                            United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT


                                 No. 04-2979


Darold Maxfield,                        *
                                        *
             Appellant,                 *      Appeal from the United States
                                        *      District Court for the
      v.                                *      Eastern District of Arkansas.
                                        *
Cintas Corporation No. 2,               *
                                        *
             Appellee.                  *


                             Submitted: April 11, 2005
                                 Filed: October 31, 2005


Before COLLOTON, McMILLIAN, and BENTON, Circuit Judges.



McMILLIAN, Circuit Judge.

       Darold Maxfield appeals from a final judgment entered in the District Court for
the Eastern District of Arkansas granting summary judgment in favor of his former
employer, Cintas Corporation No. 2 ("Cintas"), on his claims of employment
discrimination based on race in violation of Title VII of the Civil Rights Act of 1964,
as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000(e) et seq., 42 U.S.C.
§ 1981, and the Arkansas Civil Rights Act of 1993, Ark. Code Ann. § 16-123-101
et seq. ("ACRA"), and employment discrimination based on military service in
violation of the Uniform Services Employment and Reemployment Rights Act, 38
U.S.C. § 4301 et seq. ("USERRA" or the "Act"). For reversal, Maxfield argues that
the district court erred in holding that (1) he failed to present evidence to show that
Cintas's proffered nondiscriminatory reasons for adverse employment actions were
pretexts for race discrimination under the third step of the framework set forth in
McDonnell Douglas v. Green, 411 U.S. 792, 805-06 (1973) (McDonnell Douglas),
and (2) he failed under USERRA to present evidence to show that his military service
was a motivating factor in Cintas's actions. For the reasons discussed below, we
affirm in part and reverse and remand in part.

      Jurisdiction was proper in the district court based upon 28 U.S.C. §§ 1331,
1343. Jurisdiction is proper in this court based upon 28 U.S.C. § 1291. The notice
of appeal was timely filed pursuant to Fed. R. App. P. 4(a).

BACKGROUND

       Viewed in the light most favorable to Maxfield, the facts and all reasonable
inferences therefrom are as follows. Maxfield, an African-American, has served in
the United States Army, either in active duty or reserve status, since 1985. Randy
Lewis, general manager of Cintas's Maumelle, Arkansas, facility, hired Maxfield on
July 26, 1999, as a service sales representative at a salary of $550.00 per week, plus
a quarterly bonus. On February 1, 2000, Maxfield accepted a position as a production
supervisor at an annual salary of $33,800.00 with no bonus or commission
opportunity. On May 22, 2000, Maxfield accepted the position of facility outside
sales representative (FOS) with a weekly draw of $650.00, plus commissions on sales
and quarterly bonuses. A draw was essentially a salary that was advanced on expected
sales. However, if commissions on sales were less than the draw, an employee
incurred a deficit. During his first nine months of work in the FOS position,
Maxfield's commissions exceeded his draws. In his best month, December 2000, he
earned $7,437.91 in commissions and bonuses. However, in May 2001, Maxfield's
draw exceeded his commission, resulting in a deficit of $857.45. His deficit increased
in June to $1,914.46, before he was able to reduce it to $1,339.79 in July 2001.

                                          2
       On July 15, 2001, Lewis granted Maxfield a military leave of absence for
reserve duty from July 15 to September 28, 2001. During the leave, someone from
Cintas, who identified himself as Maxfield's "boss," called the military base and spoke
to Sergeant First Class Tarrance Grissett, who was responsible for preparing
Maxfield's orders, asking whether Maxfield had reported for duty and whether it was
"imperative" for him to be on military leave at that time. Appellant's App. at 405.
Grissett responded that Maxfield was present and that his presence was "imperative."
Id. On July 24, 2001, Rick Johnson, the human resources manager, and Lewis went
to the base so that Maxfield could complete the paperwork for the leave and to discuss
his sales deficit. Lewis and Johnson told Maxfield that he could take vacation leave
while he was on military leave, and records reflect that he did so. When Maxfield
returned from leave in August, his debt was $1,360.70. Lewis, with input from Randy
Lunsford, who had been Maxfield's supervisor in the FOS position, transferred
Maxfield from the FOS position to the position of proactive service trainer (PST) at
a salary of $650.00 per week, plus quarterly bonuses. Lunsford noted on a document
that the transfer was unrelated to Maxfield's military leave.

