## 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 judgm ent 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 Ac t of 1993, Ark. C ode Ann. § 16-123-101 et seq. ("ACRA"), and employment discrimi nation based on military service in violation of the Uniform Services Employment and Reemploym ent Rights Act, 38 U.S.C. § 4301 et seq. ("USERRA" or the "Act"). Fo r reversal, Maxfield argues that2 the district court erred in holding that (1) he failed to present evidence to show that Cintas's proffered nondiscriminatory reas ons 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 acti ons. 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. Ma xfield, 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 represen tative 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 th at was advanced on expected sales. However, if commi ssions on sales were less than the draw, an employee incurred a deficit. During his first ni ne months of workin 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 Maxfie ld 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 m ilitary base and spoke to Sergeant First Class Tarrance Grisse tt, who was responsible for preparing Maxfield's orders, asking whether Maxfieldhad 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 presen t 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 Ma xfield 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 supe rvisor in the FOS position, transferred Maxfield from the FOS position to the positi on of proactive service trainer (PST) at a salary of $650.00 per week, plus quarter ly 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, Cint as 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 te lemarketing 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 i mmediate supervisor, and requested military leave for August 19, 20, and 23, 2002, explai ning that he had recei ved orders over the weekend. Maxfield faxed the orders, and Lewis approved the l eave. Pursuant to Lewis's directions, on August 21, Maxfield me t with Lewis at Cintas and filled out the4 paperwork for the leave. Lewis, who wa s responsible for recording absences on Maxfield's attendance calendar, marked th e calendar to show that Maxfield was on military leave for those days. After leavi ng Lewis's office, Maxfield saw Lisa Wilson, the office manager, and asked her what he n eeded 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 Maxfieldhis weekly time report to sign. In late July or early Augus t 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, Maxfie ld signed the week ly time report, on which Anderson had noted that Maxfield ha d been "out sick" on August 19 and 20 and "on vacation" on August 23.

Anderson gave the signed report to Wils on, who on August 26 gave it to Lewis for his approval. Lewis testif ied that he was surprised to see that Maxfield had taken sick and vacation leave while he was on milita ry leave. Lewis stated that he "could5 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 th at 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 attendan ce calender, thus belie ving 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 da ys 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 su spended 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 "committe d a serious policy violation" by requesting sick leave from Anderson, the payroll clerk, and by doing so "had devised a scheme to rob the compa ny of a financial benefit." Id. at 269. However, during the investigation, Lewis did not ta lk 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 neve r learned that Cintas allowe d employees to take accrued sick days while on military leave. Id. at 263. After discu ssing 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 p ackage or be terminated. On August 30, 2002, Cintas terminated Maxfield.6 In July 2003, Maxfield filed a compla int in district c ourt, alleging race discrimination in violation of Title V II, § 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 hi m. 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 ev ent, 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 eliminat ed the PST position, and disc harged him because he had violated company policy and had been dis honest 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 cas e as to the transferbecause the transfer from the FOS position to the PST position was not covered by the Act. In any event, Cintas asserted that Maxfieldcould 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 fo r 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 cove red 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 fa vorable to [Maxfield], there are no genuine issues of material fact a nd [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 de motions and discharge, under the McDonnell Douglas framework, a plaintiff first has to es tablish a prima facie case by showing that he or she: (1) is a member of a prot ected group; (2) was meeting the legitimate expectations of the employer; (3) suffere d an adverse employment action; and (4) under circumstances permitting "an inference of discrimination." Zhuang v. Datacard Corp. , 414 F.3d 849, 854 (8 thCir. 2005). If the plainti ff establishes a prima facie case, the defendant must articulate a le gitimate, nondiscriminatory reason for the action. Kohler , 335 F.3d at 772-73. If th e defendant does so, the plaintiff must offer evidence showing that the defendant's le gitimate reason is merely a pretext for discrimination. Id

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Maxfield argues that the district court erred in granting summary judgment on his claims that Cintas had discriminate d against him on the basis of race when it demoted him from the FOS position to the PST position. Cintas argues that Maxfield1 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 th e position Cintas was motivated by his military status.

