United States Court of Appeals

FOR THE EIGHTH CIRCUIT

 

No. 04-2979

 

Darold Maxfield, *

*

Appellant, * Appeal from the United States

* District Court for the

v. * Eastern District of Arkansas.

*

Cintas Corporation No. 2, *

*

Appellee. *

 

Submitted: April 11, 2005

 Filed: October 31, 2005 

 

Before COLLOTON, McMILLIAN, and BENTON, Circuit Judges.

 

McMILLIAN, Circuit Judge.

Darold Maxfield appeals from a final judgment entered in the District Court for

the Eastern District of Arkansas granting summary judgment in favor of his former

employer, Cintas Corporation No. 2 ("Cintas"), on his claims of employment

discrimination based on race in violation of Title VII of the Civil Rights Act of 1964,

as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000(e) et seq., 42 U.S.C.

§ 1981, and the Arkansas Civil Rights Act of 1993, Ark. Code Ann. § 16-123-101

et seq. ("ACRA"), and employment discrimination based on military service in

violation of the Uniform Services Employment and Reemployment Rights Act, 38

U.S.C. § 4301 et seq. ("USERRA" or the "Act"). For reversal, Maxfield argues that
2

the district court erred in holding that (1) he failed to present evidence to show that

Cintas's proffered nondiscriminatory reasons for adverse employment actions were

pretexts for race discrimination under the third step of the framework set forth in

McDonnell Douglas v. Green, 411 U.S. 792, 805-06 (1973) (McDonnell Douglas),

and (2) he failed under USERRA to present evidence to show that his military service

was a motivating factor in Cintas's actions. For the reasons discussed below, we

affirm in part and reverse and remand in part. 

Jurisdiction was proper in the district court based upon 28 U.S.C. §§ 1331,

1343. Jurisdiction is proper in this court based upon 28 U.S.C. § 1291. The notice

of appeal was timely filed pursuant to Fed. R. App. P. 4(a).

BACKGROUND

Viewed in the light most favorable to Maxfield, the facts and all reasonable

inferences therefrom are as follows. Maxfield, an African-American, has served in

the United States Army, either in active duty or reserve status, since 1985. Randy

Lewis, general manager of Cintas's Maumelle, Arkansas, facility, hired Maxfield on

July 26, 1999, as a service sales representative at a salary of $550.00 per week, plus

a quarterly bonus. On February 1, 2000, Maxfield accepted a position as a production

supervisor at an annual salary of $33,800.00 with no bonus or commission

opportunity. On May 22, 2000, Maxfield accepted the position of facility outside

sales representative (FOS) with a weekly draw of $650.00, plus commissions on sales

and quarterly bonuses. A draw was essentially a salary that was advanced on expected

sales. However, if commissions on sales were less than the draw, an employee

incurred a deficit. During his first nine months of work in the FOS position,

Maxfield's commissions exceeded his draws. In his best month, December 2000, he

earned $7,437.91 in commissions and bonuses. However, in May 2001, Maxfield's

draw exceeded his commission, resulting in a deficit of $857.45. His deficit increased

in June to $1,914.46, before he was able to reduce it to $1,339.79 in July 2001. 
3

On July 15, 2001, Lewis granted Maxfield a military leave of absence for

reserve duty from July 15 to September 28, 2001. During the leave, someone from

Cintas, who identified himself as Maxfield's "boss," called the military base and spoke

to Sergeant First Class Tarrance Grissett, who was responsible for preparing

Maxfield's orders, asking whether Maxfield had reported for duty and whether it was

"imperative" for him to be on military leave at that time. Appellant's App. at 405.

Grissett responded that Maxfield was present and that his presence was "imperative."

Id. On July 24, 2001, Rick Johnson, the human resources manager, and Lewis went

to the base so that Maxfield could complete the paperwork for the leave and to discuss

his sales deficit. Lewis and Johnson told Maxfield that he could take vacation leave

while he was on military leave, and records reflect that he did so. When Maxfield

returned from leave in August, his debt was $1,360.70. Lewis, with input from Randy

Lunsford, who had been Maxfield's supervisor in the FOS position, transferred

Maxfield from the FOS position to the position of proactive service trainer (PST) at

a salary of $650.00 per week, plus quarterly bonuses. Lunsford noted on a document

that the transfer was unrelated to Maxfield's military leave.

