SCANLAN v. AMERICAN AIRLINES GROUP, INC.

Filing 124

MEMORANDUM AND OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 10/8/21. 10/8/21 ENTERED & E-MAILED. NOT MAILED TO NON-ECF COUNSEL.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JAMES P. SCANLAN on his own
:
behalf and all others similarly :
situated
:
:
v.
:
:
AMERICAN AIRLINES GROUP, INC.,
:
et al.

CIVIL ACTION

NO. 18-4040

MEMORANDUM
Bartle, J.

October 8, 2021

Plaintiff James P. Scanlan, a commercial airline pilot
and a Major General in the United States Air Force Reserve, has
sued defendants American Airlines Group, Inc. (“AAG”) and
American Airlines, Inc. (“American”), his employer and AAG’s
wholly owned subsidiary, in this putative class action under the
Uniformed Services Employment and Reemployment Rights Act
(“USERRA”), 38 U.S.C. §§ 4301 et seq., and for breach of
contract.

In essence, plaintiff claims that he and the classes

he seeks to represent have not received the compensation or
benefits due to them under the statute and by contract.
Plaintiff seeks declaratory, injunctive, and monetary relief.
Before the court is the plaintiff’s motion for class
certification pursuant to Rule 23 of the Federal Rules of Civil
Procedure.

I
Plaintiff has worked as a pilot for American since
1999 and has participated in AAG’s Global Profit Sharing Plan
since 2016.

Throughout his employment with American and while

he has participated in the Plan, plaintiff has taken periods of
leave to perform his military service in the reserves.

For

instance, plaintiff took leave for military service 128 days in
2016 and 132 days in 2017.

Most of these periods of leave were

for only a few days at a time although some extended up to
fourteen days.
American does not pay its pilots when they take
military leave no matter how long or short that leave is.
Likewise, with several exceptions, it does not pay its other
employees when they take such leave.1

It does, however, pay

employees who take leave for jury duty or bereavement.

American

employees who take leave for jury duty either receive their full
regular pay or the difference between their regular compensation

1.
Plaintiff concedes that some American employees are paid
for short-term military leave and that those employees have been
excluded from the proposed classes. While plaintiff’s motion
for class certification does not reference these exceptions in
the class definitions, plaintiff’s second amended complaint
states that the following are excluded from the proposed classes
and subclass: (a) employees responsible for administering the
Plan; (b) employees who reached settlements or judgments against
AAG in individual USERRA actions; and (c) employees covered by
existing agreements representing certain passenger service
employees, fleet service employees, and mechanical employees.
2

and their pay as jurors.

The collective bargaining agreement

(“CBA”) between American and the Allied Pilots Association on
behalf of American pilots is silent as to bereavement leave.
According to defendants’ corporate representative Todd Jewett,
the company policy applies when the CBA is silent.

American’s

policy is to provide up to three days of paid bereavement leave
in the event of a death of an immediate family member.
American’s parent company, AAG, is also the parent
company of Envoy Air, Inc., Piedmont Airlines, Inc., and PSA
Airlines, Inc.

AAG adopted and implemented the Profit Sharing

Plan effective January 1, 2016 to share a portion of its profits
with employees of American and its subsidiary airlines who are
participants in the Plan.

Employees who are eligible to

participate in the Plan include pilots, flight attendants,
mechanics, and passenger service employees as well as non-union
management and non-management employees.

Participants are

categorized by different so-called “work groups” based on their
position and union representation.
Under the Plan, AAG pays profit sharing awards each
spring to the Plan participants that total five percent of AAG’s
pre-tax earnings from the preceding year.

Participants receive

their award as a lump sum cash payment and may contribute all or
part of the award to their retirement plans.

AAG calculates

each participant’s individual award by dividing the five percent
3

of AAG’s pre-tax earnings by the aggregate amount of all
participants’ earnings and multiplying this resulting value by
an individual participant’s “eligible earnings.”

Eligible

earnings are based on the participant’s “compensation” as
defined by his or her applicable 401(k) plan.

Earnings from

paid leave are credited to the Plan participants for purposes of
this allocation.
AAG may modify or terminate the Plan at any time.
Profit sharing is not guaranteed.

AAG has not had profits to

distribute since 2019.
AAG does not credit short-term military leave2 toward a
participant’s eligible earnings under the Plan when employees
are not paid for such leave.

However, it does credit the leave

and impute income under the Plan for employees when they take
leave for jury duty or bereavement.

As a result, plaintiff and

other similarly situated employees who have taken military leave
received lower profit sharing awards than they would have
received if credit had been given for such leave.

This

2.
For purposes of this action, “short-term military leave” is
defined as consecutive leave that is sixteen days or fewer as
explained by defendants’ corporate representative who testified
that after sixteen days an employee is removed from the payroll
and reinstated when back from leave. Plaintiff agrees that
military leave that is longer than sixteen consecutive days is
not short-term, and the employee would not be paid for any of
this leave.
4

situation will continue if and when profits are distributed
among Plan participants in the future.
II
USERRA is one of a series of laws that Congress has
enacted to protect the rights of military service members who
take leaves of absence from their employers to perform military
service.

