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The Employer Handbook Blog
Two Pilots Abused Sick Leave While Serving in the Military. USERRA Didn’t Save Them.
One pilot called in sick with the flu and went skiing. He also called in with a knee injury and flew military jets the same day. The other pilot claimed he was too sick to fly and then flew jets for the military instead. The Eleventh Circuit says the airline was right to push them both out.
TL;DR: The Eleventh Circuit affirmed summary judgment for a major airline on two pilots’ constructive termination claims under the Uniformed Services Employment and Reemployment Rights Act (USERRA). The court held that while military status was a motivating factor in the airline’s decision to investigate the pilots, it had an independent, standalone reason for forcing them out: both pilots abused their sick-leave benefits. The pension contribution and vacation accrual claims also failed, but those holdings are less transferable to most employers.
The Sick Leave, the Skiing Trip, and the Military Jets
Both pilots worked for a major airline while serving as Air Force reservists. The airline’s sick-leave policy allowed paid time off only when a medical condition prevented a pilot from flying.
The first pilot told the airline he was too sick to fly, collected paid sick leave, and then flew jets for the military the same day. The investigation revealed at least ten other times he did the same thing, eleven incidents altogether. He also falsely reported military duty on twenty-five occasions and received at least $53,000 in unearned pay and benefits.
The second pilot told his supervisor he had the flu, took sick leave over New Year’s, and went skiing. On another occasion, he called in with a knee injury and flew military test flights that same day.
The airline investigated both pilots and moved to terminate them. Both resigned before the process concluded. They sued under USERRA, claiming the airline pushed them out because of their military service. The district court granted summary judgment for the airline. The Eleventh Circuit affirmed.
The Independent Standalone Reason Defense
USERRA prohibits adverse action against employees because of their military service, but includes a defense: if the employer proves it would have taken the same action for legitimate reasons regardless of military status, the claim fails.
Both pilots established that military status played a role in the decision to investigate them. The airline discovered the misconduct precisely because it was monitoring military leave. But the court held the airline had an independent, standalone reason unconnected to military service: both pilots were collecting sick pay while physically capable of flying. That reason sufficed.
The pilots argued that because the concurrent duty policy only applies to military personnel, any termination connected to it is inherently military-based. The court rejected that. The airline fired them for sick-leave abuse, not for their military obligations. Those are different things.
What Employers with Military Reservist Employees Should Know
USERRA’s defense requires a standalone reason, not just a legitimate one. The employer must show the same action would have been taken absent the military connection. Document the independent basis for any adverse action involving a reservist before the action is taken, not after litigation begins.
The misconduct that triggers an investigation and the misconduct that justifies termination can be different things. The airline found the sick-leave abuse because it was monitoring military leave. That’s fine, the investigation origin doesn’t taint the termination if the reason for it is genuinely independent.
Sick-leave policies need to define what “unable to work” actually means. Both pilots exploited the gap between being unable to perform commercial duties and being physically capable of other activity. A policy that ties sick leave to medical inability to perform job duties and enforces it consistently gives the employer both a clear rule and a defensible reason for action.
USERRA claims are uncommon, but the underlying principle, document legitimate independent reasons before acting on any adverse decision involving a protected status, applies to every discrimination statute on the books.