 

On January 24, 2002, Cintas granted Maxfield a military leave of absence

through June 15, 2002. In March 2002, Cintas eliminated the PST positions at the

Maumelle facility, as well as at other facilities in the Southeast. Lunsford testified

that the PST positions went "back and forth," explaining that in the past Cintas had

eliminated the positions but then would reinstate them. Id. at 358. When Maxfield

returned from leave in June, Cintas placed him in a telemarketing position where he

earned an hourly rate of $16.25, plus overtime pay and weekly commissions. 

On Monday, August 19, 2002, about fifteen minutes before he was to start work

at Cintas, Maxfield called Lewis, his immediate supervisor, and requested military

leave for August 19, 20, and 23, 2002, explaining that he had received orders over the

weekend. Maxfield faxed the orders, and Lewis approved the leave. Pursuant to

Lewis's directions, on August 21, Maxfield met with Lewis at Cintas and filled out the
4

paperwork for the leave. Lewis, who was responsible for recording absences on

Maxfield's attendance calendar, marked the calendar to show that Maxfield was on

military leave for those days. After leaving Lewis's office, Maxfield saw Lisa Wilson,

the office manager, and asked her what he needed to do in order to take vacation leave

while on military leave. Wilson told him to talk to Tracey Anderson, the payroll

clerk. Maxfield then talked to Anderson, telling her that he wanted to use accrued

emergency and vacation leave while he was on military leave. Id. at 82. Anderson

told Maxfield she would take care of his request. 

Cintas has a category of leave entitled "Sick Pay/Bereavement/Jury

Duty/Emergencies." The employee manual provides that "sick pay is intended to

ensure against loss of income due to sickness, accidents, emergencies, court

appearances . . . according to the judgment of [an employee's] immediate supervisor."

Appellee's App. at 5. Johnson, the human resources manager, testified that an

employee has the right to take accrued sick and vacation leave while on military leave,

that a supervisor does not have the authority to refuse the request, and that managers

had been so instructed. Appellant's App. at 156-57. 

On Monday, August 26, 2002, Anderson gave Maxfield his weekly time report

to sign. In late July or early August 2002, Cintas began requiring hourly employees

to sign weekly time reports if any changes had been made to the report after it had

been generated by a computer program. The signing requirement did not change

Cintas's policy that a supervisor had to approve all leave requests and the weekly time

report. Id. at 125, 133. On August 26, Maxfield signed the weekly time report, on

which Anderson had noted that Maxfield had been "out sick" on August 19 and 20 and

"on vacation" on August 23. 

Anderson gave the signed report to Wilson, who on August 26 gave it to Lewis

for his approval. Lewis testified that he was surprised to see that Maxfield had taken

sick and vacation leave while he was on military leave. Lewis stated that he "could
5

not figure out how in the world [the weekly time report] would have showed . . . that

[Maxfield] was out sick when he wasn't out sick and how he took a vacation day when

he didn't take a vacation day." Id. at 360. Lewis testified that Cintas did not allow an

employee to use "sick/emergency" leave while on military leave, id. at 261, and

believed that by requesting sick leave from Anderson, Maxfield was trying to

circumvent the "system" in an attempt to claim two extra sick days and one extra

vacation day. Id. at 270. Lewis theorized that by requesting the paid leave from

Anderson, Maxfield thought Lewis would not see the weekly time report and not

record the paid days off on the attendance calender, thus believing he could request

two extra sick days and one extra vacation day from Lewis at a later time. In Lewis's

words, Maxfield thought: "I've still got three days for the next year that I can use if I

need them because [Lewis] didn't record them." Id. at 272.