Crews v. City of Mt. Vernon, 567 F.3d 860, 864 (7th

Cir. 2009); Rogers v. City of San Antonio, 392 F.3d 758, 762
(5th Cir. 2004).

Congress stated in the first section of USERRA

that its purposes, among others, are “to encourage noncareer
service in the uniformed services by eliminating or minimizing
the disadvantages of civilian careers and employment which can
result from such service” and “to prohibit discrimination
against persons because of their service in the uniformed
services.”

38 U.S.C. §§ 4301(a)(1) and (a)(3); see also Carroll

v. Del. River Port Auth., 843 F.3d 129, 131 (3d Cir. 2016).

As

our Court of Appeals has explained, “we must construe USERRA’s
provisions liberally, in favor of the service member.”
v. Wawa, Inc., 388 F.3d 78, 81 (3d Cir. 2004).

Gordon

USERRA seeks to

treat those employees in non-career military service equally
with employees not engaged in military service.
Plaintiff alleges in Count I of the second amended
complaint that AAG’s policy of not crediting short-term military
leave to participants’ eligible earnings for purposes of its
5

Profit Sharing Plan but doing so for jury duty and bereavement
leave violates USERRA, specifically § 4316(b)(1).3

Plaintiff

also alleges a violation of § 4316(b)(1) in Count III based on
American’s failure to pay its employees for short-term military
leave while paying its employees for leave taken for jury duty
or bereavement.

In denying defendants’ earlier motion to

dismiss Counts I and III, this court explained in its June 18,
2019 Memorandum and Order that compensation for short-term
military leave is a right and benefit within the meaning of this
statute.

See Scanlan v. Am. Airlines Grp., 384 F. Supp. 3d 520

(E.D. Pa. 2019).

Our Court of Appeals has recently affirmed

this holding in a similar case.

See Travers v. Fed. Express

Corp., 8 F. 4th 198 (3d Cir. 2021).
Plaintiff also brings a claim against AAG in Count II
for breach of contract based on the language of the AAG Profit
Sharing Plan.

The Plan calculates the amount of each

participant’s profit sharing award based on that participant’s
eligible earnings.

Eligible earnings, as noted above, are

defined in the Plan as “compensation” as that term is defined in

3.
35 U.S.C. § 4316(b)(1) provides, in part, that “a person
who is absent from a position of employment by reason of service
in the uniformed services shall be . . . (A) deemed to be on
furlough or leave of absence while performing such service; and
. . . (B) entitled to such other rights and benefits not
determined by seniority as are generally provided by the
employer of the person to employees having similar seniority,
status, and pay.”
6

the participant’s 401(k) qualified defined contribution plan.
For American pilots, their 401(k) plan provides that employees
will be considered compensated for qualified military service
“at the same annual rate as the Eligible Employee’s average rate
of Compensation from the Employer during the 12 months
immediately preceding the qualified military service.”
Plaintiff alleges that AAG is violating the terms of the Plan by
not including credit or imputed income for American pilots’
short-term military service.
The class which plaintiff seeks to certify under Count
I is a profit sharing class of current and former employees of
American and all AAG affiliates who have participated in the
Plan at some point since its inception on January 1, 2016 and
who are harmed and will continue to be harmed as a result of
violation of § 4316 (“Profit Sharing Class”).

The proposed

class
consists of participants in the Profit
Sharing Plan who took short-term military
leave at any AAG affiliate (including
American) from the inception of the Plan
2016 to the present.4 Count I is brought on
behalf of the Profit Sharing Class and
alleges that AAG violated USERRA [§ 4316] by
not crediting periods of short-term military
leave under its Profit Sharing Plan.

4.
The affiliates of AAG are its subsidiaries Envoy, Piedmont,
and PSA.
7

Members of this proposed class must also have been employed in
the United States while a participant in the Plan or were a
citizen or national or permanent resident of the United States
while employed in a foreign country and have been a participant
whose profit sharing award did not include credit or imputed
earnings for short-term military leave.
Plaintiff also seeks to certify a subclass of the
Profit Sharing class under Count II limited to American pilots
who are or were eligible to participate in the American pilots’
401(k) plan and who have been harmed and will continue to be
harmed as a result of breach of contractual provisions in the
Profit Sharing Plan (“Profit Sharing Pilots Subclass”).

This

proposed subclass
consists of members of the Profit Sharing
Class who were pilots at American Airlines.
Count II of the . . . Second Amended
Complaint is brought on behalf of the
American Pilots Profit Sharing Subclass and
alleges that AAG committed breach of
contract and violated the terms of the
Profit Sharing Plan by not crediting periods
of short-term military leave under its
Profit Sharing Plan.
Finally, plaintiff moves for certification under Count
III of a class of current and former American employees who have
been harmed and will continue to be harmed as a result of
violation of § 4316 because of American’s failure to pay them

8

for short-term military leave (“Paid Leave Class”).

