PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

____________________________________ 

ANJELA GREER, 

 Plaintiff - Appellant, 

v. 

CITY OF WICHITA, KANSAS, 

WICHITA ART MUSEUM, INC., 

and PATRICIA McDONNELL, 

 Defendants - 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, Graybill & Hazlewood, Wichita, Kansas, 

with her on the briefs), for Plaintiff-Appellant. 

 

Jennifer M. Hill, McDonald Tinker, Wichita, Kansas, for DefendantAppellee City of Wichita. 

Rachel N. Wetta, Foulston 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 Court
2 

 This appeal involves a claim under the Uniformed Services 

Employment and Reemployment Rights Act, which prohibits employers 

from denying promotions because of an employee’s military service. The 

claim is brought by Ms. Anjela Greer, an employee for the City of Wichita 

who worked at the Wichita 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 service. The district court granted 

summary judgment to the defendants on two grounds: (1) Any reasonable 

factfinder would determine that the defendants had declined to advance 

Ms. Greer to the interview stage because her application showed a lack of 

supervisory experience, and (2) the defendants had proven that they 

wouldn’t have advanced Ms. Greer to an interview regardless of her 

military status. 

We reject both grounds. The first ground is invalid because a 

factfinder could reasonably infer that Ms. Greer’s military status was a 

motivating factor in the defendants’ denial of an interview. The second 

ground is also invalid because a factfinder could reasonably find that Ms. 

Greer would have obtained an interview if she had not been serving in the 
3 

military. We thus reverse the grant of summary judgment 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 learned of a vacancy for the museum’s 

“Operations Supervisor.” She and one other person applied. A city 

employee, Ms. Olivia Hensley, screened the applications and decided not 

to advance Ms. Greer to the next stage, where she would have been 

interviewed. 

That decision sparked this suit. Ms. Hensley attributes the denial of 

an interview to Ms. Greer’s lack of qualifications. The new job required at 

least one year of prior supervisory work in particular fields. See Part 

IV(A)(2)(b), below. In light of this requirement, the application called for 

Ms. Greer to state how many people she supervised. She answered “2,” but 

identified her job title only as “Security” and didn’t list any supervisory 

duties. Based on the job title and the absence of any listed supervisory 

duties, Ms. Hensley testified that Ms. Greer’s application had shown a lack 

of supervisory experience. 

Ms. Greer disagrees with this explanation, contending that Ms. 

Hensley was actually following instructions from Dr. Patricia McDonnell, 

who was the museum’s executive director. According to Ms. Greer, Dr. 
4 

McDonnell harbored anti-military animus and blocked any promotions for 

Ms. Greer while she remained in the military. 

II. Summary-Judgment Standard 

We engage in de novo review of the district court’s summaryjudgment ruling, applying the same standard that applied 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 evidence 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 light, the court could grant summary judgment to the 

defendants only in the absence of a “genuine dispute as to any material 

fact” and the defendants’ showing of an entitlement “to 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 burden of proof shifts 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 constituted “a motivating factor” in the denial of a 

promotion. 38 U.S.C. § 4311(c)(1). This burden is satisfied if military 

membership is one of the reasons for denying 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 membership is one of 

the reasons for denying a promotion, the employer may 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 been in the military. See Bradberry v. Jefferson Cty., 732 

F.3d 540, 547 (5th Cir. 2013) (employer’s burden); Sheehan v. Dep’t of the 

Navy, 240 F.3d 1009, 1014 (Fed. Cir. 2001) (nature of the burden). 

IV. Material Factual Disputes1

 

Ms. Greer argues that Dr. McDonnell’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 incur liability for the 

anti-military animus of supervisors even if they do not actually make the 

 

1

 In district court, Dr. McDonnell and the Wichita Art Museum also 

denied that they are proper defendants under the Act, arguing that they 

were not Ms. Greer’s employers. The district court did not rule on this 

argument, but Dr. McDonnell and the Wichita Art Museum assert this 

ground as an alternative ground for affirmance. Despite this assertion, the 

parties have not briefed this issue in the appeal. We thus leave this issue 

for the district court to decide in the first instance. See Rife v. Okla. Dep’t 

of Pub. Safety, 854 F.3d 637, 649 (10th Cir. 2017) (stating that when the 

district court did not rule on an argument, the better practice is to let the 

district court decide the issue 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 animus influenced the decision. Id. 

 We thus consider three issues: 

1. Could a factfinder reasonably infer anti-military animus by Dr. 

McDonnell? 

2. Could a factfinder reasonably 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 satisfy 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 has raised a genuine dispute of material fact on 

each issue. 

