          United States Court of Appeals
                      For the First Circuit

No.  12-1023

          LUIS A. RIVERA-MELÉNDEZ; WANDA OTERO-RIVERA;
                CONJUGAL PARTNERSHIP RIVERA-OTERO,

                     Plaintiffs, Appellants,

                                v.

                   PFIZER PHARMACEUTICALS, LLC,

                       Defendant, Appellee. 


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

          [Hon.  Marcos E. López, U.S. Magistrate Judge]



                              Before

                       Lynch, Chief Judge,
              Torruella and Lipez, Circuit Judges. 


     José L. Barrios-Ramos, with whom Pirillo Hill González &
Sánchez, PSC was on brief, for appellant. 
     Pedro J. Torres-Díaz, with whom Mariela M. Rexach-Rexach, José
J. Sánchez-Vélez, and Schuster Aguiló LLP were on brief, for
appellee. 
     Holly A. Thomas, Attorney, United States Department of
Justice, with whom M. Patricia Smith, Solicitor of Labor, United
States Department of Labor, Thomas E. Perez, Assistant Attorney
General, Dennis J. Dimsey, Attorney, United States Department of
Justice, and Erin Aslan, Attorney, United States Department of
Justice, were on brief, for amicus curiae United States. 



                        September 20, 2013
            LIPEZ, Circuit Judge.  This case requires us to determine

whether the "escalator principle" and "reasonable certainty" test

governing       reinstatement       claims      under    the     Uniformed    Services

Employment and Reemployment Rights Act of 1994 ("USERRA") apply to

non-automatic, "discretionary" promotions.                        The district court

found    that    they   do   not,    and     used    this    conclusion      to   reject

plaintiff       Luis    Rivera-Meléndez's           USERRA      reinstatement       claim

pursuant to 38 U.S.C. §§ 4312 and 4313 and award summary judgment

to defendant, Pfizer Pharmaceuticals, LLC ("Pfizer").                        Because we

conclude that the escalator principle and reasonable certainty test

apply regardless of whether the promotion at issue is automatic or

non-automatic, we vacate the district court's judgment and remand. 

                                           I.

A. Background

            We    summarize     the    relevant         facts    in   the   light    most

favorable to Rivera, the party against whom summary judgment was

granted.     Barclays Bank PLC v. Poynter, 710 F.3d 16, 18 (1st Cir. 

2013). 

            Luis Rivera-Meléndez ("Rivera") earned his associate's

degree in chemistry from the Technological Institute of Manatí in

1993 and a bachelor's degree in liberal arts from the Pontifical

Catholic University at Arecibo in 2010.                          He began working at

Pfizer's pharmaceutical manufacturing facility in Barceloneta,

Puerto Rico in 1994.           Initially employed as a Chemical Operator


                                           -2-
Trainee, Rivera received several promotions, including a 2004

promotion to Active Pharmaceutical Ingredient ("API") Group Leader. 

The API Group Leader position -- which has since been eliminated --

was an hourly, non-exempt position under the supervision of the

exempt API Supervisor and API Manager.1

             Rivera also serves his country as a member of the United

States Naval Reserve ("Navy").  During his career at Pfizer, he has

been called twice into active duty service.           On October 11, 2008,

Rivera received notice that he was being called to active duty in

Iraq.        He   promptly   notified   Pfizer's   Senior   Human   Resources

Specialist that he needed to take military leave.           After attending

pre-mobilization training, Rivera commenced his active duty service

on December 5, 2008.         His tour of duty concluded on October 21,

2009. 

             In February 2009, Pfizer restructured its API Department. 

As part of this restructuring, Pfizer eliminated the API Group

Leader position held by Rivera and replaced it with two separate

classifications: API Team Leader and API Service Coordinator. 

Pfizer management held a meeting with the API Group Leaders at the

Barceloneta facility and informed them that they could apply for



        1
       The terms "exempt" and "non-exempt" refer to the employee's
status under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201
et seq.  For our purposes, the relevant difference between the two
is that an exempt employee is a salaried employee while a non-
exempt employee is paid at an hourly rate.  See, e.g., 29 C.F.R. §
541.100(a), 541.200(a). 

                                       -3-
the exempt API Team Leader position, for which seven job openings

would be posted.        The API Group Leaders were informed that if they

were not among those selected for the API Team Leader position,

they would have three alternatives: (1) to apply to the new, non-

exempt API Service Coordinator position; (2) to be demoted to the

Senior API Operator position; or (3) to participate in a voluntary

separation option. 

