[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
No. 04-14382 ELEVENTH CIRCUIT
JUNE 8, 2005
THOMAS K. KAHN
D. C. Docket No. 03-00229-CV-MCR-MD
CLERK
CHARLES COFFMAN,
Plaintiff-Appellant,
versus
CHUGACH SUPPORT SERVICES, INC.,
Defendant-Appellee.
__________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(June 8, 2005)
Before DUBINA, PRYOR and RONEY, Circuit Judges.
DUBINA, Circuit Judge:
Plaintiff/appellant Charles Coffman appeals the district court’s order
granting summary judgment to defendant/appellee Chugach Support Services, Inc.
(“Chugach”) on Coffman’s claims of employment discrimination due to his active
military status, in violation of the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. § 4301, et seq. For
the reasons that follow, we affirm.
I. BACKGROUND
A. Facts
In October 1997, the United States Air Force awarded Del-Jen, Inc. (“Del-
Jen”) a contract to provide base support services at Tyndall Air Force Base in
Panama City, Florida. In the same month, Del-Jen hired Coffman as a Hazardous
Materials Specialist to work at Tyndall. From that time through November 2001,
Coffman worked for Del-Jen and served as a Non-Commissioned Officer in the
Air Force Reserve. In July 2001, Alex Gunn, Del-Jen’s project manager,
promoted Coffman to the position of Hazardous Materials Program Manager.
That promotion included a pay raise for Coffman.
There is some confusion over whether Coffman’s position as manager was
exempt from Del-Jen’s collective bargaining agreement as a non-union position.
One of Del-Jen’s former officers, Steve Kukak, testified that Gunn did not have
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the authority to make Coffman’s position exempt from the collective bargaining
agreement by adding duties and pay. Apparently, Del-Jen discovered the mistake
over Coffman’s promotion while Coffman was away on active duty. As the
district court noted, however, this particular dispute over Coffman’s position is
ultimately immaterial. At the time he left, and at the time he returned from active
duty, Coffman considered his position one of management.
In November 2001, the Air Force ordered Coffman to return to active
military duty for one year. Coffman notified the proper authorities at Del-Jen
about his return to active service. Consequently, Del-Jen hired Rhonda Cruz as a
temporary replacement for Coffman during his absence.
On October 1, 2002, while Coffman was still away on active duty, the Air
Force awarded the base support services contract at Tyndall to Chugach, replacing
Del-Jen as the primary contractor. The services that Chugach provided at Tyndall
were similar to those services Del-Jen had provided. Del-Jen then became a
subcontractor with Chugach on the project at Tyndall. Both Chugach and Del-Jen
maintained separate contracts with the Air Force. For the portion of the project
that was not subcontracted out, Chugach sent in a transition team to interview
about 100 Del-Jen employees for employment positions with Chugach.
Previously, in anticipation of Chugach taking over, Coffman had sent
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Chugach his resume, service orders, and a letter explaining his interest in
retaining, and returning to, his former position as a Hazardous Materials
Specialist. As a result, Chugach interviewed Coffman in September 2002, but the
interview was not for a specific position. Coffman testified that he thought this
interview was merely a courtesy meeting. During the interview, Coffman
mentioned that he held a managerial position prior to his reactivation. Coffman
stated that the Chugach representatives seemed surprised and shocked to learn that
he held a non-union position as a manager. Sometime during the interview, the
parties discussed an available position that was similar to Coffman’s previous
position with Del-Jen, but different in that the Chugach position was a non-
management union position. Coffman testified that he made it clear during the
interview that he was willing to talk with Chugach and work something out
regarding the discrepancies between the available position and his former position.
Adrian Darkow, the head of Chugach’s start-up team, testified that he was
involved in the interview with Coffman. He remembered discussing a
management position and believed that Coffman was looking for a management
position. According to Darkow, the discrepancies between the positions are why
Chugach did not have a position for Coffman. Darkow also claimed that, at some
point, he discussed Coffman’s situation with Del-Jen representatives and left with
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the understanding that Del-Jen would be rehiring Coffman. Additionally, Darkow
asserted that Coffman’s military status was not a factor in Chugach’s decision not
to hire him. Patrick McCredie, another one of the Chugach representatives who
was also present at Coffman’s interview, testified that he thought Coffman and the
representatives were discussing a vehicle maintenance position. He recalled that
Chugach did not have a vehicle management position available for Coffman. He
also stated that Coffman’s military status had nothing to do with Chugach’s
decision not to hire him.
