                              In the

United States Court of Appeals
                For the Seventh Circuit

No. 08-1923

R ICK M ADDEN,
                                                  Plaintiff-Appellant,
                                  v.

R OLLS R OYCE C ORPORATION, et al.,
                                              Defendants-Appellees.


              Appeal from the United States District Court
      for the Southern District of Indiana, Indianapolis Division.
              No. 06 CV 00584—Larry J. McKinney, Judge.


     A RGUED JANUARY 13, 2009—D ECIDED A PRIL 29, 2009




  Before B AUER, P OSNER, and R OVNER, Circuit Judges.
  P OSNER, Circuit Judge. The Uniformed Services Em-
ployment and Reemployment Rights Act, 38 U.S.C. §§ 4301
et seq., forbids discrimination in employment on the
basis of military service. The plaintiff is a member of the
U.S. Air Force Reserve (oddly, the record does not
indicate the precise nature of his work for the Air Force,
but it seems to involve the refueling of aircraft). He
was hired by Rolls Royce, which though it is a famously
English company has American facilities, for a temporary
2                                               No. 08-1923

position as a “process engineer,” who designates the
steps to be followed in a manufacturing process. Robin
Savin, who hired and supervised the plaintiff, was a
graduate of Purdue’s engineering program and was
suitably impressed when the plaintiff told him that he
had a degree in aeronautical engineering from Purdue.
But the plaintiff made many mistakes in his new
job—which is not surprising, because he was not a grad-
uate of Purdue; he had flunked out. At the end of the 90-
day period for which he had been hired, Savin (who
did not know about the resumé fraud), because there
was not enough work for all the process engineers,
decided to terminate the plaintiff rather than giving him
a permanent position or terminating another temp, who
had done a better job than the plaintiff. But according
to the plaintiff, Savin, when he told the plaintiff the bad
news, did not complain about the plaintiff’s performance
but instead said that since the plaintiff was about to be
called for a stint of active duty with the Air Force, he
should be the process engineer to be terminated.
  Later the plaintiff applied for an engineering job with
the codefendant, DS&S (Data Systems and Solutions), a
supplier to (and now owned by) Rolls Royce. He was
turned down and again says that the hiring officer
referred (albeit obliquely) to his military obligations as a
factor in turning him down. But before he would have
been hired for the permanent job that he was seeking,
there would have been a check of his credentials and
work record, and not only his resumé fraud but also his
poor work for Savin (the first probably, the second cer-
tainly) would have come to light and doomed his chances
No. 08-1923                                                 3

for being hired, regardless of his military obligations.
Although Savin had hired him without a careful check of
his credentials, it was for a temporary job for a fellow
alumnus (he thought) of Purdue. In fact, the hiring
officer for DS&S did try to verify the plaintiff’s references
and was unable to do so, which may well have been
the real reason he didn’t offer the plaintiff a job.
  The district judge granted summary judgment for the
defendants with respect to both the refusal to give the
plaintiff a permanent job and the later refusal of
DS&S to hire him.
  The cases say that if the plaintiff in a suit under the
reemployment statute presents evidence that his military
obligations were “a motivating factor” or “a substantial or
motivating factor” in his failing to be hired, or of his
being discharged, the burden shifts to the defendant to
show that the plaintiff wouldn’t have been hired, or
would have been fired, even if he had had no military
obligations. Miller v. City of Indianapolis, 281 F.3d 648,
650 (7th Cir. 2002); Dean v. Consumer Product Safety Com-
mission, 548 F.3d 1370, 1374 (Fed. Cir. 2008); Velazquez-
Garcia v. Horizon Lines of Puerto Rico, Inc., 473 F.3d 11, 16-
17 (1st Cir. 2007); Hill v. Michelin North America, Inc.,
252 F.3d 307, 311-12 (4th Cir. 2001); Sheehan v. Department
of the Navy, 240 F.3d 1009, 1014-15 (Fed. Cir. 2001). This
is a common approach in employment discrimination
cases, whatever the type of discrimination alleged. E.g.,
NLRB v. Transportation Management Corp., 462 U.S. 393, 396-
97 (1983); Mt. Healthy City School District Board of Education
v. Doyle, 429 U.S. 274, 287 (1977); Tejada-Batista v. Morales,
4                                                 No. 08-1923

424 F.3d 97, 101 (1st Cir. 2005). All that is meant is that if
the defendant had two reasons for taking an adverse action
against the plaintiff, one of them forbidden by the statute
and the other not, and the defendant can show that even if
the forbidden one had been absent the adverse action
would still have been taken, the plaintiff loses.
   Although the defendant has the burden of proving that
the adverse action would have been taken in any event, so
compelling and so meagerly contested is the proof
offered by the defendants in this case, with respect to
both adverse actions of which the plaintiff complains, that
a trial would be a waste of time. The plaintiff’s work as
a process engineer under Savin’s direction was danger-
ously incompetent. Probably Savin’s telling the plaintiff
that he wasn’t being retained because he wouldn’t be
around anyway (if that is indeed what he said, which he
denies) was a way of letting him off lightly rather than
having to tell him to his face that he was no good. But
whatever Savin said or meant, it is plain from the plain-
tiff’s performance that he was not going to be given a
permanent job when Savin had to lay off one of his
process engineers and when the one he retained in lieu
of the plaintiff was the superior worker.
  Similarly, had the hiring officer for DS&S been initially
inclined to hire the plaintiff on the basis of his false repre-
sentations regarding his educational qualifications, before
a formal offer would have been tendered the company’s
human resources division would have discovered the
plaintiff’s poor work record and his resumé fraud and he
would not have been hired, regardless of his military
No. 08-1923                                                  5

status. Allowing someone who is not an engineer to do
engineering work on aircraft parts, when he had lied
about his credentials and confirmed the lie by his poor
performance of the job for which he had been hired but
was not qualified, would be the height of irresponsibility
and could get the employer into serious trouble.
  But the plaintiff argues that whatever we might think as
an original matter, he was entitled to go to trial by
the Supreme Court’s decision in McKennon v. Nashville
Banner Publishing Co., 513 U.S. 352 (1995). The defendant
in that case had fired the plaintiff for an illegal reason.
The plaintiff sued, and in the course of pretrial discovery
the defendant discovered facts about the plaintiff that,
had the defendant known them when it fired him, would
have provided a lawful ground for firing him that doubt-
less would have caused him to be fired as soon as it was
discovered. The Court held that this was not a defense
to the plaintiff’s suit for employment discrimination
because the only ground on which he had been fired
was an illegal one, and so his rights had been violated.
The ground discovered in the course of pretrial discovery
would have justified the employer in firing the plaintiff
upon discovering the ground, but the only significance of
this point was that, had the employer proved that it
would have fired the plaintiff as soon as it discovered
that ground, the plaintiff could obtain no damages for
lost earnings after that date.
   This would be a similar case if the only lawful reason
the defendants would have had for not hiring the plain-
tiff (or, in the first episode, for not hiring him for a perma-
6                                                 No. 08-1923

nent job) was resumé fraud, for this was discovered
only after they refused to hire him. But the first refusal to
hire was based on his incompetent performance, discov-
ered before the refusal, and the defendant in the second
episode would have discovered the disqualifying facts
about the plaintiff (certainly his poor work record and
probably his resumé fraud as well) before hiring him, so
the discriminatory motive could have had no conse-
quence. In the McKennon case the discriminatory
motive did have a consequence—it resulted in the plain-
tiff’s discharge sooner than would otherwise have hap-
pened.
    There are other issues, but none that requires discussion.
                                                   A FFIRMED.




                             4-29-09