This

proposed class
consists of American employees who took
short-term military leave between 2013 and
the present. Count III is brought on behalf
of the Paid Leave Class against American
alleging that the Class Members were
entitled to be paid at least the difference
between their regular pay and military pay
when they took short-term military leave.
Excluded from the proposed classes and subclass are
the following:

members of the committee responsible for

administering the Plan; participating employees who reached
settlements or judgments against AAG in individual USERRA
actions regarding inadequate profit sharing or failure to pay
for short-term military leave; and certain passenger service,
fleet service, and mechanical employees covered under existing
agreements between the airlines and those employees’ respective
unions.
III
Class certification may only be granted if the four
requirements of Rule 23(a) of the Federal Rules of Civil
Procedure are first satisfied:
(a) Prerequisites. One or more members of a
class may sue or be sued as representative
parties on behalf of all members only if:
(1) the class is so numerous that
joinder of all members is impracticable;

9

(2) there are questions of law or fact
common to the class;
(3) the claims or defenses of the
representative parties are typical of the
claims or defenses of the class; and
(4) the representative parties will
fairly and adequately protect the interests
of the class.
Fed. R. Civ. P. 23(a).

The elements of this four-part test are

commonly referred to as numerosity, commonality, typicality, and
adequacy of representation.

See Amchem Prods., Inc. v. Windsor,

521 U.S. 591, 613 (1997).
The party seeking certification bears the burden of
establishing each element of Rule 23 by a preponderance of the
evidence.

In re Modafinil Antitrust Litig., 837 F.3d 238, 248

(3d Cir. 2016).

To determine if the requirements of Rule 23

have been satisfied, a district court must conduct a “rigorous
analysis.”

Landsman & Funk PC v. Skinder-Strauss Assocs., 640

F.3d 72, 93 (3d Cir. 2011).

In doing so, the district court

must look beyond the pleadings.

In re Hydrogen Peroxide Litig.,

552 F.3d 305, 316 (3d Cir. 2008).
A. Numerosity
There is no minimum number needed to satisfy the
numerosity requirement.

In re Modafinil, 837 F.3d at 249-50;

Kerrigan v. Phila. Bd. of Election, 248 F.R.D. 470, 473-74 (E.D.
Pa. 2008).

As stated above, Rule 23 provides that numerosity is

10

established where “the class is so numerous that joinder of all
members is impracticable.”

Fed. R. Civ. P. 23(a)(1).

“‘Impracticable does not mean impossible,’ and refers rather to
the difficulties of achieving joinder.”

In re Modafinil, 837

F.3d at 249 (quoting Robidouz v. Celani, 987 F.2d 931, 935 (2d
Cir. 1993)).
Defendants do not contest the numerosity of the
proposed classes.

Based on discovery provided by defendants,

there are at least 950 American pilots who took short-term
military leave between January 1, 2013 and December 31, 2018 who
are potential members of the Paid Leave Class, in addition to
other American employees who took short-term military leave.
There are at least 500 American pilots who are potential members
of the Profit Sharing class and the Profit Sharing Pilots
subclass.

Employees from Envoy, Piedmont, and PSA would add to

these numbers for the Profit Sharing class, although the number
of such class members is not quantified in the record.
of all would be impracticable.

Joinder

Plaintiff has met his burden to

demonstrate numerosity for all proposed classes under Rule
23(a)(1).
B. Commonality
For commonality, “[t]he bar is not high.”

In re Cmty.

Bank of N. Va. Mortg. Lending Practices Litig., 795 F.3d 380,
393 (3d Cir. 2015).

It “does not require identical claims or
11

facts among class member[s].”

Marcus v. BMW of N. Am., LLC, 687

F.3d 583, 592-93 (3d Cir. 2012).

A single common question is

sufficient.

See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,

359 (2011).

In fact, “as long as all putative class members

were subjected to the same harmful conduct by defendant, Rule
23(a) will endure many legal and factual differences among the
putative class members.”

In re Cmty. Bank, 795 F.3d at 397.

Plaintiff asserts that there is a common question for
all putative class members in Counts I and III, that is whether
short-term military leave is comparable to leave for jury duty
or bereavement and thus must be credited under the Plan for
purposes of Count I or compensated for purposes of Count III,
all pursuant to § 4316(b).

Plaintiff contends that there is a

separate common question of law in Count II.

That question is

whether the language of the Plan requires AAG to include for
American pilots credit for compensation for short-term military
leave.
Defendants concede that there is commonality as to the
American pilots’ claims on all three counts.

Nonetheless,

defendants argue that plaintiff cannot satisfy the commonality
prong of Rule 23(a)(2) for other employees of American or
employees of the regional airlines because there is no
company-wide policy at American or the regional airlines for
jury duty or bereavement leave.

Instead, defendants assert that
12

leave for these two events is collectively bargained for by each
work group.
The court agrees with plaintiff that there exists a
common question of law for the proposed classes in Counts I and
III as to whether short-term military leave is comparable to
jury duty and bereavement and should thus be similarly credited
or compensated.

