Appellant’s brief on overcoming summary judgment in USERRA Law cases

November 10, 2012

USERRA LAW:

With our military being stretched thin, more and more, our military relies on the brave work and dedication of our military reservists. Oftentimes, reservists are extensively discriminated by their employers because reservists are required to take many days off during the year to serve their country. USERRA laws are intended to prevent this from happening, but the Courts are causing these cases to almost be impossible to prove. The brief below is attemoting to overcome what is known as the “good faith defense.” This defense created by some Courts basically says that if in an employer’s personal opinion, it believed that an employee was not selected for a reason that was not motivated by military discrimination, then the Plaintiff can not prove his case, regardless of whether the believe was reasonable or not. This factually driven criteria is being used subjectively by judges to deprive military men and women from having an equal opportunity to get jobs. Below is our brief which attempts to stop this practice.

STATEMENT OF THE ISSUES ON APPEAL UNDER USERRA LAW
1. THE DISTRICT COURT CORRECTLY CONCLUDED THAT PLAINTIFF HAD SUFFICIENT EVIDENCE THAT MILITARY SERVICE WAS A MOTIVATING FACTOUSERRAR IN THE DEFENDANT’S PROMOTIONAL DECISIONS.

2. THE DISTRICT COURT ERRED WHEN IT HELD THERE IS NO GENUINE ISSUE OF MATERIAL FACT REGARDING DEFENDANT’S AFFIRMATIVE DEFENSE.

STATEMENT OF THE CASE
Plaintiff, through counsel filed a one count complaint against the Defendant for discrimination violations of USERRA law on June 11, 2011. (Complaint Doc. No. 1). Defendant filed its answer on July 13, 2011. (Answer Doc. No. 13).
Defendant filed a Motion for Summary Judgment on April 9, 2012. (Def’s. Mot. Sum. J. Doc. No. 38). The Defendant argued in its motion that the Plaintiff’s military service was not a motivating factor in its decisions not to promote the Plaintiff therefore the Plaintiff could not establish a prima facie case, and in the alternative the Defendant argued it had a viable affirmative defense; specifically Defendant would have made the same promotional decisions notwithstanding Plaintiff’s military service. (Id. pg. 2).
Plaintiff responded in Opposition to Defendant’s Motion for Summary Judgment on May 4, 2012. (Pla’s. Resp. In Opp. Doc. No. 41). Plaintiff argued that his military service was a motivating factor in the Defendant’s decisions not to promote him, and that the reasons put forth by the Defendant to support its affirmative defense were pretextual. (Id. pg. 16-20).
The District Court found that evidence of discriminatory animus created a genuine issue of material fact regarding Plaintiff’s military service as a motivating factor for decisions not to promote him. (Order Sum. J. pg. 12 Doc. No. 58). However the District Court erred by finding that there was no genuine issue of material fact regarding the Defendant’s alleged affirmative defense. (Order Sum. J. pg. 15 Doc. No. 58).
The District Court ignored evidence of pretext; specifically inconsistencies and direct falsities concerning the Defendant’s proffered reasons for not promoting the Plaintiff at the time of this lawsuit and the Defendant’s reasons for not promoting the Plaintiff at the actual time of promotions. (Id. pg. 12 n.5). Further the District Court ruled that even though direct and circumstantial evidence of Defendant’s bias and animus against the Plaintiff for his military service was supported by the record; the Defendants subjective reasons for denying Plaintiff promotions were uncontroverted and worthy of credence. (Id. pg. 14-15). This appeal followed. (Doc. No. 64).

STATEMENT OF THE FACTS
The Plaintiff began his employment with the Defendant as a Firefighter-EMT in 1987. (Ex. 1 Doc. No. 43). Plaintiff was promoted to the rank of Driver/Engineer/EMT in 1995. (Pl. Dep. p. 121 Doc. No. 35). Plaintiff was later promoted to the rank of Fire Lieutenant/EMT in 1999. (Id. at 152). Throughout the entire course of his employment with the Defendant the Plaintiff has served in the United States Military Reserve. (Order Sum. J. pg. 1 Doc. No. 58) (citing Complaint – 6 Doc. No. 1). At all times relevant to this lawsuit Plaintiff was a Deputy Fire Chief as a military reservist firefighter. (Ex. 11 Doc. No. 43). Plaintiff has over 26 years of progressive military and civilian experience as a firefighter. (Id.). Deputy Fire Chief is equivalent to Assistant Fire Chief with the Defendant. (Pl. Dep. pg. 336 L12 – pg. 337 L9 Doc. No. 35)
Chief Forsberg assumed the position of Fire Chief for the Defendant in 2004. (Forsberg Dep. pg. 5-6 Doc. No. 42). For purposes of Summary Judgment the District Court found that Chief Forsberg was involved in the final decision making process for each of the promotions at issue in this case. (Order Sum. J. pg. 3-8 Doc. No. 58) (citing Forsberg Dep. Doc. No. 42).
The District Court found that Chief Forsberg and his assistant fire chiefs employed by the Defendant harbored bias and contempt towards the Plaintiff due to his military service. (Id. pg. 8-9).