Chugach then interviewed Cruz for Environmental Hazardous Materials
Specialist, the Chugach position similar to Coffman’s former position and, at the
interview, offered her a permanent job, which she accepted. Originally, Chugach
compensated Cruz at the same pay rate she had received in her prior employment
with Del-Jen. Later, Chugach increased her compensation to the union pay rate, as
Chugach agreed to abide by Del-Jen’s collective bargaining agreement until it
could negotiate its own agreement with the union. Cruz’s duties at Chugach were
similar to her duties at Del-Jen, except for some additional tasks, such as security.
Out of 100 former Del-Jen employees, Chugach hired 97. Coffman was one
of the three Del-Jen employees not hired. Coffman was the only Del-Jen
employee on military leave at the time of the transition from Del-Jen to Chugach.
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On November 14, 2002, the Air Force gave Coffman an honorable
discharge from active military service. In the same month, Coffman returned to
Tyndall and began working for Del-Jen as a Vehicle Control Coordinator.
Coffman did not wish to remain in this position, but wanted to return to his pre-
activation position. Thus, in January of 2003, Coffman mailed a letter to
Chugach’s President, Robert Westermann, requesting to be reinstated to his pre-
activation position. In the letter, Coffman specifically mentioned his
reemployment rights under the USERRA. Chugach denied his request and
asserted that Del-Jen’s decision to bring him back to a position of comparable pay
and status satisfied the requirements of the USERRA.
B. Procedural History
In September 2003, Coffman filed a three-count complaint against Chugach
and Del-Jen seeking damages, attorney’s fees, and reinstatement to his former
position under the USERRA. Counts I and III alleged that Chugach violated the
USERRA’s anti-discrimination and reemployment provisions respectively. Count
II alleged that Del-Jen violated the USERRA’s anti-discrimination provision.
Coffman and Del-Jen eventually settled their dispute.
Both Chugach and Coffman filed motions for summary judgment. Chugach
filed a motion on Counts I and III. Coffman filed a motion for partial summary
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judgment only as to Count III, asking for reinstatement to his position. The
district court granted Chugach’s motion and entered final judgment in favor of
Chugach. Coffman then timely appealed the district court’s order.
II. ISSUES
1. Whether the district court properly determined that Chugach was not
liable to Coffman as a “successor in interest” or “successor employer” and,
therefore, owed no duty to reemploy Coffman under 38 U.S.C. § 4312 and 38
U.S.C. § 4313.
2. Whether the district court properly determined that Coffman could not
establish a prima facie case of discrimination on the basis of his active military
service under 38 U.S.C. § 4311 in regard to Chugach’s decision not to hire him.
III. STANDARD OF REVIEW
This court reviews de novo the district court’s order granting summary
judgment. Chappell v. Chao, 388 F.3d 1373, 1376 (11th Cir. 2004).
IV. DISCUSSION
A. Statutory provisions
Congress enacted USERRA to prohibit employment discrimination on the
basis of military service as well as to provide prompt reemployment to those
individuals who engage in non-career service in the military. See 38 U.S.C. §
7
4301 (2002). Sections 4311 and 4312 of the USERRA provide separate and
distinct statutory protections for service members. See Wrigglesworth v.
Brumbaugh, 121 F. Supp. 2d 1126, 1134 (W.D. Mich. 2000). Section 4311
prohibits employers from discriminating against employees on the basis of military
service and retaliating against individuals, whether service members or not, who
testify or give statements on behalf of a USERRA claimant. Section 4311
provides, in pertinent part, that:
(a) A person who is a member of, applies to be a member
of, performs, has performed, applies to perform, 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.
(b) An employer may not discriminate in employment
against or take any adverse employment action against
any person because such person (1) has taken an action
to enforce a protection afforded any person under this
chapter, (2) has testified or otherwise made a statement
in or in connection with any proceeding under this
chapter, (3) has assisted or otherwise participated in an
investigation under this chapter, or (4) has exercised a
right provided for in this chapter.
(c) An employer shall be considered to have
engaged in actions prohibited –
(1) under subsection (a), if the person’s membership,
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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; or
(2) under subsection (b), if the person’s (A) action to
enforce a protection afforded any person under this
chapter, (B) testimony or making of a statement in or in
connection with any proceeding under this chapter, (C)
assistance or other participation in an investigation under
this chapter, or (D) exercise of a right provided for in
this chapter, 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 person’s
enforcement action, testimony, statement, assistance,
participation, or exercise of a right.
