                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 10-1140


WILLIAM BUNTING,

                Plaintiff - Appellant,

          v.

TOWN OF OCEAN CITY; TOWN OF OCEAN CITY POLICE DEPARTMENT,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, Senior District
Judge. (1:08-cv-03157-WMN)


Submitted:   January 13, 2011             Decided:   January 31, 2011


Before DUNCAN, AGEE, and WYNN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Robin R. Cockey, Ashley A. Bosché, COCKEY, BRENNAN & MALONEY,
PC, Salisbury, Maryland, for Appellant.    Guy R. Ayres, III,
Arlette K. Bright, AYRES, JENKINS, GORDY & ALMAND, P.A., Ocean
City, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           William         Bunting      appeals     the     district     court’s     order

granting summary judgment to Appellee, the Town of Ocean City,

Maryland, and dismissing his Uniformed Services Employment and

Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301 et seq.

(2006) discrimination and retaliation claims.                          For the reasons

that follow, we affirm in part, vacate in part, and remand.

           At all times relevant to this appeal, Bunting was a

sergeant in the Ocean City Police Department (“OCPD”).                              Bunting

has also been a member of the United States Coast Guard Reserve

since 1986.    In February 2003, Bunting received orders to report

for   active   duty     and      remained     on    active      duty   until   September

2004.     While    he      was     on   active      duty,    the     OCPD    announced   a

promotion opportunity for one or more sergeants in the force to

promote to the rank of lieutenant.                      Though Bunting apparently

did not find out about the promotion until after the position

had been filled, there is no evidence in the record that OCPD

took any steps to prevent him from learning of the opportunity.

Indeed,   notice      of    the     opening      was    sent    to     his   OCPD    e-mail

address, though he apparently did not know he could access his

e-mail account remotely.

           On learning of the then-filled promotion opportunity,

Bunting   complained          in    writing        to   Ocean      City’s    mayor    and,

receiving no response, then complained to the U.S. Department of

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Labor   Veterans’      Employment        and       Training       Service     (“DOL-VETS”).

Bunting    argued      to   DOL-VETS         that       the    city    had    discriminated

against him and violated his rights by denying him a promotion

opportunity while he was on active duty.                             Ocean City responded

to the complaints, insisting that the burden was on Bunting to

keep apprised of such opportunities while on active duty.                                   DOL-

VETS    conducted      an   investigation           and       concluded      that    Bunting’s

complaints had merit.               Ocean City responded and asserted that

Bunting might face disciplinary action for purported violations

of OCPD policy.

            Some       three        months     after          DOL-VETS       concluded       its

investigation, another promotion opportunity arose.                                 OCPD Chief

Bernadette DiPino interviewed candidates, including Bunting, and

ultimately selected a different sergeant for promotion.                                Bunting

applied    for     another      promotion          in     2007,      and   was      again    not

selected.        Bunting thereafter brought suit pursuant to USERRA

against    Ocean    City       in    district       court,        arguing     that     he    was

discriminated against because of his military service status and

retaliated against after he filed a USERRA complaint.                                       Ocean

City    moved    for    summary       judgment          and    the    court      granted     the

motion.    This appeal followed.

            This court reviews de novo a district court’s grant of

summary     judgment.          Howard        v.     Winter,       446      F.3d      559,    565

(4th Cir. 2006).            Summary     judgment          is     appropriate         when    the

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“pleadings,     depositions,          answers      to     interrogatories,        and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law.”                     Fed.

R. Civ. P. 56(c).



                            I.        Discrimination

             Bunting   first     alleges      on   appeal    that   the   district

court erred in granting summary judgment to Ocean City on his

discrimination     claim.        He    argues      that   the   court     erred   by

concluding that there were no genuine issues of material fact.

     The USERRA provides that:

     (a)    A person who is a member of, applies to be a
     member   of,   performs,  has   performed,  applies  to
     perform, 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.

     . . .

     (c) An employer shall be considered to have engaged in
     actions prohibited –

     (1) under subsection (a) if the person’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 absence of such membership,
     application for membership, service, application for
     service, or obligation for service[.]


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38 U.S.C. § 4311.

                 In a USERRA case, “there must be an initial showing by

the employee that military status was at least a motivating or

substantial           factor    in     the   [employer]        action,    upon      which      the

[employer] must prove, by a preponderance of evidence, that the

action      would       have    been    taken    despite       the   protected          status.”