           The API Team Leader positions were posted in March 2009,

seven months before Rivera returned to Pfizer.                    The position

originally required, inter alia, a Bachelor's Degree in Science or

Business Administration, at least five years of experience in API

manufacturing,    and    at   least   five    years   in   a   supervisory    or

interdisciplinary team environment handling multiple tasks.  Pfizer

Senior Human Resources Specialist Lissette Guerra-Sierra testified

in a deposition that an estimated sixteen to seventeen people

applied for the seven API Team Leader vacancies.                 After a first

round of interviews, Pfizer modified the criteria so that API Group

Leaders without bachelor's degrees could qualify for the position,

subject   to   their    completing    the    degree   requirement    within   a

specified period of time. 

           The seven API Team Leader positions were filled by six of

the former API Group Leaders and one Senior API Operator.2            None of


     2
       The Senior API Operator position was lower than the API
Group Leader position in the structural hierarchy of Pfizer's API
Department.  However, the Senior API Operator who was appointed to

                                      -4-
the six API Group Leaders who were promoted satisfied the original

bachelor's degree requirement.            Of the API Group Leaders not

selected for the API Team Leader position, one, Luis Bravo, was

appointed to special projects under the supervision of the API

Manager pending the approval of the new API Service Coordinator

position, while two others were demoted to the API Senior Operator

position. 

            Upon being discharged from active military service,

Rivera contacted Pfizer to request reinstatement.          He returned to

work on October 22, 2009.        Rivera met with the API Manager, who

told him that he was reinstated as an API Group Leader.           However,

because   the   API   Group   Leader   position   had   been   effectively

eliminated by the time he returned to Pfizer, Rivera, like Luis

Bravo, was assigned to "special tasks" under the supervision of the

API Manager.      Although Rivera's salary and benefits were not

altered, he had reduced job responsibilities while assigned to the

"special tasks" role. 

            On May 17, 2010, Rivera was appointed to the API Service

Coordinator position after the creation of the position had been

officially approved by Pfizer.            Three other former API Group

Leaders were appointed to the API Service Coordinator position as

well.      Rivera continued to receive the same compensation and



an API Team Leader position possessed a bachelor's degree at the
time of appointment. 

                                   -5-
benefits he had received as an API Group Leader, though he had

fewer job responsibilities.          Specifically, Rivera stated in his

deposition that he no longer had the limited supervisory duties

with which he was charged as an API Group Leader when supervisors

were unavailable.     Rivera also testified that he would have liked

the opportunity to apply for the API Team Leader position, and that

he felt he was qualified for the position. 

B. Procedural History

          Rivera and the conjugal partnership comprised of Rivera

and his wife filed suit against Pfizer on January 11, 2010,

asserting USERRA and pendent state law claims.3            Rivera's USERRA

claims alleged violations of the statute's anti-discrimination and

reinstatement provisions.         Specifically, Rivera argued that Pfizer

had violated his rights by, inter alia, delaying payment of his

differential   pay   and   pay    raise,   refusing   to   pay   him   a   2009

Christmas bonus, failing to provide him with an opportunity to

apply for the API Team Leader position, and subjecting him to a

hostile work environment based on his military service.                 Rivera

also alleged that he was entitled to be rehired to a supervisory




     3
       Rivera's initial lawsuit was filed four months before his
official appointment to the API Service Coordinator position.  He
filed an amended complaint on August 31, 2010, after a previously-
filed amended complaint had been stricken from the record. 
Additionally, the parties consented to proceed before a magistrate
judge pursuant to 28 U.S.C. § 636(c). 

                                     -6-
(i.e., the API Team Leader) position upon his return from active

duty. 

