Brown v. State, No. 613-8-09 Rdcv (Teachout, J., Aug. 10, 2012) 

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STATE OF VERMONT 

SUPERIOR COURT CIVIL DIVISION 

Rutland Unit Docket No. 613-8-09 Rdcv 

DANIEL BROWN, 

 Plaintiff 

v. 

STATE OF VERMONT, 

 Defendant 

DECISION 

Defendant’s Motion for Summary Judgment, filed February 1, 2012 

Defendant State of Vermont moves for summary judgment on Plaintiff Daniel 

Brown’s claims of employment discrimination based on military service pursuant to the 

Uniformed Services Employment and Re-Employment Rights Act (“USERRA”). Oral 

argument on the motion was heard on June 12, 2012. Plaintiff was represented by 

Attorney James G. Levins. The State was represented by Assistant Attorney General 

Jonathan Rose. 

Facts 

 As Plaintiff is the nonmoving party, these facts are presented in the light most 

favorable to him. Plaintiff Daniel Brown was formerly a temporary corrections officer 

(“TCO”) in the employ of the State of Vermont at the Southern State Correctional 

Facility (“SSCF”) in Springfield, Vermont. Plaintiff serves in the Vermont Army 

National Guard. Plaintiff was hired for the TCO position in December 2008. 

 Plaintiff successfully completed training at the Vermont Correctional Academy 

and began work at SSCF in February 2009. Although Plaintiff received positive 

comments in his evaluations both at the Academy and at SSCF, these evaluations also 

show that Plaintiff was experiencing difficulties in the position. Various evaluators 

commented that Plaintiff was unprofessional, disruptive, and had difficult in interacting 

with inmates. 

 In late February, SSCF supervisors learned that some officers were Vermont 

National Guard members who would be deployed to Afghanistan, and compiled a list of 

all such persons, which included Plaintiff. 
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 On March 9, 2009, Plaintiff received an email stating that he was selected to be 

interviewed for open positions. On March 12, 2009, Plaintiff was one of eight TCOs to 

interview for three available interim Corrections Officer I (“COI”) positions. Two others 

were also Guard members. All candidates for these positions submitted a writing sample 

and resume, and underwent an interview. 

All of the interviews were conducted by Security and Operations Supervisor 

(“SOS”) Mark Potanas, Shift Supervisor Michael Arace, and Shift Supervisor Jim Kamel. 

All of the interviews consisted of the same twelve questions. The panel of supervisors 

scored each applicant’s interviews on the same scale. SOS Potanes relayed the findings of 

the panel to Superintendent Anita Carbonell, who made the ultimate decision as to who to 

hire. 

Plaintiff was not hired for one of the three interim COI positions. Plaintiff 

received the lowest interview score of all the candidates who applied. The candidates 

who were hired had interview scores higher than Plaintiff’s and generally had more 

experience or education. None of the candidates who were Guard members were hired. 

After Plaintiff was not hired for one of the COI positions, he had a conversation 

with COII Kyle Beckwith, the training and recruiting coordinator at SSCF. Although 

COII Beckwith’s role included explaining the recruiting process to employees, he did not 

make decisions as to who to promote. In the course of this conversation, COII Beckwith 

told Plaintiff that there would be no reason to promote Plaintiff to one of the full time 

interim COI positions with benefits if he was leaving in eight months. When 

Superintendent Carbonell was later informed of this statement, she issued COII Beckwith 

written feedback reprimanding him for making a “confusing and erroneous” statement 

and “overstepp[ing] his authority and expertise.” 

 Plaintiff continued to experience difficulties at work, including receiving 

complaints from inmates about his demeanor and written warnings for being late to work. 

Supervisors continued to discuss these problems with Plaintiffs, but they often found 

Plaintiff uncooperative or unreceptive. A field training officer was assigned to monitor 

Plaintiff’s performance and to provide counseling. The field training officer also found 

Plaintiff unreceptive to feedback. 

