Rivera-Melendez v. Pfizer Pharmaceuticals, LLC ( 2013 )


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  •           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
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    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.
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