The fact that different work groups may be

compensated for jury duty and bereavement differently than other
work groups is not relevant to this discussion.

USERRA does not

require that all leave for military service be compensated, only
that such leave be compensated when comparable leave is
compensated.
There is also a common question for the proposed
subclass in Count II.

That question is whether AAG has breached

the terms of the Plan by not crediting the short-term military
leave of American pilots.
As there is at least one common question for each of
the proposed classes, regardless of any respective work groups,
Rule 23(a)(2) has been satisfied.
C. Typicality
Plaintiff must also satisfy the requirement for
typicality, the third prong of the Rule 23(a) analysis.
Typicality means that “the claims of the class representatives
must be typical of the class as a whole.”
13

Johnson v. HBO Film

Mgmt., Inc., 265 F.3d 178, 184 (3d Cir. 2001).

Typicality

ensures “that the class representatives are sufficiently similar
to the rest of the class – in terms of their legal claims,
factual circumstances, and stake in the litigation” and that
their representation is fair to the rest of the class.

In re

Schering Plough Corp. ERISA Litig., 589 F.3d 585, 597 (3d Cir.
2009).
The court must evaluate whether the legal theories and
factual circumstances of the proposed class and representative
are sufficiently similar as well as whether the proposed
representative is subject to any unique or atypical defenses.
Id. at 597-98.

Although the legal theories and factual

circumstances need not be identical, there must be enough
similarity “so that maintaining the class action is reasonably
economical and the interests of the other class members will be
fairly and adequately protected in their absence.”

Id. at 598.

Plaintiff asserts that his claims are typical for both
the class for Count I and the class for Count III because the
same policy is challenged, that is the decision of AAG not to
give credit or impute income to Plan participants who took
short-term military leave and the decision of American not to
pay its employees when taking short-term military leave.
Plaintiff also avers that plaintiff’s claims are typical of the
subclass in Count II because the same contractual provision in
14

the Plan is challenged regarding calculation of profit share
awards.
Defendants counter that factual circumstances differ
significantly between pilots on the one hand and the other
putative class members on the other because of the many CBAs
across multiple work groups of American and AAG subsidiary
employees and the differences in amount of leave taken by pilots
compared to non-pilots.

In total, even after plaintiff’s

exclusions of certain employees from the class, the proposed
classes involve

thirty-three work groups across four

airlines, many of which have different CBAs.

These various CBAs

cover pilots, flight attendants, mechanics, fleet service
employees, stock clerks, flight simulator engineers, maintenance
control technicians, maintenance training specialists,
dispatchers, and flight crew training instructors.

There are

different factual circumstances within each CBA regarding the
compensation structure.

Significantly, there are material

variations for paid leave for jury duty and bereavement.5
The factual circumstances of plaintiff and the
American pilots who have taken military leave as a group are
different in another way from the factual circumstances of the

5.
Plaintiff even recognizes these differences as counsel for
plaintiff stated at oral argument that plaintiff does not seek
to represent every work group at American, Envoy, Piedmont, and
PSA.
15

other proposed class members.

Count II on behalf of American

pilots in the Profit Sharing Pilots subclass is a breach of
contract claim concerning a provision in the Plan document which
makes reference to the Plan participants’ 401(k) plans.
According to plaintiff, the 401(k) plan for plaintiff and other
American pilots provides for compensation for eligible employees
for qualified military service.

Plaintiff makes no reference to

any other 401(k) plans for non-pilots or non-American employees.
Plaintiff also seeks to bring a paid leave claim in
Count III only on behalf of American employees who took military
leave.

In this claim, plaintiff seeks payment of wages for

those American employees in addition to what they may be
entitled in terms of profit sharing under the Plan in Count I.
No such claim for wages is made on behalf of the employees of
the regional airlines who are part of the Plan.

Plaintiff thus

seeks a more favorable outcome for the American employees than
for others.
In addition, defendants maintain that plaintiff’s
claims are atypical in that he and other American pilots are
subject to an atypical defense based on their CBA which at one
time included pay for military leave but has not done so since
2013.

The court rejects defendants’ argument that the American

pilots are estopped because they have bargained away their right
to such compensation.

USERRA specifically provides that it
16

“supersedes any . . . contract, agreement, policy, plan,
practice, or other matter that reduces, limits, or eliminates in
any manner any right or benefit provided by this chapter.”
U.S.C. § 4302(b).

38

Thus, defendants may not use the CBA with

American pilots as a shield from allegations of a violation of
USERRA.
The court finds, and defendants do not dispute, that
plaintiff’s claims are typical of those of American pilots who
took short-term military leave in the designated years of each
claim.

However, the court finds that the factual and legal

claims of American pilots like plaintiff differ significantly
from those who do not fit into this category.

It would not be

fair or reasonably economical for plaintiff to represent those
who are not American pilots.

