[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14271

Non-Argument Calendar

____________________

LOUIS A. HERRERA, 

Plaintiff-Appellant,

versus

CITY OF HIALEAH, FLORIDA, 

a municipal corporation and political subdivision 

of the state of Florida, 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

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D.C. Docket No. 1:20-cv-23191-WPD

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Before LUCK, LAGOA, and TJOFLAT, Circuit Judges.

PER CURIAM:

Louis Herrera appeals the United States District Court for 

the Southern District of Florida’s order granting summary judgment to the City of Hialeah, Florida (“the City”) on his discrimination claims arising under the Uniformed Servicemembers Employment and Reemployment Rights Act (the “USERRA”), 38 U.S.C. 

§ 4311(a), et seq. First, Herrera argues that the District Court erred 

when it granted summary judgment to the City on his USERRA 

claims because he met his prima facie burden of establishing disparate treatment of him compared to non-military employees with 

similar work records, and that his military status was a motivating 

factor in the City’s decision to not promote him and deny him advancement opportunities. Second, he argues that the District 

Court did not properly shift the burden to the City to show that it 

would have promoted the non-military members over him, and 

the City failed to show that it would have made the same promotional decisions even without considering his military status. Because Herrera failed to establish a prima facie case of discrimination 

under USERRA, we affirm the District Court’s grant of the City’s 

motion for summary judgment.

 

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I. 

Herrera, through counsel, filed a complaint against the City, 

stating two claims for relief under USERRA. Herrera was a member of the United States Army and the Florida National Guard and

also worked as a police officer for the Hialeah Police Department 

(the “Department”) for over eighteen years. As part of the promotion process, the Department requires candidates to pass a promotional exam, and then it ranks candidates based on their score on

the exam. According to the complaint, Herrera applied for the position of police sergeant three times—in August 2015, August 2016,

and December 2016—and was well qualified for the position because of his exceptional employment evaluations, employment 

performance, and scores on his promotional exam, which placed 

him in the top three candidates.1 

Herrera claims that despite scoring well and being ranked 

higher, other “less qualified, [ ] lower ranked[,] non-reservist” candidates were consistently elevated over him. Herrera alleged that 

he received favorable employment evaluations, received multiple 

department and civilian commendations, was awarded the Department’s highest award, the Gold Medal of Valor, and that he never 

received a negative evaluation. According to the complaint, 

1 Promotions with the Department are made according to the Rule of Three. 

The three candidates with the highest point totals based on their promotional 

examination and other points that may be awarded are presented for possible 

promotion, and the mayor chooses among the three candidates. 

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Herrera applied for career advancement positions, including as a 

member of the Community Response Team, S.W.A.T. Police 

Sniper, S.W.A.T. Rappel Master, and detective positions, but was 

denied each time. The Department also allegedly denied his applications for lateral positions and requests from federal agencies to 

allow Herrera to assist on task forces. Finally, Herrera argued that 

other non-reservist employees could make use of an open-door

policy with the police chief, but Herrera’s requests to speak with 

the chief were consistently denied. 

Following discovery, the City moved for summary judgment. The City argued that the facts, taken in the light most favorable to Herrera, did not establish a prima facie case of USERRA 

discrimination.2 The District Court granted the City’s motion. 

As relevant here, the District Court held that Herrera’s 

USERRA claims failed as a matter of law. The District Court did 

not find the records of those promoted over Herrera to permit a 

reasonable inference of discrimination because, according to the 

Court, they did not show that Herrera was objectively more qualified—and even if they did, the Court could not substitute its judgment for the City’s, so long as the hiring decision was not made in 

2 The City also argued that Herrera’s suit was barred under the doctrine of res 

judicata; that the City had legitimate, non-discriminatory reasons for taking 

the disputed actions and it would have taken them even in the absence of Herrera’s military status; and that there was no basis for finding the City’s actions 

to be willful USERRA violations. Those arguments are not relevant to this 

appeal.

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a discriminatory manner. According to the Court, “Mayor Hernandez, the decisionmaker, decided that each of those selected 

over Herrera was the better candidate for the job. Though Herrera 

may disagree with that decision, he presents no other evidence 

from which a reasonable jury could conclude that such decision 

was motivated by discrimination based on Herrera’s military service.” Order Granting Mot. for Summ. J., Doc. 50 at 8–9. Herrera 

timely appealed.

