Brown v. State

Robinson, J.,

¶ 26. dissenting. If I were a factfinder faced with the evidence presented by the parties in connection with this summary judgment motion, I might well find for defendants. But that is not our role on summary judgment. See Booska v. Hubbard Ins. Agency, Inc., 160 Vt. 305, 309, 627 A.2d 333, 335 (1993) (“Summary judgment is not a substitute for a determination on the merits, so long as evidence has been presented which creates an issue of material fact, no matter what view the court may take of the relative weight of that evidence.” (quotation omitted)). In determining whether, on the basis of the record before us, a party is entitled to summary judgment, we must “afford the nonmoving party ‘the benefit of all reasonable doubts and inferences.’ ” Glassford v. BrickKicker, 2011 VT 118, ¶ 12, 191 Vt. 1, 35 A.3d 1044 (quoting Doe v. Forrest, 2004 VT 37, ¶ 9, 176 Vt. 476, 853 A.2d 48); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether [the judge] is ruling on a motion for summary judgment or for a directed verdict.”).

¶ 27. As the majority notes, an employee alleging discrimination under the USERRA has the initial burden of showing that the employee’s military service was a “substantial or motivating factor” in the adverse employment action. Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). Once a plaintiff employee makes such a showing, the burden shifts to the employer to show that the employer would have taken the adverse action anyway, for valid reasons. Id.

¶28. The summary judgment analysis in a case like this, in which the critical disputed fact is the employer’s motives for fail*355ing to promote, and then for subsequently terminating plaintiff, is particularly challenging. On the one hand, a plaintiff must have some evidence of discrimination other than an adverse action and membership in the protected class in order to establish a legally sufficient case. Sheehan, 240 F.3d at 1014. On the other hand, “[c]ircumstantial evidence will often be a factor in these cases, for discrimination is seldom open or notorious.” Id. at 1013; see also Wheeler v. Marathon Printing, Inc., 974 P.2d 207, 214 (Or. Ct. App. 1998) (“[P]roof of motivation is rarely direct and often, necessarily, circumstantial and inferential.”). As the majority notes, discriminatory motive under the USERRA may reasonably be inferred from a variety of factors, including proximity in time between the employee’s military activity and the adverse employment action, an employer’s expressed hostility towards members protected by the statute together with knowledge of the employee’s military activity, and disparate treatment of certain employees. Ante, ¶ 14. As we recently recognized in an analogous context in which plaintiffs state of knowledge was in dispute, “[t]he ultimate assessment of the inferences [to be drawn from the facts] is for the jury rather than the court, unless reasonable minds could not differ on the question of knowledge.” Clarke v. Abate, 2013 VT 52, ¶ 21, 194 Vt. 294, 80 A.3d 578.

¶29. Given the record before us, I con.1ude that reasonable minds could well differ on the question of whether plaintiffs anticipated deployment was a substantial factor in Southern State’s decisions to: (1) not promote plaintiff and (2) subsequen.1y terminate plaintiffs employment.

I.

¶ 30. Considering the evidence in the light most favorable to plaintiff, the record reflects the following with respect to SSCF’s decision not to hire plaintiff as a classified corrections officer. Before plaintiff was hired as a temporary corrections officer (TCO), and again during his training at the academy in December 2008 and January 2009, the Training Recruitment Coordinator for SSCF, Kyle Beckwith, told him more than once that TCOs are hired for full-time permanent positions with union membership and other benefits after three-to-six months as TCOs. Beckwith told him that this promotion was automatic, and did not require application and interviews in front of an interviewing board. Another TCO hired at the same time as plaintiff corroborated plaintiffs testimony on this point.

*356¶ 31. In late February and early March of 2009 — within the time frame plaintiff had been led to believe he could expect to be hired as a permanent corrections officer — managers at SSCF identified plaintiff as one of nine correction.1 officers and TCOs likely to be deployed to Afghanistan in September or October of that year. Managers expressed concern about the impact of the impending deployments on SSCF correction.1 officer staffing, and a commitment to being “proactive” concerning staffing as it related to upcoming deployments, in emails that in.1uded senior SSCF leadership, in.1uding the Superintendent and Assistant Superintendent of SSCF.

