PUBLISH
UNITED STATES CO URT OF APPEALS
FOR THE TENTH CIRCUIT

____________________ ________________ ANJELA GREER,
Pl aintiff - Appellant,

v. CITY OF WICHITA, KANSAS, WICHITA ART MUSEUM, INC., and PATRICIA McDONNELL,
De fendants - Appellees. No. 18-3159

__________________ _______________ Appeal from the United States District Court for the District of Kansas (D.C. No. 6: 16-CV-01185-EFM)

____________________ _____________ Susan R. Schrag, Attorney at Law, Clearwater, Kansas (Donald N. Peterson, II, Sean M. McGivern, Gr aybill & Hazlewood, Wichita, Kansas, with her on the briefs), for Plaintiff-Appellant. Jennifer M. Hill, McDo nald Tinker, Wichita, Kansas, for DefendantAppellee City of Wichita. Rachel N. Wetta, Foul ston Siefkin, Wichita, Kansas, for DefendantsAppellees Wichita Art Museum and Patricia McDonnell.

____________________ _____________ Before BACHARACH, McHUGH, and EID , Circuit Judges.

____________________ _____________ BACHARACH , Circuit Judge.

__________________ ______________ FILED United States Court of Appeals Tenth Circuit 

### December 3, 2019
Elisabeth A. Shumaker Clerk of Court2 This appeal involves a clai m under the Uniformed Services Employment and Reemployment Rights Act, which proh ibits employers from denying promotions because of an employee’s military service. The claim is brought by Ms. Anje la Greer, an employee fo r the City of Wichita who worked at the Wich ita Art Museum. She applied for a promotion but didn’t get an interview. She sued the City, the Wichita Art Museum, and the museum’s executive director, alleging that they had disallowed an interview because of Ms. Greer’s simultaneous military se rvice. The district court granted summary judgment to the defendants on two gr ounds: (1) Any reasonable factfinder would de termine that the defendants had declined to advance Ms. Greer to the intervie w stage because her applic ation showed a lack of supervisory experience, and (2) the defendants had pr oven that they wouldn’t have advanced Ms. Greer to an interview regardless of her military status. We reject both ground s. The first ground is invalid because a factfinder could reasonab ly infer that Ms. Greer’s military status was a motivating factor in the defendants’ denial of an interview. The second ground is also invalid b ecause a factfinder could reasonably find that Ms. Greer would have obtained an intervie w if she had not been serving in the3 military. We thus reverse the gran t of summary j udgment to the defendants.
I. The Denial of an Interview Ms. Greer simultaneously served in the Navy Reserves and worked as a security guard at the Wichita Art Museum. After about five years as a security guard, Ms. Greer learne d of a vacancy for the museum’s “Operations Supervisor.” She and one other person applied. A city employee, Ms. Olivia Hensley, screen ed the applications and decided not to advance Ms. Greer to the next stage, where she would have been interviewed. That decision sparked th is suit. Ms. Hens ley attributes the denial of an interview to Ms. Greer’s lack of qualifications. The new job required at least one year of prior supervis ory work in particular fields. See Part IV(A)(2)(b), below. In light of this requiremen t, the application called for Ms. Greer to state how ma ny people she s upervised. She answered “2,” but identified her job title only as “Secu rity” and didn’t list any supervisory duties. Based on the j ob title and the absence of any listed supervisory duties, Ms. Hensley testif ied that Ms. Greer’s application had shown a lack of supervisory experience. Ms. Greer disagrees with this explanation, contending that Ms. Hensley was actually foll owing instructions from Dr. Patricia McDonnell, who was the museum’s executive dir ector. According to Ms. Greer, Dr.4 McDonnell harbored anti-m ilitary animus and blocked any promotions for Ms. Greer while she rema ined in th e military.
II. Summary-Judgment Standard We engage in de novo review of the district court’s summaryjudgment ruling, applying the same standard that ap plied in district court. Universal Underwriters Ins. Co. v. Winton , 818 F.3d 1103, 1105 (10th Cir. 2016). Under that standard , the district court must view the ev idence and all reasonable inferences favorably to Ms. Greer. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). Viewing the evidence and inferences in this ligh t, the court could grant summary judgment to the defendants only in the ab sence of a “genuine disp ute as to any material fact” and the defendants’ showing of an entitlement “t o judgment as a matter of law.” Fed. R. Civ. P. 56(a).
III. Burden-Shifting Framework Under the Uniformed Services Employment and Reemployment Rights Act, the bu rden of proof sh ifts based on whether the court is considering an aggrieved employee’s prima facie case or an employer’s affirmative defense. For a prima facie case, aggrieved employees must prove that their military membership consti tuted “a motivatin g factor” in th e denial of a promotion. 38 U.S.C. § 4311(c)(1). This burden is satisfi ed if military membership is one of the reasons for de nying the promotion. Bradberry v.5 Jefferson Cty. , 732 F.3d 540 , 545 (5th Cir. 2013); Coffman v. Chugach Support Servs., Inc. , 411 F.3d 1231, 1238 (11th Cir. 2005). If an aggrieved employee shows that military membersh ip is one of the reasons for denying a promotion, the employer ma y invoke the “same action defense.” See 38 U.S.C. § 4311(c)(1). Under this defense, the employer must prove that it would have taken the same action even if the employee had not be en in the military. See Bradberry v. Jefferson Cty. , 732 F.3d 540, 547 (5th Cir. 2013) (emp loyer’s burden); Sheehan v. Dep’t of the Navy , 240 F.3d 1009, 1014 (F ed. Cir. 2001) (natur e of the burden). IV. Material Factual Disputes 1 Ms. Greer argues that Dr. McD onnell’s anti-military animus constituted a motivating factor in Ms. Hensley’s decision not to advance her application to the interview stage. This argument implicates the cat’s paw doctrine. Under this doctrine, an employer can incu r liability for the anti-military animus of supervisors even if they do not actually make the