The District Court also found that the bias and contempt maintained by the Defendant’s managers towards the Plaintiff because of his absences due to military service affected the promotion decision making process. (Id. at 12).userra law florida melbourne 1
A retired Assistant Fire Chief Anglin who actually participated in the 2006 and 2008 promotional processes at issue in this case testified that “a general bias and contempt towards Plaintiff due to his military service contributed to him not being promoted.” (Order Sum. J. pg. 9 Doc. No. 58) (citing Anglin Aff. # 4-7 Doc. No. 42).
Dan Platt a firefighter for the Defendant “overheard comments and complaints from Chief Forsberg and other assistant chiefs that Plaintiff did not have enough face time at the Fire Department due to his military service and that the Plaintiff caused himself to be deployed to earn more money.” (Id. at 8-9) (citing Platt Aff. # 3, 6, 7 Doc. No. 42). Terry Woolridge another employee of the Defendant “overheard Battalion Chief Avilla and Rethwisch allude to the fact that Plaintiff was not promoted because of his military service. (Order Sum. J. pg. 9 Doc. No. 58) (citing Woolridge Aff. # 9 Doc. No. 42).
“Mr. Platt witnessed harsher treatment and scrutiny of Plaintiff due to his military service, as well as upper management’s displeasure towards other employees who took time off to serve. (Order Sum. J. pg. 9 Doc. No. 58) (citing Platt Aff. # 10, 11). Mr. Woolridge stated that “Chiefs Forsberg and Flamm showed ‘displeasure and contempt’ towards Plaintiff and other employees in the military,” further Mr. Woolrdige stated he, “feels targeted and treated disparagingly because of his service in the Air Force Reserve.” (Order Sum. J. pg. 9 Doc. No. 58) (citing Woolridge Aff. # 5, 10, 11 Doc. No. 42).
Retired Assistant Chief Anglin stated that Chief Flamm questioned him several times about the validity of Plaintiff’s Military orders. (Id.) (citing Anglin Aff. # 4, 7 Doc. No. 42). The Defendant in this case initiated a Congressional Inquiry which asked Congress to investigate the Plaintiff for excessive deployment. (Pla. Dep. pg. 262 L7-25, pg. 372 L12-25 Doc. No. 35). Also Chief Forsberg declared that his “belief is that [Plaintiff] is out to maximize his [leave] benefits.” (Forsberg Dep. pg 112 Doc. No. 42).
After the Congressional Inquiry the Defendant and Plaintiff reached an agreement where Plaintiff would use “shift trades” so his military leave would be less disruptive and the City would not be required to pay him for the first 30 days of leave time required by Florida law. (Id. pg. 378). The District Court found that this agreement favored the Defendant. (Order Sum. J. pg. 3 Doc. No. 58). Even after the Plaintiff agreed to help the Defendant with its scheduling and cost issues regarding his military leave Assistant Chief Flamm again accused the Plaintiff of working the system because Plaintiff was taking military time off. (Pla. Dep. pg. 379-380 L12-25 Doc. No. 35).
The District Court surmised that the Defendant did not promote the Plaintiff because management had negative subjective opinions about the Plaintiff. (Order Sum. J. pg. 15 Doc. No. 58). The Defendant alleged that their negative subjective opinions and beliefs about the Plaintiff’s were supported by annual evaluations they made about the Plaintiff questioning his decision making as well questions about his loyalty to the administration. (Id. at 5-6, 15).
Chief Forsberg also testified that he based his subjective opinion of the Plaintiff on conversations he had with Lt. Spencer, Lt. Sipplen, Lt. Michaud, and Firefighter Keith Maxwell. (Forsberg Dep. pg 112 Doc. No. 42); (Id. at 150-51). Chief Forsberg testified that each of the aforementioned individuals expressed to him negative opinions about the Plaintiff’s job performance. (Id.).
However when Lt. Spencer, Lt. Sipplen, Lt. Michaud, and Firefighter Maxwell had their depositions taken they directly contradicted Forsberg’s testimony; not only did they each testify that they had never spoken with Chief Forsberg regarding the Plaintiff, but they all expressed positive opinions about the Plaintiff as a coworker.
Chief Forsberg also claimed that he did not promote the Plaintiff because the Plaintiff allegedly flashed someone in the 1980’s while he was employed by the City of Palm Bay. (Id. at 305, 308). Chief Forsberg then claimed that Fire Chief Stables of Palm Bay had told him the rumor in the last couple of years. (Forsberg Dep. pg 307 Doc. No. 42).
After Chief Forsberg finished his deposition he immediately called the Fire Chief of Palm Bay and asked him to corroborate his testimony. (Stables Dep. pg. 6-7 Doc. No. 42). Thereafter Chief Stables in his own deposition testified that the statement made by Chief Forsberg concerning a discussion between the two regarding the Plaintiff and flashing was untruthful because the conversation had never taken place. (Stables Dep. pg. 8 Doc. No 42).