38 U.S.C. § 4311 (2002).
Section 4312 addresses the right of reemployment for persons who serve in
the military. Veteran reemployment statutes “date from the nation’s first
peacetime draft law, enacted in 1940.” Leib v. Georgia-Pacific Corp., 925 F.2d
240, 242 (8th Cir. 1991). Congress intended for “[t]he statutory right to
reinstatement . . . to bolster the morale of those serving their country and to
facilitate their reentry into the highly competitive world of job finding without the
handicap of a long absence from work.” Id. (quotation and citation omitted).
Unlike section 4311, this provision does not require an employee to show any
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discriminatory animus. See Wrigglesworth, 121 F. Supp. 2d at 1134-35. Section
4312 provides, in pertinent part, that:
(a) Subject to subsections (b), (c), and (d) and to
section 4304, any person whose absence from a
position of employment is necessitated by reason
of service in the uniformed services shall be
entitled to the reemployment rights and benefits
and other employment benefits of this chapter if –
(1) the person (or an appropriate officer of
the uniformed service in which such service
is performed) has given advance written or
verbal notice of such service to such
person’s employer;
(2) the cumulative length of the absence and
of all previous absences from a position of
employment with that employer by reason
of service in the uniformed services does
not exceed five years; and
(3) except as provided in subsection (f), the
person reports to, or submits an application
for reemployment to, such employer in
accordance with the provisions of
subsection (e).
...
(d)(1) An employer is not required to reemploy a
person under this chapter if –
(A) the employer’s circumstances have so
changed as to make such reemployment
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impossible or unreasonable;
(B) . . . such employment would impose an
undue hardship on the employer;
....
(2) In any proceeding involving an issue of
whether –
(A) any reemployment referred to in
paragraph (1) is impossible or unreasonable
because of a change in an employer’s
circumstances,
(B) any accommodation, training, or effort
referred to in subsection (a)(3), (a)(4), or
(b)(2)(B) of section 4313 would impose an
undue hardship on the employer, or
(C) the employment referred to in paragraph
(1)(C) is for a brief, nonrecurrent period and
there is no reasonable expectation that such
employment will continue indefinitely or for
a significant period,
the employer shall have the burden of proving the
impossibility or unreasonableness, undue
hardship, or the brief or nonrecurrent nature of the
employment without a reasonable expectation of
continuing indefinitely or for a significant period.
38 U.S.C. § 4312 (2002). Section 4312 also imposes upon the employee a
requirement to timely notify the employer of his intention to return to work. 38
U.S.C. § 4312(e)(1). Pertinent to the present case, an employee whose active
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military duty lasted more than 180 days must submit an application for
reemployment with his employer no later than 90 days after his completion of
active duty. 38 U.S.C. § 4312(e) (1)(D).
B. Successor in interest
The question of successor in interest or successor employer under USERRA
is one of first impression for this circuit. Under USERRA, “employer” is defined
to include a “successor in interest” to a plaintiff’s previous employer. 38 U.S.C. §
4303(4)(A)(iv) (2002). USERRA does not, however, define “successor in
interest.” The legislative history of USERRA states that “[t]he Committee intends
that the multi-factor analysis utilized by the court in Leib v. Georgia-Pacific
Corp., 925 F.2d 240 (8th Cir. 1991), is to be the model for successor in interest
issues, except that the successor’s notice or awareness of a reemployment rights
claim at the time of merger or acquisition should not be a factor in this analysis.”
H.R. Rep. No. 103-65, reprinted in 1994 U.S.C.C.A.N. 2449 at 2454.
In Leib, the plaintiff had worked for a company named St. Regis and left his
employment to serve in the Air Force. 925 F.2d at 241. After receiving an
honorable discharge, he sought reemployment with Georgia-Pacific since it had
purchased St. Regis’s assets while he was away on active duty. Id. Georgia-
Pacific refused to recognize the plaintiff’s reemployment rights, claiming that it
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had only purchased St. Regis’s assets and, as such, was not obligated as a
successor in interest to St. Regis for purposes of the veteran’s rights statute. Id.
The government filed suit on behalf of the plaintiff. Id. at 242. The district court
decided in favor of Georgia-Pacific, and, on appeal, the Eighth Circuit reversed
the district court’s judgment. Id. at 241.
In so doing, the court examined two distinct prior interpretations of the
successor in interest language in veteran’s reemployment statutes. Id. at 244.
