1 The Honorable Richard W. Goldberg, Judge for the United States Court of International Trade, sitting by designation. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-2626

___________ Darold Maxfield, *
* Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Cintas Corporation, No. 2, *
* Appellee. *

___________ Submitted: January 8, 2007 Filed: June 14, 2007

___________ Before COLLOTON and GRUENDER, Circ uit Judges, and GOLDBERG, Judge. 1

___________ COLLOTON, Circuit Judge.

This case comes to us for a second tim e. The lawsuit arises from a dispute between Darold Maxfield and his former employer, Cintas Corporation No. 2 (“Cintas”). After Cintas terminated Maxfield’s employment in August 2002, Maxfield brought this action alleging race discrimination and violations of the Uniform Services Employment and Reempl oyment Rights Act (USERRA), 38 U.S.C. § 4301, et seq . The district court granted summary judgment for Cintas on all claims.-2- In a prior opinion, we affirmed the dismissal of the race-discrimination claims, but reversed and remanded for further proceed ings on Maxfield’s claims under USERRA. Maxfield v. Cintas Corp. No. 2 , 427 F.3d 544 (8th Cir. 2005) (“ Maxfield I ”).

On remand, the district court again granted summary judgment for Cintas on the USERRA claims, and Maxfield appeals. We conclude that Cintas’s second motion for summary judgment presented the same lega l issue that we resolved in our first decision on an evidentiary record that is not substantially different from the record that we considered originally. Accordingl y, the law of the case dictates that the motion for summary judgment should have been denied. We therefore reverse the district court’s grant of summary judgmen t and remand the case for trial on Maxfield’s claims under USERRA.

I.

The facts of the case are set fo rth at length in our opinion in Maxfield I . Briefly, as they relate to the USERRA claims, Maxf ield has served in the United States Army, either in active duty or reserve status, since 1985. He was hired by Cintas in July 1999 as a service sales representative. He then accepted positions in February 2000 as a production supervisor and in May 2000 as a facility outside sales representative (FOS). In July 2001, Randy Lewis, general manager of Cintas’s facility in Maumelle, Arkansas, granted Maxfield a military leav e-of-absence for reserve duty from July 15 to September 28, 2001. When Maxfield returned from duty in August 2001, Cintas transferred him from the FOS position to the position of proactive service trainer (PST). On January 24, 2002, Cintas grante d Maxfield a military leave of absence through June 15, 2002. In March 2002, Cintas eliminated the PST position, and when Maxfield returned from military leave, Ci ntas placed him in a telemarketing position. On August 19, 2002, Cintas approved military leave for Maxfield on August 19, 20, and 23, 2002. After a dispute over whether Maxfield improperly sought to use-3- vacation leave and “sick/emergency” leave while on military leave for the three days in August, Cintas terminated Maxfield on August 30, 2002.

Maxfield alleges that Cintas discrimi nated against him ba sed on his military service when the company transferred hi m in August 2001, and when it terminated him in August 2002. In our first opinion, we held that by transferring Maxfield from the FOS position to the PST position, Cintas denied him a “benefit of employment” within the meaning of USERRA. Maxfield I, 427 F.3d at 551-52. We further held that Maxfield presented sufficient evidence to support a finding that his military status was a motivating factor in Cintas’s decision to transfer him, and that the burden of proof shifted to Cintas to show that it would have taken the same action absent Maxfield’s military status. Id . at 552; see Gagnon v. Sprint Corp. , 284 F.3d 839, 854 (8th Cir. 2002) (explaining that unlike the burden-shifting framework used in Title VII cases, USERRA shifts the burden of pers uasion, as well as production, to the employer), abrogated on other grounds, Desert Place, Inc. v

. Costa , 539 U.S. 90 (2003). We concluded that although Cintas claimed that it transferred Maxfield because he incurred four consecutive months of sales deficits in the FOS position, there was still a genuine issue of fact wh ether Maxfield’s reserve status was a motivating factor in the transfer. Maxfield I, 427 F.3d at 553.