       On January 24, 2002, Cintas granted Maxfield a military leave of absence
through June 15, 2002. In March 2002, Cintas eliminated the PST positions at the
Maumelle facility, as well as at other facilities in the Southeast. Lunsford testified
that the PST positions went "back and forth," explaining that in the past Cintas had
eliminated the positions but then would reinstate them. Id. at 358. When Maxfield
returned from leave in June, Cintas placed him in a telemarketing position where he
earned an hourly rate of $16.25, plus overtime pay and weekly commissions.

       On Monday, August 19, 2002, about fifteen minutes before he was to start work
at Cintas, Maxfield called Lewis, his immediate supervisor, and requested military
leave for August 19, 20, and 23, 2002, explaining that he had received orders over the
weekend. Maxfield faxed the orders, and Lewis approved the leave. Pursuant to
Lewis's directions, on August 21, Maxfield met with Lewis at Cintas and filled out the

                                          3
paperwork for the leave. Lewis, who was responsible for recording absences on
Maxfield's attendance calendar, marked the calendar to show that Maxfield was on
military leave for those days. After leaving Lewis's office, Maxfield saw Lisa Wilson,
the office manager, and asked her what he needed to do in order to take vacation leave
while on military leave. Wilson told him to talk to Tracey Anderson, the payroll
clerk. Maxfield then talked to Anderson, telling her that he wanted to use accrued
emergency and vacation leave while he was on military leave. Id. at 82. Anderson
told Maxfield she would take care of his request.

       Cintas has a category of leave entitled "Sick Pay/Bereavement/Jury
Duty/Emergencies." The employee manual provides that "sick pay is intended to
ensure against loss of income due to sickness, accidents, emergencies, court
appearances . . . according to the judgment of [an employee's] immediate supervisor."
Appellee's App. at 5. Johnson, the human resources manager, testified that an
employee has the right to take accrued sick and vacation leave while on military leave,
that a supervisor does not have the authority to refuse the request, and that managers
had been so instructed. Appellant's App. at 156-57.

       On Monday, August 26, 2002, Anderson gave Maxfield his weekly time report
to sign. In late July or early August 2002, Cintas began requiring hourly employees
to sign weekly time reports if any changes had been made to the report after it had
been generated by a computer program. The signing requirement did not change
Cintas's policy that a supervisor had to approve all leave requests and the weekly time
report. Id. at 125, 133. On August 26, Maxfield signed the weekly time report, on
which Anderson had noted that Maxfield had been "out sick" on August 19 and 20 and
"on vacation" on August 23.

       Anderson gave the signed report to Wilson, who on August 26 gave it to Lewis
for his approval. Lewis testified that he was surprised to see that Maxfield had taken
sick and vacation leave while he was on military leave. Lewis stated that he "could

                                          4
not figure out how in the world [the weekly time report] would have showed . . . that
[Maxfield] was out sick when he wasn't out sick and how he took a vacation day when
he didn't take a vacation day." Id. at 360. Lewis testified that Cintas did not allow an
employee to use "sick/emergency" leave while on military leave, id. at 261, and
believed that by requesting sick leave from Anderson, Maxfield was trying to
circumvent the "system" in an attempt to claim two extra sick days and one extra
vacation day. Id. at 270. Lewis theorized that by requesting the paid leave from
Anderson, Maxfield thought Lewis would not see the weekly time report and not
record the paid days off on the attendance calender, thus believing he could request
two extra sick days and one extra vacation day from Lewis at a later time. In Lewis's
words, Maxfield thought: "I've still got three days for the next year that I can use if I
need them because [Lewis] didn't record them." Id. at 272.

