                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

ROSSI M. POTTS,                                :
                                               :
               Plaintiff,                      :       Civil Action No.:      08-00706 (RMU)
                                               :
               v.                              :       Re Document No.:       44
                                               :
HOWARD UNIVERSITY                              :
HOSPITAL et al.,                               :
                                               :
               Defendants.                     :

                                  MEMORANDUM OPINION

               GRANTING THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

                                       I. INTRODUCTION

       This matter comes before the court on the defendants’ motion for summary judgment.

The pro se plaintiff is a former employee of Howard University Hospital (“Hospital”) and a

member of the United States Air Force Reserves. He brings a suit for employment

discrimination against the defendants, Howard University and the Hospital. The plaintiff alleges

that the defendants violated the Uniformed Services Employment and Reemployment Rights Act

of 1994 (“USERRA”), codified at 38 U.S.C. §§ 4301 et seq., by denying him a promotion

because he went on a three-month military leave. The defendants now move for summary

judgment, arguing that the plaintiff offers no evidence that he was discriminated against on the

basis of his military status. Because no reasonable juror could conclude from the record that the

plaintiff was discriminated against on the basis of his military status, the court grants the

defendants’ motion.


                      II. FACTUAL & PROCEDURAL BACKGROUND

       The plaintiff was employed by the defendants as an Echocardiograph Technologist
(“ET”) from June 1994 until April 2002. Defs.’ Mot. at 1, 2. During this period, he also served

as a member of the United States Air Force Reserves. Id.; Pl.’s Opp’n at 2. According to the

plaintiff, he provided the defendants with documentation regarding his military obligations,

which included his requirement to take leave for military training. Am. Compl. at 8-9. He also

claims to have given the defendants materials describing their corresponding legal obligations,

including USERRA’s requirement that employers allow officers like the plaintiff to take leave

for military training. Id. at 9.

        Throughout the course of his employment with the defendants, the plaintiff held one of

the Hospital’s two ET positions. Id. The other position was held by a co-worker named Jane

Spencer. Id. at 3. The plaintiff and Spencer worked together until May 1998, when Spencer

took leave due to illness. Id. While Spencer was on sick leave, the plaintiff assisted with

training the Hospital’s temporary replacement ET, Colleen Williams. Id. at 5. A few months

later, from September 1998 to December 1998, the plaintiff took leave from his position at the

Hospital for mandatory reserve military training. Id.; Pl.’s Opp’n at 18. His co-worker, Spencer,

passed away in December 1998. Am. Compl. at 9; Pl.’s Opp’n at 11. The following year, in

August 1999, the defendants hired Williams to replace Spencer permanently. Am. Compl. at 9.

        In response, the plaintiff claimed that the defendants had discriminated against him on the

basis of gender by denying him a promotion to the position that Spencer’s death had left vacant.

Am. Compl. at 4; Pl.’s Opp’n at 21. In November 1999, he filed a complaint with the District of

Columbia Office of Human Rights (“DCOHR”) and the U.S. Equal Employment Opportunity

Commission (“EEOC”) asserting these allegations. Am. Compl. at 4.

        In April 2002, the defendants terminated the plaintiff for reportedly failing to perform his

job responsibilities, as well as for carrying out unauthorized actions outside of such



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responsibilities. Defs.’ Mot. at 4-5. After he was terminated, the plaintiff filed a second

complaint with the DCOHR, alleging wrongful termination and retaliation. Am. Compl. at 4.

         During 2004 and 2005, the plaintiff initiated several lawsuits against the Hospital

alleging, inter alia, that the defendants had intentionally discriminated against and wrongfully

terminated him under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e

et seq. See generally Potts v. Howard Univ., Civ. No. 04-1856 (D.D.C. 2004); Potts v. Howard

Univ., Civ. No. 05-1317 (D.D.C. 2005); Potts v. Howard Univ., Civ. No. 04-2103, (D.D.C.

2004); Potts v. Howard Univ., Civ. No. 05-1929 (D.D.C. 2005). These lawsuits were

subsequently consolidated into one action, which was later dismissed. Min. Order (Feb. 22,

2006).

