[00:00:00] Speaker 00:
Good morning, Chief Judge Merguia, Judge Owens, Judge Fletcher.

[00:00:05] Speaker 00:
My name is Thomas Gerard, and along with my co-counsel, John Timchism, we represent Fire Lieutenant Travis Bearden, who is currently serving on active duty orders under Title 32.

[00:00:15] Speaker 00:
But he is here with us today for this very important case.

[00:00:19] Speaker 00:
I will attempt to reserve two minutes for rebuttal, if I may.

[00:00:23] Speaker 00:
This was a straightforward USERRA discrimination and denial of benefits case, which completely fell apart when the trial court below misinterpreted a Washington statute that provides 21 days of military leave to a service member each year that they're absent from military service.

[00:00:43] Speaker 04:
each year that they're scheduled for work?

[00:00:47] Speaker 00:
I will get to the schedule to work each year that they're absent.

[00:00:50] Speaker 00:
The statute does indicate with regards to the schedule to work.

[00:00:54] Speaker 00:
If you'd like me to address section 4A of the statute now.

[00:00:57] Speaker 04:
When you get there.

[00:00:58] Speaker 00:
OK, I will.

[00:00:59] Speaker 00:
That was still my introduction.

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But subsequent to the decision in our trial court, the Washington State Court of Appeals in the Martin case

[00:01:09] Speaker 00:
described the outcomes of our case as an absurd result and an extremely discriminatory end run around the law.

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Today, first, I plan to address two of the principal arguments that Ocean Shores has made on appeal.

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That includes the misinterpretation of the RCW judge.

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Second, I plan to address, if I get time, I plan to address the merits of the discrimination claim for Mr. Bearden.

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Third, I plan to address other errors that were made in the trial court.

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And of course, we have an associated unopposed pending motion to certify a question to the Washington State Supreme Court and ask the court to consider that as well.

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On this appeal,

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The OSHA source makes two principal arguments.

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The first one is Lieutenant Bearden, as interpreted by the trial court below, was not entitled to paid military leave under the RCW because he was on, quote unquote, extended military leave, and he did not seek the re-employment rights under his re-employment rights under USERA or follow those requirements.

[00:02:12] Speaker 00:
The second argument made by Appellants on Appeal was not addressed in the trial court whatsoever, but it's an important argument, and we need to deal with it here.

[00:02:20] Speaker 00:
They argue that the RCW is not a benefit of employment under use, Sarah, because it's only available to service members.

[00:02:26] Speaker 00:
We'll get to that in a moment.

[00:02:29] Speaker 02:
As to the first- We'll get into a lot in a moment, but I also have a question on what you contend scheduled-to-work means.

[00:02:37] Speaker 00:
With regard to the statute, it's very clear.

[00:02:39] Speaker 00:
Let me go to the actual statute.

[00:02:42] Speaker 00:
When the statute, when the RCW was passed in its original form, I believe it was in 1991, it stated that this act applies to all public employees who reported for active duty or active military training duty.

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Later, the statute was amended again to change from 15 days of leave to 21 days of leave.

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And then in its most current form, when the language was added in 2010, it stated that the officer of the employee shall be charged military leave for only the days he or she is scheduled to work.

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That is now section 4A of the statute, which was changed in about 2018.

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In addition to changing and reorganizing the statute in 2018, they added an explanatory section B under the statute as well, which goes on to discuss the non-traditional hours that a lot of public servants engage in.

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And those types of jobs are like nurses, cops, and firefighters, who often have jobs that spans several calendar days.

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The legislature did that because cardinal rule of canons of construction is the legislature is aware of the common law and would not write a statute to defeat that.

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But we know that in the Washington Federation case, which is cited in the briefing,

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The exact issue, which is addressed by this language in the statute, scheduled to work, is what was brought up.

[00:04:09] Speaker 00:
In the Federation case, what occurred was an agency had implemented a rule, and that rule allowed the agency to charge military leave for the full duration of someone's absence, not just the days they're scheduled to work, but also those intervening days when they're not scheduled to work.

[00:04:28] Speaker 00:
That was a problem.

[00:04:29] Speaker 00:
And the Supreme Court said, no, that's not what we're talking about here.

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We're talking about leave days from work.

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We're talking about an employment-related statute.

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And so what we're talking about is days you would be scheduled to work.

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That's what you should be charged for.

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That is what 4A addresses under the statute with regard to scheduled work.

