Jeong Ko v. CITY OF LA HABRA, A Public Entity

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEONG KO,
Plaintiff - Appellant,
v.
CITY OF LA HABRA, A Public Entity,
Defendant - Appellee.
No. 11-55771
D.C. No. 2:10-cv-05305-R-PJW
MEMORANDUM*
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
FILED
JUL 24 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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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
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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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