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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14271
Non-Argument Calendar
____________________
LOUIS A. HERRERA,
Plaintiff-Appellant,
versus
CITY OF HIALEAH, FLORIDA,
a municipal corporation and political subdivision
of the state of Florida,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
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2 Opinion of the Court 21-14271
D.C. Docket No. 1:20-cv-23191-WPD
____________________
Before LUCK, LAGOA, and TJOFLAT, Circuit Judges.
PER CURIAM:
Louis Herrera appeals the United States District Court for
the Southern District of Florida’s order granting summary judg-
ment to the City of Hialeah, Florida (“the City”) on his discrimina-
tion claims arising under the Uniformed Servicemembers Employ-
ment and Reemployment Rights Act (the “USERRA”), 38 U.S.C.
§ 4311(a), et seq. First, Herrera argues that the District Court erred
when it granted summary judgment to the City on his USERRA
claims because he met his prima facie burden of establishing dis-
parate treatment of him compared to non-military employees with
similar work records, and that his military status was a motivating
factor in the City’s decision to not promote him and deny him ad-
vancement opportunities. Second, he argues that the District
Court did not properly shift the burden to the City to show that it
would have promoted the non-military members over him, and
the City failed to show that it would have made the same promo-
tional decisions even without considering his military status. Be-
cause Herrera failed to establish a prima facie case of discrimination
under USERRA, we affirm the District Court’s grant of the City’s
motion for summary judgment.
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21-14271 Opinion of the Court 3
I.
Herrera, through counsel, filed a complaint against the City,
stating two claims for relief under USERRA. Herrera was a mem-
ber of the United States Army and the Florida National Guard and
also worked as a police officer for the Hialeah Police Department
(the “Department”) for over eighteen years. As part of the promo-
tion process, the Department requires candidates to pass a promo-
tional exam, and then it ranks candidates based on their score on
the exam. According to the complaint, Herrera applied for the po-
sition of police sergeant three times—in August 2015, August 2016,
and December 2016—and was well qualified for the position be-
cause of his exceptional employment evaluations, employment
performance, and scores on his promotional exam, which placed
him in the top three candidates. 1
Herrera claims that despite scoring well and being ranked
higher, other “less qualified, [ ] lower ranked[,] non-reservist” can-
didates were consistently elevated over him. Herrera alleged that
he received favorable employment evaluations, received multiple
department and civilian commendations, was awarded the Depart-
ment’s highest award, the Gold Medal of Valor, and that he never
received a negative evaluation. According to the complaint,
1 Promotions with the Department are made according to the Rule of Three.
The three candidates with the highest point totals based on their promotional
examination and other points that may be awarded are presented for possible
promotion, and the mayor chooses among the three candidates.
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Herrera applied for career advancement positions, including as a
member of the Community Response Team, S.W.A.T. Police
Sniper, S.W.A.T. Rappel Master, and detective positions, but was
denied each time. The Department also allegedly denied his appli-
cations for lateral positions and requests from federal agencies to
allow Herrera to assist on task forces. Finally, Herrera argued that
other non-reservist employees could make use of an open-door
policy with the police chief, but Herrera’s requests to speak with
the chief were consistently denied.
Following discovery, the City moved for summary judg-
ment. The City argued that the facts, taken in the light most favor-
able to Herrera, did not establish a prima facie case of USERRA
discrimination.2 The District Court granted the City’s motion.
As relevant here, the District Court held that Herrera’s
USERRA claims failed as a matter of law. The District Court did
not find the records of those promoted over Herrera to permit a
reasonable inference of discrimination because, according to the
Court, they did not show that Herrera was objectively more qual-
ified—and even if they did, the Court could not substitute its judg-
ment for the City’s, so long as the hiring decision was not made in
2 The City also argued that Herrera’s suit was barred under the doctrine of res
judicata; that the City had legitimate, non-discriminatory reasons for taking
the disputed actions and it would have taken them even in the absence of Her-
rera’s military status; and that there was no basis for finding the City’s actions
to be willful USERRA violations. Those arguments are not relevant to this
appeal.