II. 

We review a district court’s order granting summary judgment de novo, “viewing all the evidence, and drawing all reasonable inferences, in favor of the non-moving party.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005). Summary 

judgment is only proper if there are no genuine issues of material 

fact, and the moving party is entitled to judgment as a matter of 

law. Id. Bare and self-serving allegations when the plaintiff has no 

personal knowledge are inadequate to carry the plaintiff’s burden 

on summary judgment. Stewart v. Booker T. Washington Ins., 

232 F.3d 844, 851 (11th Cir. 2000). 

Under USERRA, a person who is a member of, or has performed service in, a uniformed service shall not be denied “initial 

employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer” based on that 

membership or performance of service. 38 U.S.C. § 4311(a). An 

employer violates USERRA where the individual’s membership or 

service in the uniformed services is a motivating factor in the 

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employer’s failure to promote the individual, unless the employer 

proves that it would not have promoted the individual absent the 

individual’s membership or service. See id. § 4311(c)(1). 

A USERRA claim brought under 38 U.S.C. § 4311 requires 

proof of a discriminatory motive, and we employ the so-called “but 

for” test. Coffman v. Chugach Support Servs., Inc., 411 F.3d 1231, 

1238 (11th Cir. 2005).3 USERRA “clearly mandates proof of discriminatory motive.” Id. To establish a prima facie case of discrimination, the plaintiff must demonstrate by a preponderance of the 

evidence that his military membership or service was a motivating 

factor in the employer’s decision. See id. A motivating factor does 

not necessarily have to be the sole cause for the employer’s decision but is defined as one of the factors that a truthful employer 

would list as its reasons for its decision. Id. 

A court can infer a discriminatory motivation from circumstantial evidence and a variety of considerations, such as (1) the 

temporal proximity between the plaintiff’s military activity and the 

adverse employment action; (2) inconsistencies between the proffered reason for the employer’s decision and other actions of the 

employer; (3) an employer’s expressed hostility toward members 

of the protected class combined with its knowledge of the plaintiff’s 

3 This case has been superseded by statute on unrelated issues regarding when 

an employer qualifies as a successor in the interest of a prior employer. 

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military activity; and (4) disparate treatment of employees with 

similar work records. Id. 

In Coffman, we held that the district court did not err when 

it granted summary judgment to the employer because the employee failed to present direct or circumstantial evidence that the 

employer relied on, considered, or conditioned its decision on the 

employee’s military status. Id. at 1239. We emphasized that, although there was close proximity between the employee’s military 

status and the employer’s decision not to hire him, the employee 

failed to show that the employer expressed hostility towards servicemembers, the employer hired both military and non-military 

members, the decision-makers testified that they did not rely on 

the employee’s military status in deciding not to hire him, and the 

employee failed to show any disparate treatment of active military 

employees compared to other employees with similar work records. Id. 

The USERRA statute is very similar to Title VII of the Civil 

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2(a). Staub v. 

Proctor Hosp., 562 U.S. 411, 417, 131 S. Ct. 1186, 1191 (2011). Under Title VII case law, we have explained that a plaintiff must show 

that he and his comparators were “similarly situated in all material 

respects” to demonstrate an intentional discrimination claim under 

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McDonnell Douglas.4 Lewis v. City of Union City, 918 F.3d 1213, 

1218 (11th Cir. 2019) (en banc). 

We explained that a similarly situated comparator could include another individual who (1) “engaged in the same basic conduct (or misconduct) as the plaintiff”; (2) was “subject to the same 

employment policy, guideline, or rule as the plaintiff”; (3) was “ordinarily (although not invariably) . . . under the jurisdiction of the 

same supervisor as the plaintiff”; or (4) “share[d] the plaintiff’s employment or disciplinary history.” Id. at 1227–28. The comparison 

turns on substantive likeness, and the comparator must be sufficiently similar such that they cannot be reasonably distinguished. 

Id. at 1228. 

The Supreme Court has held that an employer may be held 

liable for employment discrimination based on the discriminatory 

animus of an employee who influenced, but did not make, the ultimate employment decision. Staub, 562 U.S. at 417–23, 131 S. Ct. 

at 1186. In Staub, the Supreme Court ruled that a plaintiff may 

assert a “cat’s paw” claim under USERRA by showing that (1) a 

supervisor performed an act motivated by the animus that was intended to cause an adverse employment action; and (2) the act was 

the proximate cause of the ultimate adverse employment action. 