            Pfizer moved for summary judgment on August 23, 2011.4

The district court granted Pfizer's motion as to nearly all of

Rivera's USERRA claims.5     Among the claims the district court

rejected were those Rivera brought pursuant to 38 U.S.C. §§ 4312

and 4313.    Specifically, the district court held that Rivera could

not establish that he was entitled to be employed as an API Team

Leader upon his return from active duty because the API Team Leader

position was not Rivera's "escalator position" -- that is, the

"position of employment in which [Rivera] would have been employed

if [his] continuous employment . . .  with the employer had not been

interrupted by [his] service."  38 U.S.C. § 4313(a)(2)(A).  Because

the API Team Leader position was not an "automatic promotion" and




        4
       The district court considered two motions to dismiss before
Pfizer filed its motion for summary judgment.  On October 19, 2010,
the district court granted Pfizer's motion to dismiss the pendent
state law claims.     Pfizer filed a second motion to dismiss on
November 30, 2010, in which it argued that to the extent that
Rivera's USERRA claims were based on the fact that Pfizer did not
contact him to inform him of the API Department restructuring and
the availability of the API Team Leader Position, such claims
should be dismissed, as Pfizer was under no obligation to contact
Rivera about the restructuring while Rivera was performing his
active duty service.      The district court denied the motion. 
Subsequently, of course, it entered the summary judgment for Pfizer
at issue here. 
        5
      Rivera's claim regarding the $100 Pfizer Christmas bonus was
the only claim that survived summary judgment.         The parties
subsequently settled this matter. 

                                 -7-
instead involved employer discretion, the court found that Rivera

could assert no entitlement to it under USERRA. 

             Rivera promptly filed a motion for reconsideration,

arguing, inter alia, that the court had erred when it determined

that   the   escalator     position   principle    applied      only    to   non-

discretionary promotions.        Unpersuaded, the district court simply

reiterated its insistence on the automatic promotion principle. 

                                      II. 

             On appeal, Rivera asks us to vacate the district court's

grant of summary judgment only as to his USERRA reinstatement

claim.     He mounts a two-pronged attack on the district court's

analysis.      First, he maintains that the district court erred in

holding   that     USERRA's   escalator     principle    and    its   associated

reasonable certainty test apply only to automatic promotions. 

Second, he argues that, based on the evidence presented below,

there are genuine issues of material fact relating to the question

of whether it was reasonably certain that if not for the period of

service, he would have attained the API Team Leader position. 

             The United States filed an amicus brief in this case,

also arguing that the district court's grant of summary judgment

must be vacated.  Like Rivera, the United States maintains that the

escalator principle and reasonable certainty test apply to both

automatic and non-automatic promotions, and that the proper inquiry

was    therefore    "not   whether    the    promotion    was    automatic     or


                                      -8-
discretionary, but whether it was reasonably certain that [Rivera]

would have applied for and received the promotion had he not been

in active duty status."      The United States takes no position on

whether Rivera could ultimately prove that it was reasonably

certain that he would have been promoted to the API Team Leader

position.6

A. USERRA

             Enacted in 1994, USERRA represents "the latest in a

series of laws7 protecting veterans' employment and reemployment

rights."      20 C.F.R. § 1002.2.    In enacting the statute, Congress

made clear that, to the extent consistent with USERRA, "the large

body of case law that had developed" under previously enacted

federal laws protecting veterans' employment and reemployment

rights "remained in full force and effect."      20 C.F.R. § 1002.2. 

The purpose of USERRA is to (1) encourage noncareer military

service by "eliminating or minimizing the disadvantages to civilian

careers," (2) minimize the disruption of servicemembers and their


     6
       We thank the United States for its amicus brief, which was
of great assistance to us in working through the issues presented
in this case. 
     7
       The statute's immediate predecessor was the Vietnam Era
Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. §§ 2021-
2027, which was later recodified at 38 U.S.C. §§ 4301-4307 and was
commonly referred to as the Veterans' Reemployment Rights Act
("VRRA").  The VRRA was amended and recodified as USERRA.  See 70
Fed.  Reg.  75,246-01, 75,246.  The rights that Congress sought to
clarify in enacting USERRA were first contained in the Selective
Training and Service Act of 1940, 50 U.S.C. § 301 et seq.  See 70
Fed.  Reg.  at 75,246. 

                                   -9-
employers      "by      providing       for    the       prompt    reemployment"       of

servicemembers,          and     (3)        prohibit      discrimination        against

servicemembers.          38 U.S.C. § 4301(a).               We have previously noted

that USERRA's provisions "should be broadly construed in favor of

military      service    members       as    its   purpose    is   to    protect     such

members."       Vega-Colón v. Wyeth Pharm.,  625 F.3d 22, 26 (1st Cir. 

2010); see Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S.

275, 285 (1946) (holding that the Selective Training and Service

Act of 1940 "is to be liberally construed for the benefit of those

who left private life to serve their country in its hour of great

need"). 