[00:04:48] Speaker 04:
Talk me out of the reading that I think is the most natural.

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As I look at the statute, it's designed to protect and to provide payment for people who are in the reserves who, while working in a job such as the job here,

[00:05:05] Speaker 04:
are required to do training while in the reserves, and it may be up to 21 days.

[00:05:12] Speaker 04:
But I don't see it as designed to provide payment for people who are not just doing their required training, but who are actually deployed for a period of years.

[00:05:23] Speaker 00:
I'm going to disagree with that interpretation, obviously.

[00:05:26] Speaker 00:
I bet you are.

[00:05:28] Speaker 04:
But tell me why I'm wrong.

[00:05:29] Speaker 00:
I think you're wrong because, first of all, the legislature, when they passed the statute, they absolutely intended it to apply to periods of long-term military life.

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In their declaration, they said, when the statute was passed, it declared that this statute applies to all persons called to active duty or active military duty training.

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When this if you look at the words, the statute in section one is specifically identifies periods of service there.

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Members are called to active duty, which are long term periods under Title 10 and Title 32 and in the introduction.

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I noted the fact that my client was called to active duty on Title 32 orders.

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There's literally no doubt within the statute that is the legislature intended it to apply to those periods, not simply just the one weekend a month.

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or the traditional two weeks in the summer.

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The statute wasn't written to only apply to military service annual training requirements.

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It was intended to apply to all periods of service.

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When we look at the Martin case, which was discussed, and there was a little bit in the response briefing that somehow was distinguished, that case was entirely about long-term periods of military service.

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Ms.

[00:06:46] Speaker 00:
Barbara Werner, we lost on the appeal, but Ms.

[00:06:50] Speaker 00:
Barbara Werner, the record's very clear.

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She was gone for over two years.

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And the record on appeal in that case, in the decision, is also very clear, discussing other service members who work at the Washington State Patrol, who had their schedules changed while they were gone on long-term military service.

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And so even the State Patrol follows that practice right now and continues to do so.

[00:07:12] Speaker 02:
And Martin, did they refer to employment policy issue there that they consider reasonable?

[00:07:21] Speaker 02:
Employment policy, I'm not quite sure that that favors your position if we consider Martin and that particular comment that they made.

[00:07:30] Speaker 00:
Yeah, so the issue in Martin, a little bit different than here.

[00:07:34] Speaker 00:
We did argue that it was a violation of USERRA.

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We did not argue in Martin that it was a violation of 4311 discrimination.

[00:07:42] Speaker 00:
That is what's argued here.

[00:07:44] Speaker 00:
A couple key pronouncements in the Martin case.

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In the Martin case, the Court of Appeals found that the leave available under the RCW is leave protected

[00:07:54] Speaker 00:
by USERRA 4303.

[00:07:55] Speaker 00:
It is a benefit of employment.

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Second, with regard to the Martin case, they specifically found that the denial of the military leave benefit was not a denial of a seniority right, it was a denial of a non-seniority right.

[00:08:08] Speaker 00:
That's exactly what we have here.

[00:08:11] Speaker 02:
But I guess what's your best argument to support the contention that the policy

[00:08:16] Speaker 02:
here was not also a reasonable employment policy.

[00:08:20] Speaker 00:
This is not a reasonable policy, Your Honor.

[00:08:23] Speaker 00:
Why not?

[00:08:24] Speaker 00:
When we look at the implementing regulation for the rights and protections of service members while they're away on their military service.

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That's 4316, and inclusive of that is 4316D.

[00:08:38] Speaker 00:
The DOL regulations implementing those rights and benefits protections while they're away on their military service is 20 CFR, I believe it's 1002-149.

[00:08:49] Speaker 00:
And within that, it states that during the period of leave or absence, the service members to be treated as if they're on furlough or leave of absence, and it goes on to say very specifically,

[00:08:59] Speaker 00:
that the characterization of the employee's absence or their status of their military service by the employer makes no difference whatsoever as to the availability of their non seniority rights.

[00:09:10] Speaker 00:
Here in this case, we have the Washington State Court of Appeals telling us that the rights and benefits under the RCW are non seniority rights and benefits.

[00:09:17] Speaker 00:
The denial of those rights and benefits, and I've read from the, I can read from the case, but the language is pretty powerful, said, no, it's an extremely discriminatory end run allowing the law if the employer chose not to place the employee on the schedule for the mere purposes of denying them a leave.