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21-14271 Opinion of the Court 5
a discriminatory manner. According to the Court, “Mayor Her-
nandez, the decisionmaker, decided that each of those selected
over Herrera was the better candidate for the job. Though Herrera
may disagree with that decision, he presents no other evidence
from which a reasonable jury could conclude that such decision
was motivated by discrimination based on Herrera’s military ser-
vice.” Order Granting Mot. for Summ. J., Doc. 50 at 8–9. Herrera
timely appealed.
II.
We review a district court’s order granting summary judg-
ment de novo, “viewing all the evidence, and drawing all reasona-
ble inferences, in favor of the non-moving party.” Vessels v. At-
lanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005). Summary
judgment is only proper if there are no genuine issues of material
fact, and the moving party is entitled to judgment as a matter of
law. Id. Bare and self-serving allegations when the plaintiff has no
personal knowledge are inadequate to carry the plaintiff’s burden
on summary judgment. Stewart v. Booker T. Washington Ins.,
232 F.3d 844, 851 (11th Cir. 2000).
Under USERRA, a person who is a member of, or has per-
formed service in, a uniformed service shall not be denied “initial
employment, reemployment, retention in employment, promo-
tion, or any benefit of employment by an employer” based on that
membership or performance of service. 38 U.S.C. § 4311(a). An
employer violates USERRA where the individual’s membership or
service in the uniformed services is a motivating factor in the
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employer’s failure to promote the individual, unless the employer
proves that it would not have promoted the individual absent the
individual’s membership or service. See id. § 4311(c)(1).
A USERRA claim brought under 38 U.S.C. § 4311 requires
proof of a discriminatory motive, and we employ the so-called “but
for” test. Coffman v. Chugach Support Servs., Inc., 411 F.3d 1231,
1238 (11th Cir. 2005). 3 USERRA “clearly mandates proof of dis-
criminatory motive.” Id. To establish a prima facie case of discrim-
ination, 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 id. A motivating factor does
not necessarily have to be the sole cause for the employer’s deci-
sion 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 circum-
stantial evidence and 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 prof-
fered reason for the employer’s decision and 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
3 This case has been superseded by statute on unrelated issues regarding when
an employer qualifies as a successor in the interest of a prior employer.
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21-14271 Opinion of the Court 7
military activity; and (4) disparate treatment of employees with
similar work records. Id.
In Coffman, we held that the district court did not err when
it granted summary judgment to the employer because the em-
ployee failed to present direct or circumstantial evidence that the
employer relied on, considered, or conditioned its decision on the
employee’s military status. Id. at 1239. We emphasized that, alt-
hough there was close proximity between the employee’s military
status and the employer’s decision not to hire him, the employee
failed to show that the employer expressed hostility towards ser-
vicemembers, the employer hired both military and non-military
members, the decision-makers testified that they did not rely on
the employee’s military status in deciding not to hire him, and the
employee failed to show any disparate treatment of active military
employees compared to other employees with similar work rec-
ords. Id.
The USERRA statute is very similar to Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2(a). Staub v.
Proctor Hosp., 562 U.S. 411, 417, 131 S. Ct. 1186, 1191 (2011). Un-
der Title VII case law, we have explained that a plaintiff must show
that he and his comparators were “similarly situated in all material
respects” to demonstrate an intentional discrimination claim under
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McDonnell Douglas.4 Lewis v. City of Union City, 918 F.3d 1213,
1218 (11th Cir. 2019) (en banc).
We explained that a similarly situated comparator could in-
clude another individual who (1) “engaged in the same basic con-
duct (or misconduct) as the plaintiff”; (2) was “subject to the same
employment policy, guideline, or rule as the plaintiff”; (3) was “or-
dinarily (although not invariably) . . . under the jurisdiction of the
same supervisor as the plaintiff”; or (4) “share[d] the plaintiff’s em-
ployment or disciplinary history.” Id. at 1227–28. The comparison
turns on substantive likeness, and the comparator must be suffi-
ciently similar such that they cannot be reasonably distinguished.
Id. at 1228.
The Supreme Court has held that an employer may be held
liable for employment discrimination based on the discriminatory
animus of an employee who influenced, but did not make, the ul-
timate employment decision. Staub, 562 U.S. at 417–23, 131 S. Ct.
at 1186. In Staub, the Supreme Court ruled that a plaintiff may
assert a “cat’s paw” claim under USERRA by showing that (1) a
supervisor performed an act motivated by the animus that was in-
tended to cause an adverse employment action; and (2) the act was
the proximate cause of the ultimate adverse employment action.