During the 2006 promotional process for the position of Battalion Chief the Plaintiff was the highest objectively rated candidate. (Order Sum. J. pg. 4 Doc. No. 58) (citing Ex. 11 Doc. No. 34). This included being rated number one in a subjective interview conducted by employees of the Defendant not directly employed by the Fire Department. (Pla. Dep. pg. 257 L2 – 7 Doc. No. 35). Plaintiff lost his number one ranking at the final subjective step of the promotional process, an interview with Chief Forsberg and Assistant Chief Flam. (Order Sum. J. pg. 4 Doc. No. 58). The District Court found that the Defendant chose candidate Avilla based upon Chief Forsberg’s negative subjective opinions of the Plaintiff. (Id. at 15). Specifically Chief Forsberg and other assistant chiefs alleged that the Plaintiff was untrustworthy and disruptive. (Order Sum. J. pg. 15 Doc. No. 58). The Defendants alleged that their subjective opinions and beliefs about the Plaintiff were supported by annual evaluations they made about the Plaintiff questioning his decision making. (Id. at 6).
Defendant indicated on Landolfi’s 2006 promotion denial form that the reason Plaintiff was not promoted was because he was less experienced than the person selected; it was never indicated on the reasons for non promotion that Plaintiff was disruptive, a poor decision maker, or untrustworthy. (Ex. 7 Doc. No. 43). The Defendant did not indicate that Plaintiff had an “[u]nacceptable work record as documented in the employee file”; or that his past evaluations had any role whatsoever in the decision. (Id.).
Further, when the Plaintiff asked Chief Forsberg why he had not been promoted Chief Forsberg responded, “That with [Plaintiff’s] military service [he] needed someone that had more face time in the organization that would be here to lead a shift. (Order Sum. J. pg. 5 Doc. No. 58) (citing Pla. Dep. pg. 224 Doc. No. 35).
During the 2008 promotional process for the position of Battalion Chief the Plaintiff was again the highest rated candidate. (Id.). Plaintiff was ranked the number one candidate by J.T.S. Associations an independent company hired by Chief Forsberg to rank the candidates. (Pla. Dep. pg. 278 L9 – 15 Doc. No. 35). Plaintiff again had his number one ranking taken away at the final step of the promotional process, an interview with Chief Forsberg and his assistant chiefs. (Order Sum. J. pg. 5 Doc. No. 58). The District Court found again the Defendant chose another candidate based upon Chief Forsberg’s negative subjective opinions of the Plaintiff. (Id. at 15).
Defendant indicated on Landolfi’s 2008 promotion denial form that the reason Plaintiff was not promoted was because he was less skilled than the person selected; it was never indicated on the reasons for non promotion that Plaintiff was disruptive, a poor decision maker, or untrustworthy. (Ex. 10 Doc. No. 43). Once again the Defendant did not indicate that Plaintiff had an “[u]nacceptable work record as documented in the employee file,” or that past evaluations played any role in the decision not to promote. (Id.)
During the March of 2010 promotional process for Assistant Fire Chief the only step in the process was an interview with Chief Forsberg and his assistant chiefs. (Id. at 7). The Defendant chose another candidate for the position. (Id.). The District Court found that this decision was also based on Chief Forsberg’s negative subjective opinions of the Plaintiff. (Id. at 15).
The Plaintiff’s March 2010 promotional denial form indicated that the reason for denial was that Plaintiff’s “experience [was] less related than [the] person selected.” (Ex. 10 Doc. No. 43). The Defendant did not indicate that Plaintiff was disruptive, a poor decision maker, untrustworthy, or that his work records or evaluations were considered. (Id.).
During the April 2010 promotional process for Battalion Chief the Plaintiff was the second highest rated candidate. (Id. at 6). The Plaintiff had more experience as a Lieutenant, covered as a fill-in for the Battalion Chief position for longer periods of time, and held a higher degree of education than the selected candidate. (Id. at 8). However, the District Court found that once again the final step of the process was an interview with Chief Forsberg and his assistant chiefs, and once again Chief Forsberg recommended another candidate based upon his negative subjective opinions of the Plaintiff. (Order Sum. J. pg. 8, 15 Doc. No. 58).
The only reason put forth by the Defendant in the Plaintiff’s April 2010 denial was he finished second in all categories. (Ex. 2 Doc. No. 51). Once again and similarly to all previous promotions the reasons set forth by the Defendant during discovery are nowhere to be found in the Defendant’s own record forms which document the reason that Plaintiff was not promoted. (Ex. 2 Doc. No. 51).

STATEMENT OF THE STANDARD OF REVIEW
A court should only grant a motion for summary judgment “if the moving party shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). All inferences to be drawn from the facts must be drawn in the nonmoving party’s favor. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). “At the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 US 242, 247 (1986); Strickland v. Norfolk Southern Railway Company, No. 11-15589, slip op. at # 3 (11th Cir. August 27, 2012). The moving party must identify “the portions of the record which demonstrates the absence of a genuine issue of material fact.” Cohen v. United Am. Bank of Cent. Fla., 83 F.3d 1347, 1349 (11th Cir. 1996). The nonmoving party must demonstrate the existence of a genuine issue of material fact. Fitzpatrick, 2 F.3d at 1116.