With respect to Maxfield’s termination, we held Maxfield satisfied his initial burden to show a genuine issue of materi al fact that his military status was a motivating factor in Cintas’s decision to terminate him, and that the burden of proof shifted to Cintas to show that it would have made the decision absent Maxfield’s military status. Id . at 554. We then stated that Cintas’s evidence concerning the circumstances of Maxfield’s leave requests was sufficient to create a genuine issue of fact as to whether Cintas would have terminated Maxfield in any event, and remanded the case for further proceedings. Id

.-4- On remand, Cintas moved again for summary judgment on the USERRA claims. In support of its motion, Cintas pr oduced an affidavit from Lewis, the general manager, which was generated af ter our first decision. In th at affidavit, Lewis asserted that even had Maxfield not been associatedwith the military in any way, Lewis would have made the same decision to transfer Maxfield from the FOS position to the POS position in August 2001, and to discharge him in August 2002. The district court, relying on the Lewis affidavit, concluded that Maxfield had failed to come forward with any evidence to establish a genuine issu e of material fact as to whether Cintas would have taken the same employment actions , even absent his military status. The court granted summary judgment and dismissed the complaint.

II.

Because this appeal follows a previous decision of another panel concerning whether Cintas was entitled to summary judgment on Maxfield’s USERRA claims, two longstanding rules of practice are impli cated. The first – the law-of-the-case doctrine – provides that “when a court deci des upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case.” Little Earth of the United Tribes, Inc. v. U.S. Dep’t of Hous. and Urban Dev. , 807 F.2d 1433, 1440-41 (8th Cir. 1986) (quoting Arizona v. California , 460 U.S. 605, 618 (1983)). This doctrine “prevents the relitig ation of settled issues in a case, thus protecting the settled expectations of the parties, ensuring uniformity of decisions, and promoting judicial efficiency.” Id . We will consider a previously decided issue under the law-of-the-case doctrine “only if substa ntially different evidence is subsequently introduced or the decision is clearly err oneous and works manifest injustice.” Id ; see Houghton v. McDonnell Douglas Corp. , 627 F.2d 858, 864 (8th Cir. 1980) ( quoting Pyramid Life Ins. Co. v. Curry , 291 F.2d 411, 414 (8th Cir. 1961)). The second applicable principle – the “prior panel rule” – provides that one panel of this court has no authority to overrule an earlier decision of another panel. This rule reinforces the law-of-the-case doctrine when a case returns to a panel of this court after a prior-5- decision. E.g. , United States v. Mosby , 101 F.3d 1278, 1279 n.3 (8th Cir. 1996); cf. Liberty Mut. Ins. v. Elgin Warehouse & Equip. , 4 F.3d 567, 571 n.7 (8th Cir. 1993). Because the court has a strong interest in avoiding repetitive litigation, we may raise these doctrines sua sponte

. See DiLaura v. Power Auth. of N.Y. , 982 F.2d 73, 76 (2d Cir. 1992); Bollinger v. Oregon , 172 Fed. App’x 770, 771 (9th Cir. 2006) (unpublished); cf. Wilson v. United States , 166 F.2d 527, 528 (8th Cir. 1948) (“Although counsel for appellee has not sugge sted by motion or otherwise, either in the trial court or in this court, that the appeal is barred, we are of the opinion that it is barred by the doctrine of res judicata, and that we should so hold.”).

Having thoroughly reviewed our prior decision in this case, and the arguments and evidence presented by the parties at the various stages of the litigation, we conclude that our decision in Maxfield I dictates that the grant of summary judgment for Cintas must be reversed. Cintas presents the same arguments in support of summary judgment that we rejected on the fi rst appeal, and the evidence of record is not substantially different from th at considered by the court in Maxfield I . To explain our conclusion, we set forth a comparison of Cintas’s present position with the matters considered and resolved in our prior decision.

Cintas now argues that it is entitled to summary judgment on Maxfield’s claims under USERRA, because even though a reasonable jury could find that Cintas was motivated by Maxfield’s military status, no reasonable jury could reject Cintas’s argument that it would nonetheless have taken the adverse employment actions for permissible reasons. Cintas says that it would have implemented the job transfer in August 2001 because Maxfield experiencednegative sales commissions for four consecutive months in 2001. The compa ny argues that it would have terminated Maxfield in August 2002, because he devi ated from proper procedure when he sought to substitute paid sick leave and vacation leave for military leav e, and “attempted to gain extra paid days off by fraudulent m eans.” (Appellee’s Br. 23). These precise-6- arguments were advanced as grounds for affirming the district court’s grant of summary judgment on the first appeal, and we rejected them.

