                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                         March 1, 2018
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
PAUL STARR, an individual,

      Plaintiff - Appellant,

v.                                                         No. 17-5024
                                              (D.C. No. 4:14-CV-00621-GKF-TLW)
QUIKTRIP CORPORATION, a domestic                           (N.D. Okla.)
for-profit corporation,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BALDOCK, KELLY, and O’BRIEN, Circuit Judges.
                  _________________________________

      Paul Starr seeks a new trial on his claim that QuikTrip violated a provision of

the Uniformed Services Employment and Reemployment Rights Act (USERRA) by

firing him shortly after he returned from military deployment. But Starr has not

shown there was any reversible error, so we affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      I. Background

      Starr was a QuikTrip employee who also served in the Oklahoma National

Guard. In the course of his service, Starr left QuikTrip temporarily for two

deployments. Shortly after returning from his second deployment—a nine-month

tour in Afghanistan—QuikTrip fired Starr for repeatedly violating a company

attendance policy.

      Starr sued QuikTrip for discriminatory termination under 38 U.S.C. § 4311(a)

and premature termination under 38 U.S.C. § 4316(c)(1). The district court granted

summary judgment in favor of QuikTrip on both claims. Starr appealed the district

court’s ruling and we reversed in part. See Starr v. QuikTrip Corp., 655 F. App’x

642, 643 (10th Cir. 2016) (unpublished). We agreed QuikTrip was entitled to

summary judgment on Starr’s discriminatory termination claim, but concluded his

premature termination claim involved a genuine dispute of material fact. Id. at 645.

      On remand, the district court held a trial on Starr’s premature termination

claim. The premature termination provision of the USERRA prohibits employers

from discharging a reemployed service member “except for cause . . . within one year

after the date of such reemployment, if the person’s period of service before the

reemployment was more than 180 days.” § 4316(c)(1). There was no dispute that

QuikTrip fired Starr within a year after returning from a deployment longer than 180

days, so the only question was whether QuikTrip had the requisite cause to terminate

him. This required QuikTrip to show (1) it was reasonable to fire Starr based on his

conduct and (2) Starr had express or implied notice the conduct in question would

                                           2
give QuikTrip cause to fire him. See 20 C.F.R. § 1002.248(a). The jury found that

QuikTrip satisfied both requirements and the district court entered judgment in its

favor. After an unsuccessful motion for a new trial, Starr appealed.

       II. Analysis

       Starr makes three arguments on appeal. First, he argues the district court erred

by denying his Batson challenge to two of QuikTrip’s peremptory strikes. Second,

he argues the court erred by excluding certain evidence of his military service. And

third, he argues QuikTrip violated the district court’s bifurcation order by referring to

damages in its closing argument. We reject these arguments and affirm.

              A. Batson Challenge

       During jury selection, QuikTrip used two of its four peremptory strikes to

remove potential jurors with prior military service. Starr objected, arguing the strikes

were “inappropriate.” Aplt. App. at 190. The district court interpreted the objection

as an Equal Protection challenge under Batson v. Kentucky, 476 U.S. 79 (1986), and

overruled Starr’s objection. We see no error.

       In Batson, the Supreme Court held that striking potential jurors solely on

account of their race violated the Equal Protection Clause. 476 U.S. at 89. Courts

have applied this rule in civil cases and extended it to prohibit peremptory strikes

based on gender and religious affiliation. See Edmonson v. Leesville Concrete Co.,

500 U.S. 614, 616 (1991) (civil case); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127,

146 (1994) (gender); United States v. Brown, 352 F.3d 654, 668 (2d Cir. 2003)

(religious affiliation).

                                            3
      A party raising a Batson challenge must first make a prima facie showing the

strike was based on a protected class. Snyder v. Louisiana, 552 U.S. 472, 476 (2008).

Starr’s challenge fails this first step.1 Unlike classifications based on race, gender,

and religion, classifications based on military service have never received heightened

scrutiny under the Fourteenth Amendment. And Starr has not shown heightened

scrutiny is warranted. Prior military service is not an immutable attribute. See

Hassan v. City of New York, 804 F.3d 277, 301 (3d Cir. 2016) (recognizing courts

“have looked with particular suspicion on discrimination based on immutable human

attributes” (internal quotation marks omitted)). Perhaps more importantly,

“[v]eterans are not a class saddled with such disabilities, or subjected to such a

history of purposeful unequal treatment, or relegated to such a position of political

powerlessness as to command extraordinary protection from the majoritarian political

process.” Sturgell v. Creasy, 640 F.2d 843, 852 (6th Cir. 1981) (internal quotation

marks omitted).