Further USERRA cases should be liberally construed in favor of the Plaintiff. 70 Fed. Reg. 75246 (2005) (citing Fishgold v. Sullivan Drydock and
Repair Corp., 328 U.S. 275, 285 (1946), cited Alabama Power Co. v. Davis,
431 U.S. 581, 584-85 (1977); King v. St.Vincent’s Hosp., 502 U.S. 215, 221 n.9
(1991); see also Coffy v. Republic Steel Corp., 447 U.S. 191, 196 (1980).
SUMMARY OF THE ARGUMENT
Plaintiff requests that this Court overturn the District Court’s Order Granting the Defendant’s Motion for Summary for two reasons. First there are genuine issues of material fact regarding the Plaintiff’s prima facie case. Second there are genuine issues of material fact regarding the Defendant’s affirmative defense.
The District Court was correct finding that Plaintiff established a prima facie case of discrimination under USERRA because direct evidence of discriminatory bias was demonstrated to the Court. Specifically affidavits from decision makers and an admission by Chief Forsberg that Plaintiff’s military leave motivated their decision not to promote Plaintiff. However in regards to pretext evidence the District Court erred by failing consider the Defendant’s shifting-reasons defense and contradictory testimony as evidence of pretext.
The District Court erred in sustaining the Defendant’s affirmative defense because it usurped the role of the Jury. Specifically the District Court made credibility determinations regarding the subjective beliefs of the Defendant’s decision makers, a dispositive fact in this case. The District Court erred by failing to consider substantial evidence of pretext regarding the Defendant’s purported reasons to not promote the Plaintiff, specifically a shifting-reasons defense and inconsistent testimony from the Defendant thus failing to hold the evidence presented in a light most favorable to the Plaintiff as a nonmoving party. Finally the District Court improperly applied the McDonald Douglas framework to this summary judgment requiring the Plaintiff to prove he was more qualified than the Defendant’s chosen applicants.

ARGUMENT
1. THE DISTRICT COURT CORRECTLY CONCLUDED THAT PLAINTIFF HAD SUFFICIENT EVIDENCE THAT MILITARY SERVICE WAS A MOTIVATING FACTOR IN THE DEFENDANT’S PROMOTIONAL DECISIONS.
The Plaintiff demonstrated to the District Court for purposes of Summary Judgment direct evidence of discriminatory animus, circumstantial evidence of discriminatory animus, inconsistencies in the Defendant’s proffered reasons for its promotional decisions, and finally pretext evidence including direct contradictions and falsities in the Defendant’s proffered reasons for its promotion decisions. In a 38 U.S.C. § 4311 USERRA discrimination case the Plaintiff has the burden to prove that his military absences were a motivating factor for the Defendant’s discriminatory practices. Coffman v. Chugach Support Servs., Inc., 411 F.3d 1231, 1238 (11th Cir. 2005). Under Supreme Court precedent and Federal Regulations, statutes created for the benefit of military service members should be liberally construed in their favor. 70 Fed. Reg. 75246 (2005) (citing Fishgold, 328 U.S. 275, 285 (1946), cited Alabama Power Co, 431 U.S. 581, 584-85 (1977); King, 502 U.S. 215, 221 n.9 (1991).
A. Direct Evidence of Discrimination
The most significant direct evidence of discrimination is an affidavit provided by retired Assistant Fire Chief Anglin. Assistant Chief Anglin participated as a decision maker in several promotions for which the Plaintiff applied. Assistant Chief Anglin testified directly that management of the Defendant was motivated by bias and contempt towards the Plaintiff for his military leave during promotional decisions. see Coffman, 411 F.3d at 1238; Dees v. HYUNDAI MOTOR MANUFACTURING ALABAMA, LLC, No. 09-12107, slip op. at # 4 (11th Cir. Feb. 26 2010) (Coffman, and Dees, hold that a motivating factor is a factor a truthful employer would list if asked for the reasons for its decision.).
Direct evidence of discrimination also includes testimony by Chief Forsberg to Plaintiff that due to Plaintiff’s military service he would not promote the Plaintiff because Chief Forsberg needed someone that had more face time in the organization that would be here to lead a shift. see Erikson v. U.S. Postal Serv., 571 F.3d 1364, 1368 (Fed. Cir. 2009) (citing Petty v. Metro. Gov’t of Nashville-Davidson County, 538 F.3d 431, 446 (6th Cir.2008), quoting Coffman, 411 F.3d at 1238; and Robinson v. Morris Moore Chevrolet-Buick, Inc., 974 F.Supp. 571, 576 (E.D.Tex.1997), citing Price Waterhouse v. Hopkins, 490 U.S. 228, 241-42 (1989)) (If Plaintiff’s absences from work are a motivating factor for employment decision it is discrimination under USERRA if the absences are a result of military service.).
Other direct evidence of discrimination includes an affidavit by Terry Woolridge, another employee of the Defendant, who “overheard Battalion Chief Avilla [a decision maker] and Rethwisch allude to the fact that Plaintiff was not promoted because of his military service.” see Erikson, 571 F.3d at 1368 (citations omitted). Dan Platt, a firefighter for the Defendant, “overheard comments and complaints from Chief Forsberg – that Plaintiff did not have enough face time at the Fire Department due to his military service and that the Plaintiff caused himself to be deployed in order to earn more money.” (Platt Aff. # 3, 6, 7 Doc. No. 42).