In its first appellate brief, Cintas argued as follows:

Even assuming that Maxfield is able to meet his initial burden of showing that his military activities were a substantial or motivating factor in Cintas’ decision to tr ansfer him in August of 2001 and to discharge him in August of 2002, the evidence shows that Cintas has met its burden of showing that it would have taken those employment actions even if Maxfield had not engaged in military activities protected by USERRA and that both employment actions were taken for valid reasons

. Gagnon v. Sprint Corp. , 284 F.3d at 854. Indeed, Maxfield freely admits that he had negative sales commissions for four consecutive months in 2001 and that he requested that he be allowed to collect sick pay and vacation pay for the time he was on military duty in August of 2002

. (Appellee’s Br. 24-25, Maxfield I ) (emphasis added). With respect to the termination and Maxfield’s use of leave, Cintas argued th at “it is not a question of what leave was available, but Cintas’ concern regarding Max field’s dishonesty and violation of company policy when Maxfield atte mpted to circumvent Cintas’ system .” ( Id . at 21) (emphasis added).

Judge McMillian’s opinion for th e court rejected these ar guments. As to the job transfer, the opinion stated:

Because Maxfield presented sufficien t evidence showing that his military service was a motivating factor in Cint as’s decision to transfer him to the PST position, the burden shifted to Ci ntas to show that it would have taken the same action absent Maxfield’s military status. Cintas recites that it transferred Maxfield becaus e of four consecutive months of deficits. However, an employer violates USERRA “when a person’s military service is a ‘motivating factor’ in the discriminatory action, even if it is not the sole factor.” Nor does Cintas offer any other-7- evidence that it would have taken the same action absent Maxfield’s reserve status. “Because [Maxfield’s] transfer . . . mustbe viewed as a denial of a benefit of employment and because there is a question of fact whether [Maxfield’s] [r]eserve status was a motivating factor in the transfer, the grant of summary judgm ent to [Cintas] on this claim must be reversed .” Maxfield I, 427 F.3d at 552-53 (emphasis added) (citations omitted). With respect to Maxfield’s termination, the opinion stated: We also agree with Maxfield that th e district court erred in holding that he failed to present sufficient evid ence that his military status was a motivating factor in Cintas's decision to terminate him. As to proximity, Maxfield was suspended the day he returned from the three-day leave and discharged a few days later. . . . Moreover, there are numerous inconsistencies in Lewis’s explanati on that Maxfield violated company policy by requesting emergency a nd vacation leave while on military leave. . . . There are also incons istencies in Lewis’s explanation that Maxfield had been dishonest in devi sing a scheme to “steal” extra sick and vacation days by requesting leave from Anderson. . . . Nor, as Cintas argues, does the factthat it granted Maxfield 15 military leaves of absence in 3 years negate a showing of a discriminatory motive. Indeed, a jury could infer th at because it had granted the leaves, many of which were, in Lewis’s wo rds, “last minute,” Cintas was looking for a reason to discharge Maxf ield because of the large number of absences from work due to Ma xfield’s reserve status. . . .

Because Maxfield satisfied his initial burden to show a genuine issue of material fact concerning Cintas’s motivation, the burden of production and persuasion shifted to Cintas to show that it would have terminated Maxfield even in the absence of hi s military status. We believe that Cintas’s evidence concerning the ci rcumstances 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

. Maxfield I, 427 F.3d at 553-54 (emphasis added).-8- Cintas then filed a petition for rehearing en banc in which it reiterated its argument that Maxfield was terminated for a permissible reason. Cintas maintained that “Maxfield was terminated because he attempted to take the three days of military duty as paid days after he ha d already told his direct s upervisor that he was taking them as unpaid days,” that Maxfield “kne w the proper procedure to follow” for taking paid leave, and that when Maxfield “attemp ted to circumvent that procedure, he was engaged in purposeful fraud.” (Appell ee’s Pet. for Reh’g En Banc, 13-14, Maxfield I

). The petition for rehearing en banc wa s denied, with no judge voting to grant it.

