                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-3096
                        ___________________________

                                   Jonathan Dorris

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                                  TXD Services, LP

                      lllllllllllllllllllll Defendant - Appellee
                                     ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Batesville
                                  ____________

                          Submitted: September 24, 2013
                             Filed: February 27, 2014
                                  ____________

Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
                          ____________

LOKEN, Circuit Judge.

       Jonathan Dorris, a member of the Arkansas Army National Guard, appeals the
district court’s grant of summary judgment dismissing his claim that TXD Services
(“TXD”) violated the Uniformed Services Employment and Reemployment Rights
Act (“USERRA”), 38 U.S.C. §§ 4301 et seq., when it terminated Dorris while he was
deployed on active duty in Iraq. The legal basis of the claim changed during the
summary judgment process. After careful review, we conclude the modified claim
turns on one or more essential facts that the summary judgment record simply does
not address. Accordingly, we reverse the grant of summary judgment and remand.

                                          I.

       A. Background Facts. We recite the record facts in the light most favorable
to Dorris, the party opposing summary judgment. Dorris began working for TXD as
a floor hand at rigs near Morrilton, Arkansas in early 2007. In April, Dorris received
Warning Orders that he would be mobilized within six months in connection with
Operation Iraqi Freedom. He notified his direct supervisors and TXD’s human
resources department. After receiving definite orders in early September, Dorris
spoke with TXD managing partner Joe Poe, inquiring whether TXD would make up
the difference in Dorris’s salary while he was deployed. Poe declined, commenting
that “if you’re not working for me, I can’t be paying you.” Dorris worked for TXD
until September 11, 2007, and reported for training at Fort Chaffee on October 1. He
served on active duty in Iraq for approximately 12 months beginning in January 2008.

       In October 2007, Dorris received a letter from TXD’s benefits administrator
advising that he was eligible for Continuation Coverage under the Consolidated
Omnibus Budget Reconciliation Act of 1985 (“COBRA”) and identifying the
triggering event as “Termination of Employment.” His wife called and told Dorris
he had been fired. Understandably alarmed, Dorris called the TXD human resources
department at its Morrilton and Dallas-Forth Worth offices. He was told in both calls
that he had been “terminated for not showing up to work.” Dorris requested that Poe
contact him, but Poe never did. TXD did not dispute this testimony except to submit
an “Exit Checklist” reciting that Dorris “Quit” on September 11.

      In February 2008, while Dorris was on active duty in Iraq, TXD sold
substantially all its assets to Foxxe Energy Holdings, LLC (“Foxxe”), which took

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over TXD’s operations without interruption. The sale contract included as an exhibit
“a listing of all personnel currently employed by TXD to operate the Equipment, their
job titles and descriptions, and current salaries.” Article III of the contract further
provided that Foxxe “will use reasonable efforts to offer employment . . . to those
individuals listed” who Foxxe “determines in its sole discretion are qualified and
necessary to operate and manage the Equipment.” In what became the crucial issue
in this lawsuit, TXD did not place Dorris’s name on that list. Following the asset sale
to Foxxe, TXD ceased to operate as a going concern.

      Dorris returned to the United States on temporary leave in August 2008 and
learned that good friends at TXD were hired by Foxxe, that Foxxe hired “all” of
TXD’s employees, and that no unemployment claims were asserted against TXD
following the sale. The Army then wrote Foxxe a letter to make it aware of Dorris’s
“unsettling situation,” stating that, “[h]ad there been no change of hands between
organizations, SGT Dorris would have been entitled to reemployment due to
wrongful termination.” Dorris returned to the United States and was ready to resume
work on December 15, 2008. Dorris contends he contacted both TXD and Foxxe
seeking reemployment. Poe testified he was told that TXD Trucking, a separate
corporate entity, offered Dorris a job and Dorris never followed up. In April 2009,
Dorris was hired by Foxxe to the same position he had held at TXD.

