United States Court of Appeals
For the First Circuit
No. 06-1082
CARLOS VELÁZQUEZ-GARCÍA,
Plaintiff, Appellant,
v.
HORIZON LINES OF PUERTO RICO, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Irene M. Vera with whom Pedro J. Salicrup and Salicrup &
Rodríguez were on brief for appellant.
J. Ramón Rivera Morales with whom Jiménez, Graffam & Lausell
were on brief for appellee.
January 4, 2007
STAHL, Senior Circuit Judge. This case presents an issue
of the proper allocation of the burden of proof in cases of alleged
discriminatory treatment under the Uniformed Services Employment
and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. § 4301 et
seq. This is the first time that we have been called upon to
address this issue. Plaintiff-appellant Carlos Velázquez-García
(“Velázquez”) sued his former employer, defendant-appellee Horizon
Lines of Puerto Rico (“Horizon”), alleging that he had been fired
from his job due to his military service, in violation of USERRA.
The district court granted summary judgment in favor of Horizon.
Because we find that the district court incorrectly applied
USERRA’s burden-shifting analysis, we reverse.
I. Background
Because this is an appeal from summary judgment, we
review the facts in the light most favorable to Velázquez, drawing
all inferences in his favor. See Coyne v. Tabor Partners I, 53
F.3d 454, 457 (1st Cir. 1995).
Horizon is in the business of ocean shipping and
transportation, and operates a marine terminal in San Juan, Puerto
Rico. Velázquez began work at the terminal for Horizon's
predecessor, CSX Lines, in September 1999. He was first employed
as a yard supervisor and later became a marine supervisor. Both
positions are essentially middle management, giving Velázquez
supervisory authority over Horizon’s stevedores.
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In December 2002, Velázquez enlisted as a reservist in
the U.S. Marine Corps. He immediately reported for six months of
basic training. He returned to his job after basic training, but
continued to report for monthly weekend training sessions, as well
as annual two-week more intensive training sessions. Velázquez was
a shift employee at Horizon and often had to work weekends, so
Horizon needed to adjust his work hours to accommodate his military
schedule. In Velázquez’s pre-trial deposition,1 he stated that his
superiors complained and pressured him about the difficulty of
rescheduling his shifts. He also stated that he was frequently the
butt of jokes at work, being referred to as “G.I. Joe,” “little
lead soldier,” and “Girl Scout.”
During Velázquez’s periods of military service, Horizon
continued to pay his full salary. As a result, when Velázquez
returned to work, Horizon would deduct from his paycheck amounts
necessary to offset Velázquez’s military income for those days in
which he received both a military and a civilian paycheck.2
1
The deposition entered the record as an attachment to
Velázquez's Opposing Statement of Material Facts. It and
depositions from other employees are the primary evidence pointed
to by Velázquez in opposing summary judgment.
2
We assume that this was done in accordance with the then-
applicable regulation at 29 C.F.R. 541.118 (2003), now codified at
29 C.F.R 541.602, allowing for recoupment of military pay from
salaried employees. See also 38 U.S.C. §§ 4303(2), 4311 (adjusting
wages and salary of uniformed employee allowed under USERRA).
Neither party discusses this, and it is not contested.
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During this same time period, Velázquez began operating
a side business cashing the checks of Horizon employees. Before
2001, Horizon had paid its stevedores' daily wages in cash. In
2001, Horizon began paying daily wages by check instead. Seeing a
business opportunity, around February 2004, Velázquez began cashing
these employee checks for a fee. He did this almost exclusively
during off-duty hours, though he testified to cashing "one or two"
checks while on duty. He performed the service primarily outside
Horizon's gate or in its parking lot.3
Around September 2004, Horizon finished recouping the
salary that it was owed for the periods when Velázquez was
performing his military duties. On September 21, 2004, seven
months after he began his side business, Velázquez was observed
cashing checks by Horizon's operations manager, Roberto Batista,
one of Velázquez’s supervisors and one of the people Velázquez
described as having trouble with his military schedule. Batista
reported this to several other Horizon managers, and on September
23, 2004, Batista fired Velázquez. The termination letter did not
state a reason, but Velázquez was told that his check-cashing side
business was in violation of Horizon’s Code of Business Conduct
3
It's not clear from the record whether or the extent to which
Velázquez cashed checks on company property. However, whether he
cashed checks on duty or on company property has no effect on our
analysis.