When this case was remanded to the distri ct court, Cintas filed a second motion for summary judgment. Cintas made the same argument that it presented on pages 24- 25 of its brief on the first appeal, supra , at 6, complete with a citation to the same page of the Federal Reporter:

“[F]or purposes of this Second Motion, Cintas assumes that the Plaintiff has properly made out a prima facie case that Cintas violated USERRA when it transferred him in July/August of 2001 and when it terminated him in August of 2002. The undisputed material facts, however, show that Cintas is able to meet its burden of proving that it would have taken the same actions notwithstanding the Plaintiff’s military service or military activities

. Gagnard [sic] v. Sprint Corp. , 284 F.3d at 854.

(Mem. in Supp. of Def’s Sec ond Mot. for Summ. J. at 9, Maxfield v. Cintas Corp. No. 2 , No. 03-576, 2006 WL 1489172 (E.D. Ark. May 25, 2006) (emphasis added)). This argument was rejected by our court in Maxfield I, where we stated that there were genuine issues of fact for trial with respect to both the job transfer and the termination. 427 F.3d at 553-54.

In seeking to distinguish our first opi nion, Cintas relies on the affidavit of general manager Lewis, produced after the remand to the district court, in which Lewis asserts that he would have madethe same employment decisions absent Maxfield’s military status. This affidavit is insufficient to justify permitting Cintas-9- to relitigate issues previously decided against it. It does not include “substantially different” evidence that might warrant reconsideration of an issue previously resolved. See Little Earth of United Tribes, Inc. , 807 F.2d at 1441. The Lewis affidavit simply repackages evidence from Lewis’s deposition and other documents that were presented unsuccessfully by Cintas during the first appeal in 2005.

Specifically, on the transfer claim, Lewi s states that “had Maxfield not been associated with the military in any way, had he not had to be away from work for military reasons, and had he incurred four consecutive months of negative commissions as he did in the spring and su mmer of 2001, I would have made the same decision.” (App. 537). This is not substan tially different evidence. The record on the first appeal included the same information regarding Maxfield’s sales commissions in May, June, July, and August 2001, ( id . at 61-62, 329), and it included Cintas’s assertion that Maxfield was tr ansferred for this reason. ( Id . at 62, 336). Indeed, in its brief on the first appeal, Cintas relied on th is evidence to make the same argument that it now advances: “The only reason for Maxfield’s transfer from the FS Sales position to the PST position was Maxfield’s ha ving negative commission draws for four consecutive months in the FS Sales positi on. (App. 62).” (Appellee’s Br. 4, Maxfield I

). The company followed with its cont ention that “Cintas has met its burden of showing that it would have taken those employment actions even if Maxfield had not engaged in military activities protectedby USERRA and that both employment actions were taken for valid reasons.” ( Id . at 24-25).

On the termination claim, Cintas cite s the Lewis affidavit for evidence that Maxfield was terminated because he had “ purposefully tried to obtain additional paid days off by fraudulent means, ” and was “trying to steal paid days off from Cintas,” (App. 542), when he allegedly deviated from proper procedure by failing to inform his supervisor that he intended to use vacation or sick/emergency leave during his military leave in August 2002. This is not substantially different evidence. In his deposition, which was considered in the firs t appeal, Lewis testified that “the whole-10- heart of the case” was that Maxfield was re quired to ask his supervisor for permission to take vacation leave, ( id . at 265), that “Darold Maxfield didn’t come ask me,” but “went to a payroll clerk and said, I was out sick,” ( id . at 272), and that “I think the intent was to go behind my back to a payroll clerk, thinking that I’ll tell them that I was out sick, I’ll get paid and it’s not record ed and so I’ve got extra days out there.” ( Id .). Lewis averred that he decided Maxfie ld “had an intent to commit a crime of theft.” ( Id .). The record on the first app eal included a memorandum from Lewis dated August 27, 2002, asserting that Maxf ield committed a “serious ‘violation of company policy’” by requesting sick leave and vacation leave “without the knowledge of his supervisor.” ( Id . at 218-19).

