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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”).

Case 1:17-cv-00541-ELR Document 13 Filed 04/06/17 of 4

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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an unpublished federal court decision.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


MUNGER & STONE, LLP

999 Peachtree Street, NE

Suite 2850

Atlanta, Georgia 30309

Telephone: (404) 815-0829

Facsimile: (404) 815-4687

E-mail: [email protected]


mailto:[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


s/Thomas J. Munger


MUNGER & STONE, LLP


Suite 2850


Telephone: (404) 815-0829

Facsimile: (404) 815-4687



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ATLANTA DIVISION

JEREMMY SORENSON, 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



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ATLANTA DIVISION

JEREMMY SORENSON, 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”).

Case 1:17-cv-00541-ELR Document 13-1 Filed 04/06/17 Page 1 of 28

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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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19

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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20

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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21

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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25

IV. CONCLUSION

For the reasons stated herein, Delta respectfully requests that this lawsuit be

dismissed with prejudice.


s/Thomas J. Munger


s/Benjamin A. Stone


MUNGER & STONE, LLP


Suite 2850


Telephone: (404) 815-0829

Facsimile: (404) 815-4687



mailto:[email protected]

DB1/ 91410404.1

26

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


s/Thomas J. Munger


MUNGER & STONE, LLP


Suite 2850


Telephone: (404) 815-0829

Facsimile: (404) 815-4687



DB1/ 91410404.1

27



ATLANTA DIVISION

JEREMMY SORENSON, 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.


DB1/ 91410404.1

28

s/Thomas J. Munger



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