       B. Procedural History. Dorris filed this lawsuit in November 2010. The two-
page complaint alleged that TXD “violated Plaintiff’s rights under USERRA” by
firing Dorris while he was deployed on active duty. The complaint cited no specific
section of the USERRA statute. Prior to close of discovery, TXD moved for
summary judgment, arguing that Dorris has no claim that TXD violated 38 U.S.C.
§ 4312(a)1 when he was denied reemployment in December 2008, because it is


      1
       Sections 4312 and 4313 prescribe when “any person whose absence from a
position of employment is necessitated by reason of service in the uniformed services

                                         -3-
undisputed that TXD had been out of business for ten months and therefore “the
employer’s circumstances have so changed as to make such reemployment impossible
or unreasonable.” 38 U.S.C. § 4312(d)(1)(A); see 20 C.F.R. § 1002.139(a) (citing “an
intervening reduction in force” as an example of changed circumstances).

       After deposing Dorris and Poe, counsel for Dorris filed a Brief opposing the
motion for summary judgment. The Brief began: TXD “has not understood the claim
brought by Plaintiff . . . . [H]e brings a discrimination claim under 38 U.S.C. 4311,
not a failure to reinstate claim under 38 U.S.C. 4312.” Dorris argued (i) he was fired
in October 2007 while on active duty in Iraq, (ii) TXD’s assertion that he quit was
pretextual, and therefore (iii) he has a submissible claim that TXD violated
USERRA’s anti-discrimination provision, § 4311(a).2 TXD’s sale of assets to Foxxe
cannot excuse his firing, Dorris argued. “Indeed, he was entitled to be on [the list of
all personnel currently employed by TXD] so that when he returned, he would
immediately receive reasonable consideration from Foxxe as a potential employee.”

      In response, TXD’s Reply Brief argued that whether Dorris quit or was fired
“is immaterial.” TXD gave Foxxe a list of “current employees,” and there was no


shall be entitled to the reemployment rights and benefits and other employment
benefits of this chapter.” § 4312(a).
      2
       Section 4311 is titled, “Discrimination against persons who serve in the
uniformed services and acts of reprisal prohibited.” Subsection (a) provides in
relevant part: “(a) A person who . . . performs . . . 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 . . .
performance of service.” An employer is “considered to have [violated § 4311(a)] if
the person’s . . . 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 . . . service . . . or obligation for service.” § 4311(c)(1).



                                           -4-
evidence TXD “ever indicated to Plaintiff that it would consider him a current or
active employee for the duration of his military commitment, nor is there evidence
[TXD] made this its policy with regard to similarly-situated employees having long-
term military obligations.” TXD submitted an affidavit by Poe averring that TXD
“did not consider individuals who were absent from employment due to a long-term
military commitment to be current or active employees.”

       After granting summary judgment on any claim that TXD violated its
reemployment obligation under § 4312 (a ruling Dorris does not appeal), the district
court turned to the claim that TXD violated § 4311 “by firing [Dorris] and therefore
not including his name on a list of employees that was a part of the asset sale [to]
Foxxe.” The court acknowledged that whether Dorris was fired or quit in October
2007 was a disputed issue of fact3 but concluded this issue did not control whether
Dorris was included on the list of TXD employees provided to Foxxe:

      [W]hile Mr. Dorris was on active long-term military duty, TXD would
      not have considered him an active or current employee. He would not
      have made the list provided by TXD to Foxxe. That does not violate
      USERRA. See 20 C.F.R. § 1002.49 [sic; should be § 1002.149].

             In response to the evidence presented by TXD on this point, Mr.
      Dorris has not offered any evidence to show that TXD treated any
      similarly situated uniformed service members differently than he was
      treated. . . . Mr. Dorris also has not offered any evidence that TXD


      3
        The COBRA letter, the district court noted, did not establish that Dorris was
fired. USERRA requires employers to offer COBRA continuation coverage to
individuals absent from employment due to service obligations, 38 U.S.C.
§ 4317(a)(1), and COBRA considers employees on long-term leave as “terminated,”
see 29 U.S.C. § 1163(2). However, Dorris’s testimony regarding his telephone calls
to the two TXD human resources employees was evidence he was “fired.”



                                         -5-
      allowed employees on leave of absence or furlough to remain on any list
      of TXD’s active or current employees.