       On August 26, 2002, Lewis suspended Maxfield, telling Maxfield that "he had
stole[n] from the company." Id. at 281. According to Lewis, after a two-day
investigation, he concluded that Maxfield had "committed a serious policy violation"
by requesting sick leave from Anderson, the payroll clerk, and by doing so "had
devised a scheme to rob the company of a financial benefit." Id. at 269. However,
during the investigation, Lewis did not talk with Anderson to ask whether Maxfield
had told her he wanted to take accrued sick/emergency and vacation leave while on
military leave or whether he had called in "sick." Id. at 267-68. In addition, during
the investigation, Lewis never learned that Cintas allowed employees to take accrued
sick days while on military leave. Id. at 263. After discussing the matter with Todd
Gregory, a Cintas group vice president, on August 28, Lewis met with Maxfield, who
stated that Johnson had told him that he could use "sick/emergency" leave while on
military leave. On August 29, Lewis again talked with Gregory, and they decided that
Maxfield could resign with a severance package or be terminated. On August 30,
2002, Cintas terminated Maxfield.




                                           5
       In July 2003, Maxfield filed a complaint in district court, alleging race
discrimination in violation of Title VII, § 1981, and ACRA, and violations of
USERRA when Cintas: (1) demoted him from the FOS position to the PST position,
(2) placed him in the telemarketing position, and (3) discharged him. Cintas moved
for summary judgment. As to the race discrimination claims, Cintas argued that
Maxfield's transfer from the FOS position to the PST position was not a demotion or
other adverse employment action. In any event, Cintas argued that Maxfield could not
present evidence showing that its legitimate reasons for the transfers and the discharge
were pretexts for race discrimination. Cintas asserted that it transferred Maxfield from
the FOS position to the PST position because he had incurred deficits the four
preceding months, transferred him from the PST position to the telemarketing position
because Cintas had eliminated the PST position, and discharged him because he had
violated company policy and had been dishonest by requesting sick and vacation leave
for the time he was on military leave. As to the USERRA claims, Cintas argued that
Maxfield could not establish a prima facie case as to the transfer because the transfer
from the FOS position to the PST position was not covered by the Act. In any event,
Cintas asserted that Maxfield could offer no evidence to show that his military service
was a substantial or motivating factor in its decisions to transfer or discharge him, and
that it would have taken the same actions in the absence of Maxfield's military
obligations.

       The district court granted Cintas's motion for summary judgment. As to the
race discrimination claims, the district court assumed that Maxfield had established
prima facie cases, but held that he failed to present evidence to show that Cintas's
legitimate, nondiscriminatory reasons for its actions were pretexts for race
discrimination. As to the USERRA claims, the district court held that, assuming the
the transfer from the FOS position to the PST position was a covered action, Maxfield
had failed to offer evidence showing that his military service was a substantial or
motivating factor in Cintas's actions in transferring and terminating him.



                                           6
DISCUSSION

       This court reviews a district court's grant of summary judgment de novo. Smith
v. Allen Health Sys., Inc., 302 F.3d 827, 832 (8th Cir. 2002). "We must affirm if,
viewing the record in the light most favorable to [Maxfield], there are no genuine
issues of material fact and [Cintas] is entitled to summary judgment as a matter of
law." Id.

I. Title VII, § 1983 and ACRA claims

        Title VII, § 1981, and ACRA claims are analyzed under the burden-shifting
framework set forth in McDonnell Douglas. See EEOC v. Kohler Co., 335 F.3d 766,
772 (8th Cir. 2003) (Kohler) (applying McDonnell Douglas to Title VII claim);
Putnam v. Unity Health Sys., 348 F.3d 732, 735 n.2 (8th Cir. 2003) (applying
McDonnell Douglas to § 1981 claim); Crone v. United Parcel Serv., Inc., 301 F.3d
942, 945 (8th Cir. 2002) (applying McDonnell Douglas to ACRA claim). As relevant
in this action alleging discriminatory demotions and discharge, under the McDonnell
Douglas framework, a plaintiff first has to establish a prima facie case by showing that
he or she: (1) is a member of a protected group; (2) was meeting the legitimate
expectations of the employer; (3) suffered an adverse employment action; and (4)
under circumstances permitting "an inference of discrimination." Zhuang v. Datacard
Corp., 414 F.3d 849, 854 (8th Cir. 2005). If the plaintiff establishes a prima facie
case, the defendant must articulate a legitimate, nondiscriminatory reason for the
action. Kohler, 335 F.3d at 772-73. If the defendant does so, the plaintiff must offer
evidence showing that the defendant's legitimate reason is merely a pretext for
discrimination. Id.

