                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 DALE HUHMANN, an individual,                      No. 15-56744
                Plaintiff-Appellee,
                                                     D.C. No.
                      v.                          3:13-cv-00787-
                                                    BAS-NLS
 FEDERAL EXPRESS CORPORATION,
 DBA FedEx Express, a Delaware
 corporation,                                         OPINION
              Defendant-Appellant.



        Appeal from the United States District Court
           for the Southern District of California
        Cynthia A. Bashant, District Judge, Presiding

              Argued and Submitted June 6, 2017
                    Pasadena, California

                     Filed November 2, 2017

  Before: Carlos T. Bea and Andrew D. Hurwitz, Circuit
      Judges, and J. Frederick Motz,* District Judge.

                      Opinion by Judge Bea


    *
      The Honorable J. Frederick Motz, United States District Judge for
the District of Maryland, sitting by designation.
2               HUHMANN V. FEDERAL EXPRESS

                          SUMMARY **


                            Labor Law

    The panel affirmed the district court’s judgment, after a
bench trial, in favor of the plaintiff, who alleged that upon
his return from military service, he was entitled to a higher
signing bonus from his employer under the Uniformed
Services Employment and Reemployment Rights Act.

    The panel held that arbitration was not required because
the right awarded by USERRA neither arose out of nor relied
on an interpretation of the parties’ collective bargaining
agreement, and so the parties’ dispute was not a “minor
dispute” under the Railway Labor Act.

    The panel held that in analyzing the plaintiff’s USERRA
claim, the district court correctly considered first, whether
the plaintiff had established that his military service was a
“substantial or motivating factor” to cause an adverse
employment action, and second, whether the defendant
employer had established an affirmative defense that it
would have taken the same action without regard to the
military service. The panel held that the district court
properly used the reasonable certainty test, asking whether it
was reasonably certain that the plaintiff would have qualified
for a higher bonus had he not left for military service, as an
aid to the burden-shifting analysis. The district court also
properly relied on the escalator principle, which provides
that a returning service member should not be removed from

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
              HUHMANN V. FEDERAL EXPRESS                     3

the progress of his career trajectory. The panel concluded
that the district court did not clearly err in finding that the
plaintiff was reasonably certain to have achieved the higher
bonus status had he not left for his military service, both as
a matter of hindsight and as a matter of foresight. The panel
also affirmed the district court’s conclusion that the bonus
was, in part, a seniority-based benefit, and the plaintiff’s
claim was not barred by 38 U.S.C. § 4316(b)(1).


                         COUNSEL

Jane M. Flynn (argued), Federal Express Corporation,
Irvine, California, for Defendant-Appellant.

Brian J. Lawler (argued), Pilot Law P.C., San Diego,
California, for Plaintiff-Appellee.


                         OPINION

BEA, Circuit Judge:

    We are called upon to decide to what benefits a returning
service member is entitled when resuming a civilian career.
The Uniformed Services Employment and Reemployment
Rights Act (USERRA) guarantees that an individual who
departs for military service shall not be denied any “benefit
of employment” due to that service. 38 U.S.C. § 4311(a).
Dale Huhmann argues that, when he returned from service
in the United States Air Force, FedEx Express (FedEx)
improperly paid him a $7,400 bonus instead of the $17,700
bonus he would have earned had he not served. For the
reasons that follow, the district court’s decision which
4             HUHMANN V. FEDERAL EXPRESS

awarded Huhmann the higher signing bonus, in addition to
attorney’s fees, is affirmed.

                               I.

    Dale Huhmann was commissioned as an officer in the
United States Air Force Reserve in 1985 and retired in 2006.
Huhmann was hired by FedEx in 2001 to pilot a Boeing 727
aircraft, a “narrow body” aircraft for pay grade purposes.
Pay grade at FedEx is in part determined by the aircraft the
pilot flies and the role the pilot has in flying it. Huhmann was
later selected by FedEx for training to be a first officer on a
McDonnell Douglas MD-11 aircraft, a “wide-body” aircraft
that would qualify him for a higher pay grade. That training
was to begin on February 19, 2003. However, on February
7, 2003, Huhmann was mobilized for active Air Force duty.
He was deployed overseas until August 31, 2006.