B. Circumstantial Evidence of Discrimination
Plaintiff also brought forth substantial amounts of circumstantial evidence of discriminatory motivation under factors outlined by the Federal Circuit Court of Appeals; those factors include decision makers expressed hostility towards employees who take military leave, disparate treatment of employees who take military leave, and inconsistencies between the Defendant’s proffered reasons and its actions. Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1014 (Fed. Cir. 2001); see also Coffman, 411 F.3d at 1238 (adopting Sheehan.).
Dan Platt witnessed harsher treatment and scrutiny of Plaintiff due to his military service, as well as upper management’s displeasure towards other employees who took time off to serve. (Platt Aff. # 10, 11 Doc. No. 42). While Terry Woolridge stated “that Chief Forsberg and Flamm showed ‘displeasure and contempt’ towards Plaintiff and other employees in the military; further Mr. Woolridge stated he himself ‘feels targeted and treated disparagingly because of his service in the Air Force Reserve.’” (Woolridge Aff. # 5, 10, 11).
The Defendant also questioned the validity of the Plaintiff’s orders through Assistant Chief Anglin, frequently question the Plaintiff in regards to his military leave, and asking a member of the Senate to investigate the Plaintiff’s military leave. see Warren v. International Business Machines Corp., 358 F. Supp .2d 301, 311 (S.D.N.Y. 2005) (Jury could find that frequent questions regarding reserve status is evidence of discrimination.). Further, Chief Forsberg declared that it was his belief that the only reason Plaintiff wanted to serve in the army was so that Plaintiff could maximize his benefits.
C. Error by the District Court For Failure to Consider Pretext Evidence
The District Court erred when it failed to consider a vast amount of inconsistent and contradictory statements made by the Defendant’s managers regarding the reasons why Plaintiff was not awarded any of the promotions at issue as pretext evidence.
A shifting-reasons defense is evidence of pretext and allows a Jury to question the credibility of the Defendant. Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1194, 95 (11th Cir. 2004) (citing Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 147 (2000)) (Shifting reasons by Defendant is”[p]roof that [Defendant’s] explanation is unworthy of credence [and] allows jury to reasonably infer that [Defendant] is dissembling to cover up discriminatory purpose.”).
In this case the District Court found that Defendant’s articulated reasons for not promoting the Plaintiff were that Defendant subjectively believed that it could not operate with the Plaintiff in a management position because Plaintiff was disruptive and untrustworthy. (Order Sum. J. pg. 15 Doc. No. 58).
The Plaintiff brought forth four different promotional forms that were written records kept by the Defendant memorializing the reasons for which Plaintiff was not promoted. In 2006 the only reason listed to explain why Plaintiff was not promoted was because the “past work experience of the chosen applicant was at a higher level.” (Ex. 7 Doc. 43). In 2008 the only reason listed to explain why Plaintiff was not promoted was because his “skill level was lower than the person selected.” (Ex. 10 Doc. No. 43). In March 2010 the only reason listed to explain why Plaintiff was not promoted was because his “[e]xperience was less related than the person chosen.” (Ex. 12 Doc. No. 43). Finally, in April of 2010 the only reason listed to explain why Plaintiff was not promoted was because Plaintiff came in second place during the objective measurement portion of the hiring process. (Ex. 2 Doc. No. 51).
Disruption and trustworthiness are nowhere to be found on the Defendant’s promotional forms; nor are concerns regarding decision making or past evaluations because they were not true considerations made by the Defendant at the time of the promotions. see Cleveland, 369 F.3d at 1195 (citation omitted). Further, when the Plaintiff actually asked Chief Forsberg why he was not promoted in 2006 he was not told by Forsberg that he was poor decision maker, disruptive, or untrustworthy; he was told that because of his military service Chief Forsberg wanted someone with more face time to lead a shift. (Landolfi Dep. pg. 224 Doc. No 35).
Chief Forsberg testified that four employees of the Defendant influenced his decision not to promote the Plaintiff because they had complained about the Plaintiff.
“In you [sic] interrogatories you asked about people who have had issues with Dominick, and I gave you a list of four people that have complained for various reasons. I know one of the people on that list asked to be removed from his shift and be changed to a different shift because he didn’t feel like he could work with Dominick. And other people have said they’ve had difficulty working with Dominick. And so it goes to how well you can lead, how well he is respected by firefighters. And I’m sure you can find some people that respect him a lot and his leadership style and the way he handles the department. And I’m sure there’s a lot of people that don’t, so.”
(Forsberg Dep. pg. 148 – 149 Doc. No. 42).
A follow up question was asked to Chief Forsberg, “Can you name the people that are – anybody by name that is not in your executive staff that played a role in you determining not to promote Mr. Landolfi?” (Id. at 149). He responded, Lieutenant Spencer, Lieutenant Sipplen, Lieutenant Michaud, and Maxwell. (Id. at 149). Respect, leadership style, and personality conflicts with co-workers and subordinates were also not listed on the Defendant’s promotion forms.
