A federal court in Washington state has ruled that an Ocean Shores firefighter and Army reservist is entitled to paid military leave for the 2020-2021 military fiscal year under Washington law, following a Washington Supreme Court decision that resolved a disputed question concerning paid military leave for public employees on extended active duty.

The case involves Firefighter Travis Bearden, who sued the City of Ocean Shores in 2021 alleging violations of the Uniformed Services Employment and Reemployment Rights Act (USERRA). As we discussed when the lawsuit was filed, Firefighter Bearden contended that the City unlawfully denied him paid military leave while he was serving on active duty.

The dispute centered on RCW 38.40.060, a Washington statute providing public employees with up to 21 days of paid military leave each year. The City denied Firefighter Bearden paid leave during the October 1, 2020 through September 30, 2021 military fiscal year, arguing that he was not entitled to the benefit because he was not scheduled to work for the City while deployed on active military duty.

The federal district court originally agreed with the City and dismissed Firefighter Bearden’s claims. On appeal, however, the Ninth Circuit certified a question to the Washington Supreme Court asking whether a public employee remains entitled to paid military leave while on extended active-duty military service even though the employee is not scheduled to work.

The Washington Supreme Court answered that question in the affirmative, holding:

• Yes, a public employee is entitled to paid military leave under RCW 38.40.060 even if they are not scheduled to work by the employer because the employee is on active duty during an extended military leave of absence.

Following that ruling, the Ninth Circuit vacated the district court’s earlier decision and returned the case for further proceedings.

On remand, Firefighter Bearden sought summary judgment on both his military leave claim and his USERRA discrimination and retaliation claims. He argued that he was entitled to 21 days of paid military leave not only for the 2020-2021 fiscal year, but for each subsequent year through the present because he remained in military service. Complicating these claims, he alleges the city’s treatment of him amounted to USERRA retaliation resulting in his constructive discharge

The City conceded that Firefighter Bearden was entitled to 21 days of paid military leave for the 2020-2021 military fiscal year under the Washington Supreme Court’s interpretation of RCW 38.40.060. It argued, however, that Bearden was not entitled to paid military leave in subsequent years because he was no longer a City employee. It disputed Bearden’s claims that City officials effectively forced him from his job, and denied that any constructive discharge or retaliation had occurred, arguing that his employment status after 2021 remained a disputed factual issue.

The court agreed with the city, concluding that factual disputes remained regarding Firefighter Bearden’s employment status after 2021. Judge Benjamin H. Settle pointed to allegations in Firefighter Bearden’s earlier pleadings asserting that City officials had “push[ed] him out of employment,” as well as evidence indicating that he had not worked for or communicated with the City for several years.

According to the court, Washington’s military leave statute protects service members “as long as the service member remains a public employee.” The court concluded that genuine factual disputes existed concerning whether Firefighter Bearden remained a City employee after 2021, preventing summary judgment on claims seeking additional paid military leave beyond the 2020-2021 fiscal year.

The court also denied summary judgment on Firefighter Bearden’s USERRA retaliation claim. Judge Settle concluded that a jury could find the City’s actions were based on its interpretation of the statute rather than hostility toward military service. The court noted that the City’s interpretation had initially been accepted by the district court itself, and that the issue ultimately required clarification by the Washington Supreme Court.

The court granted summary judgment in Firefighter Bearden’s favor only on the issue of his entitlement to 21 days of paid military leave for the 2020-2021 fiscal year, consistent with the Washington Supreme Court’s interpretation of RCW 38.40.060. The court denied summary judgment on his claims for additional years of leave and on his USERRA retaliation claim. Here is a copy of the decision.