STAHL, Senior Circuit Judge.
This case presents an issue of the proper allocation of the burden of proof in cases of alleged discriminatory treatment under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. § 4301 et seq. This is the first time that we have been called upon to address this issue. Plaintiff-appellant Carlos Velázquez-García ("Velázquez") sued his former employer, defendant-appellee Horizon Lines of Puerto Rico ("Horizon"), alleging that he had been fired from his job due to his military service, in violation of USERRA. The district court granted summary judgment in favor of Horizon. Because we find
Because this is an appeal from summary judgment, we review the facts in the light most favorable to Velázquez, drawing all inferences in his favor. See Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir.1995).
Horizon is in the business of ocean shipping and transportation, and operates a marine terminal in San Juan, Puerto Rico. Velázquez began work at the terminal for Horizon's predecessor, CSX Lines, in September 1999. He was first employed as a yard supervisor and later became a marine supervisor. Both positions are essentially middle management, giving Velázquez supervisory authority over Horizon's stevedores.
In December 2002, Velázquez enlisted as a reservist in the U.S. Marine Corps. He immediately reported for six months of basic training. He returned to his job after basic training, but continued to report for monthly weekend training sessions, as well as annual two-week more intensive training sessions. Velázquez was a shift employee at Horizon and often had to work weekends, so Horizon needed to adjust his work hours to accommodate his military schedule. In Velázquez's pre-trial deposition,
During Velázquez's periods of military service, Horizon continued to pay his full salary. As a result, when Velázquez returned to work, Horizon would deduct from his paycheck amounts necessary to offset Velázquez's military income for those days in which he received both a military and a civilian paycheck.
During this same time period, Velázquez began operating a side business cashing the checks of Horizon employees. Before 2001, Horizon had paid its stevedores' daily wages in cash. In 2001, Horizon began paying daily wages by check instead. Seeing a business opportunity, around February 2004, Velázquez began cashing these employee checks for a fee. He did this almost exclusively during off-duty hours, though he testified to cashing "one or two" checks while on duty. He performed the service primarily outside Horizon's gate or in its parking lot.
Around September 2004, Horizon finished recouping the salary that it was owed for the periods when Velázquez was performing his military duties. On September 21, 2004, seven months after he began his side business, Velázquez was observed cashing checks by Horizon's operations manager, Roberto Batista, one of Velázquez's supervisors and one of the
Velázquez brought suit under USERRA, alleging that his firing constituted illegal discrimination due to his military service.
We review a district court's summary judgment de novo. Velez v. Janssen Ortho, LLC, 467 F.3d 802, 806 (1st Cir. 2006). In doing so, we recognize that "[w]hen a motion for summary judgment is made . . . an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party," id. at 248, 106 S.Ct. 2505, and a fact is material if it has the "potential to affect the outcome of the suit," Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.2000) (internal quotation marks omitted) (quoting Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). "Neither wishful thinking . . . nor conclusory responses unsupported by evidence will serve to defeat a properly focused Rule 56 motion." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990) (citation omitted).
We have not previously addressed the mechanism of proving discrimination claims under USERRA. Thus, we first turn to the statute and its history. USERRA provides, in relevant part, that:
38 U.S.C. § 4311.
The statute was passed in response to the Supreme Court's decision in Monroe v. Standard Oil Co., 452 U.S. 549, 101 S.Ct. 2510, 69 L.Ed.2d 226 (1981), in which the Court held under the predecessor of USERRA, the Veterans' Reemployment Rights Act ("VRRA"),
Under Transportation Management, which addresses claims of unfair labor practices under the National Labor Relations Act, "the employee first has the burden of showing, by a preponderance of the evidence, that his or her protected status was `a substantial or motivating factor in the adverse [employment] action'; the employer may then avoid liability only by showing, as an affirmative defense, that the employer would have taken the same action without regard to the employee's protected status." Leisek v. Brightwood Corp., 278 F.3d 895, 898-99 (9th Cir.2002) (alterations in original) (quoting Transp. Mgmt., 462 U.S. at 401, 103 S.Ct. 2469). The circuit courts that have addressed the issue of burden-shifting under USERRA are unanimous in adopting this "substantial or motivating factor" test, rather than the "sole motivating factor" test of Monroe, and in putting the burden on the employer to show lack of pretext. See Coffman v. Chugach Support Servs., Inc., 411 F.3d 1231, 1238-39 (11th Cir.2005); Gagnon v. Sprint Corp., 284 F.3d 839, 853-54 (8th Cir.2002); Leisek, 278 F.3d at 899; Hill v. Michelin N. Am., Inc., 252 F.3d 307, 312 (4th Cir.2001); Sheehan v. Dep't of Navy, 240 F.3d 1009, 1014 (Fed. Cir.2001); Gummo v. Vill. of Depew, N.Y., 75 F.3d 98, 106 (2d Cir.1996).
