Bunting v. Town of Ocean City , 409 F. App'x 693 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1140
WILLIAM BUNTING,
Plaintiff - Appellant,
v.
TOWN OF OCEAN CITY; TOWN OF OCEAN CITY POLICE DEPARTMENT,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:08-cv-03157-WMN)
Submitted: January 13, 2011 Decided: January 31, 2011
Before DUNCAN, AGEE, and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Robin R. Cockey, Ashley A. Bosché, COCKEY, BRENNAN & MALONEY,
PC, Salisbury, Maryland, for Appellant. Guy R. Ayres, III,
Arlette K. Bright, AYRES, JENKINS, GORDY & ALMAND, P.A., Ocean
City, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Bunting appeals the district court’s order
granting summary judgment to Appellee, the Town of Ocean City,
Maryland, and dismissing his Uniformed Services Employment and
Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301 et seq.
(2006) discrimination and retaliation claims. For the reasons
that follow, we affirm in part, vacate in part, and remand.
At all times relevant to this appeal, Bunting was a
sergeant in the Ocean City Police Department (“OCPD”). Bunting
has also been a member of the United States Coast Guard Reserve
since 1986. In February 2003, Bunting received orders to report
for active duty and remained on active duty until September
2004. While he was on active duty, the OCPD announced a
promotion opportunity for one or more sergeants in the force to
promote to the rank of lieutenant. Though Bunting apparently
did not find out about the promotion until after the position
had been filled, there is no evidence in the record that OCPD
took any steps to prevent him from learning of the opportunity.
Indeed, notice of the opening was sent to his OCPD e-mail
address, though he apparently did not know he could access his
e-mail account remotely.
On learning of the then-filled promotion opportunity,
Bunting complained in writing to Ocean City’s mayor and,
receiving no response, then complained to the U.S. Department of
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Labor Veterans’ Employment and Training Service (“DOL-VETS”).
Bunting argued to DOL-VETS that the city had discriminated
against him and violated his rights by denying him a promotion
opportunity while he was on active duty. Ocean City responded
to the complaints, insisting that the burden was on Bunting to
keep apprised of such opportunities while on active duty. DOL-
VETS conducted an investigation and concluded that Bunting’s
complaints had merit. Ocean City responded and asserted that
Bunting might face disciplinary action for purported violations
of OCPD policy.
Some three months after DOL-VETS concluded its
investigation, another promotion opportunity arose. OCPD Chief
Bernadette DiPino interviewed candidates, including Bunting, and
ultimately selected a different sergeant for promotion. Bunting
applied for another promotion in 2007, and was again not
selected. Bunting thereafter brought suit pursuant to USERRA
against Ocean City in district court, arguing that he was
discriminated against because of his military service status and
retaliated against after he filed a USERRA complaint. Ocean
City moved for summary judgment and the court granted the
motion. This appeal followed.
This court reviews de novo a district court’s grant of
summary judgment. Howard v. Winter, 446 F.3d 559, 565
(4th Cir. 2006). Summary judgment is appropriate when the
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“pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c).
I. Discrimination
Bunting first alleges on appeal that the district
court erred in granting summary judgment to Ocean City on his
discrimination claim. He argues that the court erred by
concluding that there were no genuine issues of material fact.
The USERRA provides that:
(a) A person who is a member of, applies to be a
member of, performs, has performed, applies to
perform, or has an obligation to perform service in a
uniformed service shall not be denied initial
employment, reemployment, retention in employment,
promotion, or any benefit of employment by an employer
on the basis of that membership, application for
membership, performance of service, application for
service, or obligation.
. . .
(c) An employer shall be considered to have engaged in
actions prohibited –
(1) under subsection (a) if the person’s membership,
application for membership, service, application for
service, or obligation for service in the uniformed
services is a motivating factor in the employer’s
action, unless the employer can prove that the action
would have been taken in absence of such membership,
application for membership, service, application for
service, or obligation for service[.]