Lieutenant Spencer directly testified and contradicted Defendant’s proffered factual basis for its subjective beliefs; Spencer never had conversations with Chief Forsberg regarding the Plaintiff and never complained about the Plaintiff to other managers. Lieutenant Spencer then testified that he does respect Plaintiff as a supervisor. (Spencer Dep. pg. 17 L25 – pg. 18 L1 Doc. No. 42).
Similarly, Lieutenant Sipplen testified and directly contradicted the factual basis for Defendant’s proffered reasons because Sipplen never complained about the Plaintiff to anybody. Sipplen went on to testify that he was never approached by Forsberg about the Plaintiff, and never had a conversation with Forsberg regarding the Plaintiff. (Sipplen Dep. pg. 13 L8 -18 Doc. No. 42). Sipplen went on to testify that Plaintiff was “a good supervisor, organized, and straightforward.” (Id. at 13 – 14). Sipplen then testified that he respects the Plaintiff. (Id. at 16).
Likewise, Lieutenant Michaud testified and directly contradicted the factual basis set forth by Defendant to support its subjective beliefs; Michaud never had discussions with Chief Forsberg regarding the Plaintiff. Michaud then testified that Plaintiff was a good supervisor and good leader. (Michaud Dep. pg. 15 L20 – pg. 16 L3 Doc. No. 42).
Finally, Firefighter Maxwell also testified that he never had a conversation with Chief Forsberg about the Plaintiff. (Maxwell Dep. pg. 11 L24 – pg. 12 L1 Doc. No. 42). Maxwell then testifie that Plaintiff is a good supervisor.
Chief Forsberg also claimed that he did not promote the Plaintiff because the Plaintiff had allegedly flashed someone in the 1980’s while he was employed by the City of Palm Bay. (Forsberg Dep. pg. 305, 308 Doc. No. 42). Chief Forsberg then claimed that Fire Chief Stables of Palm Bay had told him the rumor in the last couple of years. (Id. at 307).
After Chief Forsberg finished his deposition, he immediately called the Fire Chief of Palm Bay and asked him to corroborate his testimony. (Stables Dep. pg. 6-7 Doc. No. 42). Thereafter Chief Stables in his own deposition testified that the statement made by Chief Forsberg concerning a discussion taking place between the two regarding the Plaintiff and flashing was untruthful because the discussion had never taken place. (Stables Dep. pg. 8 Doc. No 42).
Chief Forsberg’s proffered reasons for not promoting the Plaintiff are based on conversations that never actually occurred. Therefore there is evidence that the reasons put forth by the Defendant are entirely made up and false and the District Court erred by finding that the Plaintiff did not show evidence of pretext. Cleveland, 369 F.3d at 1195 (citing Reeves, 530 U.S. at 147) (“Dishonesty can be affirmative evidence of guilt. Indeed once the employers justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reasons for its decision.”).
The District Court correctly found that Plaintiff established a prima facie case of discrimination under USERRA law. However the District Court erred by finding that Plaintiff did not present evidence of pretext. Therefore Plaintiff requests that this Court overturn the District Court’s Order on Defendant’s Motion for Summary Judgment and request that this case be remanded for trial.
2. THE DISTRICT COURT ERRED WHEN IT HELD THERE IS NO GENUINE ISSUE OF MATERIAL FACT REGARDING DEFENDANT’S AFFIRMATIVE DEFENSE.
The District Court impermissibly made credibility determinations and made factual findings in favor of the moving party. Further the District Court erred because it did not consider pretext evidence when it determined there were no genuine issues of material fact concerning the Defendant’s Affirmative Defense. The District Court’s Order Granting Summary Judgment and its findings within that order conflict with the USERRA’s liberal construction maxim. 70 Fed. Reg. 75246 (2005) (citing Fishgold, 328 U.S. 275, 285 (1946), cited Alabama Power Co, 431 U.S. 581, 584 -85 (1977); King, 502 U.S. 215, 221 n.9 (1991).
A. District Court Misapplied Summary Judgment Standard
The District Court erred because it misapplied the summary judgment standard to the Defendant’s Affirmative Defense. (Order Sum. J. pg 14 Doc. No. 58). A USERRA case is different from typical employment law discrimination cases. Sheehan, 240 F.3d at 1014. On the issue of legitimate reasons for employment decisions the Defendant has the burden to persuade the finder of fact that its reasons are true. Id. This is dissimilar from the McDonald Douglas standard where the Plaintiff must show that the Defendant’s reasons are pretext. Id.
The Defendant has merely convinced the District Court that its reasons for not promoting the Plaintiff are true by a preponderance of the evidence, (Order Sum. J. pg. 15 Doc. No. 58) (“The Court cannot reasonably infer that upper management’s distrust of the Plaintiff stemmed from his military service as opposed to an honest belief that Plaintiff lacked good judgment and frequently criticized the administration.”). However this is not a bench trial this is summary judgment and the District Court is not a finder of fact. Anderson, 477 US at 247; Strickland, No. 11-15589, slip op. at # 3. The District Court’s determination that Defendant’s belief is honest is an impermissible creditability determination on its face, Strickland, No. 11-15589, slip op. at # 3, see also Alexander v. Louisiana, 405 U.S. 625, 632 (1972) (The United States Supreme Court has held that affirmations of good faith are factually insufficient to dispel a prima facie case of systematic exclusion.). The District Court has impermissibly considered the testimony of the Defendant’s Chiefs in a light most favorable to the moving party. Fitzpatrick, 2 F.3d at 1115.