 

On August 26, 2002, Lewis suspended Maxfield, telling Maxfield that "he had

stole[n] from the company." Id. at 281. According to Lewis, after a two-day

investigation, he concluded that Maxfield had "committed a serious policy violation"

by requesting sick leave from Anderson, the payroll clerk, and by doing so "had

devised a scheme to rob the company of a financial benefit." Id. at 269. However,

during the investigation, Lewis did not talk with Anderson to ask whether Maxfield

had told her he wanted to take accrued sick/emergency and vacation leave while on

military leave or whether he had called in "sick." Id. at 267-68. In addition, during

the investigation, Lewis never learned that Cintas allowed employees to take accrued

sick days while on military leave. Id. at 263. After discussing the matter with Todd

Gregory, a Cintas group vice president, on August 28, Lewis met with Maxfield, who

stated that Johnson had told him that he could use "sick/emergency" leave while on

military leave. On August 29, Lewis again talked with Gregory, and they decided that

Maxfield could resign with a severance package or be terminated. On August 30,

2002, Cintas terminated Maxfield. 
6

In July 2003, Maxfield filed a complaint in district court, alleging race

discrimination in violation of Title VII, § 1981, and ACRA, and violations of

USERRA when Cintas: (1) demoted him from the FOS position to the PST position,

(2) placed him in the telemarketing position, and (3) discharged him. Cintas moved

for summary judgment. As to the race discrimination claims, Cintas argued that

Maxfield's transfer from the FOS position to the PST position was not a demotion or

other adverse employment action. In any event, Cintas argued that Maxfield could not

present evidence showing that its legitimate reasons for the transfers and the discharge

were pretexts for race discrimination. Cintas asserted that it transferred Maxfield from

the FOS position to the PST position because he had incurred deficits the four

preceding months, transferred him from the PST position to the telemarketing position

because Cintas had eliminated the PST position, and discharged him because he had

violated company policy and had been dishonest by requesting sick and vacation leave

for the time he was on military leave. As to the USERRA claims, Cintas argued that

Maxfield could not establish a prima facie case as to the transfer because the transfer

from the FOS position to the PST position was not covered by the Act. In any event,

Cintas asserted that Maxfield could offer no evidence to show that his military service

was a substantial or motivating factor in its decisions to transfer or discharge him, and

that it would have taken the same actions in the absence of Maxfield's military

obligations. 

The district court granted Cintas's motion for summary judgment. As to the

race discrimination claims, the district court assumed that Maxfield had established

prima facie cases, but held that he failed to present evidence to show that Cintas's

legitimate, nondiscriminatory reasons for its actions were pretexts for race

discrimination. As to the USERRA claims, the district court held that, assuming the

the transfer from the FOS position to the PST position was a covered action, Maxfield

had failed to offer evidence showing that his military service was a substantial or

motivating factor in Cintas's actions in transferring and terminating him. 
7

DISCUSSION

This court reviews a district court's grant of summary judgment de novo. Smith

v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002). "We must affirm if,

viewing the record in the light most favorable to [Maxfield], there are no genuine

issues of material fact and [Cintas] is entitled to summary judgment as a matter of

law." Id.

I. Title VII, § 1983 and ACRA claims

Title VII, § 1981, and ACRA claims are analyzed under the burden-shifting

framework set forth in McDonnell Douglas. See EEOC v. Kohler Co., 335 F.3d 766,

772 (8th Cir. 2003) (Kohler) (applying McDonnell Douglas to Title VII claim);

Putnam v. Unity Health Sys., 348 F.3d 732, 735 n.2 (8th Cir. 2003) (applying

McDonnell Douglas to § 1981 claim); Crone v. United Parcel Serv., Inc., 301 F.3d

942, 945 (8th Cir. 2002) (applying McDonnell Douglas to ACRA claim). As relevant

in this action alleging discriminatory demotions and discharge, under the McDonnell

Douglas framework, a plaintiff first has to establish a prima facie case by showing that

he or she: (1) is a member of a protected group; (2) was meeting the legitimate

expectations of the employer; (3) suffered an adverse employment action; and (4)

under circumstances permitting "an inference of discrimination." Zhuang v. Datacard

Corp., 414 F.3d 849, 854 (8th Cir. 2005). If the plaintiff establishes a prima facie

case, the defendant must articulate a legitimate, nondiscriminatory reason for the

action. Kohler, 335 F.3d at 772-73. If the defendant does so, the plaintiff must offer

evidence showing that the defendant's legitimate reason is merely a pretext for

discrimination. Id. 

