PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 16-2492

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ANTHONY J. CARROLL

v.

DELAWARE RIVER PORT AUTHORITY,

Appellant

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On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 1:13-cv-02833)

District Judge: Hon. Noel L. Hillman

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Submitted Under Third Circuit L.A.R. 34.1(a)

November 18, 2016

Before: AMBRO, SHWARTZ, and FUENTES, Circuit 

Judges

(Filed: December 12, 2016)
2

Marisa J. Hermanovich, Esq.

Matthew S. Wolf, Esq.

Matthew S. Wolf

1236 Brace Road, 2nd Floor

Cherry Hill, NJ 08034

Attorneys for Appellee

Rufus A. Jennings, Esq.

Carla P. Maresca, Esq.

Deasey Mahoney & Valentini

1601 Market Street, Suite 3400

Philadelphia, PA 19103

Attorneys for Appellant

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OPINION OF THE COURT

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FUENTES, Circuit Judge.

After the District Court denied Plaintiff Anthony J. 

Carroll’s motion for partial summary judgment and 

Defendant Delaware River Port Authority’s motion for 

summary judgment, it certified the following legal question 

for our review: in a failure-to-promote discrimination suit 

under the Uniformed Services Employment and 

Reemployment Rights Act (“USERRA,” 38 U.S.C. § 4301, et 

seq.), must a plaintiff plead and prove that he or she was 
3

objectively qualified for the position sought? We now answer 

that question in the negative. In our view, plaintiffs need not

plead or prove that they are objectively qualified in order to 

meet their initial burden under USERRA; instead, employers 

may raise a plaintiff’s lack of qualifications as a nondiscriminatory justification for declining to promote the 

plaintiff, notwithstanding his or her military service.

I.

This case centers on Carroll’s employment at the 

Port Authority. Carroll was first hired by the Port Authority 

in 1989 as a police officer. Between 1989 and 2009, he was a 

member of the uniformed services in various capacities, 

including six years as a corpsman in the United States Navy 

and ten years as a member of the Pennsylvania National 

Guard. When not on active duty in the military, Carroll 

maintained his employment with the Port Authority, 

ascending to the rank of corporal in the Port Authority Police 

in 2004.

Carroll was again ordered to active duty in late 

2008 and deployed to Iraq in early 2009, where he sustained 

injuries leading to such conditions as cervical spondylosis, 

degenerative disk disease, bilateral torn rotator cuffs, brain 

injury, and high-frequency hearing loss. Carroll returned to 

the United States in late 2009 and was in rehabilitation for his 

injuries until his honorable discharge in late 2013. Carroll 

has not worked for the Port Authority since he was deployed 

to Iraq in early 2009.

In October 2010 and October 2012, while on active 

duty but in rehabilitation, Carroll applied to the Port 
4

Authority for a promotion to the rank of sergeant. Although 

he was interviewed in both 2010 and 2012, he was not 

promoted on either occasion. 

Carroll then sued the Port Authority under 

USERRA, alleging that he was not promoted to sergeant in 

2010 or 2012 due to unlawful discrimination on the basis of 

his military service. After motion practice and discovery in

the District Court, Carroll filed a motion for partial summary 

judgment—related to the 2012 promotion—and the Port 

Authority filed a motion for summary judgment on all claims. 

In so moving, the Port Authority argued that, to survive 

summary judgment, Carroll must raise a triable issue of fact 

on the question of whether he was objectively qualified for a 

promotion to sergeant. The District Court denied both 

motions for summary judgment and Carroll’s subsequent 

motion for reconsideration. The Port Authority then moved 

the District Court for an interlocutory appeal on the question 

of whether Carroll must plead and prove that he was 

objectively qualified for a promotion to sergeant in order to 

sustain his discrimination suit under USERRA. The Court 

granted the Port Authority’s motion and certified that 

question for appeal.

II.

1

The question presented is straightforward: in a 

failure-to-promote discrimination suit under USERRA, must 

a plaintiff plead and prove that he or she was objectively 

 

1 The District Court had jurisdiction under 28 U.S.C. § 1331. 

We have appellate jurisdiction under 28 U.S.C. § 1292(b).
5

qualified for the position sought? The answer, we find, is 

equally straightforward: no. 