¶ 32. Within two weeks of the emails identifying him as subject to deployment in the fall, and expressing concern about the impact of correction.1 officer deployments on Southern State staffing, Southern State interviewed plaintiff for one of the three open interim correction.1 officer positions — classified positions for which plaintiff had been led to believe he would be hired as a matter of course. The application and interview process was a departure from what plaintiff had been led to expect in connection with his anticipated promotion to a classified position. Two other applicants for the position, out of a total of eight, were also subject to deployment in the fall. Neither plaintiff, nor the other two soon-to-be-deployed applicants, got the job.

¶ 33. After he was passed over, plaintiff discussed his situation with Beckwith, the recruitment and training coordinator. Beckwith said to him, “they’re not going to give [you] a full-time benefit slot if [you’re] leaving in eight months.” Beckwith was not just a random co-worker; he was the officer in charge of recruiting and training correction.1 officers at Southern State. Other officers relied on him to explain Southern State’s personn.1 policies to new hires. Moreover, the Security and Operations Officer responsible for scheduling corrections officers, Mark Potanas, who participated on the committee that evaluated and rated applicants for the CO positions, acknowledged expressing his exasperation to Beckwith — the recruitment officer — for “bringing [Patanos] more military.”

¶ 34. In addition to the above, plaintiff also presented evidence that human resource personn.1 at Southern State did not at the time understand their obligations under the USERRA — a factor that lends further support to plaintiff’s theory that in focusing on its staffing concerns, management, insensitive to its legal obligations under federal law, con.1uded that hiring plaintiff to a full-time, permanent position within months of his anticipated deployment would not make any sense.

*357¶ 35. The above evidence, if believed by the jury, is sufficient to support an inference that Southern State denied plaintiff the CO position due, in substantial part, to his anticipated deployment, thus satisfying plaintiff’s initial burden. As evidence in support of his theory that Southern State did not hire him for the CO position due in part to his anticipated deployment, plaintiff can point to his dashed expectation of full-time, permanent employment as a corrections officer following Southern State’s identification of plaintiff as someone facing deployment; the contemporaneously expressed concerns of Southern State management about the impact of deployments on correction.1 officer staffing; the fact that none of the soon-to-be-deployed applicants were hired to the classified positions; the incriminating statement by the Southern State officer tasked with communicating many of Southern State’s personn.1 policies to new hires; and the expressed exasperation with hires who have military obligations by the Security and Operations Supervisor. See Sheehan, 240 F.3d at 1014 (identifying temporal proximity between adverse action and military action — in this case, anticipated deployment; expressed hostility by management toward members protected by the statute — in this case, soon-to-be-deployed Nation.1 Guard members; and disparate treatment — in this case, of officers facing deployment as compared to those who are not, as factors supporting inference of discriminatory motive).

¶ 36. The majority does not address the allegation that Southern State replaced its presumptive promotion of TCOs to open CO positions with a revamped application and interview process immediately after realizing that several TCOs who would be subject to promotions were going to be deployed in six-to-seven months. This is a significant factor that, if believed, could support an inference that SSCF altered its hiring process to avoid hiring soon-to-be-deployed military personn.1 for classified positions.

¶ 37. The majority explains away Beckwith’s statement that plaintiff would not get a CO position given his anticipated deployment by noting that Beckwith was not on the pan.1 that interviewed applicants for the CO position and made recommendations regarding hiring.3 The jury ultimately may be persuaded *358that Beckwith’s statement does not reflect SSCF policy, that Beckwith himself had no role in the challenged hiring decision, and that the statement is entitled to minimal or even no weight. But the jury could well con.1ude that this statement by an officer intimately involved with recruiting and training new officers, and with explaining to them Southern State’s policies, reflected Southern State’s institution.1 attitude. It should be left to a jury to determine whether Beckwith actually made the statement, whether the statement was an accurate reflection of management attitudes at Southern State, and how much weight to give the testimony.