[00:09:35] Speaker 03:
So council, let me jump in here.

[00:09:36] Speaker 03:
I would imagine opposing councils going to get up here and say, well, under your reading of the statute, meaning yours, um, someone could be on leave because sometimes these tours are very long.

[00:09:48] Speaker 03:
They can be on leave three, four years.

[00:09:50] Speaker 03:
They can get re-upped and therefore they're talking about maybe a hundred days.

[00:09:55] Speaker 03:
They might have to credit for leave.

[00:09:57] Speaker 03:
If someone's on leave for four or five years, what's your response to that?

[00:10:00] Speaker 00:
Well, I'll take the last part first.

[00:10:02] Speaker 00:
The last part first.

[00:10:03] Speaker 00:
Mr. Lieutenant Bearden, anybody else, is only entitled to 21 days.

[00:10:07] Speaker 00:
How do they use that?

[00:10:08] Speaker 03:
But per year, correct?

[00:10:09] Speaker 00:
Per year, that's it.

[00:10:10] Speaker 03:
So if it was four years, though?

[00:10:14] Speaker 00:
Well, if it was four years, the law already addresses this.

[00:10:17] Speaker 00:
Trying to figure out which way to go with this.

[00:10:19] Speaker 00:
To address your question, what we're talking about is a hypothetical that came up in the response brief.

[00:10:25] Speaker 00:
And the hypothetical is someone goes on military leave forever.

[00:10:27] Speaker 00:
Right.

[00:10:28] Speaker 00:
And they're just going to get 21 days forever.

[00:10:29] Speaker 00:
It's unrealistic, and it flies in the face of what the law, and this issue's already been settled.

[00:10:34] Speaker 00:
We look at the Ericsson versus United States Postal Service case, that was an issue of job abandonment.

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And in that case, and if we apply USERA appropriately to the facts, in this case as well, if it ever comes to it, USERA has a five-year limit on its protections for service members.

[00:10:51] Speaker 00:
So a service member who manifested an intent to abandon their employment by staying on active duty for a long period of time

[00:10:58] Speaker 00:
would have lost their, and I'm going to read from the case just for a brief second, would have lost their protections under 4311.

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In that case, so I think I've described the background of the case.

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The service member was terminated from employment.

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and appealed that decision, and it was terminated based on job abandonment.

[00:11:20] Speaker 00:
And the question before the court was, well, did he abandon his 4311 anti-discrimination rights when he abandoned his job?

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And the court found, no, he didn't abandon his job.

[00:11:29] Speaker 00:
He didn't abandon his job because he didn't manifest an intent, and went on to say that the five-year cap also applies to 38 USC 4311 anti-discrimination provisions

[00:11:41] Speaker 00:
where the alleged discrimination is based on the military-related absences.

[00:11:46] Speaker 00:
Otherwise, the five-year limit on the employer's obligation to rehire the employee who took the military service would be meaningless.

[00:11:53] Speaker 00:
The Erickson case here, and in addition to, so that's USERA.

[00:11:58] Speaker 00:
Under Washington law, chapter 73, we have what I call the mini USERA.

[00:12:03] Speaker 00:
It mirrors USERA almost perfectly.

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It also has a four-year cap on its extension of time with numerous exceptions.

[00:12:11] Speaker 00:
So the legislature, in writing this statute, would not have written a statute that would in any way conflict with another statute on related grounds.

[00:12:20] Speaker 00:
So for example, the Reemployment Rights Center, that.

[00:12:23] Speaker 00:
on the evidence, looking at Mr. Bearden's case, we clearly have no record or no indication whatsoever of job abandonment.

[00:12:32] Speaker 00:
Mr. Bearden is not on active duty status, but he's a reservist who's been called to active duty under Title 32 orders.

[00:12:40] Speaker 00:
And with those orders, they're specifically listed in the statute as Title 32.

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And if he goes beyond the five years without whatever exceptions apply, then that would become an issue of a manifest intent to abandon his job.

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And he would, at that point in time, waive his USERA rights.

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And it could be argued that under the Washington State statute as well, RCW 7316.

[00:13:02] Speaker 00:
So I hope that answered your question.

[00:13:04] Speaker 02:
Did you want to reserve time?

[00:13:06] Speaker 00:
I do have to.

[00:13:06] Speaker 00:
If there's another question, I'd like to take it for it.

[00:13:09] Speaker ?:
OK.

[00:13:20] Speaker 01:
Good morning.

