Case: 14-10170 Date Filed: 09/11/2014 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10170
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cv-01749-VEH
JAMES L. WARD,
Plaintiff-Appellant,
versus
UNITED PARCEL SERVICE,
RON HEADLEY,
RUSSELL HAMRAC,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(September 11, 2014)
Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
James L. Ward, a veteran of the U.S. Army Reserves, appeals from the grant
of summary judgment in favor of his civilian employer, United Parcel Service
Case: 14-10170 Date Filed: 09/11/2014 Page: 2 of 11
(UPS), on his discrimination and retaliation claims brought under the Uniformed
Services Employment and Reemployment Rights Act of 1994 (USERRA), as well
as his discrimination claim brought under the Americans with Disabilities Act of
1990 (ADA), as amended by the ADA Amendments Act of 2008 (ADAAA). 1
After review of the parties’ arguments and the record, we affirm.
I.
In 2003 Ward left his job at UPS after being called to active-duty military
service. While stationed in Iraq, he suffered a combat injury to his left knee. As a
result, when Ward returned from Iraq, UPS denied his July 2005 request to return
to work because his service-related injury prevented him from performing any full-
time union job at the Anniston Center where he had worked. Ward then filed a
complaint with the U.S. Department of Labor (DOL) in the fall of 2005, asking
that UPS reinstate him to full-time employment. Ward and UPS settled this
complaint.
In 2006 UPS placed Ward in an operations-clerk position, but he was
removed from that job in October 2009 when its former occupant, who had
seniority, returned from her own tour of military duty. Ward then remained out of
work until early 2011, when he returned to work at UPS after accepting two part-
1
Ward’s suit also raised USERRA claims against UPS officials Russell Hamrac and Ron
Headley, as well as several state-law tort claims. Ward does not challenge the disposition of
these claims on appeal.
2
Case: 14-10170 Date Filed: 09/11/2014 Page: 3 of 11
time positions that involved scanning and loading packages. Ward’s USERRA
discrimination and retaliation claims challenge UPS’s actions that kept Ward out of
work during this 14-month period.
In March 2011, Ward’s UPS supervisor learned that Ward was going to see
his private physician because he was experiencing pain in his leg. Ward’s
supervisor later instructed Ward to see a company physician before he could return
to work. The company doctor cleared Ward to return to work. Ward also provided
UPS with a note from his private doctor.
Then in May 2011, UPS officials met with Ward and accused him of
submitting a falsified doctor’s note from his private doctor during the March 2011
events just described. Ward alleged that he was terminated at this meeting,
although UPS disputes that fact. Regardless, apparently after investigating who
prepared the disputed doctor’s note, UPS told Ward to return to work. UPS also
paid Ward for two days of missed work between the date of the meeting and when
Ward returned to work. At some later date, Ward again changed to the operations-
clerk position and he was still employed in that job with UPS as of May 2014.
In May 2012, Ward filed suit against UPS and two of his supervisors
alleging discrimination and retaliation under the USERRA, discrimination and
retaliation under the ADA, and various state law tort claims. After discovery, UPS
filed a motion for summary judgment on all of Ward’s claims, which the district
3
Case: 14-10170 Date Filed: 09/11/2014 Page: 4 of 11
court granted. Ward now appeals the granting of summary judgment on three
claims: (1) the USERRA discrimination claim, based on UPS’s failure to employ
Ward between October 2009 and January 2011; (2) the USERRA retaliation claim,
based on UPS’s failure to employ him during the same time period; and (3) the
ADA discrimination claim with regard to UPS’s conduct in March and May 2011.
II.
We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the non-moving party. Brooks v. Cnty.
Comm’n of Jefferson Cnty., 446 F.3d 1160, 1161–62 (11th Cir. 2006). Summary
judgment is appropriate if the movant shows that no genuine issue of material fact
exists, and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
The moving party bears the initial burden of demonstrating that no genuine issue of
material fact exists. Brooks, 446 F.3d at 1162. If the moving party meets its initial
burden, the non-movant then bears the responsibility to demonstrate the existence
of a genuine issue of material fact. Fitzpatrick v. City of Atlanta, 2 F.3d 1112,
1116 (11th Cir. 1993).