1 In district court, Dr. McDonne ll and the Wichita Art Museum also denied that they are prop er defendants under the Act, arguing that they were not Ms. Greer’s employers. The district court did not rule on this argument, but Dr. McDonn ell and the Wichita Art Museum assert this ground as an alternative ground for affirmance. Desp ite this assertion, the parties have not briefed this issue in the appeal. We thus leave this issue for the district c ourt to decide in the first instance. See Rife v. Okla. Dep’t of Pub. Safety , 854 F.3d 637, 649 (10th Cir. 2017 ) (stating th at when the district court did not rule on an argu ment, the better prac tice is to let the district court decide the is sue in the first instance), cert. denied , ___ U.S.

___, 138 S. Ct. 364 (2017).6 employment decision. Staub v. Proctor Hosp. , 562 U.S. 411, 419–20 (2011). To invoke this doctrine, the applicant must show that the supervisor’s anti-military anim us influenced the decision. Id. We thus consider three issues:
1. Could a factfinder r easonably infer anti-m ilitary animus by Dr. McDonnell?
2. Could a factfinder r easonably conclude that Dr. McDonnell’s anti-military animus had been a motivating factor in Ms. Hensley’s denial of an interview to Ms. Greer?
3. Did the defendants sa tisfy the same-action defense, as a matter of law, by proving that Ms. Hensley would have disallowed an interview even if Ms. Greer had not been serving in the military? In our view, Ms. Greer ha s raised a genuine disput e of material fact on each issue. A. Ms. Greer’s Prima Facie Case For a prima facie case, Ms. Greer bore the burd en of proving that (1) Dr. McDonnell had har bored anti-military animus and (2) this animus had constituted a factor motivating Ms. Hensley to disallow an interview.
See Part III, above. Mate rial factual disputes exist on both issues. 

