                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                    FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                          AUGUST 31, 2010
                             No. 09-15287                   JOHN LEY
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 08-01966-CV-2-IPJ

CHAD GAMBRILL,


                                                           Plaintiff-Appellant,

                                  versus

CULLMAN COUNTY BOARD OF EDUCATION,
a local education agency,
L. HANK ALLEN,
in his official capacity,


                                                        Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                             (August 31, 2010)

Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:

      Chad Gambrill, a member of the Alabama National Guard, appeals the

district court’s grant of summary judgment in favor of the Cullman County Board

of Education (“CCBE”) and Hank Allen, the Superintendent of Education of

Cullman County (collectively “Defendants”), as to Gambrill’s discrimination

action under the Uniformed Services Employment and Reemployment Rights Act

of 1994 (“USERRA”), 38 U.S.C. § 4311.

      “Congress enacted USERRA to prohibit employment discrimination on the

basis of military service as well as to provide prompt reemployment to those

individuals who engage in non-career service in the military.” Coffman v.

Chugach Support Serv., Inc., 411 F.3d 1231, 1234 (11th Cir. 2005). The USERRA

provides, in pertinent part, that “a member . . . in a uniformed service shall not be

denied initial employment . . . , promotion, or any benefit of employment by an

employer on the basis of that membership.” 38 U.S.C. § 4311(a). An employer

violates the USERRA if the applicant’s membership in a uniformed service is a

“motivating factor” in the employer’s adverse employment action, “unless the

employer can prove that the action would have been taken in the absence of such

[membership].” Id. § 4311(c).

      According to the statutory context above, we have held that the plaintiff



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must first establish a prima facie case of discrimination by showing, by a

preponderance of evidence, that his protected status was a “motivating factor” in

the employer’s adverse employment decision. Coffman, 411 F.3d at 1238. “A

motivating factor does not mean that it had to be the sole cause of the employment

action,” but it has to be one of the factors that the employer “relied on, took into

account, considered, or conditioned its decision on that consideration.” Id.

(quotation and citation omitted). After the plaintiff meets the initial burden, the

burden shifts to the employer to prove, by a preponderance of evidence, the

affirmative defense that “legitimate reasons, standing alone, would have induced

the employer to take the same adverse action.” Id. at 1238-39 (citation omitted).

      In this case, the district court did not err in concluding that legitimate

reasons standing alone would have induced Defendants to hire Jimmy Collins as

the most qualified candidate to be assistant principal at Hanceville Middle School

regardless of Gambrill’s military involvement.

      Upon review of the entire record on appeal, and after consideration of the

parties’ briefs, we affirm.

      AFFIRMED.




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