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(“Code”).4 He was given no warnings or other prior discipline, and
had an otherwise clean record as a good employee.
Velázquez brought suit under USERRA, alleging that his
firing constituted illegal discrimination due to his military
service.5 Horizon moved for summary judgment, which the district
court granted. The district court held that Velázquez had not
shown sufficient discriminatory animus, nor had he shown that the
stated reason for his firing, the Code violation, was mere pretext.
This appeal followed.
II. Discussion
We review a district court's summary judgment de novo.
Velez v. Janssen Ortho, LLC, 467 F.3d 802, 806 (1st Cir. 2006). In
doing so, we recognize that “[w]hen a motion for summary judgment
4
The Code states, in relevant part:
No Associate should gain financially or otherwise
from a firm or individual with whom the Company does
business. Situations can arise in which an individual
unintentionally or unknowingly becomes involved in a
conflict of interest. Each Associate is responsible for
ensuring that he or she does not have conflicts of
interest. The following examples illustrate situations
or relationships that Associates should avoid:
(1) involvement in a situation in which an
Associate uses his/her position for any form of
private gain, or could lose complete independence,
objectivity or impartiality with regard to Company
business;
(2) solicitation or acceptance by an Associate or
immediate relative (including immediate relative by
marriage) of any benefit from any person.
5
He also brought supplemental claims under Puerto Rico law,
which are not on appeal here.
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is made . . . an adverse party may not rest upon the mere
allegations or denials of the adverse party's pleading, but the
adverse party's response, by affidavits or as otherwise provided in
this rule, must set forth specific facts showing that there is a
genuine issue for trial.” Fed. R. Civ. P. 56(e). “The mere
existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (emphasis in original). An issue is genuine “if the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party,” id. at 248, and a fact is material if it has
the “potential to affect the outcome of the suit,” Santiago-Ramos
v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000)
(internal quotation marks omitted) (quoting Sánchez v. Alvarado,
101 F.3d 223, 227 (1st Cir. 1996)). “Neither wishful thinking . .
. nor conclusory responses unsupported by evidence will serve to
defeat a properly focused Rule 56 motion.” Griggs-Ryan v. Smith,
904 F.2d 112, 115 (1st Cir. 1990) (citation omitted).
A. USERRA Actions
We have not previously addressed the mechanism of proving
discrimination claims under USERRA. Thus, we first turn to the
statute and its history. USERRA provides, in relevant part, that:
(a) A person who is a member of, applies to be a
member of, performs, has performed, applies to perform,
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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.
. . .
(c) An employer shall be considered to have engaged
in actions prohibited--(1) under subsection (a), if the
person's membership, application for membership, service,
application for service, or obligation for service in the
uniformed services is a motivating factor in the
employer's action, unless the employer can prove that the
action would have been taken in the absence of such
membership, application for membership, service,
application for service, or obligation for service.
38 U.S.C. § 4311.
The statute was passed in response to the Supreme Court’s
decision in Monroe v. Standard Oil Co., 452 U.S. 549 (1981), in
which the Court held under the predecessor of USERRA, the Veterans’
Reemployment Rights Act (“VRRA”),6 that claims for anti-military
employment discrimination would lie only if the employee could show
that the discrimination was “motived solely by reserve status.”
Id. at 559 (emphasis added). This, in effect, kept the burden on
the employee to show that any offered reason by the company was
actually a pretext. In the House report accompanying passage of
USERRA, Congress said that Monroe “misinterpreted the original
6
VRRA was enacted as § 404 of the Vietnam Era Veterans’
Readjustment Assistance Act of 1974, Pub. L. No. 93-508, 88 Stat.
1578. It was originally codified at 38 U.S.C. § 2021 et seq.,
before being moved to 38 U.S.C. § 4301 et seq. See Pub. L. No.