Cintas contends that Lewis’s affidav it on remand adds his personal assertion that he would have made the same decisions even if Maxfield had not been associated in any way with the military. But Lewis asserted all along that his decision had “nothing to do with the military,” and that “[t]here’s nothing military about this,” ( id

. at 278), so we fail to see how the affidavit presents substantially different evidence on this score. In any event, our decision in the first appeal did not turn on the absence of a specific statement by an employee of Cintas that the company would have made the same decision anyway. We fully consider ed the company’s assertion that it would have transferred and terminated Maxfield ab sent his military service, but to prevail as a matter of law, Cintas must show that its defense is so strong that any reasonable jury must accept it. We determined previously that Maxfield’s evidence that military service was a motivating factor, along with evidence of inconsistencies in Lewis’s explanations, created a genuine issue of f act as to whether Cintas could meet its burden of proof. That Lewis now makes the assertion in his affidavit simply puts his credibility at issue in the same way thathis credibility and the credibility of the company’s assertion were at issue on the fi rst appeal. We have held already that countervailing evidence creates a genuine issu e for trial as to whether the company’s explanations are to be believed, Maxfield I, 427 F.3d at 553-54, and that decision dictates the same conclusion at this stage of the proceedings.-11- * * *

For the foregoing reasons, we reverse the judgment of the district court and remand the case for trial on Maxfield’s claims under USERRA.

GRUENDER, Circuit Judge, dissenting.

Because I do not agree that the district c ourt overruled a rule of law established in a previous panel opinion, I would affirm the grant of summary judgment for the reasons stated by the district court. Therefore, I respectfully dissent.

“The doctrine of the law of the case . . . is a doctrine of discretion and provides that when a court decides a rule of law, that decision should govern the same issues in subsequent stages in the same case.” UniGroup, Inc. v. Winokur , 45 F.3d 1208, 1211 (8th Cir. 1995). The doctrine “prevents the relitigation of settled issues in an action, thus protecting the expectations of the parties, ensuring uniformity of decisions and promoting judicial efficiency.” Id. As the Court notes, because this case follows a decision of a prior panel, the prior panel rule applies to like effect. See Mosby , 101 F.3d at 1279 n.3.

The rule of law established in the firs t appeal and allege dly overruled by the district court is that, on the record beforethe district court on the first motion for summary judgment, genuine issues of material fact precluded summary judgment on same-decision grounds. The factual record atthe time of the first summary judgment motion was developed comple tely around the issue of potential racial or militaryservice animus underlying Cintas’s actions , rather than a USERRA same-decision defense. Cintas’s arguments in the first appeal for the same-decision alternative were just that—arguments by counsel, drawi ng some inferential factual support from Lewis’s deposition testimony about the mo tivation for his d ecisions regarding Maxfield’s transfer and termination. Ho wever, there was no evidence in the record-12- at that time tying Lewis’s statements to the particular circumstances, if any, that would have led Cintas to make the same deci sion absent Maxfield’s military service.

On remand after the first appeal, the di strict court reopene d discovery and set a deadline for new dispositive motions. The district court did not limit the new round of discovery and dispositive motions to new theories or to evidence that could not previously have been discovered. There is no suggestion in the record that Maxfield objected to this procedure in district c ourt, and he does not challenge it on appeal. From the state of the record at that time, one might infer that both parties felt the record needed development on the same-d ecision issue before the case could proceed further. Accompanying Cintas’s second summary judgment motion, the Lewis affidavit introduced into the record fo r the first time a sworn statement from a decision-maker that Cintas would have ma de the same decision regardless of any potential military-service animus, as well as wh at the particular basis for that decision would have been. While the affidavit closely paralleled arguments advanced by Cintas in the first appeal, as recited at length by the Court ante , arguments made by counsel on appeal are not part of the factua l record. In my view, the Lewis affidavit provides an evidentiary link between the ev ents surrounding Maxfield’s transfer and termination and Cintas’s decision-making prac tices that was not present in the first summary judgment record. Certainly neitherMaxfield nor the district court noticed any conflicts with the law of the case estab lished by the prior panel decision. At the very least, therefore, it app ears that “the expectations of the parties” were not upset. UniGroup , 45 F.3d at 1211.

In summary, the mandate of the prior pa nel did not preclude, and neither party objected to, the district court’s order fo r another round of discovery and dispositive motions. Following the district court’s order, Cintas presented a sworn statement from a decision-maker (which was not rebutte d by Maxfield) explaining precisely why it would have made the same decisions to transfer and terminate Maxfield regardless of potential military-service animus. At that point, the rule of law established in the-13- first appeal no longer controlled the district court’s consideration of a summary judgment motion on the same-decision issue. Therefore, I respectfully dissent from the Court’s application of the doctrines of law of the case and th e prior panel rule to this case, and I would affirm the judgment of the district court.

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