Bearden v. Ocean Shores: Dispute Over “Scheduled to Work” Clause

Travis Bearden worked as a firefighter for the City of Ocean Shores, Washington, while also serving in the U.S. Army Reserves. Washington law, under RCW § 38.40.060, provides public employees with twenty-one days of paid military leave each year to report for required duty, training, or drills. This leave is charged only for days the employee is "scheduled to work."

In October 2019, Bearden submitted orders for training duty. The City applied his initial absence against his statutory twenty-one days of paid leave for the October 2019–September 2020 year. After exhausting that leave, Bearden used other accrued leave until February 2020, when he was placed on unpaid leave status. In July 2020, he submitted new orders extending his active duty until May 2021.

In October 2020, Bearden requested another twenty-one days of paid military leave for the new leave year beginning October 1, 2020. The City denied the request, reasoning that because he was already on extended military leave and not scheduled to work, he did not qualify under the statute. Bearden remained on active duty beyond the disputed leave year.

District Court Proceedings

In 2021, Bearden filed suit under the Uniformed Services Employment and Reemployment Rights Act (USERRA), alleging discrimination and denial of employment benefits due to the City’s refusal to provide paid military leave for the October 2020–September 2021 period. The U.S. District Court for the Western District of Washington granted summary judgment for the City. The court concluded that under the plain language of RCW § 38.40.060, Bearden was not entitled to paid leave because he had no scheduled workdays while on extended military duty.

Ninth Circuit Review

Bearden appealed to the United States Court of Appeals for the Ninth Circuit. He argued that the statute entitled him to a new twenty-one days of paid military leave each year, regardless of whether he had scheduled shifts during his military duty. The City maintained that the statute limited paid leave to periods when an employee misses scheduled work due to military obligations.

The Ninth Circuit noted that Washington courts had not clearly interpreted this statute in the context presented. While a prior Washington Court of Appeals decision touched on similar provisions, it did not resolve whether employees on extended military leave could receive new paid leave each year despite not being scheduled to work. Because the issue was dispositive of Bearden’s USERRA claims, the Ninth Circuit certified the question to the Washington Supreme Court for authoritative interpretation.

Certified Question

On May 29, 2024, the Ninth Circuit certified the following question to the Washington Supreme Court:

Is a public employee entitled to paid military leave under Wash. Rev. Code Ann. § 38.40.060 if the employee is not “scheduled to work” by the employer because the employee is on active duty during an extended military leave of absence?

The Ninth Circuit stayed further proceedings pending the Washington Supreme Court’s decision.

USERRA Legal Support

If you have experienced challenges with reemployment, benefits, or leave entitlements under USERRA, Whitcomb, Selinsky PC assists with matters involving employment rights for service members. Reach out to contact us to learn how our team can help with your USERRA concerns.