### 1. Dr. McDonnell’s Anti-Military Animus The district court assumed wit hout deciding that a reasonable factfinder could find anti-military animus. Rather than draw an assumption, we decide th e issue, concluding that a reasonable factfinder could determine that Dr. McDonn ell had anti-military animus.7 Anti-military animus can be prove n through negati ve statements about an employee’s military status. See Sheehan v. De p’t of the Navy , 240 F.3d 1009, 1014 (Fed. Cir. 2001) (“Discriminatory motivation under the [Uniformed Services Employment and Reemployment Rights Act] may be reasonably inferred from a variety of factors, includ ing . . . an employer’s expressed hostility towards members prot ected by the statut e together with knowledge of the employee’ s military activity.”); see also Staub v. Proctor Hosp. , 562 U.S. 411, 414 (2011) (conclu ding that anti-m ilitary animus could exist when the supervisor had called the empl oyee’s military obligations “a b[u]nch of smoking and joking and [a] waste of taxpayers[’] money” (alterations in original)). Ms. Greer thus showed Dr. McDonn ell’s anti-military animus based on her prior statements. For example, Ms. Greer testified about frequent comments disparaging her m ilitary service. One of these allege d incidents took place when Ms. Greer said that she needed to attend her annual twoweek reserve training. Dr . McDonnell alle gedly responded: “[C]an’t they reschedule that? Don’t they know you have a real job?” Appellant’s App’x, vol. I, at 106–07. And when a security guard slammed a door into Ms. Greer’s shoulder, Dr. McDonnell re portedly admonished Ms. Greer: “[B]eing [in the] military , I figured you would be able to handle it.” Id.
at 133.8 According to Ms. Greer, Dr. McDonne ll also declared that Ms. Greer could never get a promotio n as long as she remain ed in the military. An example took place when Ms. Greer expr essed an interest in the position of “Weekend Supervisor.” Ac cording to Ms. Greer, Dr. McDonnell responded: “[Y]ou’re still in the military, military thing, the crap, whatever . . . . [Y]ou’re not going to be considered or pr omoted or you’re not going to do anything here.” Id. Responding to these incide nts, the defendants ar gue that (1 ) isolated statements cannot show anti-military animus an d (2) Dr. McDonnell’s statements were isolated and referred only to Ms. Greer’s unavailability for work during her reserve unit’s drill weekends . We disagree because Dr. McDonnell’s comments bore directly on the disputed employment decision. Anti-military comments can show an ti-military animus when they are directed at the plaintiff or her effort to obtain a promotion. Stover v. Martinez , 382 F.3d 1064, 1078 (10th Cir. 2004). And Dr. McDonnell’s statements referred specif ically to Ms. Greer and her inability to get a promotion. For example, Ms. Greer testified that Dr. McDonnell had repeatedly remarked that Ms. Greer wo uld not get a promotion as long as she remained in the military. Remarks like these suggest that Dr. McDonnell had anti-military animus ev en if that animus stemmed from a
concern over Ms. Greer’s ava ilability during drill weekends. See Erickson9 v. U.S. Postal Serv. , 571 F.3d 1364, 1368 (Fed. Cir. 2009). 2 A reasonable factfinder could thus infer anti-mi litary animus by Dr. McDonnell. The defendants repeated ly downplay Ms. Greer’s testimony as “selfserving.” But virtually any party’s testimony can be considered “selfserving,” and self-serving testimony is competent to oppose summary judgment. See Sanchez v. Vilsack , 695 F.3d 1174, 1180 n.4 (10th Cir. 2012) (stating that an affi davit resting on person al knowledge and setting forth admissible facts “is legally co mpetent to oppose summary judgment, irrespective of its self-serving nature”) . Even standing al one, self-serving testimony can suffice to pr event summary judgment. See Evers v. Regents of Univ. of Colo. , 509 F.3d 1304, 1309 (10th Ci r. 2007) (concluding that the plaintiff’s testimony was sufficie nt to defeat su mmary judgment); accord Berry v. Ch icago Transit Auth. , 618 F.3d 688, 691 (7th Cir. 2010) (“[W]e long ago buried . . . the misconception that uncorroborated

2 In Erickson , the Federal Circuit stated: The most significant—and predictable—consequence of reserve service with respect to the empl oyer is that the employee is absent to perform that service. To permit an employer to fire an employee becaus e of his military abse nce would eviscerate the protections afforded by the [Uniformed Services Employment and Reemployment Rights Act], the overarching go al of which is to prevent those who serve in the uniformed services from being disadvantaged by virtue of performing their military obligations. 571 F.3d at 1368.10 testimony from the non-mov ant cannot preven t summary judg ment because it is ‘self-serving.’”). So irrespective of the self-serving nature of Ms. Greer’s testimony, it creates a genuine factual dispute on Dr. McDonnell’s anti-military animus. 

### 2. A Motivating Factor in Deny ing Ms. Greer an Interview For a prima facie case, Ms. Gree r must also show that Dr. McDonnell’s anti-military animus constit uted a motivating factor in Ms. Hensley’s denial of an interview to Ms. Greer. See Part III, above. The district court concluded that Ms. Greer had not satisfied th is burden. In our view, however, this issue involves a genuine disp ute of material fact.