A. USERRA Discrimination Claim
Ward first argues that the district court erred in granting summary judgment
on his USERRA discrimination claim. Ward claims that UPS did not allow him to
combine an open part-time scanning position with another part-time clerk position
4
Case: 14-10170 Date Filed: 09/11/2014 Page: 5 of 11
occupied by an employee who had less seniority. Ward also claims that UPS made
it onerous for him to return to work by requiring him to submit to numerous,
unwarranted medical evaluations.
Under the USERRA, a person who is a member of or who has performed 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” or performance of service. 38 U.S.C. § 4311(a).
An employer, therefore, violates the USERRA where the employee’s membership
or service in the uniformed services is a “motivating factor” in the employer’s
failure to reemploy the individual. See id. § 4311(c)(1).
To establish a prima facie case of discrimination under the USERRA, the
plaintiff must demonstrate by a preponderance of the evidence that his military
membership or service was a motivating factor in the employer’s decision. See
Coffman v. Chugach Support Servs., Inc., 411 F.3d 1231, 1238 (11th Cir. 2005).
A motivating factor does not necessarily have to be the sole cause for the
employer’s decision, but is defined as one of the factors that a truthful employer
would list as its reasons for its decision. Id. A court can infer a discriminatory
motivation from a variety of considerations, such as: (1) the temporal proximity
between the plaintiff’s military activity and the adverse employment action;
(2) inconsistencies between the proffered reason for the employer’s decision and
5
Case: 14-10170 Date Filed: 09/11/2014 Page: 6 of 11
other actions of the employer; (3) an employer’s expressed hostility toward
members of the protected class combined with its knowledge of the plaintiff’s
military activity; and (4) disparate treatment of similarly situated employees. Id.
Here, Ward did not present sufficient evidence that would allow a
reasonable jury to find that his military service was a motivating factor in UPS’s
failure to employ him between October 2009 and January 2011. Notably, he failed
to offer evidence of express hostility towards members of the military or disparate
treatment of similarly situated employees. See id. At best, Ward attempted to
show inconsistencies in UPS’s proffered reasons for its actions. But the evidence
Ward offered did not show a material dispute of fact.
First, Ward failed to offer concrete evidence—beyond his own deposition
testimony claiming he believed another qualifying position existed—to dispute
UPS’s decision not to combine two part-time positions. Ward’s failure is
particularly significant given UPS’s Business Manager Russell Hamrac’s
testimony that the second position Ward pointed to (1) did not meet Ward’s
medical restrictions and (2) necessarily had to be performed at the same time as the
other available part-time position. Second, Ward did not offer sufficient evidence
to dispute UPS’s contention that its requests for additional medical evaluations
were good faith efforts to get updated information on Ward’s physical restrictions.
6
Case: 14-10170 Date Filed: 09/11/2014 Page: 7 of 11
Nor has Ward offered evidence that these requests prevented him from returning to
work during the disputed period.
Because Ward has not shown a material dispute of fact as to whether his
military service was a motivating factor in UPS’s failure to employ him between
October 2009 and January 2011, the district court did not err in granting summary
judgment in favor of UPS on Ward’s USERRA discrimination claim.
B. USERRA Retaliation Claim
Ward next argues that the district court wrongly concluded that he had failed
to show evidence of retaliation under the USERRA. See 38 U.S.C. § 4311(b). He
contends that UPS retaliated against him for filing his 2005 DOL complaint by
holding him out of work for 14 months after he was removed from the operations-
clerk position in 2009. Ward argues that a jury could find causation despite the
lack of temporal proximity, because UPS retaliated against him when the “first
opportunity” presented itself.
The USERRA prohibits an employer from taking an adverse employment
action against employees who seek to enforce the Act’s protections. 38 U.S.C.
§ 4311(b). An employer engages in prohibited retaliatory conduct where it takes
an adverse action against an employee motivated by that employee’s efforts to
enforce the USERRA, unless the employer can prove that the action would have
been taken in the absence of the employee’s protected activity. Id. § 4311(c)(2);
7
Case: 14-10170 Date Filed: 09/11/2014 Page: 8 of 11
see also Sheehan v. Dep’t of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001)
(stating that the USERRA’s enactment confirmed “that the standard of proof in a
discrimination or retaliation case is the so-called ‘but-for’ test” (quotation marks
omitted)).