         Apart from that consolidated case, the plaintiff also filed the present action in April 2008.

See generally Compl. He later amended his complaint in June 2008. See generally Am. Compl.

At this juncture, the plaintiff’s only remaining claim is that the defendants violated USERRA by

intentionally denying him a promotion because of his service obligations to the United States Air

Force Reserves. Id. at 5-6. More specifically, the plaintiff alleges that Spencer’s death created a

vacancy for a “senior” ET position, an opening to which the plaintiff was entitled because he was

senior to Williams. Am. Compl. at 9-10, 21. According to the plaintiff, the defendants chose to

not promote him to this allegedly senior ET position because the plaintiff took leave from work

for three months to fulfill his military obligations. Pl.’s Opp’n at 19.

         The defendants now move for summary judgment. See generally Defs.’ Mot. With this

motion ripe for adjudication, the court turns to the parties’ arguments and to the relevant legal

standards.




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                                          III. ANALYSIS

                          A. Legal Standard for Summary Judgment

       Summary judgment is appropriate when the pleadings and evidence show “that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);

Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). In order to determine which facts are

“material,” a court must look to the substantive law on which each claim rests. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine dispute” is one whose resolution

could establish an element of a claim or defense and, therefore, affect the outcome of the action.

Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.

       In ruling on a motion for summary judgment, the court must draw all justifiable

inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.

Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere

existence of a scintilla of evidence” in support of its position. Id. at 252. To prevail on a motion

for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make

a showing sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. By pointing to

the absence of evidence proffered by the nonmoving party, a moving party may succeed on

summary judgment. Id.

       The nonmoving party may defeat summary judgment through factual representations

made in a sworn affidavit if he “support[s] his allegations . . . with facts in the record,” Greene v.

Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir.

1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338



                                                  4
(D.C. Cir. 2006). Indeed, for the court to accept anything less “would defeat the central purpose

of the summary judgment device, which is to weed out those cases insufficiently meritorious to

warrant the expense of a jury trial.” Greene, 164 F.3d at 675.

                                B. Legal Standard for USERRA

       Under USERRA, “a person who is a member of . . . 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.” 38 U.S.C. § 4311(a). If an employer “performs an act motivated by antimilitary

animus that is intended . . . to cause an adverse employment action, and if that act is a proximate

cause of the ultimate employment action, then the employer is liable under USERRA.” Staub v.

Proctor Hosp., 131 S. Ct. 1186, 1194 (2011).

       An employee who makes a discrimination claim under USERRA bears the initial burden

of showing by a preponderance of the evidence that his “membership . . . or obligation for

service in the uniformed services” was a substantial or motivating factor in the adverse

employment action. 38 U.S.C. § 4311(c); see also Erickson v. U.S. Postal Serv., 571 F.3d 1364,

1368 (Fed. Cir. 2009); Lisdahl v. Mayo Found., 633 F.3d 712, 721 (8th Cir. 2011). If the

employee successfully makes that prima facie showing, the employer can avoid liability by

demonstrating that it would have taken the same action anyway for a valid reason, without regard

to the employee’s military service. Erickson, 571 F.3d at 1368; Pittman v. Dep’t of Justice, 486

F.3d 1276, 1281 (Fed. Cir. 2007).

                C. The Court Grants Summary Judgment to the Defendants

       The defendants assert that summary judgment is appropriate because the plaintiff fails to



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sufficiently allege a prima facie case of discrimination under USERRA for his alleged non-

promotion. Defs.’ Mot. at 1. According to the defendants, the plaintiff does not offer any

evidence that he was denied a promotion on the basis of his military status, an element that is

essential to establishing a USERRA discrimination claim. See id. at 2. The plaintiff puts

forward no response to this argument, other than to reassert that he was passed over for a

promotion because he took military leave. See generally Pl.’s Opp’n.

