Full Opinion (html_with_citations)

                                                                     FILED
                                                         United States Court of Appeals
                                 PUBLISH                         Tenth Circuit

                                                              December 3, 2019
                  UNITED STATES COURT OF APPEALS
                                                            Elisabeth A. Shumaker
                         FOR THE TENTH CIRCUIT                  Clerk of Court
                     ____________________________________

ANJELA GREER,

       Plaintiff - Appellant,

v.                                                   No. 18-3159

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




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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.

                                      3
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.

                                         4
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



1
      In district court, Dr. McDonnell and the Wichita Art Museum also
denied that they are proper defendants under the Act, arguing that they
were not Ms. Greer’s employers. The district court did not rule on this
argument, but Dr. McDonnell and the Wichita Art Museum assert this
ground as an alternative ground for affirmance. Despite this assertion, the
parties have not briefed this issue in the appeal. We thus leave this issue
for the district court to decide in the first instance. See Rife v. Okla. Dep’t
of Pub. Safety,
854 F.3d 637, 649
 (10th Cir. 2017) (stating that when the
district court did not rule on an argument, the better practice is to let the
district court decide the issue in the first instance), cert. denied, ___ U.S.
___,
138 S. Ct. 364
 (2017).
                                       5
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 Part III, above. Material factual disputes exist on both issues.

      1.      Dr. McDonnell’s Anti-Military Animus

      The district court assumed without deciding that a reasonable

factfinder could find anti-military animus. Rather than draw an

assumption, we decide the issue, concluding that a reasonable factfinder

could determine that Dr. McDonnell had anti-military animus.

                                       6
      Anti-military animus can be proven through negative statements

about an employee’s military status. See Sheehan v. Dep’t of the Navy,
240 F.3d 1009, 1014
 (Fed. Cir. 2001) (“Discriminatory motivation under the

[Uniformed Services Employment and Reemployment Rights Act] may be

reasonably inferred from a variety of factors, including . . . an employer’s

expressed hostility towards members protected by the statute together with

knowledge of the employee’s military activity.”); see also Staub v. Proctor

Hosp.,
562 U.S. 411, 414
 (2011) (concluding that anti-military animus

could exist when the supervisor had called the employee’s military

obligations “a b[u]nch of smoking and joking and [a] waste of taxpayers[’]

money” (alterations in original)).

      Ms. Greer thus showed Dr. McDonnell’s anti-military animus based

on her prior statements. For example, Ms. Greer testified about frequent

comments disparaging her military service. One of these alleged incidents

took place when Ms. Greer said that she needed to attend her annual two-

week reserve training. Dr. McDonnell allegedly responded: “[C]an’t they

reschedule that? Don’t they know you have a real job?” Appellant’s App’x,

vol. I, at 106–07. And when a security guard slammed a door into Ms.

Greer’s shoulder, Dr. McDonnell reportedly admonished Ms. Greer:

“[B]eing [in the] military, I figured you would be able to handle it.” Id.

at 133.



                                      7
      According to Ms. Greer, Dr. McDonnell also declared that Ms. Greer

could never get a promotion as long as she remained in the military. An

example took place when Ms. Greer expressed an interest in the position of

“Weekend Supervisor.” According to Ms. Greer, Dr. McDonnell responded:

“[Y]ou’re still in the military, military thing, the crap, whatever . . . .

[Y]ou’re not going to be considered or promoted or you’re not going to do

anything here.” Id.

      Responding to these incidents, the defendants argue that (1) isolated

statements cannot show anti-military animus and (2) Dr. McDonnell’s

statements were isolated and referred only to Ms. Greer’s unavailability for

work during her reserve unit’s drill weekends. We disagree because Dr.

McDonnell’s comments bore directly on the disputed employment decision.

      Anti-military comments can show anti-military animus when they are

directed at the plaintiff or her effort to obtain a promotion. Stover v.

Martinez,
382 F.3d 1064, 1078
 (10th Cir. 2004). And Dr. McDonnell’s

statements referred specifically to Ms. Greer and her inability to get a

promotion. For example, Ms. Greer testified that Dr. McDonnell had

repeatedly remarked that Ms. Greer would not get a promotion as long as

she remained in the military. Remarks like these suggest that Dr.

