                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT            FILED
                       ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                              No. 09-12107                  FEB 26, 2010
                          Non-Argument Calendar              JOHN LEY
                        ________________________               CLERK


                    D. C. Docket No. 07-00306-CV-T-N

JERRY LEON DEES, JR.,

                                                            Plaintiff-Appellant,

                                   versus

HYUNDAI MOTOR MANUFACTURING ALABAMA, LLC,

                                                           Defendant-Appellee.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Alabama
                       _________________________

                             (February 26, 2010)

Before EDMONDSON, BIRCH and MARCUS, Circuit Judges.

PER CURIAM:

     Jerry Leon Dees, a veteran and member of the army reserves, appeals the

district court’s grant of summary judgment in favor of Hyundai Motor

Manufacturing Alabama, LLC (“HMMA”) in his employment discrimination suit
under the Uniformed Services Employment and Reemployment Rights Act of 1994

(“USERRA”). In his complaint, Dees alleged that he was discriminated against

and harassed based on his National Guard membership, and that he was ultimately

fired because of his National Guard obligations. On appeal, Dees argues that the

district court erred in granting summary judgment to HMMA on his termination

and harassment claims because: (1) sufficient evidence showed that his military

status was a motivating factor in his termination, and the termination committee

did not act in good faith since the discriminatory motive underlying a supervisor’s

recommendation to fire Dees directly resulted in his termination; and (2) he has

standing to bring his USERRA harassment claim since, although he did not suffer

lost wages or the loss of other employee benefits as a result of the alleged

harassment and an injunction would not provide relief, USERRA provides for

“other equitable remedies,” including attorneys’ fees. After thorough review, we

affirm.1

       We review a district court order granting summary judgment de novo,

viewing all of the facts in the record in a light most favorable to the non-moving

party, and drawing all inferences in his favor. Frederick v. Spring/United Mgmt.

Co., 246 F.3d 1305, 1311 (11th Cir. 2001). “Summary judgment is only proper if


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        Accordingly, Appellant’s motion to file reply brief out-of-time is GRANTED, and
Appellee’s motion to strike reply brief is DENIED.

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there are no genuine disputed issues of material fact, and the moving party is

entitled to judgment as a matter of law.” Id. “[M]ere conclusions and unsupported

factual allegations are legally insufficient to defeat a summary judgment motion.”

Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005). Generally, we will not

consider an issue not raised in the district court. Access Now, Inc. v. Southwest

Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). We review a dismissal for

lack of standing de novo. Scott v. Taylor, 470 F.3d 1014, 1017 (11th Cir. 2006).

      First, we reject Dees’ argument that the district court erred in granting

summary judgment on his termination claim. USERRA provides that a member of

the Armed Services “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.”      38 U.S.C. § 4311(a).      Congress enacted

USERRA “to encourage noncareer service in the uniformed services by

eliminating or minimizing the disadvantages to civilian careers and employment

which can result from such service” and “to minimize the disruption to the lives of

persons performing service in the uniformed services as well as to their

employers.”    38 U.S.C. § 4301(a)(1), (a)(2).       An employer violates these

provisions if the employee’s membership in the armed services “is a motivating

factor in the employer’s action, unless the employer can prove that the action



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would have been taken in the absence of such membership.”               38 U.S.C. §

4311(c)(1).

      To establish a prima facie case under USERRA, a plaintiff must “show by a

preponderance of the evidence that his protected status was a motivating factor,”

but that status need not be the sole cause as long as “it is one of the factors that a

truthful employer would list if asked for the reasons for its decision.” Coffman v.

Chugach Support Servs., Inc., 411 F.3d 1231, 1238 (11th Cir. 2005) (citation and

quotation omitted). “Indeed [m]ilitary status is a motivating factor if the defendant

relied on, took into account, considered, or conditioned its decision on that

consideration.” Id. (quotation omitted). Because “discrimination is seldom open

or notorious,” circumstantial evidence is critical, and “[t]he court can infer

discriminatory motivation under the USERRA from a variety of considerations,”

such as:

      proximity in time between the employee’s military activity and the
      adverse employment action, inconsistencies between the proffered
      reason and other actions of the employer, an employer’s expressed
      hostility towards members protected by the statute together with
      knowledge of the employee’s military activity, and disparate treatment
      of certain employees compared to other employees with similar work
      records or offenses.

Id. (quotation omitted).   “When the employee has met this burden, the burden

shifts to the employer to prove the affirmative defense that legitimate reasons,



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standing alone, would have induced the employer to take the same adverse action.”

Id. at 1238-39.   Thus, in USERRA actions, “the [employer] must prove, by a

preponderance of evidence, that the action would have been taken despite the

protected status.” Id. at 1239 (quotation omitted).