B. Evidence of Pretext Which Creates Material Issues of Fact Regarding Credibility of the Defendant’s Witnesses
The District Court failed to consider evidence of pretext and untruthfulness regarding facts that Defendant used to support its purported reasons for refusing to promote the Plaintiff.
There are disputed issues of material fact regarding the credibility of the Defendant’s proffered reasons for not promoting the Plaintiff because the Defendant’s proffered reasons for summary judgment are different from its proffered reasons at the time it did not promote the Plaintiff. Cleveland, 369 F.3d at 1195; Reeves, 530 U.S. at 147. Further, the reasons put forth by the Defendant are contradicted by the testimony of other employees and the Defendant’s own records. Id. Finally, the evidence shows that the primary decision maker in this case, Chief Forsberg has been untruthful and dishonest regarding multiple issues which are allegedly used to substantially support his subjective opinions for refusing to promote the Plaintiff. Cleveland, 369 F.3d at 1195; Reeves, 530 U.S. at 147.
The District Court’s factual conclusion is incorrect as it was previously stated in issue one retired Assistant Chief Anglin testified that he participated as a decision maker in the promotional process and Plaintiff’s military service was considered a motivating factor. Further employee Dan Platt stated in his affidavit that he overheard Avilla, who was also involved in the decision making process, say that Plaintiff’s military service was a factor. Finally and most importantly Chief Forsberg admitted to the Plaintiff that his absence due to military service was a factor in not getting a promotion. A jury could easily conclude based on the contradiction in evidence that the attestations by upper management of the Defendant are untruthful. Reeves, 530 U.S. at 150 (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”).
The District Court then found that the evidence was undisputed that Plaintiff was disruptive and untrustworthy. This is an incorrect factual determination made by the District Court as it was previously laid out in issue number one; the Defendant’s managers never articulated these reasons at the time of the promotions which are now being used for summary judgment purposes. Reeves, 530 U.S. at 145. The United States Supreme Court in Reeves, held that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employers explanation. Id. Indeed if the reasons put forth by the Defendant for failing to promote the Plaintiff were legitimate and truthful it would not be necessary for the Defendant to invent false factual scenarios to support them. Reeves, 530 U.S. at 145.
At the time of the promotions the reasons articulated by the Defendant were that Plaintiff was less experienced than the chosen applicant in 2006, had a skill level lower than the person selected in 2008, his experience less related than person chosen in March 2010, and Plaintiff finished second in all categories in April 2010. After the 2006 promotion Chief Forsberg was directly asked by Plaintiff why he was not promoted and the response was his face time; not trustworthiness or disruptions.
The District Court found that off-duty and on-duty incidents affected the opinions of the decision makers during the promotional process; however the District Court erred in failing to consider the fact that these off-duty and on duty incidents were never articulated by the Defendant as a basis for denial until after the lawsuit was filed. Cleveland, 369 F.3d at 1195.
The Defendant’s reasons have changed after the filing of the lawsuit; therefore this case must go to a Jury to determine whether those reasons are the real reasons or merely a cover for discrimination. Cleveland, 369 F.3d at 1195 (citing Reeves, 530 U.S. at 147); see also Warren, 358 F. Supp. 2d at 311 and Novak v. Mackintosh, 937 F. Supp 873, 882 (D. S.D. 1996) (USERRA cases where Defendant’s shifting reasons for its decisions created a question of fact for the Jury to resolve regarding the Defendant’s actual motive.).
The rationale in Reeves, and Cleveland, are further strengthened by Chief Forsberg’s testimony regarding his conversations with other employees. Chief Forsberg testified that he based his opinion regarding the Plaintiff on conversations he had with Lieutenant Michaud, Firefighter Maxwell, Lieutenant Spencer, and Lieutenant Sipplen. Each and every one of the aforementioned employees of the Defendant denied ever having a conversation with Forsberg regarding the Plaintiff or expressing any negative opinions about the Plaintiff whatsoever. In direct contradiction of Chief Forsberg’s testimony all four of the employees expressed positive opinions about the Plaintiff as a leader and employee.
Similarly, Chief Forsberg based his opinions regarding the Plaintiff on an alleged conversation he had with the Chief Stables. (Forsberg Dep. pg. 305, 308 Doc. No. 42). Chief Forsberg claimed that he did not promote the Plaintiff because the Plaintiff allegedly flashed someone in the 1980’s while he was employed by the City of Palm Bay. (Id.). Chief Forsberg then claimed the Fire Chief Stables of Palm Bay had told him the rumor in the last couple of years. (Id. at 307).
After Chief Forsberg finished his deposition he immediately called the Fire Chief of Palm Bay and asked him to corroborate his testimony. (Stables Dep. pg. 6-7 Doc. No. 42). Thereafter Chief Stables in his own deposition testified that that Chief Forsberg’s testimony concerning a discussion taking place between the two regarding the Plaintiff and flashing was untruthful, because the discussion never took place. (Stables Dep. pg. 8 Doc. No 42).