McDonnell had anti-military animus even if that animus stemmed from a

concern over Ms. Greer’s availability during drill weekends. See Erickson



                                        8
v. U.S. Postal Serv.,
571 F.3d 1364, 1368
 (Fed. Cir. 2009). 2 A reasonable

factfinder could thus infer anti-military animus by Dr. McDonnell.

      The defendants repeatedly downplay Ms. Greer’s testimony as “self-

serving.” But virtually any party’s testimony can be considered “self-

serving,” and self-serving testimony is competent to oppose summary

judgment. See Sanchez v. Vilsack,
695 F.3d 1174
, 1180 n.4 (10th Cir.

2012) (stating that an affidavit resting on personal knowledge and setting

forth admissible facts “is legally competent to oppose summary judgment,

irrespective of its self-serving nature”). Even standing alone, self-serving

testimony can suffice to prevent summary judgment. See Evers v. Regents

of Univ. of Colo.,
509 F.3d 1304, 1309
 (10th Cir. 2007) (concluding that

the plaintiff’s testimony was sufficient to defeat summary judgment);

accord Berry v. Chicago Transit Auth.,
618 F.3d 688, 691
 (7th Cir. 2010)

(“[W]e long ago buried . . . the misconception that uncorroborated



2
      In Erickson, the Federal Circuit stated:

      The most significant—and predictable—consequence of reserve
      service with respect to the employer is that the employee is
      absent to perform that service. To permit an employer to fire an
      employee because of his military absence would eviscerate the
      protections afforded by the [Uniformed Services Employment
      and Reemployment Rights Act], the overarching goal of which
      is to prevent those who serve in the uniformed services from
      being disadvantaged by virtue of performing their military
      obligations.
571 F.3d at 1368
.
                                      9
testimony from the non-movant cannot prevent summary judgment because

it is ‘self-serving.’”). So irrespective of the self-serving nature of Ms.

Greer’s testimony, it creates a genuine factual dispute on Dr. McDonnell’s

anti-military animus.

      2.    A Motivating Factor in Denying Ms. Greer an Interview
      For a prima facie case, Ms. Greer must also show that Dr.

McDonnell’s anti-military animus constituted a motivating factor in Ms.

Hensley’s denial of an interview to Ms. Greer. See Part III, above. The

district court concluded that Ms. Greer had not satisfied this burden. In our

view, however, this issue involves a genuine dispute of material fact.

      a.    Dr. McDonnell’s Anti-Military Animus

      Dr. McDonnell’s anti-military animus would constitute a motivating

factor if it influenced Ms. Hensley’s decision to disallow an interview.

Coffman v. Chugach Support Servs., Inc.,
411 F.3d 1231, 1238
 (11th Cir.

2005). The existence of other innocent motivations would not have been

fatal. Bradberry v. Jefferson Cty.,
732 F.3d 540, 545
 (5th Cir. 2013);

Coffman,
411 F.3d at 1238
.

      In our view, a reasonable factfinder could infer that Dr. McDonnell’s

anti-military animus had influenced Ms. Hensley’s decision. For example,

a factfinder could reasonably consider what had happened after Ms.

Hensley announced her decision. According to Ms. Greer, she confronted



                                      10
Ms. Hensley and pressed for an explanation. In response, Ms. Hensley

pinned the blame on pressure from Dr. McDonnell:

     [Y]ou don’t know Patricia McDonnell (indicating), you do not
     know her. You don’t know. She comes up here to HR, up here,
     and she is a tyrant. I’m like, a tyrant? I’m still not sure what a
     tyrant is, but she said Patricia’s a tyrant and she’s throwing
     fits. And she makes all of them scared. Why? And she says,
     well, she wants you right where you are. So with that being
     done, you’re not going to have -- you’re not going to go
     anywhere. And those is my instructions from her and that’s
     why -- that’s -- you can put in all the applications you want.

Appellant’s App’x, vol. II, at 551.

     The defendants downplay this testimony, asserting that Dr.