102-568, § 506(a), 106 Stat. 4320, 4340 (1992). Those sections
were then replaced by USERRA. See Pub. L. No. 103-353, 108 Stat.
3149 (1994).
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legislative intent,” which was to place “the burden of proof . . .
on the employer, once a prima facie case is established.” H.R.
Rep. No. 103-65, at 24 (1994), reprinted in 1994 U.S.C.C.A.N. 2449,
2457. The House report called instead for application of the
burden shifting framework of NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983). Id.
Under Transportation Management, which addresses claims
of unfair labor practices under the National Labor Relations Act,
“the employee 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.” Leisek
v. Brightwood Corp., 278 F.3d 895, 898-99 (9th Cir. 2002)
(alterations in original) (quoting Transp. Mgmt., 462 U.S. at 401).
The circuit courts that have addressed the issue of burden-shifting
under USERRA are unanimous in adopting this “substantial or
motivating factor” test, rather than the “sole motivating factor”
test of Monroe, and in putting the burden on the employer to show
lack of pretext. See Coffman v. Chugach Support Servs., Inc., 411
F.3d 1231, 1238-39 (11th Cir. 2005); Gagnon v. Sprint Corp., 284
F.3d 839, 853-54 (8th Cir. 2002); Leisek, 278 F.3d at 899; Hill v.
Michelin N. Am., Inc., 252 F.3d 307, 312 (4th Cir. 2001); Sheehan
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v. Dep’t of Navy, 240 F.3d 1009, 1014 (Fed. Cir. 2001); Gummo v.
Vill. of Depew, N.Y., 75 F.3d 98, 106 (2d Cir. 1996).
We agree. The language of the statute and the
legislative history make clear that the employee need only show
that military service was "a motivating factor" in order to prove
liability, unless "the employer can prove that the [adverse
employment] action would have been taken" regardless of the
employee's military service. 38 U.S.C. § 4311(c) (emphasis added).
Therefore, we hold that “in USERRA actions there must be an initial
showing by the employee that military status was at least a
motivating or substantial factor in the [employer] action, upon
which the [employer] must prove, by a preponderance of evidence,
that the action would have been taken despite the protected
status.” Sheehan, 240 F.3d at 1014.
This two-pronged burden-shifting analysis is markedly
different from the three-pronged burden-shifting analysis in Title
VII actions. Under the McDonnell Douglas framework, the burden of
persuasion in Title VII actions always remains with the employee.
Therefore, after the employee establishes a prima facie case of
discriminatory animus, the employer only has the burden of
producing “some legitimate, nondiscriminatory reason for the
employee's [termination].” McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). Then the burden shifts back to the employee
to show that “the employer's stated reason for terminating him was
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in fact a pretext.” Hodgens v. Gen. Dynamics Corp., 144 F.3d 151,
161 (1st Cir. 1998). By contrast, under USERRA, the employee does
not have the burden of demonstrating that the employer’s stated
reason is a pretext. Instead, the employer must show, by a
preponderance of the evidence, that the stated reason was not a
pretext; that is, that “the action would have been taken in the
absence of [the employee’s military] service." 38 U.S.C. § 4311(c)
(emphasis added).
B. Analysis
1. Discriminatory Motivation
The district judge held that Velázquez failed to produce
sufficient evidence for a reasonable jury to believe that
Velázquez's military service was at least "a motivating factor" in
Horizon's decision to fire him. That is, the judge ruled that
Velázquez was unable to show that Horizon at least partially based
its decision to fire him on his military service. The district
judge gave three principal reasons for this ruling. First, he
discounted Velázquez’s testimony of anti-military remarks made by
his co-workers, in part because he had not reported any harassment
to Horizon. Second, he said that the evidence of the timing of his
firing close to a return from training was of no probative value
because he had returned from several other training sessions
without being fired. Third, he noted that other Horizon employees
in the military had not been demoted or fired. Although the
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district judge correctly cited the "motivating factor" test of
Sheehan, we believe, after carefully reviewing the record, that the
judge committed error on each of these three points.