A. Ms. Greer’s Prima Facie Case 

For a prima facie case, Ms. Greer bore the burden of proving that 

(1) Dr. McDonnell had harbored anti-military animus and (2) this animus 

had constituted a factor motivating Ms. Hensley to disallow an interview. 

See Part III, above. Material factual disputes exist on both issues. 

1. Dr. McDonnell’s Anti-Military Animus 

The district court assumed without deciding that a reasonable 

factfinder could find anti-military animus. Rather than draw an 

assumption, we decide the issue, concluding that a reasonable factfinder 

could determine that Dr. McDonnell had anti-military animus. 
7 

Anti-military animus can be proven through negative statements 

about an employee’s military status. See Sheehan v. Dep’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, including . . . an employer’s 

expressed hostility towards members protected by the statute together with 

knowledge of the employee’s military activity.”); see also Staub v. Proctor 

Hosp., 562 U.S. 411, 414 (2011) (concluding that anti-military animus 

could exist when the supervisor had called the employee’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. McDonnell’s anti-military animus based 

on her prior statements. For example, Ms. Greer testified about frequent 

comments disparaging her military service. One of these alleged incidents 

took place when Ms. Greer said that she needed to attend her annual twoweek reserve training. Dr. McDonnell allegedly 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 reportedly 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. McDonnell also declared that Ms. Greer 

could never get a promotion as long as she remained in the military. An 

example took place when Ms. Greer expressed an interest in the position of 

“Weekend Supervisor.” According 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 promoted or you’re not going to do 

anything here.” Id. 

Responding to these incidents, the defendants argue that (1) isolated 

statements cannot show anti-military animus and (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 anti-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 specifically to Ms. Greer and her inability to get a 

promotion. For example, Ms. Greer testified that Dr. McDonnell had 

repeatedly remarked that Ms. Greer would not get a promotion as long as 

she remained in the military. Remarks like these suggest that Dr. 

McDonnell had anti-military animus even if that animus stemmed from a 

concern over Ms. Greer’s availability during drill weekends. See Erickson 
9 

v. U.S. Postal Serv., 571 F.3d 1364, 1368 (Fed. Cir. 2009).2 A reasonable 

factfinder could thus infer anti-military animus by Dr. McDonnell. 

The defendants repeatedly 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 affidavit resting on personal knowledge and setting 

forth admissible facts “is legally competent to oppose summary judgment, 

irrespective of its self-serving nature”). Even standing alone, self-serving 

testimony can suffice to prevent summary judgment. See Evers v. Regents 

of Univ. of Colo., 509 F.3d 1304, 1309 (10th Cir. 2007) (concluding that 

the plaintiff’s testimony was sufficient to defeat summary judgment); 

accord Berry v. Chicago 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 employer is that the employee is 

absent to perform that service. To permit an employer to fire an 

employee because of his military absence would eviscerate the 

protections afforded by the [Uniformed Services Employment 

and Reemployment Rights Act], the overarching goal 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-movant cannot prevent summary judgment 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 Denying Ms. Greer an Interview 

For a prima facie case, Ms. Greer must also show that Dr. 

McDonnell’s anti-military animus constituted 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 this burden. In our 

view, however, this issue involves a genuine dispute of material fact. 

a. Dr. McDonnell’s Anti-Military Animus 

 Dr. McDonnell’s anti-military animus would constitute 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 motivations 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 reasonable factfinder could infer that Dr. McDonnell’s 

anti-military animus had influenced Ms. Hensley’s decision. For example, 

a factfinder could reasonably consider what had happened after Ms. 

Hensley announced her decision. According to Ms. Greer, she confronted 
11 

Ms. Hensley and pressed for an explanation. In response, Ms. Hensley 

pinned the blame on pressure from Dr. McDonnell: 

[Y]ou don’t know Patricia McDonnell (indicating), you do not 

know her. You don’t know. She comes 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 right where you are. So with that being 

done, you’re not going to have -- you’re not going to go 

anywhere. And those is my instructions from her and that’s 

why -- that’s -- you can put in all the applications 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, there was evidence that 

 she had previously instructed Ms. Hensley to leave Ms. Greer 

“right where [she was]” and 

 Ms. Hensley had attributed her decision to the instruction from 

Dr. McDonnell. 

Id. Given this evidence, a factfinder could reasonably infer that Dr. 

McDonnell had squashed any future promotions for Ms. Greer. 