    After completing his military service, Huhmann returned
to active pay status at FedEx payroll on December 1, 2006.
Upon his return, Huhmann was given the option to continue
to work as a second officer on the narrow-body 727 aircraft
(727-SO) or to receive training for one of ten other open
positions. He chose to enter training to become a first officer
on the wide-body MD-11 (MD-11-FO), as he had been
selected by FedEx to do prior to his Air Force mobilization.

    Huhmann’s MD-11-FO training began on December 4,
2006, virtually immediately after his return to FedEx.
Training consisted of ground school sessions on the MD-11
and its systems, training in flight simulators, and flying an
MD-11 aircraft with a flight instructor. The final step was a
validation flight or “check ride” during which an instructor
carefully observed the candidate’s performance flying the
MD-11 before later approving or rejecting his certification.
Some pilots who enter the MD-11-FO training program are
              HUHMANN V. FEDERAL EXPRESS                   5

unable to complete it. Huhmann did not fail any evaluation
step during his training and was activated as an MD-11-FO
on February 22, 2007.

     Huhmann is a member of the bargaining unit represented
by the Air Line Pilots Association (ALPA). On August 26,
2006, while Huhmann was still on air force active duty,
FedEx issued a letter to ALPA (the Bonus Letter) that
offered a signing bonus to FedEx crewmembers if the union
ratified a proposed collective bargaining agreement (CBA)
then being negotiated. This Bonus Letter explained that
pilots employed by FedEx on the day the CBA was signed
(including those on military leave) who had been on active
pay status on FedEx’s payroll during the entire “amendable
period” (from June 1, 2004 until the day the CBA was
signed, which occurred on October 30, 2006) would receive
the full signing bonus applicable to their pay grade.

    The Bonus Letter specified that military leave would be
deemed equivalent to active pay status on FedEx’s payroll
during the amendable period for purposes of qualifying for
the signing bonus. Pilots on military leave would receive
their signing bonuses upon returning to employment with
FedEx. The Bonus Letter also specified that a pilot’s signing
bonus pay grade would be determined by the highest crew
status the pilot held during the amendable period. The
signing bonus for a 727-SO was $7,400, while that for an
MD-11-FO was $17,700.

    Upon Huhmann’s return to FedEx, he was paid $7,400
as a signing bonus. He then filed this suit against FedEx.
The operative first amended complaint alleged that FedEx
had violated the Uniformed Services Employment and
Reemployment Rights Act (USERRA) (38 U.S.C. §§ 4301–
4335) when it failed to pay him the signing bonus owed to
6              HUHMANN V. FEDERAL EXPRESS

an MD-11-FO, 1 which Huhmann contended he would have
been awarded had he not left for military duty. After a bench
trial, the district court entered judgment for Huhmann.

    An employee making a claim under § 4311(a) “first has
the burden of showing, by a preponderance of the evidence,
that his or her protected status was a substantial or
motivating factor in the adverse employment action; the
employer may then avoid liability only by showing, as an
affirmative defense, that the employer would have taken the
same action without regard to the employee’s protected
status.” Wallace v. City of San Diego, 479 F.3d 616, 624 (9th
Cir. 2007) (internal quotation marks and citation omitted).
The district court found that Huhmann’s military leave was
a substantial factor in Huhmann’s receipt of the smaller
signing bonus, and determined that FedEx could not
demonstrate that it would have denied Huhmann the higher
signing bonus absent Huhmann’s military leave.

    In performing this analysis, the district court relied on
two intersecting doctrines – the “escalator principle” and the
“reasonable certainty test” – used to determine the status or
position to which a returning service member is entitled. See
20 C.F.R. § 1002.2; Rivera-Melendez v. Pfizer Pharm., LLC,
730 F.3d 49, 54 (1st Cir. 2013). The “escalator principle”
provides that a returning service member not be removed
from the progress (“escalator”) of his career trajectory, but
rather return to a “position of employment in which the
person would have been employed if the continuous
    1
      In March 2010, Huhmann had filed a complaint with the
Department of Labor Veterans’ Employment and Training office (DOL-
VETS) regarding his reduced signing bonus. DOL-VETS issued a letter
to FedEx asserting that the company had violated USERRA (and
20 C.F.R. § 1002.193) and that Huhmann was entitled to the difference
between the 727-SO and MD-11-FO bonus levels plus interest.
              HUHMANN V. FEDERAL EXPRESS                     7

employment of such person with the employer had not been
interrupted by such service.” 38 U.S.C. § 4313(a)(2)(A).
The “reasonable certainty test” aids in determining the
returning service member’s position on the “escalator,”
inquiring into the position a returning service member would
have been “reasonably certain” to have attained absent the
military service. 20 C.F.R. § 1002.191.