              In the case of a servicemember whose period of service

exceeded ninety days, section 4313(a)(2) of the statute provides

the   rules    applicable       to   the      employer's     determination      of    the

servicemember's proper reemployment position.                       Pursuant to that

section, the servicemember is to be reemployed "in the position of

employment in which [he] would have been employed if the continuous

employment      of   such      person       with   the    employer      had   not    been

interrupted by such service, or a position of like seniority,

status and pay, the duties of which the person is qualified to

perform."        38 U.S.C. § 4313(a)(2)(A) (emphasis added).                           This

position is the aforementioned "escalator position."                       If, and only

if, the returning servicemember is not qualified to perform the

position described in section 4313(a)(2)(A) after the employer has


                                            -10-
made reasonable efforts to qualify him, the employer may reemploy

the servicemember "in the position of employment in which [he] was

employed on the date of the commencement of the service in the

uniformed services, or a position of like seniority, status and

pay, the duties of which the person is qualified to perform."    Id.

§ 4313(a)(2)(B) (emphasis added). 

            The Department of Labor's ("Department") regulations

provide further clarification on the escalator principle.     As to

the concept of the escalator principle generally, the regulations

state:

                   As a general rule, the employee is
            entitled to reemployment in the job position
            that he or she would have attained with
            reasonable certainty if not for the absence
            due to uniformed service. . . .  The principle
            behind the escalator position is that, if not
            for the period of uniformed service, the
            employee could have been promoted (or,
            alternatively, demoted, transferred, or laid
            off) due to intervening events.  The escalator
            principle requires that the employee be
            reemployed in a position that reflects with
            reasonable certainty     the pay, benefits,
            seniority, and other job perquisites, that he
            or she would have attained if not for the
            period of service. 

20 C.F.R. § 1002.191 (emphases added).         The regulations also

provide guidance on the determination of the specific reemployment

position:

                   In all cases, the starting point for
            determining the proper reemployment position
            is the escalator position, which is the job
            position that the employee would have attained
            if his or her continuous employment had not

                                -11-
            been interrupted due to uniformed service. 
            Once this position is determined, the employer
            may have to consider several factors before
            determining   the   appropriate   reemployment
            position . . . .  Such factors may include the
            employee's length of service, qualifications,
            and disability, if any.       The reemployment
            position may be either the escalator position;
            the   pre-service    position;    a   position
            comparable to the escalator or pre-service
            position; or, the nearest approximation to one
            of these positions. 

Id. § 1002.192 (emphasis added). 

            The   escalator   does   not    run   in    only    one   direction. 

Depending   on    the   particular   employee's        (and    the    employer's)

circumstances, "the escalator principle may cause an employee to be

reemployed in a higher or lower position, laid off, or even

terminated."       Id. § 1002.194.       In some cases, for example, the

escalator principle could deliver an employee into "layoff status"

if the "employee's seniority or job classification would have

resulted in the employee being laid off during the period of

service, and the layoff continued after the date of reemployment." 

Id.

            In designing its final rules implementing USERRA, the

Department of Labor considered whether the escalator principle

applies to promotions based on an employer's discretion.                   During

the comment period following the Department's issuance of the

proposed regulations in 2004, an employer association suggested

that in cases involving promotion based on employer discretion, 20



                                     -12-
C.F.R. § 1002.1928 would require employers "to speculate whether a

returning employee would have (1) sought the promotion in the first

instance and (2) have been chosen over the successful candidate." 

70 Fed.  Reg.  75,246-01, 75,271 (internal quotation marks omitted). 

Similarly, the Department received a comment from a human resources

consulting firm arguing that "[b]ecause most employees are promoted

based on demonstrated ability and experience, rather than length of

service, the escalator principle cannot operate even-handedly for

all employees.    The escalator principle is appropriate only in

workforces where pay increases and promotions occur automatically

. . .  rather than for achievement or merit."          Id. (internal

quotation marks omitted). 

          The Department unambiguously rejected these suggestions. 

It stated that sections 1002.191 and 1002.192 "incorporate[] the

reasonable certainty test as it applies to discretionary and non-

discretionary promotions," and that these rules "promote[] the

application of a case-by-case analysis rather than a rule that

could result in the unwarranted denial or promotions to returning

service members based on how the promotion was labeled rather than

whether or not it was 'reasonably certain.'"    Id.   The Department

therefore declined to alter the regulations to indicate that




     8
       The proposed section 1002.192 to which the comments were
directed is functionally identical to the version that the
Department ultimately adopted. 

                               -13-
discretionary/non-automatic promotions would not be subject to the

escalator principle and the reasonable certainty test. 

