Washington Judge Limits Firefighter's USERRA Military Leave Win to One Fiscal Year

Judge Benjamin H. Settle of the U.S. District Court for the Western District of Washington issued the order Friday in Bearden v. City of Ocean Shores, ruling on Bearden's motion following a Washington Supreme Court answer to a certified question and a Ninth Circuit remand.

The Washington Supreme Court held that "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." The Ninth Circuit then vacated Settle's earlier summary judgment order and remanded.

The city conceded Bearden is entitled to 21 days of paid leave for the October 1, 2020 through September 30, 2021 fiscal year, and Settle granted summary judgment on that claim. "The parties should work in good faith to resolve the damages owed for the conceded period," the judge wrote.

For the fiscal years 2021 through 2026, Settle denied summary judgment. He wrote that a service member is entitled to 21 days of paid leave "as long as the service member remains a public employee," quoting the state Supreme Court's opinion, and that Bearden had not shown he remained one.

"There is no evidence in the record that Bearden has 'remained' a City employee, since at least 2021," Settle wrote. He noted that Bearden's own declaration stated only that he had 215 days before reaching the "USERRA 5-year limit, at which time I intend to return to the City of Ocean shores." The judge added that "the record contains no statement or assertion that he currently is an employee."

Settle pointed to a 2021 expert report filed in the case stating that Bearden "has effectively been constructively discharged from his employment as he now has no prospect for continued employment at Ocean Shores Fire Department" and that he "intends to extend his military leave before seeking alternative employment."

Bearden argued the city was judicially estopped from contesting his continued employment because it had previously obtained summary judgment on his constructive discharge claim. Settle rejected that argument. "The City's successful summary judgment argument on Bearden's constructive discharge claim does not judicially estop it from asserting that Bearden cannot prove he remains a City employee," he wrote.

The judge said Bearden's own pleadings cut the other way. His September 2021 allegation that the city and others worked together "to push him out of employment" was "itself inconsistent with the contention that he still works for the City," Settle wrote, adding that Bearden's "alternating positions suggest that he, and not the City, is 'deliberately changing positions according to the exigencies of the moment.'"

Settle also denied summary judgment on Bearden's USERRA retaliation claim, finding a genuine dispute over whether military status was a motivating factor. "The evidence suggests that the City's failure to pay was based not on his military status, but because it read the statute to require Bearden to be 'scheduled to work' during the relevant period to obtain paid military leave," he wrote, noting that the reading's error "was ascertainable only after this Court agreed with the City, the Ninth Circuit was not sure, and the Washington Supreme Court issued a lengthy opinion."