       Maxfield argues that the district court erred in granting summary judgment on
his claims that Cintas had discriminated against him on the basis of race when it
demoted him from the FOS position to the PST position. Cintas argues that Maxfield

                                           7
could not establish prima facie cases of race discrimination, because the transfer was
not a demotion or otherwise an adverse employment action. As to Maxfield's race
discrimination claims, we need not address Cintas's argument. Like the district court,
we will assume that Maxfield established prima facie cases. Maxfield does not
dispute that Cintas articulated a legitimate, nondiscriminatory reason for the
transfer–Maxfield's four consecutive months of commission deficits. We agree with
the district court that Maxfield failed to offer any evidence showing that the reason
was a pretext for race discrimination. Although Maxfield points to the fact that a
white sales representative, Lynn Clayton, ran a deficit for two months and was not
transferred, Maxfield ran a deficit for four months. Thus, Clayton was not similarly
situated to Maxfield "in all relevant respects." Kohler, 335 F.3d at 776 (internal
quotation omitted). Nor did Maxfield present other evidence that would allow a
reasonable fact-finder to infer that Cintas's decision to transfer him from the FOS
position to the PST position was based on his race.1

       Maxfield next argues that the district court erred in granting summary judgment
on his claims of a racially discriminatory discharge, asserting that he presented
sufficient evidence for a jury to find that Cintas's reasons for the discharge–violation
of company policy and dishonesty–were false. However, even if Cintas's reasons are
false, Maxfield offered no evidence that Cintas discharged him because of his race,
as he was required to do. In St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515
(1993), the Supreme Court made clear that "a reason cannot be proved to be 'a pretext
for discrimination' unless it is shown both that the reason was false, and that
discrimination was the real reason." As the district court held, Maxfield "failed to
bring forth evidence from which a reasonable jury could find that the real reason for


      1
        On appeal, Maxfield does not seriously challenge his transfer from the PST
position to the telemarketing position. He offers no evidence that the elimination of
the PST position at Cintas facilities throughout the Southeast was a pretext for race
discrimination or that in eliminating the position Cintas was motivated by his military
status.
                                           8
his termination was racial bias." Thus, even if Cintas "did not convey the true reason
for [Maxfield's discharge], summary judgment [wa]s still proper." O'Sullivan v.
Minnesota, 191 F.3d 965, 969 (8th Cir. 1999).

II. USERRA Claim

       Maxfield also argues that the district court erred in granting Cintas's motion for
summary judgment on his USERRA claims. "USERRA, enacted in 1994 to improve
the Veterans' Reemployment Rights Act ('VRRA'), prohibits employment
discrimination on the basis of military service." Gagnon v. Sprint Corp., 284 F.3d
839, 852 (8th Cir. 2002) (Gagnon), abrogated on other grounds, Desert Place, Inc. v.
Costa, 539 U.S. 90 (2003). An employer violates USERRA "when a person's
membership 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, . . . or obligation for service.'" Id. (quoting 38 U.S.C.
§ 4311(c)(1)). "Unlike the McDonnell Douglas framework [utilized in Title VII
claims], the procedural framework and evidentiary burdens set out in section 4311
shift the burden of persuasion, as well as production, to the employer." Id. at 854.
Under USERRA, an employee must make "'an initial showing . . . that military status
was at least a motivating or substantial factor in the [employer's] action.'" Id. (quoting
Sheehan v. Dep't of Navy, 240 F.3d 1009, 1014 (Fed. Cir. 2001) (Sheehan)). If the
employee makes such a showing, "'the [employer] must prove, by a preponderance of
evidence, that the action would have been taken despite the protected status.'" Id.
(quoting Sheehan, 240 F.3d at 1014).