Congress enacted USERRA in 1994 to, inter alia,

“encourage noncareer service in the uniformed services by 

eliminating or minimizing the disadvantages to civilian 

careers and employment which can result from such 

service.”

2

 To this end, USERRA prohibits the “deni[al] [of] 

initial employment, reemployment, retention in employment, 

promotion, or any benefit of employment by an employer on 

the basis of [a person’s] membership, application for 

membership, performance of service, application for service, 

or obligation [in a uniformed service].” 3 When plaintiffs 

allege discrimination in violation of USERRA, courts apply a 

two-step burden shifting framework adapted from NLRB v. 

Transportation Management Corp.:

4

[A]n employee making a 

USERRA claim of 

discrimination [] bear[s]

the initial burden of 

showing by a 

 

2 38 U.S.C. § 4301(a)(1).

3 38 U.S.C. § 4311(a).

4 462 U.S. 393 (1983), abrogated by Dir., Office of Workers’

Comp. Programs, Dep’t of Labor v. Greenwich Collieries, 

512 U.S. 267 (1994). In Transportation Management, the 

Supreme Court applied a two-step burden shifting framework 

in the context of the National Labor Relations Act, which 

prohibits the discharge of a worker based on his or her union 

activity. Id. at 401.
6

preponderance of the 

evidence that the 

employee’s military 

service was “a substantial 

or motivating factor” in the 

adverse employment 

action. If this requirement 

is met, the employer then 

has the opportunity to 

come forward with 

evidence to show, by a 

preponderance of the 

evidence, that the employer 

would have taken the 

adverse action anyway, for 

a valid reason.5

The Port Authority seeks to alter this framework by 

importing an additional requirement from other antidiscrimination statutes. According to the Port Authority,

USERRA plaintiffs must sustain their initial burden by 

demonstrating two facts by a preponderance of the evidence: 

(1) that they were objectively qualified for the position 

sought, and (2) that their military service was “a substantial or 

motivating factor” in the adverse employment action. In this 

case, for example, the Port Authority claims that Carroll was 

physically incapable of performing a sergeant’s duties due to

his injuries and was therefore unqualified for the position. 

Under the Port Authority’s proposed framework, Carroll

 

5 Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1013 (Fed. Cir. 

2001) (utilizing the Transportation Management framework 

to analyze USERRA claims).
7

could not meet his initial burden under USERRA—even if he 

could show that his military service was “a substantial or

motivating factor”—because he could not demonstrate that he 

was objectively qualified for the promotion to sergeant.

Carroll, on the other hand, contends that a 

plaintiff’s objective qualifications are only relevant to the 

USERRA analysis after a plaintiff meets his or her initial 

burden. Once a plaintiff has shown that his or her military 

service was “a substantial or motivating factor” in the adverse 

employment action, Carroll argues, the employer may then 

advance non-discriminatory reasons—which may include a 

lack of qualifications—to show that the employer would have 

taken the adverse action anyway. In other words, Carroll 

asserts that a plaintiff’s objective qualifications are certainly 

relevant, but they are an affirmative defense to be advanced 

by the employer, not an additional hurdle to be cleared by

USERRA plaintiffs.

We find Carroll’s reading more persuasive. The 

statute is clear that an employer violates USERRA if a 

plaintiff’s “membership . . . 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.”

6

 All courts of appeals

interpreting USERRA have recognized this unambiguous

language and held that a plaintiff meets his or her initial 

burden simply by showing that military service was “a 

substantial or motivating factor” in the adverse employment 

 

6 38 U.S.C. § 4311(c)(1).
8

action.

7

 Indeed, this Court has so held on more than one 

occasion, albeit in non-precedential opinions. 8 The clear 

implication of these uniform holdings is that plaintiffs need 

not plead or prove that they are objectively qualified in order 

to meet their initial burden under USERRA. Instead, it is 

incumbent on employers to raise a plaintiff’s lack of 

qualifications at the second step of our USERRA framework: 

an employer may argue, for example, that it would have taken 

the same employment actions absent a plaintiff’s military 

service because he or she lacked the necessary qualifications

for the position in question.