[00:13:22] Speaker 01:
May it please the court.

[00:13:23] Speaker 01:
My name is Beth McIntyre, and I am here on behalf of the respondents.

[00:13:26] Speaker 01:
City of Ocean Shores and the estate of Crystal Dingler, which I'll just refer to collectively as the city for brevity's sake.

[00:13:36] Speaker 01:
It's interesting to note that Mr. Bearden has described himself as a lieutenant for the

[00:13:43] Speaker 01:
ocean shores fire department because in fact he has not worked a single day for the ocean shores fire department since the fall of 2019.

[00:13:51] Speaker 01:
And in fact the city has not heard from Mr. Bearden since 2022.

[00:14:01] Speaker 01:
in the record is the last official notice that the city's received of Mr. Bearden's military status, which is the request for a stay that was entered in the district court action where he had put in

[00:14:18] Speaker 01:
Orders showing that he was going to be on duty through September 30 2022 and That's the last that the city has received of notice regarding his military status I will also state just for candor although it's not neither party put it in in the appellate record in June of 2022.

[00:14:40] Speaker 01:
Mr. Bearden filed a request for relief from the state stating that he'd been relieved from active duty and

[00:14:48] Speaker 01:
And my assumption is that he has received new orders because that had been his pattern to get orders that continue his service over time.

[00:14:57] Speaker 01:
But that has not been provided to the city.

[00:15:00] Speaker 01:
Mr. Bearden has taken the position in pleadings filed in this case in the underlying district court action.

[00:15:07] Speaker 01:
that he has no obligation under RCW 34060 to provide documentation to support his request for military leave.

[00:15:19] Speaker 01:
So the position he's taking is that the city is required and has been required since 2020 to pay him every single year

[00:15:31] Speaker 01:
for 21 days of paid military leave despite not really being able to verify that he's on military leave and really not even being able to verify that he ever intends to return to the city.

[00:15:45] Speaker 01:
And in fact, we have evidence in this case that he may never intend to return because he has alleged that he believes he's been constructively discharged from the city.

[00:15:58] Speaker 01:
Now, a constructive discharge occurs when an employee quits their job because the employer has made their working conditions intolerable.

[00:16:11] Speaker 01:
We dispute that Mr. Bearden never had intolerable working conditions, but that's his allegation, that he quit because of intolerable working conditions.

[00:16:20] Speaker 01:
Well, if he quit his job, that suggests he's never coming back.

[00:16:24] Speaker 01:
So is this just an indefinite obligation to be

[00:16:28] Speaker 01:
paying him year after year after year.

[00:16:31] Speaker 01:
That is not what RCW 3840 060 contemplates.

[00:16:36] Speaker 01:
We submitted contemplates the payment of paid military leave as we did in 2019 when an employee goes on military leave.

[00:16:47] Speaker 01:
for either active duty, as in that time it was Title 32.

[00:16:53] Speaker 01:
But once that leave is extended to the point that that employee is on an unpaid leave of absence, military furlough, leave of absence, that employee is no longer scheduled to work.

[00:17:06] Speaker 02:
So you're

[00:17:08] Speaker 02:
meaning a schedule to work is what?

[00:17:12] Speaker 01:
It means that that employee has now expressed an intent to return to work through 38 USC 4312.

[00:17:22] Speaker 01:
And that can be informal.

[00:17:25] Speaker 01:
The submitting an application to re-employ can even be verbal, but has said, I'm coming back to work.

[00:17:31] Speaker 01:
Great.

[00:17:31] Speaker 01:
We're going to put you on the schedule.

[00:17:33] Speaker 01:
He has that reemployment right.

[00:17:35] Speaker 01:
And then when he comes back to work, he has that paid leave available to him.

[00:17:41] Speaker 01:
So for example, when he submitted the orders in August of 2020, those orders put him through to May of 21.

[00:17:53] Speaker 01:
We had the assumption, we had no reason to think he wouldn't be returning to work then.

[00:17:58] Speaker 01:
And then when he came back to work, he would be on the schedule and would have scheduled work days from which he could take paid military leave.

[00:18:09] Speaker 02:
So on that theory then, was Mr. Bearden scheduled to work for the 2019-2020 fiscal year?

[00:18:28] Speaker 02:
Was he already, I guess I want to ask, was he already on the calendar for 21 specific days?

[00:18:34] Speaker 02:
Yes, and I'll tell you why.