Maxfield argues that the district court erred in granting summary judgment on

his claims that Cintas had discriminated against him on the basis of race when it

demoted him from the FOS position to the PST position. Cintas argues that Maxfield
1

On appeal, Maxfield does not seriously challenge his transfer from the PST

position to the telemarketing position. He offers no evidence that the elimination of

the PST position at Cintas facilities throughout the Southeast was a pretext for race

discrimination or that in eliminating the position Cintas was motivated by his military

status. 

8

could not establish prima facie cases of race discrimination, because the transfer was

not a demotion or otherwise an adverse employment action. As to Maxfield's race

discrimination claims, we need not address Cintas's argument. Like the district court,

we will assume that Maxfield established prima facie cases. Maxfield does not

dispute that Cintas articulated a legitimate, nondiscriminatory reason for the

transfer–Maxfield's four consecutive months of commission deficits. We agree with

the district court that Maxfield failed to offer any evidence showing that the reason

was a pretext for race discrimination. Although Maxfield points to the fact that a

white sales representative, Lynn Clayton, ran a deficit for two months and was not

transferred, Maxfield ran a deficit for four months. Thus, Clayton was not similarly

situated to Maxfield "in all relevant respects." Kohler, 335 F.3d at 776 (internal

quotation omitted). Nor did Maxfield present other evidence that would allow a

reasonable fact-finder to infer that Cintas's decision to transfer him from the FOS

position to the PST position was based on his race.1

Maxfield next argues that the district court erred in granting summary judgment

on his claims of a racially discriminatory discharge, asserting that he presented

sufficient evidence for a jury to find that Cintas's reasons for the discharge–violation

of company policy and dishonesty–were false. However, even if Cintas's reasons are

false, Maxfield offered no evidence that Cintas discharged him because of his race,

as he was required to do. In St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515

(1993), the Supreme Court made clear that "a reason cannot be proved to be 'a pretext

for discrimination' unless it is shown both that the reason was false, and that

discrimination was the real reason." As the district court held, Maxfield "failed to

bring forth evidence from which a reasonable jury could find that the real reason for
9

his termination was racial bias." Thus, even if Cintas "did not convey the true reason

for [Maxfield's discharge], summary judgment [wa]s still proper." O'Sullivan v.

Minnesota, 191 F.3d 965, 969 (8th Cir. 1999). 

II. USERRA Claim

Maxfield also argues that the district court erred in granting Cintas's motion for

summary judgment on his USERRA claims. "USERRA, enacted in 1994 to improve

the Veterans' Reemployment Rights Act ('VRRA'), prohibits employment

discrimination on the basis of military service." Gagnon v. Sprint Corp., 284 F.3d

839, 852 (8th Cir. 2002) (Gagnon), abrogated on other grounds, Desert Place, Inc. v.

Costa, 539 U.S. 90 (2003). An employer violates USERRA "when a person'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, . . . or obligation for service.'" Id. (quoting 38 U.S.C.

§ 4311(c)(1)). "Unlike the McDonnell Douglas framework [utilized in Title VII

claims], the procedural framework and evidentiary burdens set out in section 4311

shift the burden of persuasion, as well as production, to the employer." Id. at 854.

Under USERRA, an employee must make "'an initial showing . . . that military status

was at least a motivating or substantial factor in the [employer's] action.'" Id. (quoting

Sheehan v. Dep't of Navy, 240 F.3d 1009, 1014 (Fed. Cir. 2001) (Sheehan)). If the

employee makes such a showing, "'the [employer] must prove, by a preponderance of

evidence, that the action would have been taken despite the protected status.'" Id.

(quoting Sheehan, 240 F.3d at 1014). 