First, the court discounted Velázquez’s testimony of
anti-military remarks because it was his own self-serving testimony
and because he had not previously reported it or made a formal
complaint. Here, the distinction in Rule 56 between “specific
facts” and “mere allegations” is important. Fed. R. Civ. P. 56(e).
Had Velázquez merely rested on allegations of military
discrimination, this would be a different case. Instead, he
provided deposition testimony presenting specific instances of
anti-military remarks, as well as complaints and pressure from his
superiors, and it is for the jury, not the judge, to determine his
credibility. See Anderson, 477 U.S. at 255 ("[c]redibility
determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those
of a judge").
Moreover, whether a nonmovant's deposition testimony or
affidavits might be self-serving is not dispositive. It is true
that testimony and affidavits that "merely reiterate allegations
made in the complaint, without providing specific factual
information made on the basis of personal knowledge" are
insufficient. Santiago-Ramos, 217 F.3d at 53 (citing Roslindale
Coop. Bank v. Greenwald, 638 F.2d 258, 261 (1st Cir. 1981)).
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However, a "party's own affidavit, containing relevant information
of which he has first-hand knowledge, may be self-serving, but it
is nonetheless competent to support or defeat summary judgment."
Santiago-Ramos, 217 F.3d at 53 (internal quotation marks omitted)
(quoting Cradle Co. v. Hayes, 116 F.3d 957, 961 n.5 (1st Cir.
1997)). Therefore, provided that the nonmovant's deposition
testimony sets forth specific facts, within his personal knowledge,
that, if proven, would affect the outcome of the trial, the
testimony must be accepted as true for purposes of summary
judgment. See Napier v. F/V Deesie, Inc., 454 F.3d 61, 66 (1st
Cir. 2006); Simas v. First Citizens' Fed. Credit Union, 170 F.3d
37, 50-51 (1st Cir. 1999).
On appeal, Horizon argues that the anti-military comments
were just "stray remarks," and as such cannot be sufficient
evidence of discriminatory animus. If true, that would undermine
Velázquez's argument that the issues raised are "genuine." See
Anderson, 477 U.S. at 248. But Horizon's argument oversimplifies
the analysis.7 First, it is only true that "'stray workplace
remarks' . . . normally are insufficient, standing alone, to
7
In the following analysis we assume, without deciding, that
standards for showing discriminatory animus under other anti-
discrimination statutes, such as Title VII, apply equally to
showings of discriminatory animus under USERRA. See Tarin v.
County of Los Angeles, 123 F.3d 1259, 1266 n.7 (9th Cir. 1997)
(noting, in case under predecessor to USERRA, that "Title VII
analysis has been extended to cases involving discrimination on the
basis of other protected characteristics").
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establish . . . the requisite discriminatory animus." González v.
El Día, Inc. 304 F.3d 63, 69 (1st Cir. 2002) (emphasis added); see
Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 36 (1st Cir. 2001).
Here, Velázquez points not only to the remarks by co-workers, but
also to complaints by Batista and others about the difficulty of
adjusting Velázquez's work schedule, and to the timing of his
firing (which we address below). See McMillan v. Mass. Soc'y for
Prevention of Cruelty to Animals, 140 F.3d 288, 300-01 (1st Cir.
1998) ("stray remarks may properly constitute evidence of
discriminatory intent for the jury to consider in combination with
other evidence"); cf. Santiago-Ramos, 217 F.3d at 55
(decisionmaker's comments and timing of firing are material facts
for a jury to consider).
Here, the remarks that Velázquez testified to were not
made by those who participated in the decision to fire him, and
this does limit their probativeness. See McMillan, 140 F.3d at
301. But at least one such speaker, Juan Carrero, was shift marine
manager and appears to be superior to Velázquez. Carrero was also
in part responsible for scheduling, which was the source of
Horizon's problems with Velázquez. Thus, his remarks could carry
some weight with a jury. Furthermore, stray remarks by
nondecisionmakers, while insufficient standing alone to show
discriminatory animus, may still be considered "evidence of a
company's general atmosphere of discrimination," and thus can be
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relevant. Santiago-Ramos, 217 F.3d at 55 (citing Sweeney v. Bd. of
Trustees of Keene State Coll., 604 F.2d 106, 113 (1st Cir. 1979)).