[00:18:35] Speaker 01:
Under 38 USC 4316D, an employee has the right to use any available accrued leave that they accrued before the commencement of their leave.

[00:18:51] Speaker 01:
And this is another point that I want to raise because

[00:18:54] Speaker 01:
They're using that statute to say it applies to future years, which it doesn't, because it applies to leave that accrued before they want to leave.

[00:19:02] Speaker 02:
That makes it sound, because he was scheduled to work, he was entitled to that pay.

[00:19:10] Speaker 01:
Yes.

[00:19:10] Speaker 01:
Not only that, but Kelly Day's vacation days.

[00:19:12] Speaker 02:
Was he on the schedule to work?

[00:19:14] Speaker 02:
Was.

[00:19:14] Speaker 02:
OK.

[00:19:14] Speaker 02:
He was.

[00:19:15] Speaker 02:
And so what I'm trying to reconcile,

[00:19:18] Speaker 02:
is do you think that understanding is consistent with how the Washington Court of Appeals interpreted the term in Martin?

[00:19:28] Speaker 01:
No, I think Martin was a completely different situation that they addressed.

[00:19:34] Speaker 01:
And I respectfully disagree with Mr. Bearden's counsel's interpretation of Martin.

[00:19:40] Speaker 01:
So what Martin dealt with was a policy change that changed the schedule of

[00:19:50] Speaker 01:
employees on long-term leave not just military leave any long-term leave other than FMLA leave so when an employee was on a 410 schedule after 15 days they switched it to an 85 schedule employees on military leave objected to that because it had the effect of reducing the amount of

[00:20:08] Speaker 01:
of pay they received for those last six days of paid military leave.

[00:20:13] Speaker 01:
And it expedited the rate at which that exhausted.

[00:20:17] Speaker 01:
That was the issue in Martin.

[00:20:19] Speaker 01:
And both the trial court and the Court of Appeals agreed that the state patrol policy was a valid policy.

[00:20:28] Speaker 01:
It did not unreasonably deny them

[00:20:30] Speaker 01:
a right that they were entitled to under 3040-06-0.

[00:20:33] Speaker 01:
And there's another point that I want to make with respect to Martin I think is important.

[00:20:40] Speaker 01:
Plaintiff's counsel, Mr. Bearden's counsel, has suggested that the Martin decision reflects that the Washington State Patrol credited annually

[00:20:52] Speaker 01:
this 21 days of leave.

[00:20:54] Speaker 01:
That did not happen.

[00:20:56] Speaker 01:
At least it does not happen as expressed in that Martin opinion.

[00:20:59] Speaker 01:
And the trooper at issue in Martin was Werner.

[00:21:03] Speaker 01:
She went on leave in September of 2017 and returned in November of 2018.

[00:21:08] Speaker 01:
Nowhere in there does it discuss what happened to her leave when the leave year began in October of 2018.

[00:21:14] Speaker 01:
Had she been paid her leave,

[00:21:19] Speaker 01:
starting October 2018, which is what Pellant is saying should have been done, that actually would have been detrimental to Trooper Werner and would have reflected the sort of a logical problem with the argument they're making, because she would have been paid that leave at an 8.5

[00:21:40] Speaker 01:
rate rather than the 410 rate and she would have exhausted that leave before she came back to work in November of 2018 when she would have needed it for the rest of the leave year to take scheduled days for military leave.

[00:21:56] Speaker 01:
So it was an apples and oranges issue there.

[00:21:59] Speaker 01:
And another point I want to make about Martin is Martin was decided in April of 2023.

[00:22:04] Speaker 01:
Our district court decision in this case was December of 2022.

[00:22:08] Speaker 01:
Martin was aware of our district court decision and in fact cited it.

[00:22:15] Speaker 01:
the court of appeals in washington believe that the district court in this case misinterpreted state law that is made an incorrect eerie guess about how state law should be interpreted i believe that the court of appeals in washington would have

[00:22:32] Speaker 01:
Maiden rectified that, would have stated that, and it didn't.

[00:22:37] Speaker 01:
It actually cited our district court case in the Martin case, and it did not cite it disapprovingly.

[00:22:45] Speaker 01:
And so I think it is incorrect to suggest that Martin is the exact same situation as what we have here.

[00:22:55] Speaker 01:
It's not.

[00:22:56] Speaker 01:
And it's more incorrect to suggest that the Martin case

[00:23:00] Speaker 01:
is demonstrates an error in the district's court's decision in this case.