             Finally, we note that USERRA affords broad remedies to a

returning servicemember who is entitled to reemployment.                 For

example, 20 C.F.R. § 1002.139 unequivocally states that "[t]he

employer may not . . .  refuse to reemploy the employee on the basis

that another employee was hired to fill the reemployment position

during the employee's absence, even if reemployment might require

the termination of that replacement employee."               Additionally,

USERRA grants courts "full equity powers . . .  to vindicate fully

the rights or benefits" of veterans seeking reemployment.                 38

U.S.C. § 4323(e) (emphasis added); see Serricchio v. Wachovia Sec. 

LLC, 658 F.3d 169, 193-94 (2d Cir.  2011) (approving district

court's use of its equitable powers to craft an appropriate

remedy). 

B.    The District Court's USERRA Analysis

             The district court held that Rivera's attempt to invoke

the   escalator   principle    was   improper   because   "[a]n   escalator

position is a promotion that is based solely on employee seniority. 

. . . [ and] does not include an appointment to a position that is

not automatic, but instead depends on the employee's fitness and

ability and the employer's exercise of discretion."          Dist.  Ct.  Op. 

at 17-18 (citation omitted) (internal quotation marks omitted).  In

concluding     that   the   escalator   principle   and   the     reasonable


                                     -14-
certainty test do not apply to non-automatic promotions, the

district court relied primarily upon McKinney v. Missouri-Kansas-

Texas Railroad Co., 357 U.S. 265 (1958), a case in which the

Supreme Court interpreted the Universal Military Training and

Service Act of 1951.9       There the Court held that a returning

veteran seeking reemployment "is not entitled to demand that he be

assigned   a   position   higher   than   that   he   formerly   held   when

promotion to such a position depends, not simply on seniority or

some other form of automatic progression, but on the exercise of

discretion by the employer."          Id. at 272.         Accordingly, the

district court found that "the purpose of the escalator principle

is to 'assure that those changes and advancements that would

necessarily have occurred simply by virtue of continued employment

will not be denied the veteran because of his absence in the

military service,'" Dist.  Ct.  Op.  at 18 (quoting McKinney, 357 U.S.

at 272) (emphasis added), and that the principle therefore had no

applicability to the facts of Rivera's case. 

           In citing the precedential authority of McKinney, the

district court failed to consider the subsequently decided Supreme

Court case of Tilton v. Missouri Pacific Railroad Co., 376 U.S. 169

(1964).     In Tilton, reemployed veterans claimed that they were


     9
       The Universal Military Training and Service Act of 1951 is
yet another of the forerunner statutes to USERRA.  See generally
Lapine v. Town of Wellesley, 970 F. Supp.  55, 58-59 (D. Mass. 1997)
(tracing evolution of statutes protecting veterans' reemployment
rights). 

                                   -15-
deprived of seniority rights to which they were entitled under the

Universal Military Training and Service Act when their employer

assigned them seniority based upon the date that they returned from

military service and completed the training necessary to advance to

the higher position, rather than the date that they would have

completed the training if they had not been called into service. 

Id. at 173-74.  The Eighth Circuit had relied upon McKinney to deny

the claims, as the promotion at issue "was subject to certain

contingencies or 'variables'" and therefore was not automatic.  Id.

at 178-79.     The Supreme Court reversed, finding that McKinney "did

not adopt a rule of absolute foreseeability," id. at 179, and that

"[t]o   exact    such   certainty    as     a   condition   for   insuring   a

ve[]teran's     seniority   rights    would     render   these    statutorily

protected rights without real meaning," id. at 180.                 The Court

concluded that

             Congress intended a reemployed veteran . . . 
             to enjoy the seniority status which he would
             have   acquired   by   virtue   of   continued
             employment but for his absence in military
             service.    This requirement is met if, as a
             matter of foresight, it was reasonably certain
             that advancement would have occurred, and if,
             as a matter of hindsight, it did in fact
             occur. 

Id. at 181.      Read together, McKinney and Tilton suggest that the

appropriate inquiry in determining the proper reemployment position

for a returning servicemember is not whether an advancement or

promotion was automatic, but rather whether it was reasonably


                                     -16-
certain that the returning servicemember would have attained the

higher position but for his absence due to military service.                              The

Department      has     certainly    adopted       this        construction         of   the

regulations and the relevant precedents.                   See 70 Fed.  Reg.  75,246-

01,    75,272     (stating    that    "general          principles       regarding       the

application of the escalator provision . . .  require that a service

member receive a missed promotion upon reemployment if there is a

reasonable certainty that the promotion would have been granted"

(citing Tilton, 376 U.S. at 177; McKinney, 357 U.S. at 274)); see

also   20   C.F.R.      §   1002.191.         We    accord       this    interpretation

substantial       deference.          See     Massachusetts         v.    U.S.       Nuclear

Regulatory Comm'n, 708 F.3d 63, 73 (1st Cir.  2013) (citing Auer v.