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38 U.S.C. § 4311.
In a USERRA case, “there must be an initial showing by
the employee that military status was at least a motivating or
substantial factor in the [employer] action, upon which the
[employer] must prove, by a preponderance of evidence, that the
action would have been taken despite the protected status.”
Sheehan v. Dep’t of the Navy, 240 F.3d 1009, 1014
(Fed. Cir. 2001). * To establish a certain factor as a motivating
factor, a claimant need not show that it was the sole cause of
the employment action, but rather that it is one of the factors
that a truthful employer would list if asked for the reasons for
its decision. Brandsasse v. Suffolk, Va., 72 F. Supp.2d 608,
617 (E.D. Va 1999); see Price Waterhouse v. Hopkins, 490 U.S.
228, 250 (1989) (addressing Title VII gender discrimination
claim and related affirmative defense).
Bunting argues that the fact that he was not made
aware of the 2004 promotion opportunity raises a triable
question as to whether he was discriminated against on the basis
of his military service. We have reviewed the record and do not
agree. As the district court noted, while it is true that, in a
*
Unlike the familiar McDonnell Douglas v. Green, 411 U.S.
792 (1973), framework for Title VII discrimination cases, USERRA
imposes a more stringent standard on the employer to demonstrate
that its adverse employment actions were not pretextual.
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literal sense, Bunting did not receive notice of the 2004
promotion because he was on active duty, there is no evidence in
the record that DiPino or anyone at OCPD was motivated to
exclude Bunting because of his military service. Likewise, with
respect to the 2005 and 2007 promotion opportunities, we find no
evidence that Ocean City or DiPino harbored animus toward
Bunting as a consequence of his military service. Because we
conclude that Bunting has failed to make a prima facie showing
of discrimination, we need not reach the question of whether
Ocean City has rebutted an adequate showing of pretext.
II. Retaliation
With respect to claims of employer retaliation, the
USERRA provides that: an employer may not discriminate in
employment against or take any adverse employment action against
any person because such person (1) has taken an action to
enforce a protection afforded any person under this chapter
. . . or (4) has exercised a right provided for in this chapter.
38 U.S.C. § 4311(b).
The initial inquiry in a USERRA retaliation claim is
whether the employee exercised his rights under the USERRA,
thereby placing him within the ambit of § 4311(b). Wallace v.
San Diego, 479 F.3d 616, 624 (9th Cir. 2007). As with USERRA
discrimination claims, once the employee shows by a
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preponderance of the evidence that his protected activities were
a motivating factor in the adverse employment action, the
employer must show that the employer would have taken the same
action without regard to the protected activities. Id.We have reviewed the record, and we conclude that
Bunting has adduced evidence rising to the level of a disputed
issue of material fact. When DiPino was notified of Bunting’s
complaints to the mayor, she informed Ocean City’s attorney that
she was referring Bunting to the OCPD’s internal affairs bureau.
In addition, Ocean City responded to the DOL-VETS’s
communication by implying that Bunting would face discipline for
failing to comply with OCPD policies. In light of the fact that
these threats of discipline were made in response to protected
USERRA activities, the statements clearly raise the specter of
retaliation. Finally, in evaluating Bunting for a promotion in
2007, one senior officer commented that Bunting was unfit for
promotion because he filed actions against the OCPD. We
conclude that these facts could lead a reasonable jury to find
that Bunting may have received promotions in 2005 and 2007 if he
had not engaged in protected activities, i.e., complaining to
the mayor and filing a USERRA complaint with DOL-VETS.
Ocean City argues that DiPino’s decisions not to
promote Bunting were grounded in questions of his loyalty. This
may be the case, but in light of the evidence discussed above,
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and in light of the burden USERRA places on the employer to
prove that there was no pretext, we conclude that a jury is in
the best position to adjudicate Bunting’s retaliation claim.
Accordingly, we affirm the district court’s judgment
in part, vacate in part, and remand. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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