    Courts applying the “reasonable certainty test” use both
a forward-looking and a backward-looking approach. First,
the court determines whether it appears, as a matter of
foresight, that individuals like a given claimant who
successfully completed training would have obtained a
certain position had employment not been interrupted by
military service. The court next analyzes whether, as a
matter of hindsight, a particular claimant either has, or would
have, completed the necessary prerequisites for a position.
See Tilton v. Mo. Pac. R.R. Co., 376 U.S. 169, 181 (1964)
(“This requirement is met if, as a matter of foresight, it was
reasonably certain that advancement would have occurred,
and if, as a matter of hindsight, it did in fact occur.”); see
also Pomrening v. United Air Lines, Inc., 448 F.2d 609, 613
(7th Cir. 1971) (“First, it must appear, as a matter of
foresight, that pilot trainees who successfully completed
United’s training course were regularly advanced to flight
officer status. Second, it must appear, as a matter of
hindsight, that Pomrening would have probably completed
his training in the normal course had it not been interrupted
by his military service.”). The reasonable certainty test
applies to discretionary promotions. See 70 Fed. Reg.
75,246, 75,271 (Dec. 19, 2005), available at 2005 WL
3451172.

    Together, the escalator and reasonable certainty
principles guarantee that progress in the returning service
8              HUHMANN V. FEDERAL EXPRESS

member’s overall career trajectory has not been set back by
his service. Applying these principles, the district court
found that Huhmann would have been entitled to the higher
bonus. The court found that it was reasonably certain that
Huhmann would have become an MD-11-FO pilot prior to
October 30, 2006 (the date the CBA was signed) and
therefore would have been owed the bonus accorded to that
higher status. The court found that the “process to qualify as
[an MD-11-FO] is not an easy one, requires passing difficult
exams at each stage of training, and some trainee pilots fail,
trainees are given multiple opportunities to pass, and each
pilot who passes qualifies as [an MD-11-FO].” But, the
court noted, Huhmann did, in fact, pass all of the required
tests, completed his training in approximately three months,
and became employed as an MD-11-FO. It therefore
determined that Huhmann was owed the higher signing
bonus, along with attorney’s fees and litigation costs.

    FedEx timely appealed.

                               II.

    The district court’s findings of fact after a bench trial are
reviewed for clear error, and its conclusions of law are
reviewed de novo. OneBeacon Ins. Co. v. Haas Indus., Inc.,
634 F.3d 1092, 1096 (9th Cir. 2011).

                              III.

   FedEx makes four arguments on appeal. We address
each in turn.

                             III.A

   FedEx first argues that this case should have been
decided by an arbitrator. FedEx is an air carrier subject to the
                HUHMANN V. FEDERAL EXPRESS                           9

Railway Labor Act (RLA), which mandates arbitration of
“minor disputes,” including disputes over the meaning of
language within a collective bargaining agreement.
45 U.S.C. § 153; see Wolfe v. BNSF Ry. Co., 749 F.3d 859,
863 n.1 (9th Cir. 2014); Hawaiian Airlines, Inc. v. Norris,
512 U.S. 246, 253 (1994). FedEx argues that because the
Bonus Letter was treated as part of the CBA by FedEx and
ALPA and because analyzing the Bonus Letter is necessary
to adjudicate Huhmann’s rights, Huhmann’s claim was a
minor dispute. FedEx is incorrect, because the right awarded
by USERRA neither arises out of the CBA nor relies on an
interpretation of it. 2

     The Supreme Court has explained “that the RLA's
mechanism for resolving minor disputes does not pre-empt
causes of action to enforce rights that are independent of the
CBA . . . . ‘[M]inor disputes’ subject to RLA arbitration are
those that involve duties and rights created or defined by the
CBA.” Hawaiian Airlines, Inc., 512 U.S. at 256–58 (citation
omitted). Interpreting Norris, our court recognized that “[a]
claim is preempted by the RLA only when the…claim
involves duties and rights created or defined by a CBA and
is therefore dependent on the interpretation of a CBA…In
contrast, a…cause of action is not pre-empted by the RLA if
it involves rights and obligations that exist independent of
the CBA.” Wolfe, 749 F.3d at 863–64 (internal quotation
marks and citation omitted). 3