      Unless they target groups subject to heightened protection under the

Fourteenth Amendment, parties are generally free to use peremptory strikes to

remove potential jurors belonging to any group they think will favor the other side.

See J.E.B., 511 U.S. at 143 (“Parties may . . . exercise their peremptory challenges to


      1
         This court has not explicitly stated which standard we apply when reviewing
district court rulings at Batson’s first step, but other circuits have applied the clear
error standard. See, e.g., United States v. Bergodere, 40 F.3d 512, 516 (1st Cir.
1994); Tolbert v. Page, 182 F.3d 677, 684 (9th Cir. 1999) (collecting cases). We
need not decide which standard applies in this case because Starr’s challenge fails
even de novo review.
                                            4
remove from the venire any group or class of individuals normally subject to

‘rational basis’ review.”). We have therefore refused to apply Batson to prohibit

strikes based on prospective jurors’ occupation or beliefs. See United States v.

Davis, 40 F.3d 1069, 1077 (10th Cir. 1994) (rejecting argument that Batson prohibits

striking teachers because a disproportionate share of teachers are women); United

States v. Prince, 647 F.3d 1257, 1261 (10th Cir. 2011) (concluding Batson does not

prohibit excluding prospective jurors based on their views of marijuana legalization).

Starr cites no cases—and we have found none—prohibiting peremptory strikes based

on military service.

      We conclude Batson does not prohibit peremptory strikes based on a

prospective juror’s prior military service. Cf. J.E.B., 511 U.S. at 143 n.16 (stating

challenges based on military experience, without a showing of pretext, “may well not

be unconstitutional[] since they are not gender or race based”); Coulter v. Gilmore,

155 F.3d 912, 921 (7th Cir. 1998) (describing prior military service as a facially

neutral reason to strike a prospective juror). The district court did not err by denying

Starr’s Batson challenge.

             B. Evidence of Starr’s Military Service

      Starr argues the district court erred by excluding evidence of his military

service, including “critical military documents that stated the many decorations and

citations he had received defending this country” and that “provided information as

to what . . . [he] endured while at war.” Opening Br. at 11. We see no abuse of

discretion. See United States v. Jenkins, 313 F.3d 549, 559 (10th Cir. 2002) (“We

                                           5
review questions concerning the admission of evidence under an abuse of discretion

standard.”).

      Contrary to Starr’s suggestion, the district court did not exclude all evidence of

his military service. Rather, it allowed him to present evidence of his service to the

extent it caused problems he communicated to QuikTrip. See Aplt. App. at 23-24.

Starr does not explain why additional details of his military service were relevant to

the issues at trial, which were the reasonableness of his termination and whether he

had notice his conduct could result in termination. And Starr points to no clearly

erroneous factual findings, errors of law, or clear errors of judgment on the part of

the district court. As a result, we cannot conclude the district court abused its

discretion. See Jenkins, 313 F.3d at 559 (“Under [the abuse of discretion] standard,

we will not disturb an evidentiary ruling absent a distinct showing that it was based

on a clearly erroneous finding of fact or an erroneous conclusion of law or manifests

a clear error in judgment.”).

               C. Reference to Damages in Closing Argument

      The district court bifurcated the trial into a liability phase and a damages

phase. Starr argues QuikTrip violated the bifurcation order by referencing damages

during its closing argument in the liability phase of the trial. Starr did not make a

timely objection, so we review for plain error. See Blevins v. Cessna Aircraft Co.,

728 F.2d 1576, 1580 (10th Cir. 1984) (reviewing purportedly improper remarks

during closing argument for plain error when appellant failed to object). To establish

plain error, Starr must show (1) error that: (2) was plain, (3) affected his substantial

                                            6
rights, and (4) seriously affected the fairness, integrity, or public reputation of the

proceedings. Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011).

       During his rebuttal closing, QuikTrip’s attorney argued that

       [M]ost folks would like to make life easier for veterans. If they could
       sign a check and make life better, that would be fine. But you’re not
       here just to say, “Give this person some money.” You’re here to decide
       whether QuikTrip did something to warrant giving this person some
       money. And I suggest to you, if you look at the facts and look at the
       evidence, you’ll see they didn’t do anything wrong.

Aplt. App. at 295-96. Even if we assume this comment was improper, Starr does not

argue it rose to the level of plain error and makes no effort to show it satisfies the

plain error standard. We therefore reject Starr’s request to reverse on this ground.

See Richison, 634 F.3d at 1131 (the failure to argue for plain error on appeal “surely

marks the end of the road for an argument for reversal not [timely] presented to the

district court”).

       III. Conclusion

       We affirm the district court’s judgment.


                                             Entered for the Court


                                             Paul J. Kelly, Jr.
                                             Circuit Judge




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