First, the court examined the “ownership and control” test. Id. at 243-44. This
test looks for common ownership and control between the successor employer and
the veteran’s previous employer. See id. at 244. Second, the court examined the
“business continuity” test suggested by the government. Id. at 245-47. This test
looks at the actual business activities being conducted before and after the change
in employers so that a “simple paper transaction” would not rob a veteran of his
reemployment rights. See id. at 245. After considering both tests, the court
concluded that “a multi-factor, business continuity approach [was] the most
consistent with Congress’[s] intent.” Id. This test includes an examination of
“whether there is (1) substantial continuity of the same business operations, (2)
use of the same plant, (3) continuity of work force, (4) similarity of jobs and
working conditions, (5) similarity of supervisory personnel, (6) similarity in
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machinery, equipment, and production methods, and (7) similarity of products or
services.” Id. at 247.
Coffman contends that Chugach was a successor in interest to Del-Jen and,
thus, was required to reemploy him under sections 4312 and 4313. Coffman
argues that the district court did not utilize the Leib approach, but instead, focused
only on the ownership and control test to conclude that Chugach was not a
successor in interest to Del-Jen. Although the district court mentioned the multi-
factor test, Coffman asserts that its decision relied on the fact that there was no
continuity of ownership or control when Chugach became the primary contractor.
Coffman contends that this was error because a review of the multi-factor test
demonstrates that Chugach is a successor in interest to Del-Jen.
In response, Chugach claims that it is not the successor in interest or
successor employer to Del-Jen; therefore, it is not liable to reemploy Coffman.
Specifically, Chugach claims that the district court properly determined that
Chugach was not Del-Jen’s successor in interest because there was no
predecessor-successor relationship between Chugach and Del-Jen in the form of a
merger or transfer of assets. We conclude that the district court and Chugach are
correct.
While we agree with Coffman that a determination of successor liability
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under USERRA requires an analysis under the Leib factors as stated by Congress,
such an analysis is unnecessary and improper when no merger or transfer of assets
even transpired between the two subject companies. Generally, one of the
fundamental requirements for consideration of the imposition of successor liability
is a merger or transfer of assets between the predecessor and successor companies.
See Kicinski v. Constable Hook Shipyard, 168 F.2d 404, 408-09 (3d Cir. 1948)
(holding that because there was no predecessor-successor relationship, defendant
corporation was under no duty to reemploy nurse returning from military service
who had worked for alleged predecessor company). In the present case,
indisputably, there was no merger or transfer of assets between Del-Jen and
Chugach.
Coffman urges this court to ignore the holding in Kicinski because the
reemployment statute there did not contain any successor in interest language.
This argument is without merit. Plainly, Congress’s addition of the successor in
interest language did not alter the requirement for a merger or transfer of assets
between the predecessor and successor companies for consideration of successor
liability. Moreover, Coffman cannot cite any case, legislative history, or authority
indicating otherwise.
Coffman also implies that the equitable principles underlying USERRA and
15
the successor in interest doctrine allow this court to overlook the lack of a
predecessor-successor relationship as described above. In this regard, citing
Preyer v. Gulf Tank & Fabricating Co., 826 F. Supp. 1389 (N.D. Fla. 1993), a
civil rights case, and Rego v. ARC Water Treatment Co. of Pa., 181 F.3d 396 (3d
Cir. 1999), an employment discrimination case, Coffman contends we should be
mindful that successor liability is derived from equitable principles, and fairness is
the prime consideration in its application. Thus, Coffman urges this court to use
its equitable powers to fulfill USERRA’s remedial purpose by reinstating Coffman
to his pre-activation position. See 38 U.S.C. § 4323(e) (“The court may use its full
equity powers, including temporary or permanent injunctions, temporary
restraining orders, and contempt orders, to vindicate fully the rights or benefits of
persons under this chapter.”).
Coffman’s argument is unpersuasive. Although USERRA “is to be liberally
construed for the benefit of those who left private life to serve their country,” Leib
925 F.2d at 245 (quotation and citation omitted), and undoubtedly equitable
principles underlie the doctrine of successor liability, see United States v. Davis,
261 F.3d 1, 53 (1st Cir. 2001), these factors are not without their limits. Further,
Rego and Preyer, the very cases Coffman cites for the proposition that equitable
principles underlie the imposition of successor liability, involved asset
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acquisitions or transfers between the subject predecessor and successor
companies, Rego,181 F.3d at 399, Preyer, 826 F.Supp. at 1391-93, as did Leib.
925 F.2d at 241. Not surprisingly, Coffman fails to cite one case in which a court
imposed successor liability when no predecessor-successor relationship existed.
Because there is no predecessor-successor relationship between Del-Jen and
Chugach, Chugach is not the successor in interest or successor employer to Del-
Jen and, as such, owed no duty under sections 4312 and 4313 of USERRA to
reemploy Coffman. Accordingly, we conclude that the district court properly
granted summary judgment in favor of Chugach as to Coffman’s reemployment
claim.
