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Greer v. City of Wichita

United States Court of Appeals, Tenth Circuit

December 3, 2019

ANJELA GREER, Plaintiff - Appellant,
v.
CITY OF WICHITA, KANSAS, WICHITA ART MUSEUM, INC., and PATRICIA McDONNELL, Defendants - Appellees.

          Appeal from the United States District Court for the District of Kansas (D.C. No. 6:16-CV-01185-EFM)

          Susan R. Schrag, Attorney at Law, Clearwater, Kansas (Donald N. Peterson, II, Sean M. McGivern, Graybill & Hazlewood, Wichita, Kansas, with her on the briefs), for Plaintiff-Appellant.

          Jennifer M. Hill, McDonald Tinker, Wichita, Kansas, for Defendant-Appellee City of Wichita.

          Rachel N. Wetta, Foulston Siefkin, Wichita, Kansas, for Defendants-Appellees Wichita Art Museum and Patricia McDonnell.

          Before BACHARACH, McHUGH, and EID, Circuit Judges.

          BACHARACH, CIRCUIT JUDGE.

         This 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.

         She 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.

         We 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.

         I. The Denial of an Interview

         Ms. 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.

         That 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 experience.

         Ms. 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.

         II. Summary-Judgment Standard

         We 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." Fed.R.Civ.P. 56(a).

         III. Burden-Shifting Framework

         Under 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.

         For a 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).

         If an 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 the burden).

         IV. Material Factual Disputes[1]

         Ms. 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.

         We thus 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. Greer?
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?

         In our view, Ms. Greer has raised a genuine dispute of material fact on each issue.

         A. Ms. Greer's Prima Facie Case

         For a 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 ...


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