    2
      FedEx’s motion for the court to grant judicial notice of the 2006
Collective Bargaining Agreement is GRANTED.

    3
       See also Espinal v. Nw. Airlines, 90 F.3d 1452, 1456 (9th Cir.
1996) (“Where a plaintiff contends that an employer’s actions violated
rights protected by the CBA, there is a minor dispute subject to RLA
preemption…By contrast, where a plaintiff contends that an employer’s
10              HUHMANN V. FEDERAL EXPRESS

    The basis on which Huhmann made his claim was the
independent legal right under USERRA to be returned to the
position and status at FedEx he would have enjoyed had he
not left for military service. By statute – and not by either
the language of the CBA or its interpretation – FedEx is not
allowed to use Huhmann’s failure to qualify for MD-11-FO
status to justify paying him a lower bonus if that failure to
qualify was due to Huhmann’s military service. The
meaning of the Bonus Letter – and the attendant bonuses
owed to individuals based on their status at the time of the
signing of the CBA – is not in dispute. The only question is
whether the undisputed terms of the Bonus Letter do not
respect the independent rights granted to Huhmann under
USERRA, as the Bonus Letter does not properly account for
the status owed to an individual who has left for military
service; i.e., it does not account for situations like
Huhmann’s, where but-for a military leave, he would have
attained a qualification which mandated a higher bonus.
Even assuming the Bonus Letter is part of the CBA, since
the terms of the Bonus Letter do not require interpretation,
the right Huhmann seeks to vindicate is based solely on the
USERRA statute. The dispute is not a minor dispute under
the RLA.

                                 III.B

    On the merits, FedEx asserts that the district court did
not actually apply the required burden-shifting analysis to
Huhmann’s Section 4311(a) claim, but instead utilized the
reasonable certainty and escalator principles, which FedEx


actions violated a state-law obligation, wholly independent of its
obligations under the CBA, there is no preemption. The RLA will
preempt a state law claim, only if it ‘is dependent on the interpretation
of a [CBA].’”) (citation omitted).
              HUHMANN V. FEDERAL EXPRESS                    11

argues apply only to claims regarding reemployment under
Section 4312. FedEx is incorrect.

    Section 4311(a) claims require a two-step analysis: first,
the claimant must show by a preponderance of the evidence
that his or her military service was a “substantial or
motivating factor” to cause an adverse employment action;
second, assuming the claimant has done so, the employer
may avoid liability only by putting forward an affirmative
defense that it would have taken the same action without
regard to the military service. See Wallace, 479 F.3d at 624.
Despite FedEx’s assertions to the contrary, the district court
applied this two-step framework. First, at step one, the
district court determined that Huhmann’s military service
was the cause of the “adverse employment action”; namely,
his receipt of the smaller bonus owed to a 727-SO, rather
than the higher bonus of an MD-11-FO. But to determine
whether Huhmann was, in fact, due the higher bonus of an
MD-11-FO, the district court utilized the reasonable
certainty test. It determined that since it was reasonably
certain that Huhmann would have been an MD-11-FO had
he not left for military service, and since in fact FedEx did
not accord Huhmann the status of an MD-11-FO upon his
immediate return from service, Huhmann’s departure for
military service was a substantial factor in FedEx’s failure to
pay the higher bonus. At step two, the district court found
that FedEx had offered no affirmative defense that it would
have taken the same action of paying Huhmann a lower
bonus absent Huhmann’s military service. The reasonable
certainty test, then, was used as an aid to the burden-shifting
analysis required of a Section 4311(a) claim, not as its
replacement.

    FedEx’s argument that the escalator principle and
reasonable certainty tests are “not applicable to
12              HUHMANN V. FEDERAL EXPRESS

discrimination claims” under Section 4311(a) fails. FedEx
accurately notes that the reasonable certainty test and the
escalator principle were first articulated by the Supreme
Court in cases that interpret the pre-cursor legislation to 38
U.S.C. §§ 4312–13 of USERRA, which sections define a
returning service-member’s reemployment rights after
military service. 4 But FedEx points to no language in Section
4312 or Section 4313 which indicates that the reasonable
certainty test and escalator principle are available
exclusively for analysis of claims under those statutes.
Neither does FedEx point to any binding, or even persuasive,
authority which shows that the reasonable certainty test and
escalator principle may never be applicable to Section 4311
claims.