       Maxfield contends that the district court erred in holding that he failed to offer
evidence showing that his military status was a motivating factor in Cintas's decision
to demote him from the FOS position to the PST position. Cintas argues that we need
not decide whether Maxfield's military status was a motivating factor. Cintas asserts
that the transfer was not a demotion, but even if it were a demotion, a demotion is not

                                            9
actionable under USERRA. Cintas is mistaken. Although, as Cintas notes, USERRA
provides that an employer may not discriminate on the basis of military status in
"initial employment, reemployment, retention in employment, [and] promotion," 38
U.S.C. § 4311(a), it also prohibits discrimination as to "any benefit of employment by
an employer on the basis of [military] membership, . . . performance of service, . . .
or obligation." Id. USERRA defines "benefit of employment" very broadly as "any
advantage, profit, privilege, gain, status, account, or interest (other than wages or
salary for work performed) . . . , and includes . . . awards, bonuses, severance pay,
supplemental unemployment benefits, vacations, and the opportunity to select work
hours or location of employment." Id. § 4303(2). Moreover, "[b]ecause USERRA
was enacted to protect the rights of veterans and members of the uniformed services,
it must be broadly construed in favor of its military beneficiaries." Hill v. Michelin
N. Am., Inc., 252 F.3d 307, 312-13 (4th Cir. 2001) (Hill) (citing, e.g., Coffy v.
Republic Steel Corp., 447 U.S. 191, 196 (1980) (predecessor statute VRRA was "to
be liberally construed for the benefit of the returning veteran"); McGuire v. United
Parcel Serv., Inc., 152 F.3d 673, 676 (7th Cir. 1998) ("USERRA is to be liberally
construed in favor of those who served their country.")).

       Maxfield argues that by transferring him to the PST position, Cintas denied him
a "benefit of employment" because, among other things, the FOS position was a stable
job, whereas, in Lunsford's words, the PST position was a "back and forth" position.
Indeed, Cintas eliminated the PST position about six months after Maxfield was
transferred to it. Maxfield also argues that he was denied a benefit of employment
because in the FOS position he had the opportunity to earn bonuses based on his own
performance, whereas in the PST position he only could earn bonuses based on other
employees' performance. In similar circumstances, the Fourth Circuit has held that
a transfer from one position to another was a denial of a "benefit of employment"
under USERRA, even though the transfer did not result in the loss of wages and both
positions involved rotating work shifts. Hill, 252 F.3d at 312. The court noted that
the position from which the plaintiff had been transferred had a "more regular working

                                         10
schedule" and concluded that "[g]iven the broad reach of USERRA and its purpose
of protecting the interests of those serving in the uniformed services, . . . [a] more
regular schedule is properly viewed as an advantage of the job under USERRA's
definition of 'benefit of employment.'" Id. at 313. Likewise, we conclude that by
transferring Maxfield from the FOS position to the PST position, Cintas denied him
a benefit of employment under USERRA.

       We also agree with Maxfield that the district court erred in holding that he
failed to present evidence to show that his military status was a motivating factor in
Cintas's decision to transfer him. "In determining whether the employee has proven
that his protected status was part of the motivation for the [employer's] conduct, all
record evidence may be considered, including [its] explanation for the action taken."
Sheehan, 240 F.3d at 1014. For example, "discriminatory motivation under the
USERRA may reasonably be inferred from . . . proximity in time between the
employee's military activity and the adverse employment action [and] inconsistencies
between the proffered reason and other actions of the employer." Id.

       Contrary to Cintas's argument, Maxfield presented sufficient evidence as to
discriminatory motivation. As to proximity in time, Maxfield was transferred the day
he returned from military leave. Cf. Peterson v. Scott County, 406 F.3d 515, 525 (8th
Cir. 2005) (in Title VII retaliation case "timing of termination, two weeks from
protected activity, is close enough to establish causation in a prima facie case"). A
fact-finder also could infer a discriminatory motivation from the telephone call by
Lewis's "boss" to Sergeant Grissett inquiring whether Maxfield was present at the
military base and whether his presence was "imperative." We also believe that a
discriminatory animus could be inferred from the fact that Lewis and Johnson traveled
to the military base while Maxfield was on leave to discuss, in part, his sales deficit.