In sum, plaintiff’s claims are

typical for purposes of Rule 23(a)(3) of the claims of the
American pilots who took or will take short-term military leave
in the years specified for each count but are not typical of the
claims of the other putative class members.
D. Adequacy
The final requirement under Rule 23(a) is that “the
representative parties will fairly and adequately protect the
interests of the class.”

Fed. R. Civ. P. 23(a)(4).

court “primarily examines two matters:

Here, the

the interests and

incentives of the class representatives, and the experience and
17

performance of class counsel.”
393.

In re Cmty. Bank, 795 F.3d at

“The principal purpose of the adequacy requirement is to

determine whether the named plaintiffs have the ability and the
incentive to vigorously represent the claims of the class.”

Id.

In determining whether a class representative is
qualified to serve as such, only “a minimal degree of knowledge”
is necessary.

New Directions Treatment Servs. v. City of

Reading, 490 F.3d 293, 313 (3d Cir. 2007).

As our Court of

Appeals has explained, “the linchpin of the adequacy requirement
is the alignment of interests and incentives between the
representative plaintiffs and the rest of the class.”
Cmty. Bank, 795 F.3d at 393.

In re

This prong of the Rule 23(a)

analysis often overlaps with the typicality prong and may share
questions relevant to the analysis of both.

In re Schering

Plough, 589 F.3d at 602.
First, it is uncontested that plaintiff’s counsel is
extremely experienced in representing plaintiffs in employment
related class action litigation.

He has done so for more than

eighteen years, including USERRA class actions for the past
eight years.

Plaintiff himself is also an adequate

representative insofar as he has been actively engaged in this
litigation and has read the pleadings.
F.3d at 313.

18

See New Directions, 490

Defendants agree that plaintiff is an adequate
representative for a class of pilots for Count I insofar as he
seeks declaratory and monetary relief for the failure to credit
short-term military leave for past profit shares under the Plan.
In this regard, plaintiff seeks to recover the amounts due from
AAG for the class over and above the fixed amount that was
deposited into the Plan at the time since all that money has
already been paid out.
Defendants, however, dispute the adequacy of
plaintiff’s representation of the class regarding prospective
declaratory and injunctive relief in Count I for future profit
shares.

As to those profits, the total amount to be divided and

distributed will be a fixed amount, that is the amount AAG puts
into the Plan.

Thus any future increase to one participant’s

share of the profit sharing pie because of credit for military
leave will thereby decrease shares of the pie of other
participants who do not take military leave since profits are
distributed on a pro rata basis proportional to each
participant’s eligible earnings.
Furthermore, defendants assert that, if successful,
plaintiff will see his share of the profits increase since he
has taken many days of short-term military leave in the past.
For example, if plaintiff’s eligible earnings without credit for
short-term military leave is $100 but his eligible earnings with
19

credit for his military leave is $125 then other participants’
shares will proportionally decrease since plaintiff is entitled
to a bigger share of the pie.

Defendants contend that this

creates a conflict for plaintiff as a class representative since
plaintiff’s potential increase of profit shares as a result of
success in this litigation as well as the profit shares of some
of the class members will come at the expense of other
participants who took fewer days of military leave.

Defendants

assert, for instance, that those who took short-term military
leave in 2016 when the Plan was instituted but have not taken
leave since will receive smaller profit shares in subsequent
years than they would receive if plaintiff were not successful
in this lawsuit.
In essence, defendants maintain that some pilots or
other class members would be opposed to participation in the
lawsuit because their share of the pie may be smaller if USERRA
is enforced than if it is not enforced.

Defendants cannot

defeat class certification based on a conflict on the ground
that some proposed class members favor the continuation of
unlawful conduct.

See Ruggles v. WellPoint, Inc., 272 F.R.D.

320, 338 (N.D. N.Y. 2011).

To hold that a conflict exists under

such circumstances would undermine the will of Congress and the
rule of law.

The court rejects this argument of defendants as a

20

basis to defeat class certification of the Profit Sharing class
in Count I and the pilots subclass in Count II.
Furthermore, plaintiff rightly argues that any future
conflicts as described by defendants are hypothetical.

See In

re Flonase Antitrust Litig., 284 F.R.D. 207, 218 (E.D. Pa.
2012).

Although defendants have indicated that there are

employees who took leave in the beginning of the putative class
period but have not taken military leave thereafter, this does
not determine what they may do in the future.

Whether these

putative class members will be better or worse off in the future
as a result of this litigation cannot really be known at this
time.

The conflict in this instance is too speculative to

preclude class certification.
Defendants further contend that plaintiff is not an
adequate representative because of a class conflict between the
Paid Leave class in Count III on behalf of American employees
and the Profit Sharing class in Count I on behalf of all Plan
participants who take short-term military leave because
plaintiff only seeks paid leave on behalf of the American
employees.

As previously discussed regarding the typicality of

plaintiff’s claims, plaintiff is in effect seeking a full loaf
on behalf of American employees in both Counts I and III and
half a loaf on behalf of all other Plan participants at regional

21

airlines only in Count I.6

This further undermines the ability

of plaintiff to vigorously represent the interests of the
putative class members at regional airlines.
As our Court of Appeals has explained, there is often
a similarity and overlap between typicality and adequacy when
determining class certification.
F.3d at 602.