a. Dr. McDonnell’s Anti -Military Animus Dr. McDonnell’s anti-mi litary animus would co nstitute a motivating factor if it influenced Ms. Hensley’s decision to disallow an interview. Coffman v. Chugach Support Servs., Inc. , 411 F.3d 1231, 1238 (11th Cir. 2005). The existence of other innocent motivation s would not have been fatal. Bradberry v. Jefferson Cty. , 732 F.3d 540 , 545 (5th Cir. 2013); Coffman , 411 F.3d at 1238. In our view, a reasonab le factfinder could infe r that Dr. McDonnell’s anti-military animus had in fluenced Ms. Hensley’s decision. For example, a factfinder could reasona bly consider what had happened after Ms. Hensley announced he r decision. Accord ing to Ms. Greer, she confronted11 Ms. Hensley and pressed for an expl anation. In response, Ms. Hensley pinned the blame on pres sure from Dr. McDonnell: [Y]ou don’t know Patricia McDonn ell (indicating) , you do not know her. You don’t know. She come s up here to HR, up here, and she is a tyrant. I’m like, a tyrant? I’m still not sure what a tyrant is, but she said Patricia’s a tyrant and she’s throwing fits. And she makes all of them scared. Why? And she says, well, she wants you ri ght where you are. So with that being done, you’re not going to ha ve -- you’re not going to go anywhere. And those is my inst ructions from her and that’s why -- that’s -- you can put in all the appl ications you want. Appellant’s App’x, vol. II, at 551. The defendants downplay this testimony, asserting that Dr. McDonnell didn’t review Ms. Greer’s application until after Ms. Hensley had made her decision. 3 But even if Dr . McDonnell did not know about this particular application, th ere was eviden ce that

 she had previously in structed Ms. Hensley to leave Ms. Greer “right where [she was]” and

 Ms. Hensley had attri buted her decision to the instruction from Dr. McDonnell. Id. Given this evidence, a factfinder could reasonably infer that Dr. McDonnell had squashed any futu re promotions for Ms. Greer.

3 Ms. Greer also argues that a reas onable factfinder could infer that Dr. McDonnell had known that Ms. Gr eer would apply for the job of Operations Supervisor. But we n eed not address th is argument.12 b. Ms. Greer’s Supervisory Experience The district court concluded that Ms. Hensley had found Ms. Greer ineligible for an in terview based on her apparent lack of qualif ications, not Dr. McDonnell’s anti-milita ry animus. The new posi tion required at least one year’s supervisory experience in a museum, security environment, or law-enforcement field. See Part I, above. The parties disagree on whether Ms . Greer met this requirement. According to Ms. Greer, she had se rved as the muse um’s security supervisor in charge of the second shift. 4 As supervisor, she had allegedly created schedules, schedu led police officers for ev ents, drafted incident reports, allowed guards to leave ear ly, provided “teaching moments” to other guards, and provided oversight. The defendants argue that Ms. Greer might have been a “shift lead ,” but was never a supervisor. Given this factual disagreement, th e district court had to determine whether a factfinder could reasonably find that Ms. Greer’s application had shown supervisory experience. If the f actfinder could not reasonably find that the application showed superv isory experience, Dr. McDonnell’s anti-

4 Ms. Greer also argues that sh e had other supervisory experience outside the museum, including superv isory experience in the military. But she did not include this s upervisory experience in the application, and Ms. Greer’s military experience arguably di dn’t involve work in a museum, security, or law-enforcement environmen t. We thus assume, for the sake of argument, that Ms. Greer’s supervisor y experience in the military would not affect the availability of summary judgment.13 military animus might no t have constituted a mo tivating factor in Ms. Hensley’s decision. Ms. Greer argues that her applicat ion satisfied the job qualifications because she answered “2 ” for the number of em ployees supervised. But when describing her job duties, Ms. Gr eer did not identify any supervisory tasks: Monitors security of property, art works on display. Against theft, fires, and vandalism. Inventory artwork daily and hourly per shift. Able to recognize and report needed repairs to supervisor. Monitor security sy stems alarms and conditions. Develop and maintain a working re lationship with all associates including the public. To communicate clearly and effectively, in person and in writing. Be able to run if needed too [sic]. Move quickly. Appellant’s App’x, vol. II, at 327. In addition, Ms. Greer listed her position title as “Security,” which did not suggest a supervisory role. 5 On the face of her application, Ms. Greer’s supervisory experience was ambiguous. We thus focus on the evidence describing how the City treated applications bearing ambiguities on th e applicant’s qualif ications. In our view, this evidence creat es a genuine factual disp ute on the scope of Ms.

5 In the application, Ms. Greer stated that her duties included reporting needed repairs to a supervisor. In oral argument, the defend ants argued that this duty shows that Ms. Greer was not a supervisor. We reject this argument because Ms. Greer could ha ve been a mid-level supervisor, overseeing some employees and reporting to others.14 Hensley’s discretion to advance the ap plication to the interview stage even if the application ha d been ambiguous. City personnel testified that they comp are the number of individuals being supervised with the applicant’s job title and job duties. If the applicant’s duties do no t match the number of pe ople supervised, city personnel stated that they consider the individual a “s hift lead” rather than a supervisor. But a factfinder could r easonably reject this testimony, for city personnel (Ms. Lisa White and Ms. Susan Leiker) in dicated that the Human Resources Department could treat experience as supervisory if an applicant had indicated the number of people supervised wi thout listing supervisory duties. For example, Ms. White testified: Q. And how do you know if the applicatio n meets [the job] requirements? Because of the words on the application? A. That’s exactly right. Q. So if, for instan ce, Anjela Greer says she has supervised two people in her job, as in her existing job with the art museum, that should be taken as supervisory experience? A. Possibly, yes.