      As a general rule, a discharge recommendation by a party with no

decisionmaking power “may be actionable if the plaintiff proves that the

recommendation directly resulted in the [adverse employment action].”          See

Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1331 (11th Cir. 1999) (Title VII

case). However, in such cases, “causation must be truly direct[, and] the plaintiff

must prove that the discriminatory animus behind the recommendation, and not the

underlying employee misconduct identified in the recommendation, was an actual

cause of the other party’s decision to terminate the employee.” Id. In proving that

the discriminatory animus caused the adverse employment action, we recognize the

“cat’s paw” theory, where “causation may be established if the plaintiff shows that

the decisionmaker followed the biased recommendation [of a nondecisionmaker]

without independently investigating the complaint against the employee[, and] . . .

the recommender is using the decisionmaker as a mere conduit, or ‘cat’s paw’ to

give effect to the recommender’s discriminatory animus.” Id. at 1332.




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      On the record here, the district court correctly found that Dees failed to

establish through direct or circumstantial evidence that HMMA “relied on, took

into account, considered, or conditioned its decision” to fire Dees on the basis of

his military service. See Coffman, 411 F.3d at 1238. Dees admitted that he has no

direct evidence that his military status motivated his termination, and denied

knowing that a termination committee meeting even took place or who was

involved in the decision. Dees testified that he believed he was fired due to his

Guard obligations because it “seemed” that way and because “everything stemmed

around [his] drill weekends,” but these unsupported conclusory statements are

insufficient to survive summary judgment.     See Ellis, 432 F.3d at 1326.     But

evidence established that HMMA was aware of Dees’s military obligations when

he was hired in 2005, and that he was never disciplined for missing work due to

Guard training. Further, HMMA’s military policy provides for absences due to

military obligation, and HMMA even pays the difference between military pay and

regular wages for up to a month.

      In addition, despite his assertions on appeal that other HMMA employees

harassed him about his military obligations, Dees testified that, other than Greg

Prater and John Applegate, no one had said anything to him about his military

service. Because these two were the only HMMA supervisors that were openly



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hostile towards Dees’s military status, only their actions can be used to establish an

inference that the termination committee had a discriminatory motive.             See

Coffman, 411 F.3d at 1238 (listing an employer’s open hostility towards an

employee’s military status as circumstantial evidence of a discriminatory motive).

However, Prater’s actions should not be considered to establish a discriminatory

motive for Dees’s termination because Prater was not involved in the ultimate

termination decision.    Similarly, although Applegate was on the termination

committee and recommended termination, Applegate testified that his only role in

termination committee proceedings was to appear before it when one of his

employees was considered for termination, but that he leaves before the

deliberations.

      Dees nonetheless argues that under the “cat’s paw” theory, Applegate’s

recommendation to fire Dees directly resulted in his termination. However, we

will not consider Dees’s cat’s paw argument because he did not specifically raise it

before the district court. See Access Now, Inc., 385 F.3d at 1331. Moreover, to

the extent that he did raise it, the “cat’s paw” theory is inapplicable in the present

case because the termination committee conducted an independent investigation,

and no supervisor’s discriminatory recommendation was the direct cause of Dees’s

termination. Stimpson, 186 F.3d at 1331. Therefore, the district court correctly



                                          7
granted summary judgment to HMMA on Dees’s termination claim under

USERRA.

      We also find no merit in Dees’ claim that he had standing to bring his

USERRA harassment claim. Standing presents a “threshold jurisdictional question

of whether a court may consider the merits of a dispute.” Elend v. Basham, 471

F.3d 1199, 1204 (2006). The three constitutional requirements for standing are as

follows: (1) the plaintiff must have suffered or must face an imminent threat of a

“concrete and particularized injury” resulting from “an invasion of a legally

protected interest,” (2) “the injury must have been caused by the defendant’s

complained-of actions,” and (3) the “injury or threat of injury must likely be

redressible by a favorable court decision.” Fla. State Conference of N.A.A.C.P. v.

Browning, 522 F.3d 1153, 1159 (11th Cir. 2008) (citation and quotation omitted).

      USERRA provides that a uniformed service member may not be denied “any

benefit of employment.” 38 U.S.C. § 4311(a). Further, USERRA provides that a

court may award three kinds of relief: (1) an injunction requiring an employer to

comply with USERRA’s provisions; (2) compensation for lost wages or benefits

suffered by reason of the employer’s failure to comply with USERRA, and (3)

liquidated damages in an amount equal to lost wages or benefits if the employer’s

failure to comply with USERRA was willful. 38 U.S.C. § 4323(d)(1)(A)-(C).



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      Assuming without deciding that harassment or hostile work environment is a

cognizable claim under USERRA, Dees lacks standing to bring such a claim. Dees

admits that he has not suffered any lost wages or employment benefits resulting

from the alleged harassment. Further, an injunction requiring HMMA to comply

with USERRA would not benefit Dees as he is no longer an HMMA employee.

While Dees relies on non-binding cases to establish that he can be granted

“equitable relief,” he only specifically mentions attorneys’ fees.   However, the

statute provides for three specific remedies for USERRA violations and does not

provide for other “equitable relief” or attorneys’ fees. 38 U.S.C. § 4323(d)(1)(A)-

(C). As such, Dees lacks standing to bring a USERRA harassment claim because

he does not allege that he is entitled to any of the relief provided by USERRA.

Accordingly, we affirm the district court’s grant of HMMA’s motion for summary

judgment.

       AFFIRMED.




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