Plaintiff/appellant Charles Coffman appeals the district court’s order granting summary judgment to defendant/appellee Chugach Support Services, Inc. (“Chu-gach”) on Coffman’s claims of employment discrimination due to his active military status, in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. § 4301, et seq. For the reasons that follow, we affirm.
I. BACKGROUND
A. Facts
In October 1997, the United States Air Force awarded Del-Jen, Inc. (“Del-Jen”) a contract to provide base support services at Tyndall Air Force Base in Panama City, Florida. In the same month, Del-Jen hired Coffman as a Hazardous Materials Specialist to work at Tyndall. From that time through November 2001, Coffman worked for Del-Jen and served as a Non-Commissioned Officer in the Air Force Reserve. In July 2001, Alex Gunn, Del-Jen’s project manager, promoted Coffman to the position of Hazardous Materials Program Manager. That promotion included a pay raise for Coffman.
There is some confusion over whether Coffman’s position as manager was exempt from Del-Jen’s collective bargaining agreement as a non-union position. One of Del-Jen’s former officers, Steve Kukak, testified that Gunn did not have the authority to make Coffman’s position exempt from the collective bargaining agreement by adding duties and pay. Apparently, Del-Jen discovered the mistake over Coff-man’s promotion while Coffman was away on active duty. As the district court noted, however, this particular dispute over Coffman’s position is ultimately immaterial. At the time he left, and at the time he returned from active duty, Coffman considered his position one of management.
In November 2001, the Air Force ordered Coffman to return to active military duty for one year. Coffman notified the proper authorities at Del-Jen about his return to active service. Consequently, Del-Jen hired Rhonda Cruz as a temporary replacement for Coffman during his absence.
Previously, in anticipation of Chugach taking over, Coffman had sent Chugach his resume, service orders, and a letter explaining his interest in retaining, and returning to, his former position as a Hazardous Materials Specialist. As a result, Chugach interviewed Coffman in September 2002, but the interview was not for a specific position. Coffman testified that he thought this interview was merely a courtesy meeting. During the interview, Coff-man mentioned that he held a managerial position prior to his reactivation. Coffman stated that the Chugach representatives seemed surprised and shocked to learn that he held a non-union position as a manager. Sometime during the interview, the parties discussed an available position that was similar to Coffman’s previous position with Del-Jen, but different in that the Chugach position was a non-management union position. Coffman testified that he made it clear during the interview that he was willing to talk with Chugach and work something out regarding the discrepancies between the available position and his former position.
Adrian Darkow, the head of Chugach’s start-up team, testified that he was involved in the interview with Coffman. He remembered discussing a management position and believed that Coffman was looking for a management position. According to Darkow, the discrepancies between the positions are why Chugach did not have a position for Coffman. Darkow also claimed that, at some point, he discussed Coffman’s situation with Del-Jen representatives and left with the understanding that Del-Jen would be rehiring Coffman. Additionally, Darkow asserted that Coff-man’s military status was not a factor in Chugach’s decision not to hire him. Patrick McCredie, another one of the Chu-gach representatives who was also present at Coffman’s interview, testified that he thought Coffman and the representatives were discussing a vehicle maintenance position. He recalled that Chugach did not have a vehicle management position available for Coffman'. He also stated that Coffman’s military status had nothing to do with Chugach’s decision not to hire him.
Chugach then interviewed Cruz for Environmental Hazardous Materials Specialist, the Chugach position similar to Coffman’s former position and, at the interview, offered her a permanent job, which she accepted. Originally, Chugach compensated Cruz at the same pay rate she had received in her prior employment with Del-Jen. Later, Chugach increased ■ her compensation to the union pay .rate, as Chugach agreed to abide by Del-Jen’s collective bargaining agreement until it could negotiate its own agreement with the union. Cruz’s duties at Chu-gach were similar to her duties at Del-Jen, except for some additional tasks, such as security.
Out of 100 former Del-Jen employees, Chugach hired 97. Coffman was one of the three Del-Jen employees not hired. Coffman was the only Del-Jen employee on military leave at the time of the transition from-Del-Jen to Chugach.
B. Procedural History
In September 2003, Coffman filed a three-count complaint against Chugach and Del-Jen seeking damages, attorney’s fees, and reinstatement to his former position under the USERRA. Counts I and III alleged that Chugach violated the US-ERRA’s anti-discrimination and reemployment provisions respectively. Count II alleged that Del-Jen violated the USER-RA’s anti-discrimination provision. Coff-man and Del-Jen eventually settled their dispute.
Both Chugach and Coffman filed motions for summary judgment. Chugach filed a motion on Counts I and III. Coff-man filed a motion for partial summary judgment only as to Count III, asking for reinstatement to his position. The district court granted Chugach’s motion and entered final judgment in favor of Chugach. Coffman then timely appealed the district court’s order.
