                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                       February 22, 2007
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court



    CLOYDE LEW IS,

              Plaintiff-Appellant,

     v.                                                    No. 06-1138
                                                (D.C. No. 04-CV-1683-EWN-PAC)
    RITE OF PASSAGE, IN C.,                                 (D . Colo.)

              Defendant-Appellee.



                              OR D ER AND JUDGM ENT *


Before TY M K O VIC H, A ND ER SO N, and BALDOCK , Circuit Judges.


          Plaintiff Cloyde Lew is appeals the district court’s grant of summary

judgment to defendant Rite of Passage, Inc. (ROP) on his claim that ROP violated

the Uniformed Services Employment and Reemployment Rights Act of 1994

(U SERRA), 38 U.S.C. §§ 4301-4333, when it terminated his employment. W e

have jurisdiction under 28 U.S.C § 1291 and we affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      ROP operates Ridge View Youth Service Center, a residential educational

facility, under contract with the Division of Youth Services for the State of

Colorado. M r. Lewis worked in a variety of positions in Ridge View’s medical

clinic. During his employment with ROP, M r. Lewis also was a member of the

United States Air Force Reserve and was assigned to an Air Force Reserve unit at

Peterson Air Force Base in Colorado Springs, Colorado. His Air Force Reserve

duties required him to attend monthly drill weekends at the base as well as an

annual two-week tour.

      One of the purposes of the USERRA is “to prohibit discrimination against

persons because of their service in the uniformed services.” 38 U.S.C.

§ 4301(a)(3). An employer will be considered to have violated the USERRA if it

terminates an employee and the employee’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 the absence of such
      membership, application for membership, service, application for
      service, or obligation for service[.]

Id. § 4311(c)(1).

      “Precedent interpreting and applying the USERRA is sparse.” Sheehan v.

Dep’t of Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). W hat little precedent there

is, however, has followed the intent expressed in the legislative history of the

USERRA to employ the evidentiary scheme for cases arising under the National



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Labor Relations Act adopted by the United States Supreme Court in National

Labor Relations Board v. Transportation M anagement Corp., 462 U.S. 393, 401

(1983), in analyzing discrimination claims under § 4311. E.g., Sheehan, 240 F.3d

at 1013; Leisek v. Brightwood Corp., 278 F.3d 895, 898-99 (9th Cir. 2002).

Under this evidentiary scheme, the employee “bear[s] the initial burden of

showing by a preponderance of the evidence that [his or her] military service was

a substantial or motivating factor in the adverse employment action.” Sheehan,

240 F.3d at 1013 (quotation marks omitted). “[M ]ilitary status is a motivating

factor if the defendant relied on, took into account, considered, or conditioned its

decision on that consideration.” Coffman v. Chugach Support Servs., Inc.,

411 F.3d 1231, 1238 (11th Cir. 2005) (quotation marks omitted).

      If the employee meets his initial burden, “the burden shifts to the employer

to prove the affirmative defense that legitimate reasons, standing alone, would

have induced the employer to take the same adverse action.” Sheehan, 240 F.3d

at 1014. Unlike Title VII cases, however, where only the burden of production

shifts to the employer and the burden of persuasion remains with the employee,

under § 4311, once the employee establishes that his or her military service was a

substantial or motivating factor in the adverse employment action, both the

burden of production and the burden of persuasion shift to the employer.

Sheehan, 240 F.3d at 1014; M axfield v. Cintas Corp. No. 2, 427 F.3d 544, 551

(8th Cir. 2005).

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      In the summary judgment context, the employee must establish a genuine

issue of material fact as to whether his military status w as a motivating factor in

the adverse employment action to survive summary judgment. See, e.g., Hill v.

M ichelin N. Am., Inc., 252 F.3d 307, 313 (4th Cir. 2001). To prevail on summary

judgment, the employer must then establish not just that it had a legitimate basis

for taking the adverse employment action, but as a matter of uncontroverted fact

that it would have taken the adverse employment action regardless of the

employee’s military status. See Leisek, 278 F.3d at 900.

      The district court here concluded that M r. Lewis failed to meet his initial

burden of establishing a genuine issue of material fact as to w hether his military

service obligation was a motivating factor in his termination. Having carefully

review ed the parties’ briefs, the record on appeal, and the pertinent law, we

AFFIRM the judgment of the district court for substantially the reasons stated in

its Order and M emorandum of Decision of M arch 9, 2006.


                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




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