       To establish a prima facie case of discrimination under USERRA, an employee must

demonstrate that his “membership . . . or obligation for service in the uniformed services” was a

“substantial or motivating factor” in his employer’s alleged adverse employment action against

him. Erickson, 571 F.3d at 1368; Lisdahl, 633 F.3d at 721. More specifically, “[m]ilitary status

is a motivating factor if” it can be shown through “direct or circumstantial evidence” that the

defendant “relied on, took into account, considered, or conditioned its decision . . . on [that]

military service.” Dees v. Hyundai Motor Mfg. Alabama, LLC, 368 F. App’x 49, 51 (11th Cir.

2010) (quoting Coffman v. Chaguch Support Serv., 411 F.3d 1231, 1238 (11th Cir. 2005)).

       In this case, the plaintiff states that he “was intentionally denied . . . a ‘[p]romotion’

because of his obligation to perform services with the uniformed services[, or specifically, that]

the employer intentionally failed to recognize him as the senior ‘ET’ because he participated

with the United States Air Force Reserves.” Am. Compl. at 6-7. The plaintiff does not offer any

factual details or evidence, however, to support this assertion. See generally id.; Defs.’ Mot. at

2. He fails to provide any direct or circumstantial evidence suggesting that the defendants relied

on or even considered his military service when hiring Williams to fill the open position, much

less that anti-military animus was a substantial or motivating factor in their decision. See

generally Am. Compl. and Pl.’s Opp’n.



                                                  6
       When asked in a deposition if he could produce any documents or evidence indicating

that he was denied a promotion due to his military service, the plaintiff replied that he in fact

could not. Defs.’ Mot., Ex. F. Along these lines, as the defendants correctly point out, Williams

was hired to fill Spencer’s position in May 1998, a good four months before the plaintiff

provided any notice of or took military leave. Defs.’ Mot. at 5. It would therefore have been

impossible for the defendants to discriminate against the plaintiff for an action that had not yet

occurred, and of which they had no prior knowledge. Id. To be sure, although the plaintiff

attaches a large volume of documents to his opposition, there are no affidavits, interrogatories,

depositions or materials otherwise that suggest that he was discriminated against based on his

military service. See generally Pl.’s Opp’n, Exs. A, B. In any event, the court is not required to

sift through hundreds of pages of material, as the plaintiff has provided, to find evidence of a

discriminatory animus that he himself admits he cannot proffer. See Valles-Hall v. Ctr. for

Nonprofit Advancement, 481 F. Supp. 2d 118, 123-24 (D.D.C. 2007) (holding that a “district

court should not be obliged to sift through hundreds of pages of depositions, affidavits, and

interrogatories in order to make its own analysis and determination of what may, or may not, be

a genuine issue of material fact”).

       This Circuit has held that even as “factual material . . . must be viewed in the light most

favorable” to the nonmoving party, “in order to raise a material issue of fact precluding the grant

of a properly supported motion for summary judgment, more is necessary than mere assertions

in the pleadings.” Bloomgarden v. Coyer, 479 F.2d 201, 208 (D.C. Cir. 1973) (emphasis added).

“Unsupported, conclusory statements are insufficient to survive summary judgment” on a

USERRA claim. Dees, 368 F. App’x at 51. Because the plaintiff fails to set forth sufficient

evidence from which a reasonable juror may infer that the defendants denied the plaintiff a



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promotion based on his military service, the plaintiff’s USERRA claim cannot withstand

summary judgment. See id. at 51-52 (holding that the plaintiff’s unsupported, conclusory

assertions that he was fired on the basis of his military service were insufficient for his USERRA

claim to survive summary judgment); Durant v. MillerCoors, LLC, 415 F. App’x 927, 930-31

(10th Cir. 2011) (granting summary judgment to the defendant when the plaintiff offered no

evidence to establish that his employer was influenced by another supervisor’s alleged

“antimilitary animus” in firing the plaintiff). Accordingly, the court grants the defendants’

motion for summary judgment.



                                      IV. CONCLUSION

       For the foregoing reasons, the court grants the defendants’ motion for summary

judgment. An Order consistent with this Memorandum Opinion is separately and

contemporaneously issued this 16th day of February, 2012.



                                                             RICARDO M. URBINA
                                                            United States District Judge




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