    Indeed, Section 4311 indicates that the reasonable
certainty test is entirely apt for the analysis of certain claims
brought under that statute, as the rights guaranteed by
Section 4311 include rights associated with reemployment,
the analysis of which may necessitate the use of the
reasonable certainty test.

     Section 4311(a) states as follows:




     4
       USERRA’s immediate predecessor was the Vietnam Era Veterans’
Readjustment Assistance Act of 1974, 38 U.S.C. §§ 2021–2027, later
recodified at 38 U.S.C. §§ 4301–4307 and commonly referred to as the
Veterans’ Reemployment Rights Act (VRRA). The VRRA was amended
and recodified as USERRA. See 70 Fed. Reg. 75,246–01, 75,246. The
rights that Congress sought to clarify in enacting USERRA were first
contained in the Selective Training and Service Act of 1940, 50 U.S.C.
§ 301 et seq. See 70 Fed. Reg. at 75,246. See also Rivera-Melendez,
730 F.3d at 56–58 (1st Cir. 2013) (discussing Supreme Court case law
interpreting a predecessor statute).
              HUHMANN V. FEDERAL EXPRESS                     13

       A person who is a member of, applies to be a
       member of, performs, has performed, applies
       to perform, or has an obligation to perform
       service in a uniformed service shall not be
       denied initial employment, reemployment,
       retention in employment, promotion, or any
       benefit of employment by an employer on the
       basis of that membership, application for
       membership, performance of service,
       application for service, or obligation.

38 U.S.C. § 4311(a) (emphasis added). The definitions
section of USERRA explains that a “benefit of employment”
includes “any advantage, profit, privilege, gain, status,
account, or interest…that accrues by reason of an
employment       contract        or       agreement…and
includes…bonuses.” 38 U.S.C. § 4303(2).

    The plain language of USERRA thus specifies that
Huhmann was not to be denied a “benefit of employment”
or “reemployment,” which benefit includes “bonuses.” The
Code of Federal Regulations, incorporating the reasonable
certainty test and explaining the escalator principle, instructs
that “[a]s a general rule, the employee is entitled to
reemployment in the job position that he or she would have
attained with reasonable certainty if not for the absence due
to uniformed service. This position is known as the escalator
position.” 20 C.F.R. § 1002.191.

   Given the circumstances of Huhmann’s reemployment
with FedEx, the district court’s analysis made sense. It
analyzed whether Huhmann’s “benefit of employment” – the
higher bonus due to an MD-11-FO, due upon his
reemployment with FedEx – was properly denied, and
whether that denial was on account of Huhmann’s military
14            HUHMANN V. FEDERAL EXPRESS

service. Since Huhmann’s bonus was based on his job
position, and since FedEx was required to reemploy him in
the “job position that he…would have attained with
reasonable certainty,” 20 CFR § 1002.191, had he not
deployed, the district court’s only recourse was to use the
reasonable certainty test to consider whether it was
“reasonably certain” Huhmann would have attained the MD-
11-FO status had he not left to serve in the Air Force, and
therefore was due the higher bonus.

     In other words, the district court’s utilization of the
reasonable certainty test not only comported with Section
4311’s guarantee that Huhmann not be denied “benefits of
employment,” but also made a good deal of practical sense.
If it was not reasonably certain that Huhmann would have
successfully completed the MD-11-FO training in 2003 and
therefore would have been in line for the higher bonus, it
would be unreasonable to conclude that Huhmann had been
denied a benefit of employment at all, much less to conclude
that Huhmann’s military service was a “substantial factor”
in FedEx’s failure to pay the higher signing bonus. Without
evaluating the likelihood of Huhmann’s passing the training
and achieving certification as an MD-11-FO, the district
court would have been unable to evaluate Huhmann’s prima
facie case under Section 4311, or otherwise to determine to
which reemployment rights and benefits Huhmann was
entitled.

                            III.C

    FedEx next argues that even if the reasonable certainty
test is relevant to a Section 4311 claim, the district court
erred in its factual determination that Huhmann satisfied the
test. We find that the district court did not clearly err when
it determined that Huhmann was reasonably certain to have
              HUHMANN V. FEDERAL EXPRESS                  15

achieved the MD-11-FO status had he not left for his military
service.