C. The Plaintiff was the Most Qualified Applicant
The District Court erred when it determined that by a preponderance of the evidence Chief Forsberg believed the candidates hired instead of the Plaintiff were superior. (Order Sum. J. pg. 14 Doc. No 58.). The District Court erred because it misapplied the summary judgment standard, misapplied the evidentiary burden, and misapplied the burden of proof to the issue of the candidate’s qualifications.
As it was previously argued in Issue II Sub Issue A, it is not the District Court that determines the subjective beliefs of the Defendant’s agents, specifically Chief Forsberg it is the function of a Jury. Anderson, 477 US at 247; Strickland, No. 11-15589, slip op. at # 3. Indeed, what the Defendant’s decision makers believed at the time of the promotional decisions at issue strikes at the very heart of this matter. Therefore it was impermissible for the District Court to find that anything was proven by a preponderance of the evidence; let alone the main dispositive fact of this lawsuit.
The District Court also misapplied Wilson v. B/E Aerospace Inc., 376 F.3d 1079, 1090 (11th Cir. 2004), when it determined that there was no question of fact regarding a dispute in qualifications between the Plaintiff and the selected candidates. (Order Sum. J. pg. 13 Doc. No. 58) (“Rather the disparity in qualifications must be of “such weight and significance that no reasonable person” could have chosen the successful candidate.”).
The evidentiary burden, under USERRA law, is that no reasonable person would have selected the alternative candidate only applies in cases where discrepancies in qualifications are the Plaintiff’s only evidence of discrimination. Denney v. City of Albany, 247 F.3d 1172, 1187 (11th Cir. 2001); Deines v. Texas Dept. of Prot. & Reg. Services, 164 F.3d 277 (5th Cir. 1999); see also Lee v. GTE Florida Inc., 226 F.3d 1249, 1254 (11th Cir. 2000) (“[D]isparities in qualifications are not enough in and of themselves to demonstrate discriminatory intent unless those disparities are so apparent as virtually to jump off the page and slap you in the face.”). Because the Plaintiff had already demonstrated direct evidence of discrimination, circumstantial evidence of discrimination, and evidence of pretext as outlined in Issue I Sub Issues A – C it was error for the District Court to require that Plaintiff’s qualifications be of such weight and significance that no reasonable person” could have chosen the successful candidate. Lee, 226 F.3d at 1254.
Further the District Court held that the Plaintiff cannot show pretext by “baldly asserting that [he] was better qualified than the person[s] who received the position at issue.” (Order Sum. J. pg. 13 Doc. No. 58) (quoting Wilson, 376 F.3d at 1090.). In this part of the Order the District Court is impermissibly applying McDonald Douglas to the Plaintiff. Sheehan, 240 F.3d at 1014. It is not the Plaintiff’s burden to prove that he was more qualified than the chosen candidates; it is the Defendant’s burden to show that they would have selected the other candidates notwithstanding their discriminatory motive. Id. Simply put this is a case where the Defendant has the burden of proof and the Defendant is “baldly asserting that their chosen candidates were more qualified than the Plaintiff.” Wilson, 376 F.3d at 1090.
The Plaintiff has demonstrated, under USERRA law,  to the District Court that during promotional process when he was the highest rated candidate he was not hired by the Defendant. (Ex. 5 Doc. No. 43); (Ex. 8 Doc. No. 43). The Plaintiff demonstrated to the District Court that he was the second highest rated and the most experienced candidate he was not hired. (Ex. 2 Doc. No. 51). The Plaintiff demonstrated to the Court that even if the candidate chosen ahead of Plaintiff were not an applicant they still would not have chosen the Plaintiff. (Forsberg Dep. pg. 131 Doc. No. 42). Further the Plaintiff demonstrated to the District Court that when employees of the Defendant independent of the Fire Department, and when an independent company hired by Chief Forsberg were involved in the process they chose the Plaintiff as the best candidate. (Pla. Dep. pg. 278 L9 – 15 Doc. No. 35). (Pla. Dep. pg. 257 L2 – 7 Doc. No. 35). When this evidence is combined with other evidence of pretext, animus, and the District Court’s mishandling of the Summary Judgment Standard and misapplication of the Burden Shifting analysis it is clear the District Court’s Order Granting Summary Judgment should be overturned.
The District Court erred by finding that Plaintiff did not demonstrate material issues of fact concerning the affirmative defense. The record is full of changing stories, attempted witness tampering, and blatant falsehoods; all of which is evidence that the Defendant is lying to cover up its discriminatory practices. The District Court also erred by determining that Defendant’s beliefs were made in good faith because it does not comport with well established Supreme Court precedent in Reeves, and Anderson. Therefore Plaintiff requests that this Court overturn the District Court’s Order on Defendant’s Motion for Summary Judgment and request that this case be remanded for trial.

CONCLUSION
For the reasons set forth above Plaintiff requests that this Court overturn the District Court’s Order Granting the Defendant’s Motion for Summary Judgment.

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Attorney:
Maurice Arcadier

Our Melbourne office is centrally located in Brevard County, enabling our lawyers to serve clients throughout “the Space Coast”, including Cocoa Beach, Palm Bay and Vero Beach.