 

3

 Ms. Greer also argues that a reasonable factfinder could infer that 

Dr. McDonnell had known that Ms. Greer would apply for the job of 

Operations Supervisor. But we need not address this argument. 
12 

b. Ms. Greer’s Supervisory Experience 

The district court concluded that Ms. Hensley had found Ms. Greer 

ineligible for an interview based on her apparent lack of qualifications, not 

Dr. McDonnell’s anti-military animus. The new position 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 served as the museum’s security 

supervisor in charge of the second shift.4

 As supervisor, she had allegedly 

created schedules, scheduled police officers for events, drafted incident 

reports, allowed guards to leave early, 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, the district court had to determine 

whether a factfinder could reasonably find that Ms. Greer’s application had 

shown supervisory experience. If the factfinder could not reasonably find 

that the application showed supervisory experience, Dr. McDonnell’s anti-

 

4

 Ms. Greer also argues that she had other supervisory experience 

outside the museum, including supervisory experience in the military. But 

she did not include this supervisory experience in the application, and Ms. 

Greer’s military experience arguably didn’t involve work in a museum, 

security, or law-enforcement environment. We thus assume, for the sake of 

argument, that Ms. Greer’s supervisory experience in the military would 

not affect the availability of summary judgment. 
13 

military animus might not have constituted a motivating factor in Ms. 

Hensley’s decision. 

Ms. Greer argues that her application satisfied the job qualifications 

because she answered “2” for the number of employees supervised. But 

when describing her job duties, Ms. Greer 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 systems alarms and conditions. 

Develop and maintain a working relationship 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 the applicant’s qualifications. In our 

view, this evidence creates a genuine factual dispute 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 defendants argued that 

this duty shows that Ms. Greer was not a supervisor. We reject this 

argument because Ms. Greer could have been a mid-level supervisor, 

overseeing some employees and reporting to others. 
14 

Hensley’s discretion to advance the application to the interview stage even 

if the application had been ambiguous. 

City personnel testified that they compare the number of individuals 

being supervised with the applicant’s job title and job duties. If the 

applicant’s duties do not match the number of people supervised, city 

personnel stated that they consider the individual a “shift lead” rather than 

a supervisor. 

But a factfinder could reasonably reject this testimony, for city 

personnel (Ms. Lisa White and Ms. Susan Leiker) indicated that the Human 

Resources Department could treat experience as supervisory if an applicant 

had indicated the number of people supervised without listing supervisory 

duties. 

For example, Ms. White testified: 

Q. And how do you know if the application meets [the job] 

requirements? Because of the words on the application? 

A. That’s exactly right. 

Q. So if, for instance, 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 talking earlier about the words on the 

application versus the words on the job description. And I 

thought we had established that if there is a match, then the 

application is supposed to go through for the interview process 
15 

so that if there are 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 can 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 leaning on her and decided she’s just not 

going to clear that application no matter what. 

. . . . 

Q. As long as we’re speculating 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 App’x, vol. IV, at 1006. 

 Given this testimony, a factfinder could reasonably infer that Ms. 

Hensley had the discretion to consider Ms. Greer’s experience as 

supervisory. When asked if supervisory experience was shown by Ms. 

Greer’s answer of “2” for the number of individuals supervised, Ms. White 

answered: “Possibly, yes.” Then, when 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 advance 
16 

Ms. Greer’s application to the interview stage and didn’t do so because of 

Dr. McDonnell’s anti-military animus. 

Like Ms. White, Ms. Susan Leiker explained that ambiguities about 

an applicant’s qualifications could be fleshed out during the interview 

process: 

Q. Okay. And can these qualifications then from a procedural 

standpoint, can these qualifications then be fleshed 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 interview because of Dr. McDonnell’s antimilitary animus rather than Ms. Greer’s lack of supervisory experience. 

 The factfinder could reasonably infer discretion not only from the 

testimony of Ms. White and Ms. Leiker but also from Ms. Greer’s 

testimony about Ms. Hensley’s explanation for her decision.6

 When Ms. 

Greer asked why she wouldn’t get an interview, 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 City (1) had the discretion to contact 

applicants to address ambiguities in their application and (2) exercised that 

discretion by contacting an applicant for another job to clarify his interest 

in a full-time position. We need not address these arguments because Ms. 

Greer’s other evidence suffices to create a genuine dispute of material fact. 
17 

 Given the testimony by Ms. White, Ms. Leiker, and Ms. Greer, a 

factfinder could reasonably 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 that the defendants had proven that 

they would not have advanced Ms. Greer’s application 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 Cir. 1986)). 

The defendants have not met this heavy burden. As discussed above, 

a factfinder could reasonably attribute Ms. Hensley’s decision to antimilitary animus rather than an ironclad city practice. So the defendants 

were not entitled to summary judgment on their affirmative defense. 

V. Conclusion 

A genuine dispute exists on whether Ms. Hensley rejected Ms. 

Greer’s application because of anti-military animus. We thus reverse the 

district court’s award of summary judgment.