II.ISSUES
1. Whether the district court properly determined that Chugach was not liable to Coffman as a “successor in interest” or “successor employer” and, therefore, owed no duty to reemploy Coffman under 38 U.S.C. § 4312 and 38 U.S.C. § 4313.
2. Whether the district court properly determined that Coffman could not establish a prima facie case of discrimination on the basis of his active military service under 38 U.S.C. § 4311 in regard to Chu-gach’s decision not to hire him.
III.STANDARD OF REVIEW
This court reviews
de novo
the district court’s order granting summary judgment.
Chappell v. Chao,
IV.DISCUSSION
A. Statutory provisions
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.
See
38 U.S.C. § 4301 (2002). Sections 4311 and 4312 of the USERRA provide separate and distinct statutory protections for service members.
See Wrigglesworth v. Brumbaugh,
(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 formembership, performance of service, application for service, or obligation.
(b) 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, (2) has testified or otherwise made a statement in or in connection with any proceeding under this chapter, (3) has assisted or otherwise participated in an investigation under this chapter, or (4) has exercised a right provided for in this chapter.
(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 the absence of such membership, application for membership, service, application for service, or obligation for service; or
(2) under subsection (b), if the person’s (A) action to enforce a protection afforded any person under this chapter, (B) testimony or making of a statement in or in connection with any proceeding under this chapter, (C) assistance or other participation in an investigation under this chapter, or (D) exercise of a right provided for in this chapter, 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 person’s enforcement action, testimony, statement, assistance, participation, or exercise of a right.
38 U.S.C. § 4311 (2002).
Section 4312 addresses the right of reemployment for persons who serve in the military. Veteran reemployment statutes “date from the nation’s first peacetime draft law, enacted in 1940.”
Leib v. Georgia-Pacific Corp.,
(a) Subject to subsections (b), (c), and (d)and to section 4304, any person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this chapter if—
(1) the person (or an appropriate officer of the uniformed service in which such service is performed) has given advance written or verbal notice of such service to such person’s employer;
(2) the cumulative length of the absence and of all previous absences from a position of employment with that employer by reason of service in the uniformed services does not exceed five years; and
(3) except as provided in subsection (f), the person reports to, or submits an application for reemployment to, such employer in accordance with the provisions of subsection (e).
(d)(1) An employer is not required to reemploy a person under this chapter if—
(A) the employer’s circumstances have so changed as to make such reemployment impossible or unreasonable;
(B) ... such employment would impose an undue hardship on the employer;
(2) In any proceeding involving an issue of whether—
(A) any reemployment referred to in paragraph (1) is impossible or unreasonable because of a change in an employer’s circumstances,
(B) any accommodation, training, or effort referred to in subsection (a)(3), (a)(4), or (b)(2)(B) of section 4313 would impose an undue hardship on the employer, or
(C) the employment referred to in paragraph (1)(C) is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period, the employer shall have the burden of proving the impossibility or unreasonableness, undue hardship, or the brief or nonrecurrent nature of the employment without a reasonable expectation of continuing indefinitely or for a significant period.
38 U.S.C. § 4312 (2002). Section 4312 also imposes upon the employee a requirement to timely notify the employer of his intention to return to work. 38 U.S.C. § 4312(e)(1). Pertinent to the present case, an employee whose active military duty lasted more than 180 days must submit an application for reemployment with his employer no later than 90 days after his completion of active duty. 38 U.S.C. § 4312(e)(1)(D).
B. Successor in interest
The question of successor in interest or successor employer under USERRA is one of first impression for this circuit. Under USERRA, “employer” is defined to include a “successor in interest” to a plaintiffs previous employer. 38 U.S.C. § 4303(4)(A)(iv) (2002). USERRA does not, however, define “successor in interest.” The legislative history of USERRA states that “[t]he Committee intends that the multi-factor analysis utilized by the court in
Leib v. Georgia-Pacific Corp.,
In
Leib,
the plaintiff had worked for a company named St. Regis and left his employment to serve in the Air Force.
In so doing, the court examined two distinct prior interpretations of the successor in interest language in veteran’s reemployment statutes.
Id.
at 244. First, the court examined the “ownership and control” test.
Id.
at 243-44. This test looks for common ownership and control between the successor employer and the veteran’s previous employer.
See id.
at 244. Second, the court examined the “business continuity” test suggested by the government.