 

On May 1, 2009, an incident occurred in which Plaintiff allowed an inmate to 

leave his cell during a headcount. A supervisor gave Plaintiff a written warning due to 

this incident and attempted to discuss it with Plaintiff but found him to be insubordinate 

and not receptive to feedback. This incident led to a review of Plaintiff’s performance 

and ultimately the decision of Superintendent Carbonell, after consultation with Assitant 

Superintendent Damato and SOS Potanas, to discharge Plaintiff. Plaintiff was discharged 

on May 4, 2009. 

 
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Analysis 

Plaintiff asserts that both the State’s failure to promote him from TCO to interim 

COI and the State’s ultimate termination of him violate the protections that members of 

the armed forces are entitled to under the Uniformed Services Employment and ReEmployment Rights Act (“USERRA”). The USERRA prohibits discrimination in 

employment on the basis of military service. The purpose of USERRA is to encourage 

military service “by eliminating or minimizing the disadvantages to civilian careers;” “to 

minimize the disruption to the lives” of servicemembers “by providing for the prompt 

reemployment” of servicemembers; and “to prohibit discrimination” against 

servicemembers. 38 U.S.C. § 4301 (a). 

The operative provision, 38 U.S.C. § 4311, states: 

(a) A person who is a member of, applies to be a member of, performs, has 

performed, applies to perform, or has an obligation to perform service in a 

uniformed service shall not be denied initial employment, reemployment, 

retention in employment, promotion, or any benefit of employment by an 

employer on the basis of that membership, application for membership, 

performance of service, application for service, or obligation. 

* * * 

(c) An employer shall be considered to have engaged in actions 

prohibited- 

(1) under subsection (a), if the person's membership, application for 

membership, service, application for service, or obligation for service 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, application for membership, service, 

application for service, or obligation for service.

An employee making a claim under USERRA bears the initial burden of showing, by a 

preponderance of the evidence, that the employee’s military service was a “motivating 

factor” in the adverse employment action. Sheehan v. Dept. of Navy, 240 F.3d 1009, 1013 

(Fed. Cir. 2001). 

An employee may rely on either direct or circumstantial evidence to make this 

showing. Id. at 1014. The totality of the circumstances should be considered, taking into 

account that direct statements of discrimination are rare, and claims may be based on 

reasonable inferences from circumstantial evidence. If the employee is able to make the 

required showing, then the employer has the opportunity to show, by a preponderance of 

the evidence, that it would have taken the adverse employment action for some other 

valid reason regardless of the employee’s military status. Id. at 1013. 
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Failure to promote 

 Plaintiff first argues that the State failed to promote him to the interim COI 

position because it knew that he would soon be deployed to the Middle East. He relies 

primarily on the statement by COII Kyle Beckwith to the effect that there would be no 

reason to give Plaintiff a full-time slot with benefits if he was leaving in eight months. 

COII Beckwith was not a part of the panel that made the decision to promote other 

candidates instead of Plaintiff. Rather, the uncontroverted evidence in the record shows 

that COII Beckwith was disciplined by Superintendent Carbonell for overstepping his 

authority by making this statement. 

The Beckwith statement, considered within the totality of circumstances, is not a 

sufficient basis upon which Plaintiff can meet the burden of showing that his military 

service was a “motivating factor” in the adverse employment action. In the related 

context of an employment discrimination claim under the Vermont Fair Employment 

Practices Act, the Vermont Supreme Court has held that “stray remarks in the workplace” 

and “statements by nondecisionmakers” do not constitute direct evidence of an 

employer’s discriminatory intent. Robertson v. Mylan Labs, Inc., 2004 VT 15, ¶ 20. The 

same principle applies here. COII Beckwith was not a part of the decisionmaking 

process. 

Plaintiff has not shown evidence that this statement was any more than 

Beckwith’s own personal speculation. Plaintiff has not presented evidence that the 

statement was informed by knowledge of the various candidates’ credentials or that 

Beckwith knew why the promotion decision was made. Particularly in the light of 

Beckwith’s subsequent reprimand for making the statement, there is not a sufficient basis 

for a reasonable inference that his opinion was endorsed by the actual decisionmakers. 

This statement is insufficient to show that Plaintiff’s military status was a motivating 

factor in the decision not to promote him. 