See In re Schering Plough, 589

Based on the significant differences in factual

circumstances of American pilots compared to non-pilots at
American and employees at regional airlines, as discussed with
regard to typicality, the interests and incentives of plaintiff
as a pilot at American are not aligned with the interests and
incentives of other putative class members who are not American
pilots.

Just as plaintiff’s claims are not typical of the

claims of those at American who are not pilots and Plan
participants at regional airlines, the court finds that
plaintiff is an inadequate class representative under Rule
23(a)(4) on behalf of those putative class members who are not
American pilots.

6.
Defendants also raise arguments that plaintiff will be
incentivized to win Count II on behalf of American pilots and
lose Count I on behalf of all Plan participants to benefit
American pilots. This argument is no longer relevant as the
court has already determined with regard to typicality under
Rule 23(a)(3) that the proposed classes should all be limited to
American pilots.
22

IV
Plaintiff has met his burden to serve as the class
representative for a class of American pilots under Rule
23(a)(1)-(4) on all three counts in the second amended
complaint.

In addition to the prerequisites of Rule 23(a),

plaintiff must also satisfy one of the requirements under Rule
23(b).
Plaintiff asserts that the proposed class may be
certified under any of the provisions of Rule 23(b).

Rule

23(b)(1)(A) applies when separate actions would risk
establishing “incompatible standards of conduct for the party
opposing the class.”

Fed. R. Civ. P. 23(b)(1)(A).

A class

under this provision is one in which “the party is obliged by
law to treat the members of the class alike . . . or where the
party must treat all alike as a matter of practical necessity.”
Amchem, 521 U.S. at 614.
Rule 23(b)(1)(B) is for a class in which separate
actions would “be dispositive of the interests of the other
members not parties to the individual adjudications or would
substantially impair or impede their ability to protect their
interests.”

Fed. R. Civ. P. 23(b)(1)(B).

Such a class most

often concerns a limited fund “in which numerous persons make
claims against a fund insufficient to satisfy all claims.”
Amchem, 521 U.S. at 614.
23

Rule 23(b)(2), often called the “injunctive relief”
class, provides for certification when “the party opposing the
class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the
class as a whole.”

Fed. R. Civ. P. 23(b)(2).

Rule 23(b)(2)

applies to actions in which “the relief sought must perforce
affect the entire class at once.”

Wal-Mart, 564 U.S. at 360-62.

Because the relief sought in a (b)(2) class must be generally
applicable to the entire class, classes certified under (b)(2),
as with (b)(1) classes, are mandatory and do not provide notice
to potential class members or an opportunity to opt out.

See

Fed. R. Civ. P. 23(c)(2); see also Wal-Mart, 564 U.S. at 362.
Rule 23(b)(3), on the other hand, is often referred to
as the “money damages class” and allows for certification when
“the court finds that the questions of law or fact common to
class members predominate over any questions affecting only
individual members, and that a class action is superior to other
available methods of fairly and efficiently adjudicating the
controversy.”

Fed. R. Civ. P. 23(b)(3).

Factors to evaluate

when determining certification under (b)(3) include the interest
of class members in controlling the separate actions, the extent
and nature of any other litigation on this same controversy, the
desirability or lack thereof of concentrating the litigation in
24

a particular forum, and the difficulties in case management.
See Fed. R. Civ. P. 23(b)(3)(A)-(D).

Rule 23(b)(3) “allows

class certification in a much wider set of circumstances but
with greater procedural protections,” that is notice of the
class and an opportunity to opt-out from the class.

Wal-Mart,

564 U.S. at 362.
Since plaintiff seeks injunctive and declaratory
relief, the court will first evaluate whether certification
under Rule 23(b)(2), the “injunctive relief class,” is proper.
Defendants counter that a (b)(2) class fails because plaintiff
seeks individualized monetary relief that differs as to each
class member.
The Supreme Court in Wal-Mart Stores, Inc. v. Dukes
held that “claims for individualized relief” do not satisfy
(b)(2) and that monetary relief that “is not incidental to the
injunctive or declaratory relief” may not be certified under
(b)(2).

564 U.S. 338, 360 (2011).

Wal-Mart involved a proposed

class of over one million female employees of Wal-Mart in which
plaintiffs alleged gender discrimination in violation of Title
VII and sought injunctive and declaratory relief and backpay.
The Court found that the backpay plaintiffs sought for the class
was subject to individualized relief and thus could not be
certified under (b)(2) which “applies only when a single
injunction or declaratory judgment would provide relief to each
25

member of the class.”

Id.

The Court, however, declined to

reach the broader question of whether Rule 23(b)(2) only applies
when requests for injunctive or declaratory relief are sought
and thus precludes all requests for monetary damages.
In declining to reach the question of incidental
monetary relief, the Court cited the decision of the Court of
Appeals for the Fifth Circuit in Allison v. Citgo Petroleum
Corp., 151 F.3d 402 (5th Cir. 1998).

