USERRA: Honest-Belief, Independent-Reason Defense; Individualized “Reasonably Certain” Pay for Pension Credits; No Vacation Accrual Without a Comparable Leave

Introduction

In Adam McLean v. Delta Air Lines, Inc. (11th Cir. Apr. 22, 2026), two former Delta pilots—Adam McLean and James Doyle—challenged Delta under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Both men served as U.S. Air Force reservists while employed by Delta.

The appeal presented three issues: (1) whether Delta constructively terminated the pilots because of military service in violation of 38 U.S.C. § 4311; (2) whether Delta’s pension contribution method during military leave violated 38 U.S.C. § 4318; and (3) whether Delta unlawfully denied vacation accrual during long-term military leave under 38 U.S.C. § 4316 by treating military leave less favorably than comparable non-military leave.

Summary of the Opinion

The Eleventh Circuit affirmed summary judgment for Delta on all claims.

  • Constructive termination (USERRA discrimination): Even assuming constructive discharge, Delta showed undisputed evidence it would have taken the same action for a legitimate, non-military reason—abuse of sick leave. The court emphasized that the step-two inquiry centers on the employer’s reason (including an honest belief), not whether the employee in fact committed the misconduct.
  • Pension contributions (USERRA pension protection): Because each pilot’s pay was not “reasonably certain” due to fluctuating hours, Delta could use the statutory alternative—the employee’s 12-month average compensation. The pilots’ expert evidence about “average” non-military pilots was immaterial because the statute is individualized. Delta’s method paid at least what USERRA required (indeed more).
  • Vacation accrual (USERRA rights and benefits): The pilots failed to show that long-term military leave was comparable to Delta’s “known leave of absence,” so USERRA did not require vacation accrual during long-term military leave.

Analysis

1) Precedents Cited

Gogel v. Kia Motors Mfg. of Ga.

Cited for the appellate standard of review: de novo review of summary judgment with evidence viewed in the non-movant’s favor. This framed the court’s approach to whether any genuine disputes of material fact precluded judgment.

Coffman v. Chugach Support Servs., Inc.

The opinion relies on Coffman for the Eleventh Circuit’s two-step USERRA burden-shifting framework under 38 U.S.C. § 4311: (i) the employee must show military status was a “motivating factor,” and then (ii) the employer must prove it would have taken the same action absent military status. This case is the doctrinal spine of the constructive-termination analysis.

Thomas v. Broward Cnty. Sheriff's Off.

Used to reinforce the same step-two principle: once a prima facie case is assumed/shown, the employer prevails if undisputed evidence shows it would have made the same decision anyway for legitimate reasons.

Damon v. Fleming Supermarkets of Fla., Inc. and Flowers v. Troup Cnty. Sch. Dist.

Though not USERRA cases, they supply an important comparator concept: an employer is not liable when it acts on a mistaken but honest belief that an employee violated a rule (Damon), and employers may act for “a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all” so long as the reason is not discriminatory (Flowers). The court imported that logic into the USERRA step-two inquiry to reject the pilots’ attempt to create a triable issue by disputing whether they actually abused sick leave.

White v. United Airlines, Inc.

Quoted for the proposition that the employee bears the burden of proving comparability between military leave and a non-military leave category that receives the disputed benefit (here, vacation accrual). This supported affirmance because the pilots did not establish comparability.

Gilmour v. Gates, McDonald & Co. and Hurlbert v. St. Mary's Health Care Sys., Inc.

These cases were used to reject the pilots’ attempt to broaden their vacation-accrual theory at summary judgment (claiming comparability to “special conflict military leave”). Gilmour stands for the rule that a party cannot amend a complaint through briefing; Hurlbert identifies amendment as the proper procedure. This is a procedural but consequential holding for how USERRA theories must be pleaded and preserved.

Clarkson v. Alaska Airlines, Inc.

Cited to support summary judgment where comparability evidence is so weak that “no reasonable jury” could find meaningful commonality between the leave types—bolstering the court’s conclusion that known leaves of absence and multi-year military leave are not comparable.

2) Legal Reasoning

A. USERRA discrimination / constructive termination (38 U.S.C. § 4311)

The court assumed (without deciding) that the pilots were constructively terminated, then focused on step two under Coffman v. Chugach Support Servs., Inc.: whether Delta established an independent, legitimate reason that would have produced the same outcome.

The pilots tried to recharacterize Delta’s reason as enforcement of the “concurrent duty policy” (a policy that applies when a pilot is on military orders), arguing this necessarily tied the adverse action to military service. The court rejected this framing because Delta’s stated, “independent” basis included sick-leave abuse, which is analytically separate from military status and from the concurrent-duty rule.