Id. at 418–19, 131 S. Ct. 1186, 1191–92.
4 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).
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III.
Here, the District Court did not err when it granted the
City’s motion for summary judgment on Herrera’s USERRA dis-
crimination claim because Herrera failed to meet his prima facie
burden of establishing that the City discriminated against him
based on his military status, in violation of USERRA.5 In fact, Her-
rera does not even offer evidence that the City considered his mili-
tary status, let alone that it was a motivating factor.
Though they are not alleged as separate claims, Herrera es-
sentially makes three separate arguments that the City discrimi-
nated against him in violation of USERRA. He argues that his mil-
itary membership was a motivating factor (1) in the City’s decision
not to promote him, (2) in the City’s denial of his special requests
for career advancements, 6 and (3) for Chief Velazquez’s different
treatment of Herrera under his “open door” policy. We address
each claim in turn.
5 To the extent Herrera raises a “cat’s paw” theory of discrimination, we de-
cline to consider it because he raises it for the first time on appeal. An issue
that was not raised in the district court and is raised for the first time on appeal
is considered forfeited, and we will not address its merits absent extraordinary
circumstances. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331–
32 (11th Cir. 2004).
6 The City argues that Herrera abandoned this argument because he did not
raise it in his initial brief. But Herrera discussed the denial of his requests
throughout the initial brief, so this claim was not abandoned.
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A.
Herrera did not offer direct evidence to show that his mili-
tary status was at least a motivating factor in the City’s decision not
to promote him. As such, he needed to present enough circum-
stantial evidence to raise the inference of unlawful discrimination,
which he failed to do.
Herrera argues that he met his prima facie burden by
demonstrating that he was subjected to disparate treatment com-
pared to non-military employees with similar work records. He
contends that his work record was “objectively superior on every
metric compared to those promoted over him.” Appellant’s Br. at
27. But Herrera only looks at certain metrics. According to Her-
rera, he “had no disciplinary history, objectively better perfor-
mance evaluations, for the most part made more arrests and re-
ceived more commendations from both citizens and the depart-
ment.” Plaintiff’s Resp. in Opp. To Def.’s Mot. for Summ. J., Doc.
42 at 8. However, he overlooks criteria such as seniority,7 initia-
tive, 8 and variation in roles within the Department. 9
7 Two of the candidates promoted over Herrera had more seniority than he
did.
8 In his declaration, Mayor Hernandez indicated that all three candidates who
were promoted “exhibited outstanding initiative.” Chief Velazquez, however,
believed that Herrera needed to improve his initiative.
9 All three of the individuals promoted over Herrera held five or more differ-
ent roles within the Department before their promotions, whereas Herrera
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It is difficult to say that Herrera’s work record was objec-
tively superior in every way to the non-military coworkers who
were promoted over him. At best, the work records of the other
employees are similar to Herrera’s. 10 However, Herrera over-
looks a key component of the hiring process: the importance
Mayor Hernandez placed on the interview. Even assuming that
the employees’ records were similar in every other respect, as a re-
sult of their interviews, Mayor Hernandez “was very favorably im-
pressed by [the other officers] and much less so by Herrera.”
Ultimately, the evidence put forward by Herrera is not
enough to show that “but for” his military service, he would have
been promoted. Coffman does not create a checklist for meeting
the prima facie burden in a USERRA case. For example, had
only held 2 roles. Herrera argued that he would have had more varied assign-
ments but for the numerous denials of his requests for career advancement,
but even if the requests for career advancement relevant to his USERRA claim
had been granted, he would still have less varied assignments than the other
candidates.
10 Herrera argues that the District Court “invented a new prima facie standard
from whole cloth, requiring [him] to prove that the records of [the other em-
ployees] were ‘significantly inferior’ to his.” Appellant’s Br. at 28. The District
Court did say that “the Court does not find the records of those promoted
over Herrera significantly inferior to permit a reasonable inference of discrim-
ination.” Order on Def.’s Mot. for Summ. J., Doc. 50 at 8. This statement,
however, is not the District Court inventing a new prima facie standard for
Herrera to meet. Instead, this is best read as the District Court responding to
Herrera’s claim that his employment records were so superior to the others
that they raised an inference of discrimination on their own.