Sheehan          v.     Dep’t     of     the     Navy,         240     F.3d     1009,         1014

(Fed. Cir. 2001). *             To establish a certain factor as a motivating

factor, a claimant need not show that it was the sole cause of

the employment action, but rather that it is one of the factors

that a truthful employer would list if asked for the reasons for

its decision.            Brandsasse v. Suffolk, Va., 72 F. Supp.2d 608,

617 (E.D. Va 1999); see Price Waterhouse v. Hopkins, 490 U.S.

228,       250   (1989)        (addressing      Title    VII     gender       discrimination

claim and related affirmative defense).

                 Bunting       argues    that   the     fact    that     he   was       not   made

aware       of    the    2004     promotion         opportunity        raises       a    triable

question as to whether he was discriminated against on the basis

of his military service.                 We have reviewed the record and do not

agree.       As the district court noted, while it is true that, in a


       *
       Unlike the familiar McDonnell Douglas v. Green, 411 U.S.
792 (1973), framework for Title VII discrimination cases, USERRA
imposes a more stringent standard on the employer to demonstrate
that its adverse employment actions were not pretextual.



                                                5
literal    sense,       Bunting      did    not      receive       notice       of     the   2004

promotion because he was on active duty, there is no evidence in

the   record     that    DiPino      or     anyone        at    OCPD     was    motivated     to

exclude Bunting because of his military service.                               Likewise, with

respect to the 2005 and 2007 promotion opportunities, we find no

evidence       that   Ocean      City      or   DiPino         harbored        animus    toward

Bunting as a consequence of his military service.                                    Because we

conclude that Bunting has failed to make a prima facie showing

of discrimination, we need not reach the question of whether

Ocean City has rebutted an adequate showing of pretext.



                                  II.      Retaliation

               With respect to claims of employer retaliation, the

USERRA    provides       that:    an       employer        may     not    discriminate        in

employment against or take any adverse employment action against

any   person     because      such      person      (1)     has    taken       an    action   to

enforce    a    protection       afforded       any       person    under       this    chapter

. . . or (4) has exercised a right provided for in this chapter.

38 U.S.C. § 4311(b).

               The initial inquiry in a USERRA retaliation claim is

whether    the    employee       exercised          his    rights      under     the    USERRA,

thereby placing him within the ambit of § 4311(b).                                   Wallace v.

San Diego, 479 F.3d 616, 624 (9th Cir. 2007).                              As with USERRA

discrimination          claims,       once          the        employee        shows     by     a

                                                6
preponderance of the evidence that his protected activities were

a    motivating     factor    in   the    adverse    employment       action,     the

employer must show that the employer would have taken the same

action without regard to the protected activities.                 Id.

            We    have   reviewed      the    record,   and   we   conclude      that

Bunting has adduced evidence rising to the level of a disputed

issue of material fact.            When DiPino was notified of Bunting’s

complaints to the mayor, she informed Ocean City’s attorney that

she was referring Bunting to the OCPD’s internal affairs bureau.

In     addition,     Ocean     City       responded      to     the      DOL-VETS’s

communication by implying that Bunting would face discipline for

failing to comply with OCPD policies.               In light of the fact that

these threats of discipline were made in response to protected

USERRA activities, the statements clearly raise the specter of

retaliation.       Finally, in evaluating Bunting for a promotion in

2007, one senior officer commented that Bunting was unfit for

promotion    because     he    filed     actions    against     the    OCPD.      We

conclude that these facts could lead a reasonable jury to find

that Bunting may have received promotions in 2005 and 2007 if he

had not engaged in protected activities, i.e., complaining to

the mayor and filing a USERRA complaint with DOL-VETS.

            Ocean     City    argues     that   DiPino’s      decisions    not    to

promote Bunting were grounded in questions of his loyalty.                       This

may be the case, but in light of the evidence discussed above,

                                          7
and in light of the burden USERRA places on the employer to

prove that there was no pretext, we conclude that a jury is in

the best position to adjudicate Bunting’s retaliation claim.

          Accordingly, we affirm the district court’s judgment

in part, vacate in part, and remand.      We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                AFFIRMED IN PART,
                                                 VACATED IN PART,
                                                     AND REMANDED




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