Critically, the court held that factual disputes about whether the pilots truly abused leave do not automatically create a trial issue at step two; what matters is whether the employer would have acted on its honest reason, even if mistaken, echoing Damon v. Fleming Supermarkets of Fla., Inc. and Flowers v. Troup Cnty. Sch. Dist..

B. Pension contributions (38 U.S.C. § 4318(b)(3))

USERRA requires that an employee on military leave be treated as if continuously employed for pension purposes. For calculating compensation, the statute sets a default “but-for” rate and an alternative when the “rate is not reasonably certain.” The key interpretive move here is the court’s insistence that “reasonably certain” is assessed for the individual employee.

Because the pilots’ hours varied significantly month-to-month, their but-for rate was not “reasonably certain,” triggering § 4318(b)(3)(B)’s 12-month average method. The pilots’ expert analysis of average non-military pilots did not address the individualized statutory question and thus could not defeat summary judgment.

The court also noted Delta’s policy produced contributions exceeding the statutory floor, consistent with 20 C.F.R. § 1002.7(a) (USERRA sets a minimum, not a maximum).

C. Vacation accrual (38 U.S.C. § 4316(b)(1))

Under USERRA and its regulation, vacation accrual during military leave is required only if the employer provides that benefit to employees on comparable non-military leave. The regulation identifies key factors: duration (often most significant), purpose, and employee control over timing.

Applying those factors, the court found known leaves of absence were not comparable to long-term military leave: (i) known leaves were offered one month at a time, while long-term military leave could last years; (ii) known leaves served Delta’s staffing-cost needs and allowed recall, while military leave served national service and prevented recall; and (iii) known leaves were elective, while military leave is mandatory.

The court additionally enforced pleading discipline by refusing to consider a late-shifted theory (comparability to another military leave type), relying on Gilmour v. Gates, McDonald & Co. and Hurlbert v. St. Mary's Health Care Sys., Inc..

3) Impact

  • Stronger step-two employer defense in USERRA cases: The decision underscores that an employer can defeat a USERRA discrimination claim at summary judgment by showing an independent, legitimate rationale that would have produced the same action, and that the focus is on the employer’s reason (including honest belief), not a mini-trial on whether the employee actually engaged in the charged conduct.
  • Individualized “reasonably certain” inquiry under § 4318: For employees with variable schedules (common in aviation), courts may more readily deem compensation not “reasonably certain,” allowing the 12-month average method. Expert proofs must be employee-specific, not cohort-based.
  • Higher bar for “comparable leave” vacation accrual theories: Long-duration, mandatory military leave will be difficult to compare to short, elective employer-offered leaves. Plaintiffs must develop comparator evidence aligned to duration, purpose, and choice.
  • Procedural discipline: USERRA plaintiffs must plead their benefit-comparator theories early; attempting to pivot at summary judgment risks waiver.

Complex Concepts Simplified

  • “Motivating factor” (USERRA): Military service need not be the only reason for an adverse action; it is enough if it was one factor the employer “took into account.” But the employer can still win by proving it would have done the same thing anyway for independent reasons.
  • Step-two “same decision anyway” defense: Even if military status played some role, the employer avoids liability if it proves a standalone reason would have led to the same result.
  • “Honest belief”: A discrimination claim generally does not succeed merely by showing the employer was wrong about misconduct; the plaintiff must connect the adverse action to discrimination rather than an honestly held (even mistaken) rule-violation belief.
  • “Reasonably certain” compensation (§ 4318): If pay is predictable, the employer uses the predicted but-for rate during military leave. If not predictable (e.g., fluctuating hours), the employer uses the employee’s prior 12-month average.
  • “Comparable leave” (§ 4316): To claim a benefit (like vacation accrual) during military leave, the employee must identify a non-military leave that is genuinely similar—especially in how long it lasts, why it exists, and whether the employee chooses when to take it.

Conclusion

The Eleventh Circuit’s decision clarifies three practical USERRA lessons: (1) an employer defeats a § 4311 discrimination claim at summary judgment by establishing an independent, legitimate reason—evaluated through the employer’s stated rationale and honest belief; (2) § 4318’s “reasonably certain” inquiry is individualized, making variable-hour employees more likely to fall under the 12-month average rule; and (3) § 4316 benefit claims require a rigorously comparable non-military leave comparator, with duration, purpose, and employee choice doing most of the analytical work.