[00:23:06] Speaker 02:
I'm just trying to, the comment in Martin just gives me some pause, I guess, because they commented that an employer who refused to schedule employees on leave for any work at all

[00:23:24] Speaker 02:
avoiding to, you know, thereby avoiding its military paid leave obligation altogether would be an absurd result.

[00:23:33] Speaker 02:
So here you're saying that during the 2019-2020 period, Mr. Bearden was on the schedule to work.

[00:23:46] Speaker 02:
I guess there was an actual schedule and he had days.

[00:23:48] Speaker 02:
He was.

[00:23:49] Speaker 02:
All right.

[00:23:50] Speaker 02:
And then for the next fiscal year,

[00:23:53] Speaker 02:
Was he on the schedule, or he was not put on the schedule?

[00:23:57] Speaker 01:
He was not on the schedule after February 20 of 2020.

[00:24:01] Speaker 01:
That is when all of his leave exhausted.

[00:24:03] Speaker 01:
He was notified of that, and he said that was perfect.

[00:24:08] Speaker 01:
But he was, in fact, scheduled, which shows again the error of their argument.

[00:24:13] Speaker 01:
We didn't refuse to schedule him to avoid paying him his military leave.

[00:24:19] Speaker 01:
We paid him his military leave in 2019, all 21 days.

[00:24:25] Speaker 01:
We put him on the schedule for those 21 days.

[00:24:28] Speaker 02:
Let me ask you a question, a hypothetical, I guess.

[00:24:30] Speaker 02:
So you paid him for fiscal year 2019, 2020, which would have ended October 1, 2020, correct?

[00:24:39] Speaker 02:
Let's say he had more leave, or that he had to be paid for his military leave for November.

[00:24:49] Speaker 02:
Let's say he had time in November.

[00:24:51] Speaker 02:
Would he have been paid?

[00:24:56] Speaker 01:
Are you asking, like, let's say he wanted to reserve a bank of leave that he didn't use?

[00:25:03] Speaker 01:
Is that your question?

[00:25:04] Speaker 02:
Well, because we're going by fiscal year, and I'm just wondering, is there any ambiguity

[00:25:09] Speaker 02:
about applying the schedule to work when we're looking after October of 2020 and before February, what would happen if he were to take—he was requesting

[00:25:24] Speaker 02:
on the new fiscal year.

[00:25:26] Speaker 01:
So the new fiscal year beginning October 1, 2020, we would have happily scheduled him to work if he expressed an interest in coming back to work through the provisions of UCR's re-employment provisions.

[00:25:43] Speaker 01:
And that doesn't require a lot.

[00:25:44] Speaker 01:
And you're saying he did not.

[00:25:45] Speaker 01:
He did not.

[00:25:46] Speaker 01:
He did not.

[00:25:46] Speaker 01:
He has not to this day expressed an interest in coming back to work.

[00:25:51] Speaker 01:
Not to this day.

[00:25:52] Speaker 01:
It's been almost five years.

[00:25:53] Speaker 02:
And I will say that's the distinguishing factor, I guess, is what you're arguing between that and the Comet and Martin.

[00:26:00] Speaker 01:
Right.

[00:26:01] Speaker 01:
Right.

[00:26:01] Speaker 01:
Yeah, we have not refused to schedule him to work so as to avoid paying him.

[00:26:07] Speaker 01:
We did schedule him to work when he wasn't working.

[00:26:10] Speaker 01:
so as to pay him his military leave.

[00:26:14] Speaker 01:
But he's been gone 180 days plus.

[00:26:17] Speaker 01:
He's been gone many years plus.

[00:26:19] Speaker 01:
And that duration of leave is an important factor when we're looking at that provision of 4316b, the non-senority benefits.

[00:26:29] Speaker 01:
Because Mr. Brewer is making the argument that we should just be looking at military leave generally.

[00:26:39] Speaker 01:
Code of Federal Regulations, excuse me.

[00:26:43] Speaker 01:
talks about how do you compare non-senority benefits, says the duration of leave is perhaps the most significant factor when you compare them.

[00:26:55] Speaker 01:
So it is appropriate to compare military leave for weekend duty versus military leave that is four years and running.

[00:27:05] Speaker 01:
It is different.

[00:27:06] Speaker 04:
Help me out with the practicalities here.

[00:27:09] Speaker 04:
How much money is at stake?