Id. at 418–19, 131 S. Ct. 1186, 1191–92. 

4 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).

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III. 

Here, the District Court did not err when it granted the 

City’s motion for summary judgment on Herrera’s USERRA discrimination claim because Herrera failed to meet his prima facie

burden of establishing that the City discriminated against him 

based on his military status, in violation of USERRA.5 In fact, Herrera does not even offer evidence that the City considered his military status, let alone that it was a motivating factor. 

Though they are not alleged as separate claims, Herrera essentially makes three separate arguments that the City discriminated against him in violation of USERRA. He argues that his military membership was a motivating factor (1) in the City’s decision 

not to promote him, (2) in the City’s denial of his special requests 

for career advancements,6 and (3) for Chief Velazquez’s different 

treatment of Herrera under his “open door” policy. We address 

each claim in turn. 

5 To the extent Herrera raises a “cat’s paw” theory of discrimination, we decline to consider it because he raises it for the first time on appeal. An issue 

that was not raised in the district court and is raised for the first time on appeal

is considered forfeited, and we will not address its merits absent extraordinary 

circumstances. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331–

32 (11th Cir. 2004). 

6 The City argues that Herrera abandoned this argument because he did not 

raise it in his initial brief. But Herrera discussed the denial of his requests 

throughout the initial brief, so this claim was not abandoned. 

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A.

Herrera did not offer direct evidence to show that his military status was at least a motivating factor in the City’s decision not 

to promote him. As such, he needed to present enough circumstantial evidence to raise the inference of unlawful discrimination, 

which he failed to do.

Herrera argues that he met his prima facie burden by 

demonstrating that he was subjected to disparate treatment compared to non-military employees with similar work records. He 

contends that his work record was “objectively superior on every 

metric compared to those promoted over him.” Appellant’s Br. at 

27. But Herrera only looks at certain metrics. According to Herrera, he “had no disciplinary history, objectively better performance evaluations, for the most part made more arrests and received more commendations from both citizens and the department.” Plaintiff’s Resp. in Opp. To Def.’s Mot. for Summ. J., Doc. 

42 at 8. However, he overlooks criteria such as seniority,7 initiative,8 and variation in roles within the Department.9

7 Two of the candidates promoted over Herrera had more seniority than he 

did.

8 In his declaration, Mayor Hernandez indicated that all three candidates who 

were promoted “exhibited outstanding initiative.” Chief Velazquez, however, 

believed that Herrera needed to improve his initiative.

9 All three of the individuals promoted over Herrera held five or more different roles within the Department before their promotions, whereas Herrera 

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It is difficult to say that Herrera’s work record was objectively superior in every way to the non-military coworkers who 

were promoted over him. At best, the work records of the other 

employees are similar to Herrera’s.10 However, Herrera overlooks a key component of the hiring process: the importance 

Mayor Hernandez placed on the interview. Even assuming that 

the employees’ records were similar in every other respect, as a result of their interviews, Mayor Hernandez “was very favorably impressed by [the other officers] and much less so by Herrera.” 

Ultimately, the evidence put forward by Herrera is not 

enough to show that “but for” his military service, he would have 

been promoted. Coffman does not create a checklist for meeting 

the prima facie burden in a USERRA case. For example, had 

only held 2 roles. Herrera argued that he would have had more varied assignments but for the numerous denials of his requests for career advancement, 

but even if the requests for career advancement relevant to his USERRA claim 

had been granted, he would still have less varied assignments than the other 

candidates.

10 Herrera argues that the District Court “invented a new prima facie standard 

from whole cloth, requiring [him] to prove that the records of [the other employees] were ‘significantly inferior’ to his.” Appellant’s Br. at 28. The District 

Court did say that “the Court does not find the records of those promoted 

over Herrera significantly inferior to permit a reasonable inference of discrimination.” Order on Def.’s Mot. for Summ. J., Doc. 50 at 8. This statement, 

however, is not the District Court inventing a new prima facie standard for 

Herrera to meet. Instead, this is best read as the District Court responding to 

Herrera’s claim that his employment records were so superior to the others 

that they raised an inference of discrimination on their own. 