    In Tilton v. Missouri Pacific Railroad Co. the Supreme
Court defined a two-part framework for applying the
reasonable certainty test:

       [W]e conclude that Congress intended a
       reemployed veteran who, upon returning
       from     military      service,   satisfactorily
       completes his interrupted training, to enjoy
       the seniority status which he would have
       acquired by virtue of continued employment
       but for his absence in military service. This
       requirement is met if, as a matter of foresight,
       it was reasonably certain that advancement
       would have occurred, and if, as a matter of
       hindsight, it did in fact occur.

376 U.S. at 181. FedEx concedes that Huhmann satisfied the
hindsight prong of this test because he successfully
completed training as a MD-11-FO after returning from
military leave. But FedEx asserts that Huhmann “cannot
satisfy [the foresight prong] as advancement to an MD-11
First Officer crew position was not based on the mere
passage of time,” but rather on skill, ability, and the
discretion of the flight instructors. FedEx notes that the
Supreme Court has held that the reasonable certainty test
was not satisfied when promotion depended “not simply on
seniority or some other form of automatic progression . . . .
[But] is dependent on fitness and ability and the exercise of
a discriminating managerial choice.” McKinney v. Mo. Kan.
Tex. R.R. Co., 357 U.S. 265, 272 (1958).

  It is undisputed that Huhmann had been accepted into the
MD-11-FO training program before being called up for
16               HUHMANN V. FEDERAL EXPRESS

military service. This suggests that his promotion turned on
whether he would successfully complete the training
program. While it is true that some pilots fail the MD-11-
FO training program, that fact alone is not sufficient to
render the district court’s conclusion that Huhmann was
reasonably certain to have passed the training (as a matter of
foresight) clearly erroneous: the relevant standard is
“reasonable certainty” not “absolute certainty.” 5 Given
Huhmann’s diverse and long experience as a military and
civilian pilot, his past job performance, the multiple
opportunities given to candidates in MD-11-FO training to
pass modules they initially fail, and the fact that he was
accepted into and scheduled to begin this training before
being mobilized, the district court’s conclusion that
Huhmann was reasonably certain as a matter of foresight to
complete successfully MD-11-FO training was cogent and
logical. At the very least, the district court’s conclusion on
this point was not “illogical, implausible, or without support
in inferences that may be drawn from the facts in the record.”

     5
       “It would be virtually impossible for a veteran to show, as the
Court of Appeals would require, that it was absolutely certain, ‘as a
matter of foresight’ when he entered military service, that all
circumstances essential to obtaining an advancement in status would
later occur. To exact such certainty as a condition for insuring a veteran’s
seniority rights would render these statutorily protected rights without
real meaning. As Benjamin Franklin observed, ‘In this world nothing is
certain but death and taxes.’ In every veteran seniority case the
possibility exists that work of the particular type might not have been
available; that the veteran would not have worked satisfactorily during
the period of his absence; that he might not have elected to accept the
higher position; or that sickness might have prevented him from
continuing his employment. In light of the purpose and history of this
statute, however, we cannot assume that Congress intended possibilities
of this sort to defeat the veteran’s seniority rights.” Tilton, 376 U.S. at
180-81.
                 HUHMANN V. FEDERAL EXPRESS                           17

United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir.
2009).

                                  III.D

    Finally, FedEx argues that in light of 38 U.S.C.
§ 4316(b)(1), 6 which limits non-seniority based benefits
under USERRA to those benefits available to other
employees on non-military leave, the district court erred by
not deciding if the signing bonus was a seniority-based
benefit. FedEx argues that the amount of the signing bonus
paid to Huhmann was not a seniority-based benefit, but
rather determined based on crew position without regard to
employee seniority, such that a longer-tenured 727-SO
would receive a smaller bonus than a shorter-tenured MD-
11-FO. However, the district court correctly concluded that
Huhmann’s bonus was, in part, a seniority-based benefit, as




   6
       38 U.S.C. § 4316(b)(1) reads:

         (b)(1) Subject to paragraphs (2) through (6), a person
         who is absent from a position of employment by
         reason of service in the uniformed services shall be–

              (A) deemed to be on furlough or leave of absence
              while performing such service; and

              (B) entitled to such other rights and benefits not
              determined by seniority as are generally provided
              by the employer of the person to employees
              having similar seniority, status, and pay who are
              on furlough or leave of absence under a contract,
              agreement, policy, practice, or plan in effect at the
              commencement of such service or established
              while such person performs such service.
18             HUHMANN V. FEDERAL EXPRESS

it was awarded to him on the basis of his “longevity in
employment” across the amendable period.

