PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_________________

No. 16

- 2492

_________________

ANTHONY J. CARROLL

v.

DELAWARE RIVER PORT AUTHORITY

,

Appellant

_________________
On Appeal from the United States District Court
for t he District of New Jersey (D.C. No. 1 : 13

- cv

- 02833 ) District Judge: Hon. Noel L. Hillman

_________________

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. Herm anovich, Esq. Matthew S. Wolf, Esq.
Matthew S. Wolf 1236 Brace Road, 2 nd Floor Cherry Hill, NJ 08034

Attorneys for Appellee

Rufus A. Jennings, Esq. Carla P. Maresca, Esq. Deasey Mahoney & Valentini 1601 Market Street, Suite 3400 Philadelph ia, 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: i n a failure

- to

- promote discrimination suit
under the Uniformed Services Employment and

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

seq. ) , must a plaintiff plead and prove that he or she was3 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 b urden under USERRA; instead, employers

may raise a plaintiff ’s lack of qualifications as a non

discriminatory 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 c orpsman 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 w as 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 rotato r 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 Port4 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 judgmen t

—

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 w as 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 t hen moved the District Court for an interlocutory appeal on the que stion
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 prohibit s 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
discrimi nation [] 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 c ontext 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 opport unity 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 a n additional requirement fro m other anti

discrimination statutes . According to the Port Authority, USERRA plaintiffs must sustain their initial burden by
d emonstrating 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 perform ing a sergeant ’ s duties due to his injuries an d was therefore unqualified for the position

. U nder 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 an alyze USERRA claims)

.7 co uld 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 n ot 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 r elevant 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 r easons

— which may include a lack of qualifications

— to sh ow 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 a n affirmative defense to be advanced by the employer, not an additional hurd le 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 absenc e of such membership. ” 6 All courts of a ppeals interpreting USERRA have recognized this unambiguous language and held that a plaintiff meets his or her initial
burden simply by showi ng 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 p laintiffs 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 em ployer may argue, for example, that it would have taken
the same employment actions absent a plaintiff ’ s military
service because he or she lack ed the necessary qualifications
for the position in question

. 9 This construction not only comports with the pla in 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) ; Ma dden 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 prece dential) ; 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 eviden ce at the second step of the USERRA analysis

, n ot as part of the employee ’ s initial burden).9 courts of a ppeals , 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 anti

discrimination statutes does not alter our conclusion. For example, t he 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 Discriminat ion 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 10 12

- 13. For example, the Supreme
Court held in Monroe v. Standard Oil Co. , 452 U.S. 549 (1981), that liability for violation s of the Vietnam Era

Veterans ’ Readjustment Assistance Act (USERRA ’ s predecessor) was unfounded unless t he 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 i f 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 abov e , 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 fram ework 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 C ir. 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

.