This two-pronged burden-shifting analysis is markedly different from the three-pronged burden-shifting analysis in Title VII actions. Under the McDonnell Douglas framework, the burden of persuasion in Title VII actions always remains with the employee. Therefore, after the employee establishes a prima facie case of discriminatory animus, the employer only has the burden of producing "some legitimate, nondiscriminatory reason for the employee's [termination]." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Then the burden shifts back to the employee to show that "the employer's stated reason for terminating him was in fact a pretext." Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 161 (1st Cir.1998). By contrast, under USERRA, the employee does not have the burden of demonstrating that the employer's stated reason is a pretext. Instead, the employer must show, by a preponderance of the evidence, that the stated reason was not a pretext; that is, that "the action would have been taken in the absence of [the employee's military] service." 38 U.S.C. § 4311(c) (emphasis added).
1. Discriminatory Motivation
The district judge held that Velázquez failed to produce sufficient evidence for a reasonable jury to believe that Velázquez's military service was at least "a motivating factor" in Horizon's decision to fire him. That is, the judge ruled that Velázquez was unable to show that Horizon at least partially based its decision to fire him on his military service. The district judge gave three principal reasons for this ruling. First, he discounted Velázquez's testimony of anti-military remarks made by his co-workers, in part because he had not reported any harassment to Horizon. Second, he said that the evidence of the timing of his firing close to a return from training was of no probative value because he had returned from several other training sessions without being fired. Third, he noted that other Horizon employees in the military had not been demoted or fired. Although the district judge correctly cited the "motivating factor" test of Sheehan, we believe, after carefully reviewing the record, that the judge committed error on each of these three points.
First, the court discounted Velázquez's testimony of anti-military remarks because it was his own self-serving testimony and because he had not previously reported it or made a formal complaint. Here, the distinction in Rule 56 between "specific facts" and "mere allegations" is important. Fed.R.Civ.P. 56(e). Had Velázquez merely rested on allegations of military discrimination, this would be a different case. Instead, he provided deposition testimony presenting specific instances of anti-military remarks, as well as complaints and pressure from his superiors,
Moreover, whether a nonmovant's deposition testimony or affidavits might be self-serving is not dispositive. It is true that testimony and affidavits that "merely reiterate allegations made in the complaint, without providing specific factual information made on the basis of personal knowledge" are insufficient. Santiago-Ramos, 217 F.3d at 53 (citing Roslindale Coop. Bank v. Greenwald, 638 F.2d 258, 261 (1st Cir.1981)). However, a "party's own affidavit, containing relevant information of which he has first-hand knowledge, may be self-serving, but it is nonetheless competent to support or defeat summary judgment." Santiago-Ramos, 217 F.3d at 53 (internal quotation marks omitted) (quoting Cadle Co. v. Hayes, 116 F.3d 957, 961 n. 5 (1st Cir. 1997)). Therefore, provided that the nonmovant's deposition testimony sets forth specific facts, within his personal knowledge, that, if proven, would affect the outcome of the trial, the testimony must be accepted as true for purposes of summary judgment. See Napier v. F/V Deesie, Inc., 454 F.3d 61, 66 (1st Cir.2006); Simas v. First Citizens' Fed. Credit Union, 170 F.3d 37, 50-51 (1st Cir.1999).
On appeal, Horizon argues that the anti-military comments were just "stray remarks," and as such cannot be sufficient evidence of discriminatory animus. If true, that would undermine Velázquez's argument that the issues raised are "genuine." See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. But Horizon's argument oversimplifies the analysis.
