Thomas Krzyminski v. Spokane County

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 9, 2020
• Docket: 20-35182
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

THOMAS KRZYMINSKI, No. 20-35182

Plaintiff-Appellant, D.C. No. 2:19-cv-00238-SAB

v. MEMORANDUM* SPOKANE COUNTY,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Washington Stanley Allen Bastian, Chief District Judge, Presiding

Submitted December 7, 2020** Seattle, Washington

Before: McKEOWN and WATFORD, Circuit Judges, and ROTHSTEIN,*** District Judge.

Thomas Krzyminski appeals the district court’s dismissal of his action

against Spokane County under the Uniformed Services Employment and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Barbara Jacobs Rothstein, United States District Judge for the Western District of Washington, sitting by designation. Reemployment Rights Act (“USERRA”), 38 U.S.C. §§ 4301–4344. Krzyminski

worked as a lawyer for the County and alleged that he was denied pension credit

for the time he served on active duty in the Washington Air National Guard, and

that the County failed to inform him that he needed to pay make-up contributions

within five years in order to receive the pension credit.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo the

district court’s grant of dismissal and affirm. Williams v. Gerber Products Co.,

552 F.3d 934, 937 (9th Cir. 2008).

To survive a Rule 12(b)(6) motion to dismiss, Krzyminski must allege

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007). Count 1 alleges that the County violated

USERRA § 4318 by failing to give Krzyminski pension service credit for his

military leave time and by failing to notify him of the make-up payment

requirement. But the County had no obligation to take either of these actions, and

therefore Count 1 fails to state a claim upon which relief can be granted.

Spokane County had no obligation to give Krzyminski pension service credit

because Krzyminksi failed to pay the required make-up contributions within five

years. Section 4318 requires employers to apply pension credit for military leave

time only when certain conditions are met, including the condition that the

employee pay make-up contributions within five years. See 38 U.S.C.

2 § 4318(b)(2); see also 20 C.F.R. § 1002.262(c) (“If the employee’s plan is

contributory and he or she does not make up his or her contributions . . . , he or she

will not receive the . . . accrued benefit attributable to his or her contribution.”).

Although Krzyminski argues that pension service credit is not an “accrued benefit”

and is therefore not contingent on the make-up payments, the regulations are to the

contrary. See 20 C.F.R. § 1002.261 (“[A]ccrued benefit will be increased for the

period of service once he or she is reemployed and, if applicable, has . . . made any

employee contributions that may be required to be made under the plan.”).

Because the pension service credit is contingent on the make-up payments, which

Krzyminski did not pay, the County had no obligation to provide the credit.

The County likewise had no obligation to notify Krzyminski of the make-up

payment requirement. Krzyminski argues that the County’s obligation to

“allocate” its make-up contribution for the employee implies an obligation to

notify the employee of the requirement. 20 C.F.R. § 1002.261. Even if that

inference were valid, the argument fails because in this instance, the allocation

obligation does not apply. The allocation obligation applies only when the

retirement plan is a “defined contribution plan.” 20 C.F.R. § 1002.261. The plan

here—“PERS 2”—is instead a “defined benefit plan.” See 38 U.S.C.

§ 4318(a); 20 C.F.R. § 1002.260; Probst v. Dep’t of Retirement Sys., 271 P.3d 966,

967 (Wash. App. 2012) (describing PERS 2 as a “defined benefit plan”). Because

3 the County had neither an obligation to provide the pension service credit nor an

obligation to provide notice of the make-up payment requirement, Count 1 fails to

state a claim and was therefore properly dismissed by the district court.1

Count 2 alleges that the County’s failure to give pension service credit also

violated USERRA §§ 4312–4313. But because sections 4312 and 4313 impose no

such obligation on the County, Count 2 was properly dismissed. Sections 4312

and 4313 provide that a returning servicemember employee must be returned to the

seniority, status, and pay-rate that the employee would have obtained but for the

military leave. Krzyminski argues that the term “seniority” includes pension

service credit. Krzyminski asserts that by declining to give him pension service

credit, Spokane County failed to return him to his proper position of “seniority.”

This interpretation of sections 4312 and 4313 is untenable because it would render

meaningless a separate section of the statute—4318—which lays out how to obtain

pension service credit. See 38 U.S.C. § 4318(a)(1)(A) (“[T]he right to pension

benefits of a person reemployed under this chapter shall be determined under this

section.”). Because the term “seniority” in sections 4312 and 4313 does not

encompass pension service credit, the County did not violate the provision by

1 Krzyminski also argues that the district court’s dismissal of this count was error because it relied on state law even though USERRA § 4302(b) explicitly supersedes any state law that limits its rights and benefits. This argument is unavailing. The district court noted state law, but did not rely on it.

4 failing to provide such credit.

Count 3 alleges that the County also violated section 4334, but section 4334

only requires an employer to post a notice written by the Secretary of Labor

“where employers customarily place notices for employees.” 38 U.S.C.

§ 4334(a),(b). Krzyminski does not allege that the County failed to post the notice,

and therefore Count 3 was properly dismissed.

Citing to Imel v. Laborers Pension Tr. Fund for N. California, 904 F.2d

1327, 1330–1331 (9th Cir. 1990), Krzyminski urges this court to read the statute

liberally. But even on a liberal reading, no obligation of the County to provide the

pension credit and to provide notice of the make-up payments can be found.

AFFIRMED.