from the United States District Court for the District of
Kansas (D.C. No. 6:16-CV-01185-EFM)
R. Schrag, Attorney at Law, Clearwater, Kansas (Donald N.
Peterson, II, Sean M. McGivern, Graybill & Hazlewood,
Wichita, Kansas, with her on the briefs), for
Jennifer M. Hill, McDonald Tinker, Wichita, Kansas, for
Defendant-Appellee City of Wichita.
N. Wetta, Foulston Siefkin, Wichita, Kansas, for
Defendants-Appellees Wichita Art Museum and Patricia
BACHARACH, McHUGH, and EID, Circuit Judges.
BACHARACH, CIRCUIT JUDGE.
appeal involves a claim under the Uniformed Services
Employment and Reemployment Rights Act, which prohibits
employers from denying promotions because of an
employee's military service. The claim is brought by Ms.
Anjela Greer, an employee for the City of Wichita who worked
at the Wichita Art Museum. She applied for a promotion but
didn't get an interview.
sued the City, the Wichita Art Museum, and the museum's
executive director, alleging that they had disallowed an
interview because of Ms. Greer's simultaneous military
service. The district court granted summary judgment to the
defendants on two grounds: (1) Any reasonable factfinder
would determine that the defendants had declined to advance
Ms. Greer to the interview stage because her application
showed a lack of supervisory experience, and (2) the
defendants had proven that they wouldn't have advanced
Ms. Greer to an interview regardless of her military status.
reject both grounds. The first ground is invalid because a
factfinder could reasonably infer that Ms. Greer's
military status was a motivating factor in the
defendants' denial of an interview. The second ground is
also invalid because a factfinder could reasonably find that
Ms. Greer would have obtained an interview if she had not
been serving in the military. We thus reverse the grant of
summary judgment to the defendants.
The Denial of an Interview
Greer simultaneously served in the Navy Reserves and worked
as a security guard at the Wichita Art Museum. After about
five years as a security guard, Ms. Greer learned of a
vacancy for the museum's "Operations
Supervisor." She and one other person applied. A city
employee, Ms. Olivia Hensley, screened the applications and
decided not to advance Ms. Greer to the next stage, where she
would have been interviewed.
decision sparked this suit. Ms. Hensley attributes the denial
of an interview to Ms. Greer's lack of qualifications.
The new job required at least one year of prior supervisory
work in particular fields. See Part IV(A)(2)(b),
below. In light of this requirement, the application called
for Ms. Greer to state how many people she supervised. She
answered "2," but identified her job title only as
"Security" and didn't list any supervisory
duties. Based on the job title and the absence of any listed
supervisory duties, Ms. Hensley testified that Ms.
Greer's application had shown a lack of supervisory
Greer disagrees with this explanation, contending that Ms.
Hensley was actually following instructions from Dr. Patricia
McDonnell, who was the museum's executive director.
According to Ms. Greer, Dr. McDonnell harbored anti-military
animus and blocked any promotions for Ms. Greer while she
remained in the military.
engage in de novo review of the district court's
summary-judgment ruling, applying the same standard that
applied in district court. Universal Underwriters Ins.
Co. v. Winton, 818 F.3d 1103, 1105 (10th Cir. 2016).
Under that standard, the district court must view the
evidence and all reasonable inferences favorably to Ms.
Greer. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). Viewing the evidence and inferences in this
light, the court could grant summary judgment to the
defendants only in the absence of a "genuine dispute as
to any material fact" and the defendants' showing of
an entitlement "to judgment as a matter of law."
the Uniformed Services Employment and Reemployment Rights
Act, the burden of proof shifts based on whether the court is
considering an aggrieved employee's prima facie case or
an employer's affirmative defense.
prima facie case, aggrieved employees must prove that their
military membership constituted "a motivating
factor" in the denial of a promotion. 38 U.S.C. §
4311(c)(1). This burden is satisfied if military membership
is one of the reasons for denying the promotion.
Bradberry v. Jefferson Cty., 732 F.3d 540,
545 (5th Cir. 2013); Coffman v. Chugach Support Servs.,
Inc., 411 F.3d 1231, 1238 (11th Cir. 2005).
aggrieved employee shows that military membership is one of
the reasons for denying a promotion, the employer may invoke
the "same action defense." See 38 U.S.C.
§ 4311(c)(1). Under this defense, the employer must
prove that it would have taken the same action even if the
employee had not been in the military. See Bradberry v.
Jefferson Cty., 732 F.3d 540, 547 (5th Cir. 2013)
(employer's burden); Sheehan v. Dep't of the
Navy, 240 F.3d 1009, 1014 (Fed. Cir. 2001) (nature of
Material Factual Disputes
Greer argues that Dr. McDonnell's anti-military animus
constituted a motivating factor in Ms. Hensley's decision
not to advance her application to the interview stage. This
argument implicates the cat's paw doctrine. Under this
doctrine, an employer can incur liability for the
anti-military animus of supervisors even if they do not
actually make the employment decision. Staub v. Proctor
Hosp., 562 U.S. 411, 419-20 (2011). To invoke this
doctrine, the applicant must show that the supervisor's
anti-military animus influenced the decision. Id.
consider three issues:
1. Could a factfinder reasonably infer anti-military animus
by Dr. McDonnell?
2. Could a factfinder reasonably conclude that Dr.
McDonnell's anti-military animus had been a motivating
factor in Ms. Hensley's denial of an interview to Ms.
3. Did the defendants satisfy the same-action defense, as a
matter of law, by proving that Ms. Hensley would have
disallowed an interview even if Ms. Greer had not been
serving in the military?
view, Ms. Greer has raised a genuine dispute of material fact
on each issue.
Ms. Greer's Prima Facie Case
prima facie case, Ms. Greer bore the burden of proving that
(1) Dr. McDonnell had harbored anti-military animus and (2)
this animus had constituted a factor motivating Ms. Hensley
to disallow an interview. See ...