Maxfield contends that the district court erred in holding that he failed to offer

evidence showing that his military status was a motivating factor in Cintas's decision

to demote him from the FOS position to the PST position. Cintas argues that we need

not decide whether Maxfield's military status was a motivating factor. Cintas asserts

that the transfer was not a demotion, but even if it were a demotion, a demotion is not
10

actionable under USERRA. Cintas is mistaken. Although, as Cintas notes, USERRA

provides that an employer may not discriminate on the basis of military status in

"initial employment, reemployment, retention in employment, [and] promotion," 38

U.S.C. § 4311(a), it also prohibits discrimination as to "any benefit of employment by

an employer on the basis of [military] membership, . . . performance of service, . . .

or obligation." Id. USERRA defines "benefit of employment" very broadly as "any

advantage, profit, privilege, gain, status, account, or interest (other than wages or

salary for work performed) . . . , and includes . . . awards, bonuses, severance pay,

supplemental unemployment benefits, vacations, and the opportunity to select work

hours or location of employment." Id. § 4303(2). Moreover, "[b]ecause USERRA

was enacted to protect the rights of veterans and members of the uniformed services,

it must be broadly construed in favor of its military beneficiaries." Hill v. Michelin

N. Am., Inc., 252 F.3d 307, 312-13 (4th Cir. 2001) (Hill) (citing, e.g., Coffy v.

Republic Steel Corp., 447 U.S. 191, 196 (1980) (predecessor statute VRRA was "to

be liberally construed for the benefit of the returning veteran"); McGuire v. United

Parcel Serv., Inc., 152 F.3d 673, 676 (7th Cir. 1998) ("USERRA is to be liberally

construed in favor of those who served their country.")). 

Maxfield argues that by transferring him to the PST position, Cintas denied him

a "benefit of employment" because, among other things, the FOS position was a stable

job, whereas, in Lunsford's words, the PST position was a "back and forth" position.

Indeed, Cintas eliminated the PST position about six months after Maxfield was

transferred to it. Maxfield also argues that he was denied a benefit of employment

because in the FOS position he had the opportunity to earn bonuses based on his own

performance, whereas in the PST position he only could earn bonuses based on other

employees' performance. In similar circumstances, the Fourth Circuit has held that

a transfer from one position to another was a denial of a "benefit of employment"

under USERRA, even though the transfer did not result in the loss of wages and both

positions involved rotating work shifts. Hill, 252 F.3d at 312. The court noted that

the position from which the plaintiff had been transferred had a "more regular working
11

schedule" and concluded that "[g]iven the broad reach of USERRA and its purpose

of protecting the interests of those serving in the uniformed services, . . . [a] more

regular schedule is properly viewed as an advantage of the job under USERRA's

definition of 'benefit of employment.'" Id. at 313. Likewise, we conclude that by

transferring Maxfield from the FOS position to the PST position, Cintas denied him

a benefit of employment under USERRA. 

We also agree with Maxfield that the district court erred in holding that he

failed to present evidence to show that his military status was a motivating factor in

Cintas's decision to transfer him. "In determining whether the employee has proven

that his protected status was part of the motivation for the [employer's] conduct, all

record evidence may be considered, including [its] explanation for the action taken."

Sheehan, 240 F.3d at 1014. For example, "discriminatory motivation under the

USERRA may reasonably be inferred from . . . proximity in time between the

employee's military activity and the adverse employment action [and] inconsistencies

between the proffered reason and other actions of the employer." Id. 

Contrary to Cintas's argument, Maxfield presented sufficient evidence as to

discriminatory motivation. As to proximity in time, Maxfield was transferred the day

he returned from military leave. Cf. Peterson v. Scott County, 406 F.3d 515, 525 (8th

Cir. 2005) (in Title VII retaliation case "timing of termination, two weeks from

protected activity, is close enough to establish causation in a prima facie case"). A

fact-finder also could infer a discriminatory motivation from the telephone call by

Lewis's "boss" to Sergeant Grissett inquiring whether Maxfield was present at the

military base and whether his presence was "imperative." We also believe that a

discriminatory animus could be inferred from the fact that Lewis and Johnson traveled

to the military base while Maxfield was on leave to discuss, in part, his sales deficit.
12

Because Maxfield presented sufficient evidence showing that his military

service was a motivating factor in Cintas's decision to transfer him to the PST

position, the burden shifted to Cintas to show that it would have taken the same action

absent Maxfield's military status. Cintas recites that it transferred Maxfield because

of his four consecutive months of deficits. However, an employer violates USERRA

"when a person's military service is a 'motivating factor' in the discriminatory action,

even if it is not the sole factor." Sheehan, 240 F.3d at 1013. Nor does Cintas offer

any other evidence that it would have taken the same action absent Maxfield's reserve

status. "Because [Maxfield's] transfer. . . must be viewed as a denial of a benefit of

employment and because there is a question of fact whether [Maxfield's] [r]eserve

status was a motivating factor in the transfer, the grant of summary judgment to

[Cintas] on this claim must be reversed." Hill, 252 F.3d at 313. 

