Jeong Ko v. City of La Habra

MEMORANDUM

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 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…