¶ 38. The majority likewise dismisses Mark Potanas’s expressions of frustration with the recruitment of TCOs who have military obligations as “stray remarks,” even though Potanas was on the hiring pan.1 for the CO positions denied plaintiff. In so framing the evidence, I believe the majority has weighed evidence itself, and has drawn inferences adverse to the plaintiff, in contravention of our summary judgment standard.

¶ 39. The most significant factor identified by the majority in support of its affirmance is its view that plaintiff failed to show that he was as qualified for the positions as those that were hired. In so holding, I believe the majority collapses the two-step an.1ytical framework applicable under the USERRA into a sin.1e step. That is, the majority essentially con.1udes that the reason plaintiff has failed to make a facial claim is that Southern State would not have hired plaintiff anyway because he was less qualified than the officers who were hired. Because plaintiff mustered sufficient evidence to support the inference that he was passed over on the basis of impermissible discriminatory motives, the question of whether Southern State would have declined to hire him in any event goes to SSCF’s affirmative defense — a claim with respect to which Southern State, and not plaintiff, bears the burden.

¶ 40. The majority cites substantial evidence from which a jury could con.1ude that plaintiff was not among the most qualified candidates for the CO position and would not have gotten the job even if he had not been facing deployment. To a large extent the majority relies on the scores assigned through the hiring process *359to the respective candidates, implicitly accepting the scores as an undisputed matter of fact entitled to weight. To the extent that plaintiffs theory is that the process was stacked against him because of his anticipated deployment, the credibility of the interview ratings is itself very much in issue. The facts that the three who were hired were not facing anticipated deployment, and that the three who were facing deployments were not hired, could support plaintiffs inference that the deck was stacked. By the same token, the fact that the three TCOs scheduled for deployment in the fall received the three lowest subjective ratings in the interview process likewise supports plaintiffs theory of the case, rather than Southern State’s claim that the three to-be-deployed TCOs were the least qualified. Moreover, plaintiff has mustered evidence of his own that undermines the suggestion that Southern State’s evidence establishes its affirmative defense as a matter of law. As noted above, plaintiff presented evidence of positive reviews and scores during his training and positive performance reviews. Given the above evidence, I cannot con.1ude that, as a matter of law, the only legally permissible inference is that Southern State’s hiring decision was nonpretextual and unaffected by plaintiffs imminent deployment.

II.

¶ 41. Plaintiffs second claim is that after he was passed over, Southern State management began making his life more difficult and disciplining him for things for which others were not disciplined, and ultimately terminated him following an incident that did not warrant termination. First, he presented evidence that he was scheduled for strenuous “3-2-1” schedules, which entail working a third shift (10:00 p.m. to 6:00 a.m.) followed immediately by a second shift (2:00 p.m. to 10:00 p.m.) followed by a first shift (6:00 a.m. to 2:00 p.m.). Given his significant commute, this was a particularly challenging schedule. Second, he presented evidence that he was disciplined for being late on two occasions, when other officers are not always written up for similar tardiness. Third, and most significant, he presented evidence that he was disciplined for allowing an inmate to go through a door to get to class at the request of a case worker during a head count; plaintiff testified that his on-the-job trainer had told him this was appropriate and had done the same thing while training plaintiff. This incident triggered his termination. It also occurred at about the *360same time as a few more CO positions were opening up, for which TCOs such as plaintiff would be eligible to apply.

¶ 42. Again, a jury could well consider all of this evidence and con.1ude that plaintiffs termination was not related to his anticipated deployment and was not pretextual. But in light of the evidence cited above, which is sufficient to make out a legal claim on its face, plaintiff is entitled to a determination by a jury, not the court. Clarke, 2013 VT 52, ¶ 21.

¶ 43. For the foregoing reasons, I respectfully dissent.

The majority likewise dismisses the significance of a shift supervisor’s comment to another soon-to-be-deployed TOO who was passed over like plaintiff: “The *358reason you are not getting promoted is because you are getting deployed. It’s common knowledge.”