"[S]uch evidence . . . does tend to add 'color' to the employer's
decisionmaking processes and to the influences behind the actions
taken with respect to the individual plaintiff." Cummings v.
Standard Register Co., 265 F.3d 56, 63 (1st Cir. 2001) (internal
quotation marks omitted) (quoting Conway v. Electro Switch Corp.,
825 F.2d 593, 591 (1st Cir. 1987)).8
Finally, the fact that Velázquez failed to report the
remarks earlier is not dispositive. Cf. Faragher v. City of Boca
Raton, 524 U.S. 775, 808 (1998) (holding that plaintiff's failure
to report sexual harassment is not an affirmative defense to a
Title VII claim where plaintiff was discharged). In an atmosphere
such as a working seaport, it is reasonable for a person to avoid
making a scene over such behavior, or even to believe that the
8
We note also that the comments at issue in González and the
other "stray remark" cases cited by Horizon were ambiguous even as
to their meaning, much less whether they could be taken as evidence
of discrimination. See González, 304 F.3d at 70 ("it is far from
clear that the alleged remarks bespeak any age-based animus at
all"); Williams v. Raytheon Co., 220 F.3d 16, 20 (1st Cir. 2000)
(remarks about changing company culture of "old, white men" not
literal, given hiring practices); Shorette v. Rite Aid of Me.,
Inc., 155 F.3d 8, 13 (1st Cir. 1998) (asking employee how old he
was and when he planned to retire "demonstrates nothing"). Here,
the remarks that Velázquez describes in his testimony are clearly
anti-military. Of course, this is not to say that they are
necessarily proof of anti-military discriminatory animus at
Horizon. A jury could find, for example, that the remarks were not
malicious. But this is distinct from the question of the actual
meaning of the words being uttered, for which there is no
ambiguity.
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behavior is only in jest, only to discover too late that it was a
harbinger of worse discrimination to come. Velázquez’s failure to
report the behavior may be considered by a jury in judging his
credibility, but it is evident to us that a jury could reasonably
decide to place no weight on his prior silence. Thus, it is a jury
that should ultimately decide.
The district judge next discounted the timing of
Velázquez’s firing, saying that the fact that he was fired after
returning from his military service is of no probative value, given
that he had returned from other periods of service without being
fired. But the emphasis of Velázquez's argument is elsewhere. The
important factor, he argues, is not the time of his return from
service, but rather the time of his final recoupment of the salary
differential that he owed to Horizon. Horizon, according to
Velázquez, waited until Velázquez had paid back the money he owed
Horizon for the periods when his civilian salary was supplemented
by his military salary. Once he had repaid the overage, he claims,
Horizon then found the pretext to fire him.
Such facts, if true, could be considered evidence of
discriminatory animus. The other USERRA cases that address the
timing of firing look at "proximity in time between the employee's
military activity and the adverse employment action." Sheehan, 240
F.3d at 1014; see Maxfield v. Cintas Corp. No. 2, 427 F.3d 544, 552
(8th Cir. 2005). But that is not an exclusive test, and there is
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no reason to limit ourselves to looking only at the proximity of
the adverse employment action to military activity. The proximity
to other military-related events may also be probative. If what
Velázquez alleges is true, Horizon should not escape liability for
making the tactical decision to wait until it recouped the salary
it was owed before using a pretext to fire Velázquez.
Finally, the district judge held that the fact that the
company had not fired other employees who served in the military
demonstrated that they did not fire Velázquez for discriminatory
reasons. As an initial matter, the failure to treat all members of
a class with similar discriminatory animus does not preclude a
claim by a member of that class who is so treated. Cf. Conn. v.
Teal, 457 U.S. 440, 455 (1982) ("Title VII does not permit the
victim of a facially discriminatory policy to be told that he has
not been wronged because other persons of his or her race or sex
were hired"); Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579
(1978) ("A racially balanced work force cannot immunize an employer
from liability for specific acts of discrimination.").