Accordingly, the district court granted TXD’s motion for summary judgment. Dorris
appeals. We review the grant of summary judgment de novo. Maxfield v. Cintas
Corp. No. 2, 427 F.3d 544, 549 (8th Cir. 2005).

                                           II.

         Dorris argues the grant of summary judgment must be reversed because there
was sufficient evidence for a reasonable jury to find that his military service was “a
motivating factor” in TXD’s decision to fire him in October 2007. 38 U.S.C.
§ 4311(c)(1). But like the district court we conclude this is a not an issue of material
fact. Whether TXD regarded Dorris as fired while he was serving on active duty in
Iraq did not affect TXD’s legal obligations under USERRA, such as the duty to
reemploy him in accordance with the terms of 38 U.S.C. §§ 4312 and 4313 upon
completion of his long-term military service. See H.R. Rep. 103-65(1), at 33 (1993),
reprinted in 1994 U.S.C.C.A.N. 2449, 2466 (“[A] departing serviceperson is to be
placed on a statutorily-mandated military leave of absence while away from work
. . . . Thus, terminating a departing serviceperson, or forcing him or her to resign . . .
is of no effect.”). TXD did not violate its duty to reemploy Dorris because it went out
of business while he was on leave. But the pertinent issue is whether TXD violated
its USERRA obligations to Dorris while he was on leave by not including him on the
list of TXD employees provided to prospective employer Foxxe. A specific
USERRA provision addresses this issue:

      § 4316. Rights, benefits, and obligations of persons absent from
              employment for service in a uniformed service.




                                           -6-
                                  *    *   *     *   *

        (b)(1) Subject to paragraphs (2) through (6), a person who is absent
      from a position of employment by reason of service in the uniformed
      services shall be --
                (A) deemed to be on furlough or leave of absence while
            performing such service; and
               (B) entitled to such other rights and benefits not determined by
            seniority as are generally provided by the employer of the person
            to employees having similar seniority, status, and pay who are on
            furlough or leave of absence under a contract, agreement, policy,
            practice, or plan in effect at the commencement of such service or
            established while such person performs such service.

38 U.S.C. § 4316(b)(1); see 20 C.F.R. §§ 1002.149-1002.150.

       When an employee is on leave to perform military service, his right to benefits
not determined by seniority that are guaranteed by USERRA is “not dependent on
how the employer characterizes the employee’s status during a period of service.” 20
C.F.R. § 1002.149. Rather, § 4316(b)(1) defines the employer’s general § 4311(a)
duty not to discriminate against an employee on long-term military leave. It
“requir[es] employers, with respect to rights and benefits not determined by seniority,
to treat employees taking military leave, equally, but not preferentially, in relation to
peer employees taking comparable non-military leaves generally provided under the
employer’s contract, policy, practice or plan.” Rogers v. City of San Antonio, 392
F.3d 758, 769 (5th Cir. 2004), cert. denied, 545 U.S. 1129 (2005); accord Crews v.
City of Mt. Vernon, 567 F.3d 860, 865-66 (7th Cir. 2009); Tully v. Dep’t of Justice,
481 F.3d 1367, 1369-70 (Fed. Cir. 2007). This standard of equal-but-not-
preferential-treatment is consistent with the Supreme Court’s interpretation of a
related provision of the prior statute in Monroe v. Standard Oil Co., 452 U.S. 549,
560-62 (1981); see also Sandoval v. City of Chi., 560 F.3d 703, 705 (7th Cir.), cert.



                                           -7-
denied, 130 S. Ct. 196 (2009) (“accommodation . . . is fundamentally different from
an equal-treatment norm”).

        Applying § 4316(b)(1)’s equal-treatment standard to this case, the first question
is whether being placed on the list TXD provided to Foxxe was a “benefit[] not
determined by seniority” of Dorris’s employment with TXD. TXD posits that being
on the list was not a benefit of employment; rather, Dorris was not eligible to be on
the list because he was not a “current or active” employee at the time Foxxe took over
TXD’s operations. This is a fact contention, and it has some logical force. Former
managing partner Poe averred that, “[i]n communications with third parties, TXD
Services, LP would not include individuals serving long-term military commitments
in any roster of current employees.” But it is not an assertion of undisputed fact.