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Herrera been able to show a temporal proximity between the failure to promote him and his military service, that alone would not 

automatically meet his prima facie burden—which is what happened in Coffman. 411 F.3d at 1239. Instead, Coffman presents a 

non-exhaustive list of tools a plaintiff may use to present sufficient 

evidence giving rise to an inference that discrimination was a motivating factor in the employment decision. 

Here, like in Coffman, the evidence on the record is simply 

insufficient to allow a reasonable jury to make such an inference. 

While Herrera can show that Mayor Hernandez promoted three 

non-military officers over a military officer, the evidence presented 

does not support an inference that Mayor Hernandez promoted 

three non-military officers over Herrera because he was a military 

officer. Further undercutting Herrera’s argument is the fact that, 

as in Coffman, the City has promoted individuals with military experience to sergeant. 

B. 

Similar to his claim that the City discriminated against him 

by failing to promote him, Herrera likewise failed to offer direct 

evidence that discrimination was a motivating factor in the denial 

of his requests for other opportunities for advancement. Nor did 

Herrera present enough circumstantial evidence to raise a discriminatory inference here. 

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Only a few of Herrera’s requests were denied, and only one 

was denied relating to his military status.11 Herrera failed to explain how an inference of discrimination arose from the few denials 

of his special requests, as none of them referenced his military leave 

nor were they denied while he was on military leave.12 The only 

work records in the record, other than Herrera’s, are those of the 

candidates what were promoted over Herrera, so no evidence of 

disparate treatment of non-military employees with similar work 

records exists for Herrera’s argument that the City discriminated 

against him in denying his requests for opportunities for advancement.

Herrera attempted to show a pervasive culture of hostility 

towards his military status with respect to these opportunities for 

advancement by the deposition of Clifford Lockwood, Jr. According to Lockwood’s deposition, he met with Chief Velazquez to request that Herrera join his IRS task force and he explained the financial benefits to the Department of allowing Herrera to join the 

task force. Lockwood claims that when he pitched the idea to Chief 

11 The previous police chief denied one of Herrera’s requests in 2005 because 

Herrera was activated to military duty and would not be available to attend 

the SWAT school, but when Herrera resubmitted his request in 2006, it was 

approved. Regardless, Herrera testified that the previous police chief did not 

discriminate against him.

12 Herrera claims that his second request to join the Community Response 

Team was denied when he was on military leave. But this is unsupported by 

the record; this request was denied prior to Herrera going on military leave.

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Velazquez, who denied the request, “it was really weird,” he “got 

a weird feeling,” and it “felt very weird that the chief of police said 

no.” Lockwood claimed that he had a feeling that Chief Velazquez 

did not like Herrera because “Herrera was busy defending him and 

the rest of our country and he wasn’t always present.” But Lockwood’s allegations are conclusory and speculative. According to 

Lockwood, “[t]his is just a think, and this is intuitive and a feeling I 

have.” Without more, this “feeling” is not enough to give rise to 

an inference of discrimination.

C.

Finally, Herrera failed to establish a prima facie case of unlawful discrimination based on Chief Velazquez denying him access under the “open door policy.” In the first place, Herrera offers 

no proof that such a policy even existed. He further fails to show 

evidence that (1) he was denied the policy (2) because of his military status, (3) while other non-military members were given the 

benefits of the policy. Herrera claims that “the record is undisputed 

that non-reservist employees had no problem obtaining meetings 

with Chief Velazquez through his ‘open door’ policy.” Appellant’s 

Br. at 19. But he only supports that argument by pointing to the 

complaint and his own deposition testimony, and bare and selfserving allegations are not enough to meet Herrera’s burden on 

summary judgment. Stewart, 232 F.3d at 851.

 

 

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IV. 

If the plaintiff meets his prima facie burden, the burden then 

shifts to the employer to prove, by a preponderance of the evidence, that legitimate reasons, standing alone, would have induced 

it to take the same adverse action. Coffman, 411 F.3d at 1238–39. 

But the burden does not shift to the employer unless the employee 

first shows that his military status was at least a motivating or substantial factor in the employer’s decision. Id. at 1239. Here, Herrera did not meet that prima facie burden, so the burden never 

shifted to the City. As such, we decline to address Herrera’s additional arguments on appeal. The District Court’s grant of summary judgment is 

AFFIRMED.

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