McDonnell didn’t review Ms. Greer’s application until after Ms. Hensley

had made her decision. 3 But even if Dr. McDonnell did not know about this

particular application, there was evidence that

          she had previously instructed Ms. Hensley to leave Ms. Greer
           “right where [she was]” and

          Ms. Hensley had attributed her decision to the instruction from
           Dr. McDonnell.
Id.
 Given this evidence, a factfinder could reasonably infer that Dr.

McDonnell had squashed any future promotions for Ms. Greer.




3
     Ms. Greer also argues that a reasonable factfinder could infer that
Dr. McDonnell had known that Ms. Greer would apply for the job of
Operations Supervisor. But we need not address this argument.

                                      11
     b.    Ms. Greer’s Supervisory Experience

     The district court concluded that Ms. Hensley had found Ms. Greer

ineligible for an interview based on her apparent lack of qualifications, not

Dr. McDonnell’s anti-military animus. The new position required at least

one year’s supervisory experience in a museum, security environment, or

law-enforcement field. See Part I, above.

     The parties disagree on whether Ms. Greer met this requirement.

According to Ms. Greer, she had served as the museum’s security

supervisor in charge of the second shift. 4 As supervisor, she had allegedly

created schedules, scheduled police officers for events, drafted incident

reports, allowed guards to leave early, provided “teaching moments” to

other guards, and provided oversight. The defendants argue that Ms. Greer

might have been a “shift lead,” but was never a supervisor.

     Given this factual disagreement, the district court had to determine

whether a factfinder could reasonably find that Ms. Greer’s application had

shown supervisory experience. If the factfinder could not reasonably find

that the application showed supervisory experience, Dr. McDonnell’s anti-



4
      Ms. Greer also argues that she had other supervisory experience
outside the museum, including supervisory experience in the military. But
she did not include this supervisory experience in the application, and Ms.
Greer’s military experience arguably didn’t involve work in a museum,
security, or law-enforcement environment. We thus assume, for the sake of
argument, that Ms. Greer’s supervisory experience in the military would
not affect the availability of summary judgment.
                                     12
military animus might not have constituted a motivating factor in Ms.

Hensley’s decision.

         Ms. Greer argues that her application satisfied the job qualifications

because she answered “2” for the number of employees supervised. But

when describing her job duties, Ms. Greer did not identify any supervisory

tasks:

         Monitors security of property, art works on display. Against
         theft, fires, and vandalism. Inventory artwork daily and hourly
         per shift. Able to recognize and report needed repairs to
         supervisor. Monitor security systems alarms and conditions.
         Develop and maintain a working relationship with all associates
         including the public. To communicate clearly and effectively,
         in person and in writing. Be able to run if needed too [sic].
         Move quickly.

Appellant’s App’x, vol. II, at 327. In addition, Ms. Greer listed her

position title as “Security,” which did not suggest a supervisory role. 5 On

the face of her application, Ms. Greer’s supervisory experience was

ambiguous.

         We thus focus on the evidence describing how the City treated

applications bearing ambiguities on the applicant’s qualifications. In our

view, this evidence creates a genuine factual dispute on the scope of Ms.



5
      In the application, Ms. Greer stated that her duties included reporting
needed repairs to a supervisor. In oral argument, the defendants argued that
this duty shows that Ms. Greer was not a supervisor. We reject this
argument because Ms. Greer could have been a mid-level supervisor,
overseeing some employees and reporting to others.

                                        13
Hensley’s discretion to advance the application to the interview stage even

if the application had been ambiguous.

      City personnel testified that they compare the number of individuals

being supervised with the applicant’s job title and job duties. If the

applicant’s duties do not match the number of people supervised, city

personnel stated that they consider the individual a “shift lead” rather than

a supervisor.

      But a factfinder could reasonably reject this testimony, for city

personnel (Ms. Lisa White and Ms. Susan Leiker) indicated that the Human

Resources Department could treat experience as supervisory if an applicant

had indicated the number of people supervised without listing supervisory

duties.

      For example, Ms. White testified:

      Q.        And how do you know if the application meets [the job]
                requirements? Because of the words on the application?

      A.        That’s exactly right.

      Q.        So if, for instance, Anjela Greer says she has supervised two
                people in her job, as in her existing job with the art museum,
                that should be taken as supervisory experience?

      A.        Possibly, yes.

      . . . .