9

 This construction not only 

comports with the plain text of USERRA and holdings of 

 

7 Angiuoni v. Town of Billerica, 838 F.3d 34, 39 (1st Cir. 

2016); Bradberry v. Jefferson Cty., Tex., 732 F.3d 540, 547 

(5th Cir. 2013); Bobo v. United Parcel Serv., Inc., 665 F.3d 

741, 755 (6th Cir. 2012); Madden v. Rolls Royce Corp., 563 

F.3d 636, 638 (7th Cir. 2009); Wallace v. City of San Diego, 

479 F.3d 616, 624 (9th Cir. 2006); Maxfield v. Cintas Corp. 

No. 2, 427 F.3d 544, 551 (8th Cir. 2005); Coffman v. 

Chugach Support Servs., Inc., 411 F.3d 1231, 1239 (11th Cir. 

2005); Hill v. Michelin N. Am., Inc., 252 F.3d 307, 312 (4th 

Cir. 2001); Sheehan, 240 F.3d at 1013; Gummo v. Vill. of 

Depew, N.Y., 75 F.3d 98, 106 (2d Cir. 1996).

8 See, e.g., Murphy v. Radnor Twp., 542 F. App’x 173, 177 

(3d Cir. 2013) (not precedential); Hart v. Twp. of Hillside, 

228 F. App’x 159, 162 (3d Cir. 2007) (not precedential).

9 See Madden, 563 F.3d at 638-39 (considering the 

employee’s lack of qualifications as part of the employer’s 

evidence at the second step of the USERRA analysis, not as 

part of the employee’s initial burden).
9

courts of appeals, but also effects Congress’s intent to 

“clarify, simplify, and, where necessary, strengthen the 

[previous] veterans’ employment and reemployment rights 

provisions.”10

The Port Authority’s reliance on other antidiscrimination statutes does not alter our conclusion. For 

example, the Port Authority places much weight on the 

uncontroversial proposition that Title VII of the Civil Rights 

Act, the Americans with Disabilities Act (“ADA”), and the 

Age Discrimination in Employment Act (“ADEA”) have all 

been interpreted, under the McDonnell Douglas framework, 

to require an initial showing that the plaintiff is objectively 

 

10 Gummo, 75 F.3d at 105 (quoting H.R. Rep. No. 65, 103d 

Cong., 2d Sess. 18 (1994)). As courts have explained, 

USERRA was enacted in 1994 to more broadly protect 

uniformed service members from discrimination. Id.;

Sheehan, 240 F.3d at 1012-13. For example, the Supreme 

Court held in Monroe v. Standard Oil Co., 452 U.S. 549 

(1981), that liability for violations of the Vietnam Era 

Veterans’ Readjustment Assistance Act (USERRA’s 

predecessor) was unfounded unless the employee’s reserve 

status was the sole motivation for the discriminatory conduct. 

In response, Congress passed USERRA and made clear “that 

a violation occurs when a person’s military service is a 

‘motivating factor’ in the discriminatory action, even if not 

the sole factor.” Sheehan, 240 F.3d at 1013 (citing 38 U.S.C. 

§ 4311(c)(1)); see also Gummo, 75 F.3d at 105. Our 

interpretation of USERRA today embraces this congressional 

objective.
10

qualified for the position sought.11 But the Transportation 

Management framework set forth above,

12 rather than the 

McDonnell Douglas framework, has been consistently 

applied to analyze USERRA claims.13 The Port Authority 

has not identified any case in which a plaintiff failed to meet 

his or her initial burden under the Transportation 

Management framework by failing to plead and prove 

objective qualifications.

IV.

For the foregoing reasons, we conclude that Carroll 

need not plead and prove that he was objectively qualified for 

the 2010 and 2012 promotions to sustain his USERRA 

discrimination suit. The case will be remanded to the District 

Court for further proceedings consistent with this Opinion.

 

11 See Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 

2013) (using the McDonnell Douglas framework to analyze 

Title VII and ADEA claims, including the requirement that a 

plaintiff show he or she was qualified for the position in 

question); Williams v. Phila. Hous. Auth. Police Dep’t, 380 

F.3d 751, 759 n.3, 761 (3d Cir. 2004) (using the McDonnell 

Douglas framework to analyze ADA claims, including the 

requirement that a plaintiff show he or she was “otherwise 

qualified to perform the essential functions of the job”). 

12 See supra note 5.

13 See supra note 7.