                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 24 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JEONG KO,                                        No. 11-55771

              Plaintiff - Appellant,             D.C. No. 2:10-cv-05305-R-PJW

  v.
                                                 MEMORANDUM*
CITY OF LA HABRA, A Public Entity,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                     Argued and Submitted December 4, 2012
                              Pasadena, California

Before: WARDLAW, BEA, and N.R. SMITH, Circuit Judges.

       Jeong Ko appeals the district court’s grant of summary judgment in favor of

the City of La Habra on his claim that the City violated the Uniformed Services

Employment and Reemployment Rights Act, 38 U.S.C. §§ 4301 et seq. (USERRA)

by failing to grant him pay increases and failing to make contributions to his



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
pension plan for the period during which he was on military leave. We have

jurisdiction under 28 U.S.C. § 1291. We reverse in part, affirm in part, and remand

for further proceedings.

      The district court erred by holding that Ko failed to raise a dispute of

material fact as to whether he is entitled under the USERRA to STEP pay increases

for which he would have been eligible absent his military leave. Under the

USERRA, a service member who is re-employed upon returning from active duty

is entitled to the “rights and benefits that such person would have attained if the

person had remained continuously employed.” 38 U.S.C. § 4316(a). Regulations

promulgated under the USERRA provide that upon re-employment, the

employee’s “rate of pay must be determined by taking into account any pay

increases, differentials, step increases, merit increases, or periodic increases that

the employee would have attained with reasonable certainty had he or she

remained continuously employed during the period of service.” 20 C.F.R. §

1002.236(a) (emphasis added). To determine whether an increase would have

been attained with “reasonable certainty,” “an employer may examine the returning

employee’s own work history, his or her history of merit increases, and the work

and pay history of employees in the same or similar position.” Id.




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      “[W]e must view the facts and draw reasonable inferences in the light most

favorable to the party opposing the summary judgment motion.” Wilkinson v.

Torres, 610 F.3d 546, 550 (9th Cir. 2010). When Ko left for military service, he

was meeting the department’s standards and had recently qualified for a pay

increase; when he returned home, he was exceeding standards. Although Ko was

denied step increases after his six- and nine-month performance reviews, even

these earlier, below-expectation reviews from his probationary period show

aptitude and eagerness, coupled with mistakes and gaps in knowledge that

warranted extra training. For instance, while the early reports identify Ko’s

enthusiasm and his excellent communication skills, they also indicate he made

mistakes with regard to safety protocol and showed “a lack of understanding of

jurisdictional issues.” However, at his fifteen month mark, he was given a vastly

improved evaluation:

      Although fairly new, Officer Ko has improved greatly and is using
      good judgement [sic] and common sense in the field. Officer Ko has
      performed well in many of the situations I have observed him in, and
      he takes a long term approach on how to solve the problem. Officer
      Ko is genuinely concerned about the victims he contacts and tries to
      work with them on solutions. Officer Ko has also improved in the
      area of command presence and seems much more confident in his
      abilities.




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The report goes on to note that Ko is well liked by the other officers, volunteers for

extra duties, assists other officers with menial tasks without complaint, is

“constantly being exposed to new situations and learns from each one,” is

“constantly trying to improve himself,” is “not afraid to ask questions of

supervisors and clearly understands what is expected of him.” A reasonable jury

could infer from these reports that Ko gained the skills and knowledge he was

lacking early on. Further, Ko adduced evidence that most police officers receive

their step increases as a matter of course. Ko and a second officer declared that

step increases were “standard practice,” except in cases of disciplinary action or

unsatisfactory work. Although not before the district court at the time it decided

the summary judgment motion, at oral argument, the City represented that it was

“unusual” for an officer not to get a step increase. In light of his positive

performance reviews and the evidence that it was “standard practice” to award step

increases to those who met expectations, Ko has raised a genuine issue of material

fact as to whether there was a “reasonable certainty” within the meaning of

USERRA’s implementing regulations that he would have received a step increase.

      The district court correctly held that the City did not violate its USERRA

obligations with respect to Ko’s pension plan. Ko is entitled to full service credit




                                           4
for the time spent on military leave; he simply needs to request the service credit

from CalPERS and provide CalPERS with a copy of his military service record.

      REVERSED in part; AFFIRMED in part; REMANDED. Each party

shall bear its own costs on appeal.




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