The State conducted a formalized process in making its decision. Each candidate 

for the available interim COI positions produced a written statement of career goals, 

submitted a resume, and underwent an interview with the same three supervisors. The 

interviews all consisted of the same questions, which were scored on the same scale. 

Plaintiff did not have strong qualifications for the position. Of all the candidates, 

Plaintiff had the least experience at SSCF, having worked there for less than a month. At 

the conclusion of the interview process, Plaintiff received the lowest score of all the 

candidates. Additionally, the candidates who were hired generally possessed more 

experience or education than Plaintiff. All of these facts are pertinent to whether the facts 

as a whole support a reasonable inference from the Beckwith statement that his military 

status was a motivating factor in the decision to promote other candidates instead of him. 

See, e.g., Becker v. Dept. of Veterans Affairs, 373 Fed. Appx. 54, 58 (Fed. Cir. 2010) 

(holding plaintiff failed to meet his burden for a failure-to-promote claim under USERRA 
5

where all applicants were asked the same questions scored on the same scale and the 

hiring decision was based on those results). 

Plaintiff offers evidence that tends to show that the prison was preparing for a 

large number of staff, including Plaintiff, to deploy overseas. He, however, fails to link 

this fact to the required showing that his own military status was a motivating factor in 

the State’s decision not to promote him. At best, this evidence shows that the State 

decisionmakers were aware of Plaintiff’s military obligations. Such evidence is 

necessary, but not sufficient to make out a USERRA claim. Plaintiff must show that his 

impending military deployment was at least a motivating factor for the fact that he was 

not promoted. The fact that there was an impending deployment, standing alone, is 

insufficient. 

Similarly, Plaintiff states that he was made to work an unfavorable work schedule. 

Again, he is unable to show any connection between his unfavorable work schedule and 

his military status. The work schedule evidence does not support his claim that his 

military status was a motivating factor in the State’s failure to promote him. 

 

 

Wrongful termination 

 Plaintiff also argues that the State’s ultimate decision to terminate him from his 

TCO position violated USERRA. This argument encounters many of the same difficulties 

as Plaintiff’s failure-to-promote argument. Plaintiff is again unable to make the requisite 

showing that his military status was a motivating factor in his termination. 

 Plaintiff attempts to rely on much of the same evidence as in his failure-topromote claim. But again, none of this evidence shows that the State was motivated by 

Plaintiff’s military status in terminating him. Despite Plaintiff’s attempt to point to the 

comment of COII Beckwith and the atmosphere surrounding the impending military 

deployment at the prison, the record does not reveal that the State even considered 

Plaintiff’s military status in deciding to terminate him. 

Rather, the facts show a long series of performance problems. Although 

Plaintiff’s feedback was not uniformly negative, the record reveals numerous instances of 

performance issues over the months that he worked at SSCF. Supervisors indicated that 

Plaintiff had difficulty working with inmates and was unresponsive to criticism. The 

timing of Plaintiff’s ultimate termination follows this string of incidents and supports a 

reasonable conclusion that the termination was as a result of the accumulation of these 

events. Specifically, Plaintiff was terminated days after an incident in which he allowed a 

prisoner to move during a headcount and then clashed with his supervisor about the 

propriety of his actions. This is the same type of problematic behavior shown throughout 

the evaluations of Plaintiffs performance. 
6

With a work history of performance problems and no circumstances beyond the 

facts of an upcoming deployment and the termination itself from which an inference can 

be made of a discriminatory motive, Plaintiff’s facts do not support an inference that his 

military status was a motivating factor in his termination. See, e.g., Barreto v. ITT World 

Directories, Inc., 62 F. Supp. 2d 387, 392-93 (D.P.R. 1999) (holding that plaintiff failed 

to meet his burden for a wrongful termination claim under USERRA where record 

showed that plaintiff, despite having been warned by supervisors multiple times, failed to 

improve his work performance). 

 

ORDER 

Defendant’s Motion for Summary Judgment is granted. Defendant’s counsel 

shall prepare a proposed form of judgment. 

 Dated this 9th day of August, 2012. 

________________________ 

Hon. Mary Miles Teachout 

Superior Court Judge