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Herrera been able to show a temporal proximity between the fail-
ure to promote him and his military service, that alone would not
automatically meet his prima facie burden—which is what hap-
pened in Coffman. 411 F.3d at 1239. Instead, Coffman presents a
non-exhaustive list of tools a plaintiff may use to present sufficient
evidence giving rise to an inference that discrimination was a mo-
tivating factor in the employment decision.
Here, like in Coffman, the evidence on the record is simply
insufficient to allow a reasonable jury to make such an inference.
While Herrera can show that Mayor Hernandez promoted three
non-military officers over a military officer, the evidence presented
does not support an inference that Mayor Hernandez promoted
three non-military officers over Herrera because he was a military
officer. Further undercutting Herrera’s argument is the fact that,
as in Coffman, the City has promoted individuals with military ex-
perience to sergeant.
B.
Similar to his claim that the City discriminated against him
by failing to promote him, Herrera likewise failed to offer direct
evidence that discrimination was a motivating factor in the denial
of his requests for other opportunities for advancement. Nor did
Herrera present enough circumstantial evidence to raise a discrim-
inatory inference here.
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Only a few of Herrera’s requests were denied, and only one
was denied relating to his military status. 11 Herrera failed to ex-
plain how an inference of discrimination arose from the few denials
of his special requests, as none of them referenced his military leave
nor were they denied while he was on military leave.12 The only
work records in the record, other than Herrera’s, are those of the
candidates what were promoted over Herrera, so no evidence of
disparate treatment of non-military employees with similar work
records exists for Herrera’s argument that the City discriminated
against him in denying his requests for opportunities for advance-
ment.
Herrera attempted to show a pervasive culture of hostility
towards his military status with respect to these opportunities for
advancement by the deposition of Clifford Lockwood, Jr. Accord-
ing to Lockwood’s deposition, he met with Chief Velazquez to re-
quest that Herrera join his IRS task force and he explained the fi-
nancial benefits to the Department of allowing Herrera to join the
task force. Lockwood claims that when he pitched the idea to Chief
11 The previous police chief denied one of Herrera’s requests in 2005 because
Herrera was activated to military duty and would not be available to attend
the SWAT school, but when Herrera resubmitted his request in 2006, it was
approved. Regardless, Herrera testified that the previous police chief did not
discriminate against him.
12 Herrera claims that his second request to join the Community Response
Team was denied when he was on military leave. But this is unsupported by
the record; this request was denied prior to Herrera going on military leave.
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Velazquez, who denied the request, “it was really weird,” he “got
a weird feeling,” and it “felt very weird that the chief of police said
no.” Lockwood claimed that he had a feeling that Chief Velazquez
did not like Herrera because “Herrera was busy defending him and
the rest of our country and he wasn’t always present.” But Lock-
wood’s allegations are conclusory and speculative. According to
Lockwood, “[t]his is just a think, and this is intuitive and a feeling I
have.” Without more, this “feeling” is not enough to give rise to
an inference of discrimination.
C.
Finally, Herrera failed to establish a prima facie case of un-
lawful discrimination based on Chief Velazquez denying him ac-
cess under the “open door policy.” In the first place, Herrera offers
no proof that such a policy even existed. He further fails to show
evidence that (1) he was denied the policy (2) because of his mili-
tary status, (3) while other non-military members were given the
benefits of the policy. Herrera claims that “the record is undisputed
that non-reservist employees had no problem obtaining meetings
with Chief Velazquez through his ‘open door’ policy.” Appellant’s
Br. at 19. But he only supports that argument by pointing to the
complaint and his own deposition testimony, and bare and self-
serving allegations are not enough to meet Herrera’s burden on
summary judgment. Stewart, 232 F.3d at 851.
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IV.
If the plaintiff meets his prima facie burden, the burden then
shifts to the employer to prove, by a preponderance of the evi-
dence, that legitimate reasons, standing alone, would have induced
it to take the same adverse action. Coffman, 411 F.3d at 1238–39.
But the burden does not shift to the employer unless the employee
first shows that his military status was at least a motivating or sub-
stantial factor in the employer’s decision. Id. at 1239. Here, Her-
rera did not meet that prima facie burden, so the burden never
shifted to the City. As such, we decline to address Herrera’s addi-
tional arguments on appeal. The District Court’s grant of sum-
mary judgment is
AFFIRMED.