In the context of employment retaliation cases, a plaintiff’s burden to prove
causation can be met by showing a close temporal proximity between the
statutorily protected activity and adverse-employment action. Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (per curiam). Where there
was a significant time gap between the protected activity and the adverse action,
the plaintiff must offer additional evidence to demonstrate a causal connection,
such as a pattern of antagonism or that the adverse action was the first opportunity
for the employer to retaliate. See, e.g., Kachmar v. SunGard Data Sys., Inc., 109
F.3d 173, 177 (3d Cir. 1997) (evidence of a “pattern of antagonism” following the
protected activity may give rise to the inference of causation); Dale v. Wynne, 497
F. Supp. 2d 1337, 1346 (M.D. Ala. 2007) (“In this instance, a six-week gap is
enough to show temporal proximity, particularly because Dale’s return to work
was the first opportunity Wilson had to retaliate against her.”).
Here, the district court did not err in concluding that Ward failed to point to
evidence supporting his claim that his 2005 DOL complaint was the motivating
factor behind UPS’s allegedly adverse actions in 2009. 38 U.S.C. § 4311(b),
8
Case: 14-10170 Date Filed: 09/11/2014 Page: 9 of 11
(c)(2). The temporal gap between the two events was too long to demonstrate
causation without additional evidence. See Thomas, 506 F.3d at 1364 (“[M]ere
temporal proximity, without more, must be ‘very close.’”). Although Ward
claimed UPS’s employment decision in 2009 was its “first opportunity” to
retaliate, the record does not support this assertion given that UPS made at least
two other intervening decisions to re-employ Ward. Because Ward has not offered
evidence showing a causal connection between his 2005 DOL complaint and his
period of unemployment between 2009 and 2011, the district court did not err in
granting summary judgment for UPS on Ward’s USERRA retaliation claim.
III. ADA Discrimination Claim
Lastly, Ward argues that the district court erred when it granted summary
judgment on his ADA discrimination claim with regard to the events occurring in
March and May 2011. He argues that the court wrongly concluded that his
termination in May 2011 and his temporary loss of two and a half days’ worth of
pay did not qualify as adverse employment actions. Additionally, Ward argues
that he presented sufficient evidence that he had been discriminated against on
account of his disability, which was a limp.
The ADA holds that “[n]o covered entity shall discriminate against a
qualified individual on the basis of disability in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee
9
Case: 14-10170 Date Filed: 09/11/2014 Page: 10 of 11
compensation, job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). We analyze ADA discrimination claims
under the McDonnell Douglas burden-shifting framework. See Cleveland v. Home
Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973)). To establish a
prima facie case, a plaintiff may show that (1) he was disabled, (2) he was
qualified to perform the job, and (3) he was subjected to an adverse employment
action because of his disability. Cleveland, 369 F.3d at 1193. If the plaintiff meets
his prima facie burden, and the defendant presents a legitimate, non-discriminatory
reason for its actions, the plaintiff may then demonstrate that the reason given was
a pretext for disability discrimination. Id.
We have also cautioned that “establishing the elements of the McDonnell
Douglas framework is not, and never was intended to be, the sine qua non for a
plaintiff to survive a summary judgment motion in an employment discrimination
case.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). A
plaintiff also may defeat a summary judgment motion by presenting “a convincing
mosaic of circumstantial evidence that would allow a jury to infer intentional
discrimination by the decisionmaker.” Id. (quotation marks omitted).
Here, even assuming both that Ward’s permanent limp qualified as a
disability under the ADA and that he suffered an adverse employment action, the
10
Case: 14-10170 Date Filed: 09/11/2014 Page: 11 of 11
district court correctly concluded that he failed to present sufficient evidence of a
causal link between the adverse action and the disability. The record does not
support Ward’s claim that he was singled out for the company-doctor examination
based on his permanent limp. To the contrary, Ward does not dispute that he was
having leg pain and was going to see his personal doctor. The record also shows
that UPS had a policy of sending its workers to a company doctor when they
complained of pain while on the job, which Ward does not dispute. Neither does
he demonstrate that UPS discriminatorily applied this policy or that he was treated
differently than other employees in this regard.
Likewise, Ward failed to offer evidence that his alleged termination was
related to his disability instead of UPS’s concerns that he may have falsified a
doctor’s note. As a result, Ward has not shown a material dispute of fact on his
ADA discrimination claim.
IV.
Because the district court did not err in granting summary judgment in favor
of UPS on Ward’s USERRA and ADA claims, we AFFIRM.
11