      Q.        I am wondering, we were talking earlier about the words on the
                application versus the words on the job description. And I
                thought we had established that if there is a match, then the
                application is supposed to go through for the interview process

                                         14
               so that if there are questions, if there are discrepancies or
               things that need to be explained, that’s what the interview
               process is for; true?

     A.        That would be correct.

     Q.        So if Olivia [Hensley] had felt like it, she could have sent the
               application on and left it up to the interview process. If Patricia
               [McDonnell] is concerned about what Olivia perceives is a
               discrepancy, Patricia can ask her about it; true?

     A.        That could have occurred; however, apparently Olivia looked at
               the duties as described by Anjela and found that the duties did
               not match supervision.

     Q.        Or Olivia had Patricia leaning on her and decided she’s just not
               going to clear that application no matter what.

     . . . .

     Q.        As long as we’re speculating about why Olivia did what she
               did, that would be another explanation; would it not?

     A.        I can’t say about that. I have no idea.

Appellant’s App’x, vol. II, at 320; Appellant’s App’x, vol. IV, at 1006.

     Given this testimony, a factfinder could reasonably infer that Ms.

Hensley had the discretion to consider Ms. Greer’s experience as

supervisory. When asked if supervisory experience was shown by Ms.

Greer’s answer of “2” for the number of individuals supervised, Ms. White

answered: “Possibly, yes.” Then, when asked whether Ms. Hensley could

advance Ms. Greer to an interview, Ms. White acknowledged that this

advancement “could have occurred.” A factfinder could reasonably infer

from Ms. White’s testimony that Ms. Hensley had the discretion to advance


                                         15
Ms. Greer’s application to the interview stage and didn’t do so because of

Dr. McDonnell’s anti-military animus.

     Like Ms. White, Ms. Susan Leiker explained that ambiguities about

an applicant’s qualifications could be fleshed out during the interview

process:

     Q.    Okay. And can these qualifications then from a procedural
           standpoint, can these qualifications then be fleshed out in the
           interview process?

     A.    Certainly.

Appellant’s App’x, vol. III, at 664. This testimony also suggests that Ms.

Hensley chose to disallow an interview because of Dr. McDonnell’s anti-

military animus rather than Ms. Greer’s lack of supervisory experience.

     The factfinder could reasonably infer discretion not only from the

testimony of Ms. White and Ms. Leiker but also from Ms. Greer’s

testimony about Ms. Hensley’s explanation for her decision. 6 When Ms.

Greer asked why she wouldn’t get an interview, Ms. Hensley explained that

Dr. McDonnell had given “instructions” to leave Ms. Greer in her current

job as long as she remained in the military. Appellant’s App’x, vol. II,

at 551; see Part IV(A)(2)(a), above.


6
      Ms. Greer also argues that the City (1) had the discretion to contact
applicants to address ambiguities in their application and (2) exercised that
discretion by contacting an applicant for another job to clarify his interest
in a full-time position. We need not address these arguments because Ms.
Greer’s other evidence suffices to create a genuine dispute of material fact.

                                       16
     Given the testimony by Ms. White, Ms. Leiker, and Ms. Greer, a

factfinder could reasonably determine that Dr. McDonnell’s anti-military

animus was a motivating factor for Ms. Hensley’s decision not to advance

Ms. Greer to an interview.

     B.    The Defendants’ Same-Action Defense

     The district court also concluded that the defendants had proven that

they would not have advanced Ms. Greer’s application to an interview even

if she were not in the Navy Reserves. Because this is an affirmative

defense, the defendants had the burden of proving that “no reasonable trier

of fact could find other than for the moving party.” Leone v. Owsley,
810 F.3d 1149, 1153
 (10th Cir. 2015) (emphasis omitted) (quoting Calderone v.

United States,
799 F.2d 254, 259
 (6th Cir. 1986)).

     The defendants have not met this heavy burden. As discussed above,

a factfinder could reasonably attribute Ms. Hensley’s decision to anti-

military animus rather than an ironclad city practice. So the defendants

were not entitled to summary judgment on their affirmative defense.

V.    Conclusion

     A genuine dispute exists on whether Ms. Hensley rejected Ms.

Greer’s application because of anti-military animus. We thus reverse the

district court’s award of summary judgment.




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