Id.
at 245^47. This test looks at the actual business activities being conducted before and after the change in employers so that a “simple paper
Coffman contends that Chugach was a successor in interest to Del-Jen and, thus, was required to reemploy him under sections 4312 and 4313. Coffman argues that the district court did not utilize the Leib approach, but instead, focused only on the ownership and control test to conclude that Chugach was not a successor in interest to Del-Jen. Although the district court mentioned the multi-factor test, Coffman asserts that its decision relied on the fact that there was no continuity of ownership or control when Chugach became the primary contractor. Coffman contends that this was error because a review of the multi-factor test demonstrates that Chugach is a successor in interest to Del-Jen.
In response, Chugach claims that it is not the successor in interest or successor employer to Del-Jen; therefore, it is not liable to reemploy Coffman. Specifically, Chugach claims that the district court properly determined that Chugach was not Del-Jen’s successor in interest because there was no predecessor-successor relationship between Chugach and Del-Jen in the form of a merger or transfer of assets. We conclude that the district court and Chugach are correct.
While we agree with Coffman that a determination of successor liability under USERRA requires an analysis under the
Leib
factors as stated by Congress, such an analysis is unnecessary and improper when no merger or transfer of assets even transpired between the two subject companies. Generally, one of the fundamental requirements for consideration of the imposition of successor liability is a merger or transfer of assets between the predecessor and successor companies.
See Kicinski v. Constable Hook Shipyard,
Coffman urges this court to ignore the holding in Kicinski because the reemployment statute there did not contain any successor in interest language. This argument is without merit. Plainly, Congress’s addition of the successor in interest language did not. alter the requirement for a merger or transfer of assets between the predecessor and successor companies for consideration of successor liability. Moreover, Coffman cannot cite any case, legislative history, or authority indicating otherwise.
Coffman also implies that the equitable principles underlying USERRA and the successor in interest doctrine allow this court to overlook the lack of a predecessor-successor relationship as described above. In this regard, citing
Preyer v. Gulf Tank & Fabricating Co.,
Coffman’s argument is unpersuasive. Although USERRA “is to be liberally construed for the benefit of those who left private life to serve their country,”
Leib,
Because there is no predecessor-successor relationship between Del-Jen and Chugach, Chugach is not the successor in interest or successor employer to Del-Jen and, as such, owed no duty under sections 4312 and 4313 of USERRA to reemploy Coffman. Accordingly, we conclude that the district court properly granted summary judgment in favor of Chugach as to Coffman’s reemployment claim.
C. Prima facie case under Section 4311
Section 4311 clearly mandates proof of discriminatory motive.
See Sheehan v. Dep’t of the Navy,
In order to establish his prima facie case, Coffman must show by a preponderance of the evidence that his protected status was a motivating factor in Chugach’s decision not to hire him.
Brandsasse,
proximity in time between the employee’s military activity and the adverse employment action, inconsistencies between the proffered reason and other actions of the employer, an employer’s expressed hostility towards members protected by the statute together with knowledge of the employee’s military activity, and disparate treatment of certain employees compared to other employees with similar work records or offenses.
Id.
“When the employee has met this burden, the burden shifts to the employer to prove the affirmative defense that legiti
The district court correctly found that Coffman failed to present either direct or circumstantial evidence to demonstrate that Chugach “relied on, took into account, considered, or conditioned its decision” not to hire Coffman on the basis of his active military service.
See Brandsasse,
In addition, there is no inconsistency between Chugach’s proffered reason for not hiring Darkow and other actions taken by Chugach. Darkow testified that at the time of the interview with Coffman, Dar-kow was under the impression that Coff-man held a managerial position with Del-Jen and was seeking similar employment with Chugach. As explained earlier, although Chugach had a similar position as the one Coffman had with Del-Jen, it was not a management position.
Darkow also testified that he was under the impression that Del-Jen was going to rehire Coffman and that he had spoken with Del-Jen officials about that. Although Coffman rightly contends that Ku-kak’s testimony contradicts Darkow’s claims about speaking with Del-Jen’s officials on Coffman’s pending status, this does not create a genuine issue of material fact as to Coffman’s section 4311 claim of discrimination. As Chugach has sufficiently demonstrated, it would not have hired Coffman because he sought a management position that Chugach simply did not offer. In sum, based on the record evidence, and following the standard enunciated in Shee-han, we conclude that no reasonable jury could find that Coffman’s military status was a motivating factor in Chugach’s decision not to hire him. Even if Chugach had conditioned its decision in part on Coff-man’s military status, summary judgment was still proper because, as noted above, Chugach has shown it would have made the same decision absent Coffman’s military status. Accordingly, we conclude that the district court properly granted summary judgment in favor of Chugach on Coffman’s discrimination claim brought pursuant to section 4311 of USERRA.
V. CONCLUSION
For the foregoing reasons, we affirm the district court’s grant of summary judgment in favor of Chugach.
AFFIRMED.