There the court defined

incidental damages as those “to which class members
automatically would be entitled once liability to the class (or
subclass) as a whole is established . . . . That is, the
recovery of incidental damages should typically be concomitant
with, not merely consequential to, class-wide injunctive or
declaratory relief.”

Id. at 415.

The court went on to explain

that incidental monetary damages “should at least be capable of
computation by means of objective standards and not dependent in
any significant way on the intangible, subjective differences of
each class member’s circumstances.”
damages are more of a “group remedy.”

Id.

Thus, incidental

Id.

Our Court of Appeals cited Allison when it explained
that incidental damages are “those ‘that flow directly from
liability to the class as a whole on the claims forming the
basis of the injunctive or declaratory relief.’”

Barabin v.

Aramark Corp., 2003 WL 355417 at *5 (3d Cir. 2003) (quoting
26

Allison, 151 F.3d at 415).

In that case, our Court of Appeals

determined that incidental damages depend on:

(1) “whether such

damages are of a kind to which class members would be
automatically entitled”; (2) “whether such damages can be
computed by ‘objective standards’ and not standards reliant upon
‘the intangible, subjective differences of each class member’s
circumstances’”; and (3) “whether such damages would require
additional hearings to determine.”

Id. at *5-6; see also

Allison, 151 F.3d at 415.
Although the Supreme Court in Wal-Mart did not decide
whether incidental monetary damages are permissible under
(b)(2), the Court of Appeals for the Seventh Circuit held in
Johnson v. Meriter Health Services Employee Retirement Plan that
it understands Wal-Mart to foreclose “‘individualized’ awards of
monetary damages, which we understand to be awards based on
evidence specific to particular class members.”
370 (7th Cir. 2012).

702 F.3d 364,

However, when “the calculation of monetary

relief will be mechanical, formulaic, a task not for a trier of
fact but for a computer program, so that there is no need for
notice and the concerns7 expressed in Wal-Mart opinion” then a

7.
The Court in Wal-Mart raised the issue that in (b)(2)
actions “predominantly for money damages we have held that
absence of notice and opt out violates due process.” Wal-Mart,
564 U.S. at 363 (citing Phillips Petroleum Co. v. Shutts, 472
U.S. 797, 812 (2011)). The Court acknowledged, however, that it
has “never held that to be so where the monetary claims do not
27

district court can permit monetary damages in a (b)(2) class.
Id. at 372.8
Plaintiff in this action seeks the following:

a

declaration that AAG’s policy not to credit short-term military
leave violates USERRA and was willful; a declaration that
American’s policy not to pay employees who take short-term
military leave while paying those who take leave for jury duty
or bereavement violates USERRA and was willful; a declaration
that eligible earnings under the Plan must include leave taken
for short-term military obligations; a recalculation of past and
future profit share awards consistent with this decision; a
declaration that American pay its employees who take short-term
military leave comparable to leave taken for jury duty and
bereavement; an injunction for AAG to compute profit sharing
awards based on credit for short-term military leave; an
injunction for American to compute and compensate class members

predominate.”

Id.

8.
The Seventh Circuit further explained that this
determination “is on the assumption that Wal-Mart left intact
the authority to provide purely incidental monetary relief in a
(b)(2) class action, as we think it did.” Johnson, 702 F.3d at
372. Our Court of Appeals has not yet reached the issue of
whether incidental relief is still permitted in a (b)(2) class
following Wal-Mart. The decision of the Seventh Circuit in
Johnson, however, has been widely cited by other courts
certifying claims for incidental monetary damages under (b)(2).
See e.g., Berry v. Schulman, 807 F.3d 600 (4th Cir. 2015); Amara
v. CIGNA Corp., 775 F.3d 510 (2d Cir. 2014); see also Cunningham
v. Wawa, Inc., 387 F. Supp. 3d 529 (E.D. Pa. 2019).
28

for short-term military leave; liquidated damages from AAG and
American pursuant to 38 U.S.C. § 4323(d)(1)(C); and pre-judgment
and post-judgment interest on any monetary relief.9
As previously stated, this court deems certification
of a class of American pilots proper under Rule 23(a).

This

proposed class primarily seeks declaratory and injunctive relief
in declaring that AAG and American have violated USERRA by
failing to credit or compensate short-term military leave and
enjoining AAG and American to credit and compensate this shortterm military leave the same as jury duty and bereavement leave
in the future.

This relief applies generally to the entire

proposed class of American pilots who were all subject to the
same leave policies at American and profit sharing distribution
scheme under AAG’s Profit Sharing Plan.
The additional monetary relief plaintiff seeks, namely
profit share awards consistent with this decision and
compensation for short-term military leave as well as liquidated
damages,10 is incidental to the request for declaratory and

9.
Plaintiff also seeks attorney fees, expert witness fees,
and court costs pursuant to 38 U.S.C. § 4323(h)(2).
10. Plaintiff also seeks liquidated damages pursuant to 38
U.S.C. § 4323(d)(1)(C) which permits the court to require the
employer to pay an employee an amount equal to compensation for
loss of wages or benefits because of the employer’s failure to
comply with this statute as liquidated damages “if the court
determines that the employer’s failure to comply with the
provisions of this chapter was willful.” These damages can be
29

injunctive relief and flows from the requested injunction.