Robbins, 519 U.S. 452, 461 (1997)). 

            The district court also misinterpreted the regulations

governing    USERRA.          For   instance,       the    court       cited    20    C.F.R.

§ 1002.191 for the proposition that the escalator principle "is

intended     to    provide     the    employee          with    any     seniority-based

promotions that he would have obtained 'with reasonable certainty'

had he not left his job to serve in the armed forces."                           Dist.  Ct. 

Op.  at 17 (emphasis added).            However, nothing in section 1002.191

suggests that the escalator principle is limited to "seniority-

based promotions."  Furthermore, the next section states that "[i]n

all    cases,     the    starting     point       for     determining         the    proper




                                           -17-
reemployment position is the escalator position."         20 C.F.R.

§ 1002.192 (emphasis added). 

          The court also cited section 1002.213 in support of its

conclusion that "[a]n escalator position is a promotion that is

based solely on employee seniority."    Although sections 1002.210-

.213 specifically address "seniority rights and benefits," and make

clear that the reasonable certainty test and escalator principle

apply to promotions that are based on seniority, these sections do

not limit the application of the reasonable certainty test and the

escalator principle to seniority-based promotions. 

          Finally, the district court misinterpreted the Department

of Labor's commentary on the proposed regulations.  In its order on

Rivera's motion for reconsideration, the court stated that "[t]he

commentary merely emphasizes . . .  that the final rule is designed

to avoid relying on whether or not the employer has labeled the

position as 'discretionary.'"    However, the commentary does much

more than that: it unambiguously states that "[s]ections 1002.191

and 1002.192 . . .  incorporate[] the reasonable certainty test as

it applies to discretionary and non-discretionary promotions."    70

Fed.  Reg.  75,246-01, 75,271. 

          Pfizer attempts to save the district court from its

error, stating that, despite its broad language, the district court

actually applied the reasonable certainty test and determined as a

matter of law that it was not reasonably certain that Rivera would


                                -18-
have attained the API Team Leader position.             That position has no

grounding in the district court's analysis.               In its decision on

Pfizer's motion for summary judgment, the district court emphasized

throughout that any promotion to the API Team Leader position was

non-automatic, and therefore not subject to the escalator principle

and the reasonable certainty test.  There was a similar emphasis in

the     district    court's     decision     on      Rivera's   motion      for

reconsideration.          The court only engaged the evidence in the

summary judgment record to determine that the promotion was in fact

discretionary. 

             Because the district court erred in finding that the

escalator principle and the reasonable certainty test apply only to

automatic promotions, and because the court did not apply those

legal concepts to Rivera's claim, the district court's grant of

summary judgment cannot stand.            The court's analysis of Rivera's

claim   to   the   API   Team   Leader    position    was   premised   on   its

fundamental misapprehension of the correct legal standard, which in

turn compromised its view of the evidence.             We prefer to have the

district court decide in the first instance if the summary judgment

record reveals genuine issues of material fact on the question of

whether it is reasonably certain that Rivera would have been

promoted to the API Team Leader position if his work at Pfizer had

not been interrupted by military service.             We therefore remand to




                                    -19-
the district court for reconsideration of the motion for summary

judgment in light of the correct legal standard.10

                               III. 

           For the foregoing reasons, we vacate the portion of the

judgment appealed from relating to Rivera's reemployment claim and

remand to the district court for proceedings consistent with this

opinion.    We do not retain jurisdiction.    Costs to appellant. 

           So ordered. 




     10
       When reconsidering Pfizer's motion for summary judgment on
remand, the district court should be mindful that USERRA's "changed
circumstances" defense is an affirmative defense on which the
employer bears the burden of proof.  See 38 U.S.C. § 4312(d); 20
C.F.R. § 1002.139(d) ("The employer defenses included in this
section are affirmative ones, and the employer carries the burden
to prove by a preponderance of the evidence that any one or more of
these defenses is applicable.").  As the United States points out
in its amicus brief, the opinion of the district court did not
suggest an awareness of this principle.  See United States Br.  at
10-11. 

                               -20-
