. The panel held that because factual disputes existed, comparability was an issue for the jury. The panel therefore reversed and remanded. It instructed that on remand, the district court should consider in the first instance the issue whether “pay during leave” was a standalone benefit that the airlines provided under their collective bargaining agreements to any employee on leave. 4 CLARKSON V. ALASKA AIRLINES, INC.

COUNSEL Jonathan E. Taylor (argued), Deepak Gupta, Peter Romer- Friedman, and Robert Friedman, Gupta Wessler PLLC, Washington, D.C.; Adam T. Klein and