[00:27:11] Speaker 01:
You know, Your Honor, Mr. Bearden represented $17,000 was the first year, but he will also claim, and if it was granted, escalator provisions.

[00:27:25] Speaker 01:
So whatever that increase that the bargaining unit increased their wages year by year by year.

[00:27:33] Speaker 01:
whatever that would be, 21 days a year, but it would also be conceivably into the future.

[00:27:40] Speaker 04:
So he would have been paid $17,000 for 21 days of work?

[00:27:44] Speaker 01:
Yes, he's a firefighter, so 21 days is 24-hour shifts.

[00:27:49] Speaker 01:
So basically, it's like two and a half months.

[00:27:51] Speaker 04:
Okay, and also help me out with this request for certification.

[00:27:56] Speaker 04:
Do you oppose the, do you support, where do you stand on that?

[00:27:59] Speaker 01:
Your honor, I would have to say that I'm neutral on that.

[00:28:03] Speaker 01:
I don't believe that it's necessary to resolve this issue, to have the Washington Supreme Court resolve that, but I will acknowledge that this precise issue has not been addressed in a Washington

[00:28:18] Speaker 01:
Court of Appeal or Supreme Court decision.

[00:28:22] Speaker 01:
There is very little case law on 3840-060, which he probably have gathered through the briefing.

[00:28:30] Speaker 04:
That's right.

[00:28:33] Speaker 04:
Sometimes you look at how much case law there is for a sense of how often the question comes up.

[00:28:38] Speaker 04:
On the other hand, it may be that there are a lot of cases in which it's interpreted one way or the other and nobody fights about it.

[00:28:44] Speaker 04:
So the question may come up a lot.

[00:28:46] Speaker 04:
I don't know.

[00:28:47] Speaker 02:
Do you know how many people would be affected by the answer to this question?

[00:28:53] Speaker 01:
I would expect a lot, just because there are a lot of employees that take military leave.

[00:29:01] Speaker 01:
And the concern from a municipality's perspective is when you have employees that effectively choose to leave their public employment to pursue a military career,

[00:29:17] Speaker 01:
and maybe never intend to return to their public employment and yet have a mechanism in place for having what is effectively a pension for some number of years in the future, which is not what the law was intended to provide.

[00:29:40] Speaker 01:
Thank you.

[00:29:41] Speaker 01:
Thank you.

[00:29:54] Speaker 00:
Okay, where I begin I want to clear up just a couple issues with regard to the record that The city argues that they have absolutely no notice about whether or not Travis Bearden is intending to return to work Simply it's just not true.

[00:30:09] Speaker 00:
He testified very clearly in his deposition.

[00:30:12] Speaker 00:
It's within the record I wish I had the citation for you right now.

[00:30:14] Speaker 00:
He submitted the paperwork necessary to inform them I will get to that in just one moment He testified his deposition that the fact that he was gonna be returning to work

[00:30:24] Speaker 00:
When we look back on the schedule, your earlier questions were regarding October of 2020.

[00:30:28] Speaker 00:
He did request additional military leave.

[00:30:32] Speaker 00:
He did submit his orders.

[00:30:34] Speaker 00:
And when we look at the case, in fact, this may not be in the record, but it's what happens is he says which days he wants to do that during the course of the year.

[00:30:44] Speaker 00:
Which days does he want to burn up those days of leave?

[00:30:47] Speaker 00:
That's exactly what happened in the Martin case.

[00:30:49] Speaker 02:
Well, I don't know if you answered my question.

[00:30:52] Speaker 00:
Oh, I'm sorry.

[00:30:52] Speaker 02:
So if you can, just answer.

[00:30:53] Speaker 02:
Did he submit the necessary paperwork to inform his employer that he was intending to return to work?

[00:31:00] Speaker 00:
No, he did not submit paperwork.

[00:31:01] Speaker 02:
And there is no requirement under... Well, how would they schedule him to work if they didn't think he was coming back?

[00:31:09] Speaker 00:
Exactly as they did in 2019 when he selected the dates by which he wanted to be paid for military leave during the course of that year.

[00:31:16] Speaker 00:
exactly the way the state patrol did it.

[00:31:18] Speaker 00:
They just arbitrarily made up a new schedule.

[00:31:21] Speaker 00:
People worked four tens.

[00:31:22] Speaker 00:
They put them on five eights.

[00:31:23] Speaker 02:
Well, but they knew they were working.

[00:31:25] Speaker 00:
that no, they were not working.