8 could not establish prima facie cases of r ace discrimination, becau se the transfer was not a demotion or otherwise an adverse employment action. As to Maxfield's race discrimination claims, we need not address Ci ntas's argument. Like the district court, we will assume that Maxfield establis hed 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. A lthough 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. T hus, Clayton was not similarly situated to Maxfield "in all relevant respects." Kohler , 335 F.3d at 776 (internal quotation omitted). Nor did Maxfield pres ent 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 Ci ntas's reasons for the discharge–violation of company policy and dishonesty–were false. However, even if Cintas's reasons are false, Maxfield offered no ev idence that Cintas discharg ed 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 "areason 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 r eason." As the district court held, Maxfield "failed to bring forth evidence from which a reasonable jury could find that the real reason for9 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 (8 thCir. 1999).

II. USERRA Claim

Maxfield also argues that the district c ourt erred in granting Cintas's motion for summary judgment on his USERRA claims . "USERRA, enacted in 1994 to improve the Veterans' Reemployment Rights Ac t ('VRRA'), prohibits employment discrimination on the basis of militar y 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 se rvices 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 ev identiary 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 f actor 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 [e mployer] must prove, by a preponderance of evidence, that the action would have been taken despite the prot ected status.'" Id. (quoting Sheehan , 240 F.3d at 1014).

Maxfield contends that the district cour t erred in holding that he failed to offer evidence showing that his military status wa s 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 ev en if it were a demo tion, a demotion is not10 actionable under USERRA. Cintas is mist aken. Although, as Cintas notes, USERRA provides that an employer may not discrimi nate on the basis of military status in "initial employment, reemployment, reten tion in employment, [and] promotion," 38 U.S.C. § 4311(a), it also prohibits discrimina tion as to "any benefit of employment by an employer on the basis of [military] membersh ip, . . . performance of service, . . . or obligation." Id. USERRA defines "benefit of employment" very broadly as "any advantage, profit, privilege, gain, status, account, or interest (o ther than wages or salary for work performed) . . . , and in cludes . . . awards, bonuses, severance pay, supplemental unemployment benefits, vacati ons, 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 vetera ns and members of the uniformed services, it must be broadly construed in favor of its military bene ficiaries." Hill v. Michelin N. Am., Inc. , 252 F.3d 307, 312-13 (4 thCir. 2001) (Hill ) (citing, e.g., Coffy v. Republic Steel Corp. , 447 U.S. 191, 196 (1980) (predece ssor 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 (7 thCir. 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 th at 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 circum stances, 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 working11 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 th e 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 hi s 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 cons idered, including [its] explan ation 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 advers e employment action [and] inconsistencies between the proffered reason and other actions of the employer." Id.

Contrary to Cintas's argument, Maxfie ld 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 (8 th Cir. 2005) (in Title VII retaliation case " timing of termination, two weeks from protected activity, is close enough to estab lish 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 inquiri ng whether Maxfield was present at the military base and whether his presence was "imperative." We also believe that a discriminatory animus could be inferred fro m the fact that Lewis and Johnson traveled to the military base while Maxf ield was on leave to discuss, in part, his sales deficit.12 Because Maxfield presented sufficien t 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 'motiv ating 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 tr ansfer, 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 hi s 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-da y 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 inconsis tencies in Lewis's explanation that Maxfield violated company policy by reque sting 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 di d 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 circumstan ces if requested." Appellant's App. at 157-58. It is surprising that in his deposition Lewis testif ied that he had learned nothing during his13 investigation that caused him to change hi s mind that Maxfield had violated company policy by requesting sick/emergency leave while on military leave, but Johnson testified that he participated in the inve stigation, and a reasonable inference would be that Johnson would have informed Lewi s that an employee could take accrued emergency leave while on military leave.

There are also inconsistencies in Lewi s'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/e mergency leave while on military duty. In addition, Lewis testified that because th e requirement that employees had to sign weekly time reports was new, Maxfield woul d 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. Howe ver, Lewis testified that the requirement did not change Cintas's policy that superv isors 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 leav e and the weekly time sheets. Id. at 179, 275. It is also undisputed that as the payroll cl erk 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 th at 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 th e leaves, many of which were, in Lewis's words, "last minute," Cintas was looking fo r 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 (9 thCir. 2002) (jury could infer "military status was a 'motivating factor' in [employer's] decision to terminate [plaintiff's] employment due to its c oncern regarding the significant number of14 absences from work that [his] particip ation 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 pr oduction 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 con cerning 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 gran t of summary judgment as to Maxfield's USERRA claims to the district court for further proceedings consistent with this opinion.

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