                                          11
        Because Maxfield presented sufficient evidence showing that his military
service was a motivating factor in Cintas's decision to transfer him to the PST
position, the burden shifted to Cintas to show that it would have taken the same action
absent Maxfield's military status. Cintas recites that it transferred Maxfield because
of his four consecutive months of deficits. However, an employer violates USERRA
"when a person's military service is a 'motivating factor' in the discriminatory action,
even if it is not the sole factor." Sheehan, 240 F.3d at 1013. Nor does Cintas offer
any other evidence that it would have taken the same action absent Maxfield's reserve
status. "Because [Maxfield's] transfer. . . must be viewed as a denial of a benefit of
employment and because there is a question of fact whether [Maxfield's] [r]eserve
status was a motivating factor in the transfer, the grant of summary judgment to
[Cintas] on this claim must be reversed." Hill, 252 F.3d at 313.
        We also agree with Maxfield that the district court erred in holding that he
failed to present sufficient evidence that his military status was a motivating factor in
Cintas's decision to terminate him. As to proximity, Maxfield was suspended the day
he returned from the three-day leave and discharged a few days later. Sergeant Grissett
testified that, as in 2001, someone from Cintas called him in August 2002 asking
whether Maxfield was present for duty and whether his presence was necessary.

        Moreover, there are numerous inconsistencies in Lewis's explanation that
Maxfield violated company policy by requesting emergency and vacation leave while
on military leave. Although Lewis testified that Cintas did not allow employees to
take sick/emergency leave while on military leave, Johnson, the human resources
manager, testified that Cintas allowed employees to take accrued emergency leave
while on military leave, that a supervisor did not have the authority to refuse a request
for the leave, and that all managers had been so notified. Indeed, when asked "under
what circumstances would a supervisor deny an employee from taking their vacation
and sick leave and whatever accrued leave they have while on military duty," Johnson,
replied,"There are no circumstances if requested." Appellant's App. at 157-58. It is
surprising that in his deposition Lewis testified that he had learned nothing during his

                                           12
investigation that caused him to change his mind that Maxfield had violated company
policy by requesting sick/emergency leave while on military leave, but Johnson
testified that he participated in the investigation, and a reasonable inference would be
that Johnson would have informed Lewis that an employee could take accrued
emergency leave while on military leave.

       There are also inconsistencies in Lewis's explanation that Maxfield had been
dishonest in devising a scheme to "steal" extra sick and vacation days by requesting
leave from Anderson. Indeed, Lewis did not even contact Anderson to determine
whether Maxfield had called her to tell her that he was "out sick," or whether he told
her he wanted to take his accrued sick/emergency leave while on military duty. In
addition, Lewis testified that because the requirement that employees had to sign
weekly time reports was new, Maxfield would have "no idea" that Lewis would see
Maxfield's signed weekly time report and thus not record the emergency and vacation
leave days on his attendance calender. However, Lewis testified that the requirement
did not change Cintas's policy that supervisors had to approve all leave requests and
approve the weekly time report. Appellant's App. at 276. Lewis also testified that
because Maxfield had been a supervisor of hourly employees, he would have known
that supervisors had to approve leave and the weekly time sheets. Id. at 179, 275. It
is also undisputed that as the payroll clerk Anderson had no authority to process a
weekly time report for payment until the supervisor approved the report.

       Nor, as Cintas argues, does the fact that it granted Maxfield 15 military leaves
of absence in 3 years negate a showing of a discriminatory motive. Indeed, a jury
could infer that because it had granted the leaves, many of which were, in Lewis's
words, "last minute," Cintas was looking for a reason to discharge Maxfield because
of the large number of absences from work due to Maxfield's reserve status. See
Leisek v. Brightwood Corp., 278 F.3d 895, 900 (9th Cir. 2002) (jury could infer
"military status was a 'motivating factor' in [employer's] decision to terminate
[plaintiff's] employment due to its concern regarding the significant number of

                                          13
absences from work that [his] participation in the [National Guard] program
required").

       Because Maxfield satisfied his initial burden to show a genuine issue of
material fact concerning Cintas's motivation, the burden of production and persuasion
shifted to Cintas to show that it would have terminated Maxfield even in the absence
of his military status. We believe that Cintas's evidence concerning the circumstances
of Maxfield's leave request is sufficient to create a genuine issue of fact as to whether
it would have terminated Maxfield in any event.

CONCLUSION

      For the reasons stated, we affirm the district court's grant of summary judgment
as to Maxfield's racial discrimination claims under Title VII, § 1981, and ACRA.
However, we reverse and remand the grant of summary judgment as to Maxfield's
USERRA claims to the district court for further proceedings consistent with this
opinion.
                          ____________________________




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