Here, the remarks that Velázquez testified to were not made by those who participated in the decision to fire him, and this does limit their probativeness. See McMillan, 140 F.3d at 301. But at least one such speaker, Juan Carrero, was shift marine manager and appears to be superior to Velázquez. Carrero was also in part responsible for scheduling, which was the source of Horizon's problems with Velázquez. Thus, his remarks could carry some weight with a jury. Furthermore, stray remarks by nondecisionmakers,
Finally, the fact that Velázquez failed to report the remarks earlier is not dispositive. Cf. Faragher v. City of Boca Raton, 524 U.S. 775, 808, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (holding that plaintiff's failure to report sexual harassment is not an affirmative defense to a Title VII claim where plaintiff was discharged). In an atmosphere such as a working seaport, it is reasonable for a person to avoid making a scene over such behavior, or even to believe that the behavior is only in jest, only to discover too late that it was a harbinger of worse discrimination to come. Velázquez's failure to report the behavior may be considered by a jury in judging his credibility, but it is evident to us that a jury could reasonably decide to place no weight on his prior silence. Thus, it is a jury that should ultimately decide.
The district judge next discounted the timing of Velázquez's firing, saying that the fact that he was fired after returning from his military service is of no probative value, given that he had returned from other periods of service without being fired. But the emphasis of Velázquez's argument is elsewhere. The important factor, he argues, is not the time of his return from service, but rather the time of his final recoupment of the salary differential that he owed to Horizon. Horizon, according to Velázquez, waited until Velázquez had paid back the money he owed Horizon for the periods when his civilian salary was supplemented by his military salary. Once he had repaid the overage, he claims, Horizon then found the pretext to fire him.
Such facts, if true, could be considered evidence of discriminatory animus. The other USERRA cases that address the timing of firing look at "proximity in time between the employee's military activity and the adverse employment action." Sheehan, 240 F.3d at 1014; see Maxfield v. Cintas Corp. No. 2, 427 F.3d 544, 552 (8th Cir.2005). But that is not an exclusive test, and there is no reason to limit ourselves to looking only at the proximity of the adverse employment action to military activity. The proximity to other military-related events may also be probative. If what Velázquez alleges is true, Horizon should not escape liability for making the
Finally, the district judge held that the fact that the company had not fired other employees who served in the military demonstrated that they did not fire Velázquez for discriminatory reasons. As an initial matter, the failure to treat all members of a class with similar discriminatory animus does not preclude a claim by a member of that class who is so treated. Cf. Conn. v. Teal, 457 U.S. 440, 455, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982) ("Title VII does not permit the victim of a facially discriminatory policy to be told that he has not been wronged because other persons of his or her race or sex were hired"); Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978) ("A racially balanced work force cannot immunize an employer from liability for specific acts of discrimination.").
Furthermore, the district court failed to address Velázquez's argument that the other employees were not shift employees, and that therefore their military service did not cause as much scheduling conflict as his did. A reasonable jury could conclude that the different situations of these employees could result in Horizon firing Velázquez for his military service, while tolerating the other employees serving in the military.
For these reasons, we find that Velázquez has presented sufficient facts to withstand summary judgment on the question of whether his military status was at least a motivating factor in his dismissal. The issue is one for a jury.
After holding that Velázquez had not provided sufficient evidence to show that his military status was a motivating factor in his dismissal, the district judge held further that, even if he had, Horizon had adequately demonstrated that it had a non-pretextual reason for firing Velázquez.
The district judge stated the rule of law correctly, adopting, as we have today, the Federal Circuit's holding in Sheehan. However, he proceeded to implicitly follow the McDonnell Douglas framework, keeping the burden on Velázquez. For example, he held that Horizon "was entitled to take the action it did," Dist. Ct. Op. at 12, that it was "justified in dismissing" Velázquez, id. at 13, and that Velázquez "failed to produce evidence to counter this determination and has produced no evidence that would lead the Court to believe that [Horizon's] stated reason for his termination was pretextual in nature," id. The district court thus kept the burden of persuasion on Velázquez, and this was error.
The issue under USERRA is not whether an employer is "entitled" to dismiss an employee for a particular reason, but whether it would have done so if the employee were not in the military. Here, Velázquez's violation of the Code may well be a fireable offense under Horizon's policies, but that is only the beginning of the analysis. Horizon must go further and demonstrate, by a preponderance of the evidence, that it would indeed have fired Velázquez, regardless of his military status.
There is sufficient doubt on this issue to make it a jury question. Velázquez points out that he never received a copy of the Code,
For the forgoing reasons we reverse the district court's grant of summary judgment and remand for further proceedings consistent with this opinion.