. . . . Q. I am wondering, we were talk ing earlier about the words on the application versus the words on the job description. And I thought we had establis hed that if there is a match, then the application is suppose d to go through for th e interview process15 so that if there ar e questions, if there are discrepancies or things that need to be explained, that’s what the interview process is for; true? A. That would be correct. Q. So if Olivia [Hensley] had felt like it, she could have sent the application on and left it up to the interview process. If Patricia [McDonnell] is concerned about what Olivia perceives is a discrepancy, Patricia ca n ask her about it; true? A. That could have occurred; however, apparently Olivia looked at the duties as described by Anjela and found that the duties did not match supervision. Q. Or Olivia had Patricia leanin g on her and decided she’s just not going to clear that appli cation no matter what.

. . . . Q. As long as we’re speculatin g about why Olivia did what she did, that would be another explanation; would it not? A. I can’t say about that. I have no idea. Appellant’s App’x, vol. II, at 320; Appellant’s Ap p’x, vol. IV, at 1006. Given this testimony, a factfinder could reasonably infer that Ms. Hensley had the discretion to cons ider Ms. Greer’s experience as supervisory. When asked if supervisory experience was shown by Ms. Greer’s answer of “2” fo r the number of individu als supervised, Ms. White answered: “Possibly, yes.” Then, wh en asked whether Ms. Hensley could advance Ms. Greer to an interview, Ms. White acknowledged that this advancement “could have occurred.” A factfinder could reasonably infer from Ms. White’s testimony that Ms. Hensley had the discretion to advance16 Ms. Greer’s application to the intervie w stage and didn’t do so because of Dr. McDonnell’s an ti-military animus. Like Ms. White, Ms. Susan Leiker explained that am biguities about an applicant’s qualificat ions could be fleshed out during the interview
process: Q. Okay. And can these qualificat ions then from a procedural standpoint, can these qualifications then be fles hed out in the interview process? A. Certainly. Appellant’s App’x, vol. III, at 664. This testimony also suggests that Ms. Hensley chose to disallow an interv iew because of Dr. McDonnell’s antimilitary animus rather th an Ms. Greer’s lack of supervisory experience. The factfinder could reasonably infer disc retion not only from the testimony of Ms. White and Ms. Le iker but also from Ms. Greer’s testimony about Ms. Hensley’s ex planation for her decision. 6 When Ms. Greer asked why she wouldn’t get an in terview, Ms. Hensley explained that Dr. McDonnell had given “instructions” to leave Ms. Greer in her current job as long as she remained in the military. Appellant’s App’x, vol. II, at 551; see Part IV(A)(2)(a), above.

6 Ms. Greer also argues that the Ci ty (1) had the disc retion to contact applicants to address ambiguities in th eir application and (2) exercised that discretion by contacting an applicant fo r another job to clarify his interest in a full-time position. We need not address thes e arguments because Ms. Greer’s other evidence suffi ces to create a genuine di spute of material fact.17 Given the testimony by Ms. White , Ms. Leiker, and Ms. Greer, a factfinder could reasonab ly determine that Dr. McDonnell’s anti-military animus was a motivating factor for Ms . Hensley’s decision not to advance Ms. Greer to an interview.
B. The Defendants’ Same-Action Defense The district court also concluded th at the defendants had proven that they would not have advanc ed Ms. Greer’s applicatio n to an interview even if she were not in the Navy Reserves . Because this is an affirmative defense, the defendants had the burden of proving that “no reasonable trier of fact could find other than for the moving party.” Leone v. Owsley , 810 F.3d 1149, 1153 (10th Cir. 2015) (emphasis omitted) (quoting Calderone v. United States , 799 F.2d 254 , 259 (6th Ci r. 1986)). The defendants have no t met this heavy burden . As discussed above, a factfinder could reasona bly attribute Ms. Hensle y’s decision to antimilitary animus rather th an an ironclad city prac tice. So the defendants were not entitled to su mmary judgment on thei r affirmative defense.

V. Conclusion A genuine dispute exists on wh ether Ms. Hensle y rejected Ms. Greer’s application because of anti-military anim us. We thus reverse the district court’s award of summary judgment.