If

plaintiff is successful, profit shares will be distributed and
paid leave will be compensated according to any declaration that
this court may enter.

This relief is not individualized, as was

the case in Wal-Mart.

In that case, plaintiffs sought backpay

for discrimination and would have had to each show their
entitlement to such backpay on a case-by-case basis.

Here

plaintiff and the rest of the proposed class need not provide
individualized evidence for their claims to profit share awards
and compensation for leave.

Instead, they will automatically be

entitled to this relief if defendants are found to have violated
USERRA and must therefore treat short-term military leave the
same as they do jury duty and bereavement leave.
In addition, monetary relief can be calculated on an
objective basis and is not dependent on any subjective
difference in circumstance.

Should the court find that

defendants violated USERRA, the amount of credit for profit
sharing or paid leave each class member is entitled to can be
readily calculated by applying his or her rate of pay to the
amount of short-term leave taken and would not require
individual fact finding.
computer.

These calculations can all be made by

See Johnson, 702 F.3d at 372.

calculated by a computer.
30

No additional hearings

would be necessary to determine this relief.

Moreover notice is

not needed to determine to what each class member would be
entitled should plaintiff be successful in this suit.
Defendants’ actions are applicable to the class and can
therefore be addressed on a class-wide basis.
Since defendants have refused to act on grounds that
apply to a class of American pilots as a whole so that final
injunctive relief is necessary and plaintiff’s request for
monetary damages is incidental to the declaratory and injunctive
relief sought, certification of a class of American pilots under
Rule 23(b)(2) is proper.

As the class may be certified under

Rule 23(b)(2), the court need not determine whether
certification is appropriate under Rule 23(b)(1) or (b)(3).

Our

Court of Appeals has explained that “an action maintainable
under both (b)(2) and (b)(3) should be treated under (b)(2) to
enjoy its superior res judicata effect and to eliminate the
procedural complications of (b)(3), which serve no useful
purpose under (b)(2).”

Stoetzner v. U.S. Steel Corp., 897 F.2d

115, 119 (3d Cir. 1990).
V
Finally, plaintiff must also show by the preponderance
of the evidence that the class is ascertainable.
687 F.3d at 592-93.

See Marcus,

The class must be “defined with reference

to objective criteria,” and there must be “a reliable and
31

administratively feasible mechanism for determining whether
putative class members fall within the class definition.”

Hayes

v. Wal-Mart Stores, Inc., 725 F.3d 349, 355 (3d Cir. 2012).
Plaintiff asserts, and defendants do not disagree,
that members of the proposed class can be readily determined
based on defendants’ records, some of which have already been
produced.

American has already identified all those who took

military leave between 2013 and the date of production as well
as the dates on which that leave was taken.
similar records.

AAG has produced

These employees are identifiable by a unique

employee identification number.

The court therefore agrees that

the members of the proposed class are readily ascertainable.
VI
Plaintiff has met the requirements of Rule 23(a) and
(b)(2) for certification of a class of current and former
American Airlines, Inc. pilots.

The court will divide this

approved class of American pilots into a subclass for each of
plaintiff’s three claims.

See Sullivan v. DB Invs., Inc., 667

F.3d 273 (3d Cir. 2011).
First, this court certifies a subclass with regard to
Count I for AAG’s alleged violation of § 4316 as relates to the
Profit Sharing Plan.

This subclass will consist of current and

former American Airlines, Inc. pilots who:

participated at some

point in the AAG Global Profit Sharing Plan since its inception
32

on January 1, 2016; while participants in the Plan, were
employed in the United States or were a citizen or national or
permanent resident of the United States and employed in a
foreign country; took short-term military leave in a year during
which they were entitled to receive an award under the Plan; and
were not credited or imputed earnings for this short-term
military leave.
Second, the court certifies a subclass with regard to
Count II for breach of contract of those American pilots
included in the subclass in Count I who, from January 1, 2016
through the date of judgment in this action, are or were
eligible to participate in the American Airlines, Inc. 401(k)
Plan for Pilots and subject to taxation in the United States.
Third, the court certifies a subclass with regard to
Count III of all current and former American Airlines, Inc.
pilots who took short-term military leave while employed at
American at any time from January 1, 2013 through the date of
judgment in this action and were not paid for that leave equal
to what they would have received had they taken leave for jury
duty or bereavement.11

11. Excluded from the certified class are any American pilots
responsible for administering the Profit Sharing Plan and former
or current American pilots who have obtained individual
judgments against or settlements with AAG or American in USERRA
profit sharing actions for failure to credit or compensate
short-term military leave.
33