       Sections 4311(a) and § 4316(b)(1) explicitly protect “benefits” of employment,
which USERRA broadly defines as including “any advantage, profit, privilege, gain,
status, account, or interest (other than wages or salary for work performed) that
accrues by reason of an employment contract or agreement or an employer policy,
plan, or practice.” 38 U.S.C. § 4303(2); see Clegg v. Ark. Dep’t of Corr., 496 F.3d
922, 930-31 (8th Cir. 2007) (dramatic shift in job duties); Maxfield, 427 F.3d at 552
(transfer to a job with less desirable hours). We construe the statute “broadly and in
favor of its military beneficiaries.” Lisdahl v. Mayo Found., 633 F.3d 712, 718 (8th
Cir. 2011) (quotation omitted). Applying this broad definition to the sparse record
before us, a reasonable jury could find that the opportunity for seamless transfer of
employment to a successor employer was an “advantage” or “benefit” of TXD
employment. Dorris presented evidence that most if not all active TXD employees
were hired by Foxxe following the asset sale, permitting the inference that being on
the asset sale’s personnel list provided employees a meaningful advantage or benefit.
There may be facts that would defeat this legal theory. But on this record, whether




                                          -8-
Dorris was denied a benefit of employment when TXD did not include him on the
asset sale list is a disputed issue of material fact. See MacGregor v. Mallinckrodt,
Inc., 373 F.3d 923, 928-29 (8th Cir. 2004).

       The remaining question is whether, if the list was a benefit not determined by
seniority, TXD failed to comply with the mandates of § 4311(a) and § 4316(b)(1)
because it denied Dorris a benefit “generally provided . . . to employees having
similar seniority, status, and pay who [were] on furlough or leave of absence under
a contract [or] policy . . . established while [Dorris was] perform[ing military]
service.” TXD submitted Poe’s affidavit reciting that no employee absent because
of long-term military leave was on the list. That general policy would tend to show
the absence of personal animus against Dorris for being on military leave. But Poe’s
affidavit did not address whether TXD also excluded (or would have excluded) from
the personnel list employees who were then on long-term leave for reasons other than
military service.

       This last issue is critical, yet neither party addressed it in the summary
judgment record. The district court resolved the issue in TXD’s favor because Dorris
“has not offered any evidence that TXD allowed employees on leave of absence or
furlough to remain on any list of TXD’s active or current employees.” In other
words, the district court determined that a plaintiff claiming denial of a benefit not
determined by seniority while serving on long-term military duty has both the burden
of persuasion and the burden of producing evidence relevant to whether the employer
treated plaintiff the same as all employees on comparable non-military leaves, as
§ 4316(b)(1) requires. But this determination reverses the statutory allocation of
these burdens. As noncompliance with the specific mandates of § 4316(b) is conduct
prohibited by § 4311(a), if being on the list was a benefit of employment and Dorris’s
military service was “a motivating factor” in his not being on the list, the burden




                                         -9-
shifts to TXD to show that the same action would have been taken in the absence of
military service, i.e, that anyone similarly on furlough or leave of absence would have
been left off the list. See § 4311(c)(1); Maxfield, 427 F.3d at 551.

       In this case, USERRA’s purposes, § 4311(c)(1), and the fact that relevant
evidence is far more accessible to the employer warrant placing on TXD the burden
of establishing compliance with § 4311(a) and § 4316(b)(1) if Jonathan Dorris was
denied a benefit not determined by seniority when he was left off the employee list
provided to Foxxe. Cf. NLRB v. Mastro Plastics Corp., 354 F.2d 170, 176-77 (2d
Cir. 1965), cert. denied, 384 U.S. 972 (1966). For these reasons, the grant of
summary judgment is reversed only as to this specific USERRA claim.

      The judgment of the district court is reversed, and the case is remanded for
further proceedings not inconsistent with this opinion.
                      ______________________________




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