[00:31:26] Speaker 00:
They were on extended long-term periods of leave, just exactly like Barbara Werner, the trooper in that case, had been gone for almost two years.

[00:31:33] Speaker 00:
And her two years overlapped in November.

[00:31:35] Speaker 00:
And the complaint in that case, I was the counsel in that case, the complaint in that case was that because of the way they treated her on the five days, four eights shifts, because of that switch, she had accelerated through her leave too quickly.

[00:31:49] Speaker 00:
And when she returned, she had less left.

[00:31:52] Speaker 00:
And that did cover that fiscal year.

[00:31:55] Speaker 00:
Um, with regard to just one other question in the case is absolutely

[00:32:00] Speaker 00:
Positive that the only reason Travis Bearden was denied his paid military leave is because of the city's arbitrary labeling Categorizing his service as extended military leave quote unquote from their from their argument and from the order because Plaintiff was not scheduled to work given his extended military furlough.

[00:32:21] Speaker 00:
The city denied his request for leave This is what prompted the present lawsuit Travis Bearden in October

[00:32:28] Speaker 00:
After his previous years of leave, that all burned out was fine.

[00:32:31] Speaker 00:
He didn't want any more leave that he wasn't entitled to.

[00:32:33] Speaker 00:
That's why he said that's fine.

[00:32:35] Speaker 00:
When October 1 came around, he knew he had that next 21 days and he wanted to use it.

[00:32:39] Speaker 00:
and he submitted the paperwork not to seek re-employment, but he submitted the paperwork to be placed on a schedule, whether it's fictitious or look back at what his previous schedule was, or maybe they even invent a new policy to put him on 5-8s instead of the 24-hour shifts.

[00:32:53] Speaker 04:
I realize this back and forth will take us a minute or two over time, but scheduled to work,

[00:33:01] Speaker 04:
If he knows he cannot come because he's on active duty military for the year in question, schedule is just a fiction because he's not scheduled to work.

[00:33:10] Speaker 04:
It's just a fiction.

[00:33:11] Speaker 04:
Why are we supposed to read the statute to have a fiction?

[00:33:15] Speaker 00:
I don't think we're reading this statute, Your Honor, to have a fiction.

[00:33:19] Speaker 00:
Scheduled to work, as I addressed earlier, the 4A was placed there to address the issues of whether or not they can charge for time when they would not normally be scheduled to work.

[00:33:28] Speaker 04:
Well, yeah, but it does say scheduled to work.

[00:33:30] Speaker 04:
Yes, and if there's no actual schedule and if there's no possibility that he will come to work Sounds like there's no schedule to work because we know he can't he won't he's gonna be on active duty military service I understand that and I think that's where the this interpretation of the trial court falls apart it's just practically not gonna be the case that an employer is

[00:33:50] Speaker 00:
a service member, hey, I'm going on active duty for a year.

[00:33:54] Speaker 00:
They don't actually put them on a physical schedule.

[00:33:56] Speaker 00:
What they're doing is they're paying them according to the schedule they had.

[00:33:59] Speaker 00:
That's what they did in the trooper cases.

[00:34:01] Speaker 00:
They didn't write down Travis Bearden shift three on day three.

[00:34:04] Speaker 00:
They're never going to do that when somebody has given notice that they're gone.

[00:34:07] Speaker 00:
One other piece here, I just want to, if this interpretation of this statute stands,

[00:34:14] Speaker 00:
Any employer could say, oh, what is extended period of military leave?

[00:34:18] Speaker 00:
We don't know.

[00:34:18] Speaker 00:
There's no definition for it.

[00:34:20] Speaker 00:
It's not in USERRA.

[00:34:21] Speaker 00:
It's not in the RCWs.

[00:34:22] Speaker 00:
It's completely made up.

[00:34:24] Speaker 00:
Any employer could say, oh, you're on extended military leave, so you're not scheduled to work.

[00:34:28] Speaker 00:
It could be two weeks in the summer.

[00:34:29] Speaker 00:
It could be 21 days.

[00:34:30] Speaker 00:
It could be 30 days.

[00:34:31] Speaker 00:
It could be three months.

[00:34:32] Speaker 00:
They're not going to put them on the schedule because we're going to save that money.

[00:34:36] Speaker 02:
All right.

[00:34:36] Speaker 02:
Thank you very much.

[00:34:38] Speaker 02:
The case of Travis Bearden versus the City of Ocean Sores is submitted.