We also agree with Maxfield that the district court erred in holding that he

failed to present sufficient evidence that his military status was a motivating factor in

Cintas's decision to terminate him. As to proximity, Maxfield was suspended the day

he returned from the three-day leave and discharged a few days later. Sergeant Grissett

testified that, as in 2001, someone from Cintas called him in August 2002 asking

whether Maxfield was present for duty and whether his presence was necessary.

 Moreover, there are numerous inconsistencies in Lewis's explanation that

Maxfield violated company policy by requesting emergency and vacation leave while

on military leave. Although Lewis testified that Cintas did not allow employees to

take sick/emergency leave while on military leave, Johnson, the human resources

manager, testified that Cintas allowed employees to take accrued emergency leave

while on military leave, that a supervisor did not have the authority to refuse a request

for the leave, and that all managers had been so notified. Indeed, when asked "under

what circumstances would a supervisor deny an employee from taking their vacation

and sick leave and whatever accrued leave they have while on military duty," Johnson,

replied,"There are no circumstances if requested." Appellant's App. at 157-58. It is

surprising that in his deposition Lewis testified that he had learned nothing during his
13

investigation that caused him to change his mind that Maxfield had violated company

policy by requesting sick/emergency leave while on military leave, but Johnson

testified that he participated in the investigation, and a reasonable inference would be

that Johnson would have informed Lewis that an employee could take accrued

emergency leave while on military leave. 

There are also inconsistencies in Lewis's explanation that Maxfield had been

dishonest in devising a scheme to "steal" extra sick and vacation days by requesting

leave from Anderson. Indeed, Lewis did not even contact Anderson to determine

whether Maxfield had called her to tell her that he was "out sick," or whether he told

her he wanted to take his accrued sick/emergency leave while on military duty. In

addition, Lewis testified that because the requirement that employees had to sign

weekly time reports was new, Maxfield would have "no idea" that Lewis would see

Maxfield's signed weekly time report and thus not record the emergency and vacation

leave days on his attendance calender. However, Lewis testified that the requirement

did not change Cintas's policy that supervisors had to approve all leave requests and

approve the weekly time report. Appellant's App. at 276. Lewis also testified that

because Maxfield had been a supervisor of hourly employees, he would have known

that supervisors had to approve leave and the weekly time sheets. Id. at 179, 275. It

is also undisputed that as the payroll clerk Anderson had no authority to process a

weekly time report for payment until the supervisor approved the report. 

Nor, as Cintas argues, does the fact that it granted Maxfield 15 military leaves

of absence in 3 years negate a showing of a discriminatory motive. Indeed, a jury

could infer that because it had granted the leaves, many of which were, in Lewis's

words, "last minute," Cintas was looking for a reason to discharge Maxfield because

of the large number of absences from work due to Maxfield's reserve status. See

Leisek v. Brightwood Corp., 278 F.3d 895, 900 (9th Cir. 2002) (jury could infer

"military status was a 'motivating factor' in [employer's] decision to terminate

[plaintiff's] employment due to its concern regarding the significant number of
14

absences from work that [his] participation in the [National Guard] program

required"). 

Because Maxfield satisfied his initial burden to show a genuine issue of

material fact concerning Cintas's motivation, the burden of production and persuasion

shifted to Cintas to show that it would have terminated Maxfield even in the absence

of his military status. We believe that Cintas's evidence concerning the circumstances

of Maxfield's leave request is sufficient to create a genuine issue of fact as to whether

it would have terminated Maxfield in any event. 

CONCLUSION

For the reasons stated, we affirm the district court's grant of summary judgment

as to Maxfield's racial discrimination claims under Title VII, § 1981, and ACRA.

However, we reverse and remand the grant of summary judgment as to Maxfield's

USERRA claims to the district court for further proceedings consistent with this

opinion. 

____________________________