C. Prima facie case under Section 4311
Section 4311 clearly mandates proof of discriminatory motive. See Sheehan
v. Dep’t of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001); Brandsasse v. City of
Suffolk, Va., 72 F. Supp. 2d 608, 616-17 (E.D. Va. 1999). The standard of proof is
the so-called “but for” test. Sheehan, 240 F.3d at 1013.
In order to establish his prima facie case, Coffman must show by a
preponderance of the evidence that his protected status was a motivating factor in
Chugach’s decision not to hire him. Brandsasse, 72 F. Supp. 2d at 617. A
motivating factor does not mean that it had to be the sole cause of the employment
17
action. Instead, “it is one of the factors that ‘a truthful employer would list if
asked for the reasons for its decision.’” Id. (citation omitted); see also Smith v.
School Bd. of Polk County, Fla., 205 F. Supp. 2d 1308, 1314 (M.D. Fla. 2002).
“Indeed, [m]ilitary status is a motivating factor if the defendant relied on, took into
account, considered, or conditioned its decision on that consideration.”
Brandsasse, 72 F. Supp. 2d at 617 (citation omitted); see also Smith, 205 F. Supp.
2d at 1314-15. Circumstantial evidence plays a critical part in these cases, “for
discrimination is seldom open or notorious.” Sheehan, 240 F.3d at 1014. The
court can infer discriminatory motivation under the USERRA from a variety of
considerations, such as:
proximity in time between the employee’s military
activity and the adverse employment action,
inconsistencies between the proffered reason and other
actions of the employer, 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
compared to other employees with similar work records
or offenses.
Id. “When the employee has met this burden, the burden shifts to the employer to
prove the affirmative defense that legitimate reasons, standing alone, would have
induced the employer to take the same adverse action.” Id. This burden-shifting
framework “applies to both so-called ‘dual motive’ cases and so-called ‘pretext’
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cases. “ Id. “Thus 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
agency action, upon which the agency must prove, by a preponderance of
evidence, that the action would have been taken despite the protected status.” Id.
The district court correctly found that Coffman failed to present either direct
or circumstantial evidence to demonstrate that Chugach “relied on, took into
account, considered, or conditioned its decision” not to hire Coffman on the basis
of his active military service. See Brandasse, 72 F. Supp. 2d at 617. Contrary to
Coffman’s contention, the district court utilized the proper analysis in making its
determination. The court considered the factors enunciated in Sheehan and
concluded that, although there was a close proximity in time between Coffman’s
military service and Chugach’s decision not to hire him, Chugach had not
expressed hostility towards service members. In fact, as the district court noted,
Chugach hired both military and non-military personnel. Also, both Darkow and
McCredie testified that Chugach did not consider Coffman’s military status in its
decision not to hire Coffman. Furthermore, the district court found that Coffman
failed to demonstrate any disparate treatment of active military employees
compared to other employees with similar work records.
In addition, there is no inconsistency between Chugach’s proffered reason
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for not hiring Darkow and other actions taken by Chugach. Darkow testified that
at the time of the interview with Coffman, Darkow was under the impression that
Coffman held a managerial position with Del-Jen and was seeking similar
employment with Chugach. As explained earlier, although Chugach had a similar
position as the one Coffman had with Del-Jen, it was not a management position.
Darkow also testified that he was under the impression that Del-Jen was
going to rehire Coffman and that he had spoken with Del-Jen officials about that.
Although Coffman rightly contends that Kukak’s testimony contradicts Darkow’s
claims about speaking with Del-Jen’s officials on Coffman’s pending status, this
does not create a genuine issue of material fact as to Coffman’s section 4311 claim
of discrimination. As Chugach has sufficiently demonstrated, it would not have
hired Coffman because he sought a management position that Chugach simply did
not offer. In sum, based on the record evidence, and following the standard
enunciated in Sheehan, we conclude that no reasonable jury could find that
Coffman’s military status was a motiving factor in Chugach’s decision not to hire
him. Even if Chugach had conditioned its decision in part on Coffman’s military
status, summary judgment was still proper because, as noted above, Chugach has
shown it would have made the same decision absent Coffman’s military status.
Accordingly, we conclude that the district court properly granted summary
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judgment in favor of Chugach on Coffman’s discrimination claim brought
pursuant to section 4311 of USERRA.
V. CONCLUSION
For the foregoing reasons, we affirm the district court’s grant of summary
judgment in favor of Chugach.
AFFIRMED.
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