Furthermore, the district court failed to address
Velázquez’s argument that the other employees were not shift
employees, and that therefore their military service did not cause
as much scheduling conflict as his did. A reasonable jury could
conclude that the different situations of these employees could
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result in Horizon firing Velázquez for his military service, while
tolerating the other employees serving in the military.
For these reasons, we find that Velázquez has presented
sufficient facts to withstand summary judgment on the question of
whether his military status was at least a motivating factor in his
dismissal. The issue is one for a jury.
2. Pretext
After holding that Velázquez had not provided sufficient
evidence to show that his military status was a motivating factor
in his dismissal, the district judge held further that, even if he
had, Horizon had adequately demonstrated that it had a non-
pretextual reason for firing Velázquez.
The district judge stated the rule of law correctly,
adopting, as we have today, the Federal Circuit’s holding in
Sheehan. However, he proceeded to implicitly follow the McDonnell
Douglas framework, keeping the burden on Velázquez. For example,
he held that Horizon “was entitled to take the action it did,”
Dist. Ct. Op. at 12, that it was “justified in dismissing”
Velázquez, id. at 13, and that Velázquez “failed to produce
evidence to counter this determination and has produced no evidence
that would lead the Court to believe that [Horizon’s] stated reason
for his termination was pretextual in nature,” id. The district
court thus kept the burden of persuasion on Velázquez, and this was
error.
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The issue under USERRA is not whether an employer is
“entitled” to dismiss an employee for a particular reason, but
whether it would have done so if the employee were not in the
military. Here, Velázquez’s violation of the Code may well be a
fireable offense under Horizon’s policies, but that is only the
beginning of the analysis. Horizon must go further and
demonstrate, by a preponderance of the evidence, that it would
indeed have fired Velázquez, regardless of his military status.
There is sufficient doubt on this issue to make it a jury
question. Velázquez points out that he never received a copy of
the Code,9 nor any warnings to stop his check-cashing business,
both of which one might have expected to occur before a firing,
particularly in a case where the Code is arguably ambiguous as to
whether something like check-cashing is in fact a violation.10
9
Our concern here is not strictly the lack of notice that the
check-cashing was in violation of the Code. That issue does not
arise in the USERRA analysis--USERRA’s concern is discrimination,
not due process. However, the failure to distribute the Code could
be considered some evidence of how seriously Horizon took the Code
and its violations. One would have expected a company to inform
its employees about offenses that would result in immediate firing
without warning, particular when the seriousness of such offenses
is not intuitively obvious.
10
At oral argument, Horizon’s principal explanation for the
seriousness of the offense was that it contradicted a company
policy of paying employees by check, rather than cash. Thus,
counsel for Horizon argued, a middle manager of the company was
facilitating something directly contrary to the company’s desires.
While we can think of reasons why having a manager run a check-
cashing business for his supervisees is inappropriate, this
proffered reason is not convincing. At some point, the stevedores
must turn their checks into cash, and it’s not clear to us why
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Furthermore, some other employees who had similar Code violations
were not summarily fired, as Velázquez was. Also questionable is
the fact that Velázquez had been cashing checks for Horizon
employees adjacent to Horizon property for seven months before
Horizon claimed to discover these acts. A reasonable jury could
question the truth of that claim, given that the alleged discovery
occurred so close to the final recoupment of salary.11 Given this,
Horizon has not met its burden at summary judgment of showing that
no reasonable jury could find that Velázquez's check-cashing
business was a mere pretext for his dismissal. Horizon points only
to the Code violation and, under USERRA, that is not enough.
III. Conclusion
For the forgoing reasons we reverse the district court's
grant of summary judgment and remand for further proceedings
consistent with this opinion.
Horizon should desire otherwise. As far as we can tell, the switch
to checks was merely for the convenience of the company, not
because of any desire for their employees’ funds to be slightly
less liquid.
11
Batista did testify that he had "heard rumors" about the
check-cashing prior to September 21, 2004.
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