    Section 4303(12) defines “seniority” as “longevity in
employment together with any benefits of employment
which accrue with, or are determined by, longevity in
employment.” The text of the statute does not specify that a
benefit can be seniority-based only if the sole element that
determines its size is the number of years an employee
worked for an employer.

    Although other factors such as a pilot’s pay grade in part
defined the amount of the signing bonus, the amount of the
signing bonus was also in part determined by “longevity in
service” over the amendable period, as a pilot who was
employed by FedEx for only part of the amendable period
would receive only a pro-rated portion of the bonus. The
Bonus Letter explains that “pilots who were hired during the
amendable period and pilots who were in an inactive pay
status due to leave of absence or disability” would receive a
prorated signing bonus, and that “[w]hen proration is called
for, it will be based on the number of months a pilot was in
an active pay status during the amendable period divided by
29. For purposes of the proration, a month will count if the
pilot was active for at least half of the calendar month.”
Thus, had Huhmann not been either on military leave or in
active service during the entire amendable period, he would
not have been due a full signing bonus. The bonus,
therefore, was a “seniority-based benefit,” as it depended in
part on Huhmann’s being “employed” over the amendable
period. 7


     The Bonus Letter makes clear that “[f]or purposes of the signing
     7

bonus calculation, period of military leave will be counted as active
                HUHMANN V. FEDERAL EXPRESS                          19

    Relevant Supreme Court precedent compels this
conclusion. In Alabama Power Co. v. Davis, in finding that
pension payments were a seniority-based benefit, the Court
explained that a benefit is seniority-based if it “would have
accrued, with reasonable certainty, had the veteran been
continuously employed by the private employer, and if it is
in the nature of a reward for length of service.” 8 431 U.S.
581, 589 (1977). The signing bonus at issue satisfies the first
element of this test because, for the reasons discussed above,
it was “reasonably certain” that Huhmann would have
received the MD-11-FO signing bonus had he remained
continuously employed by FedEx from 2003 until 2006. As
to the second prong, the record in this case makes clear that
the signing bonus was not compensation for work
performed. Rather, because FedEx purposely chose to offer
the full signing bonus only to those pilots with an amount of
longevity with the company across the entire amendable
period, it was in part a “reward for length of service.” As
with the pension payments at issue in Alabama Power,
FedEx’s signing bonus helped encourage experienced
employees to support the proposed CBA and allow for
FedEx to retain a stable and experienced pilot corps.
431 U.S. at 593–94.

    Furthermore, even if the signing bonus were not a
seniority-based benefit, Section 4316 still would not bar
Huhmann’s claim. The terms of FedEx’s Bonus Letter itself
credited time served in the military towards the amendable
period, and declined to credit time on leave for other


service.” Huhmann was on military leave for the entire amendable
period.
     8
       The USERRA regulations on this point largely mirror the decision
in Alabama Power. 20 C.F.R. 1002.212.
20               HUHMANN V. FEDERAL EXPRESS

purposes. Even assuming FedEx is correct that under Section
4316 it could have denied the signing bonus to pilots on
military leave during the amendable period, because FedEx
chose to extend such benefit as a right of employment, it was
bound by the other provisions of USERRA (such as Sections
4311, 4312, and 4313) not to reduce the amount of this
employment benefit on the basis of the pilot’s absence from
work on account of military service. 9

                                  IV.

    The district court properly found that Huhmann’s claim
was not subject to the RLA’s mandatory arbitration
provision, properly relied on the escalator principle and
reasonable certainty test in evaluating Huhmann’s prima
facie case, and properly concluded that Section 4316 did not
bar Huhmann’s claim. The district court’s finding that it was
reasonably certain that Huhmann would have completed
MD-11-FO training as a matter of foresight was not clearly
erroneous.

     AFFIRMED.




     9
       The district court’s finding that Section 4316 did not bar
Huhmann’s claim does not contradict the Fifth Circuit’s decision in
Rogers v. City of San Antonio, 392 F.3d 758 (5th Cir. 2004). In that case,
the Fifth Circuit determined that lost straight-time pay, lost overtime
opportunities, and missed upgrading opportunities were not seniority-
based benefits. None of those benefits depended on a length of tenure.
Nothing in Rogers or the statute implies that § 4316 grants an employer
a right actively to discriminate against those who leave for military
service when it comes to non-seniority based benefits that are otherwise
guaranteed, explicitly, to those on military leave.
