USERRA Summary-Judgment Rule: A Promotion-Explanation “Military Duty” Statement Is Not a Stray Remark, and the Employer Must Prove Same-Action Causation

1. Introduction

Kenneth Porter, a long-tenured airline pilot and United States Navy Reserve member, sued his former employer, Trans States Holdings, Inc. (“TSH”), alleging USERRA discrimination and retaliation based on repeated non-promotions. The key factual fulcrum was a supervisor’s response to Porter’s question about being “passed over”: “Well, you also do a lot of military duty.” The district court granted summary judgment to TSH, treating the remark as an isolated, non-probative “stray comment,” and further concluding that TSH’s asserted “legitimate independent reasons” (attitude/leadership concerns) defeated the claims absent a showing of “pretext.”

The Tenth Circuit reversed. It held Porter produced enough evidence—indeed, direct evidence—to create a triable issue that military duty was a motivating factor, and it faulted the district court for misallocating the USERRA burden at step two by effectively applying a Title VII pretext framework rather than requiring TSH to prove “same-action” causation.

2. Summary of the Opinion

The Tenth Circuit applied the familiar two-step USERRA framework: (1) employee shows military status was a motivating factor; (2) employer must prove it would have taken the same action regardless. The panel made three principal moves:

• Step one: Porter’s evidence that a supervisor explained his non-promotion by referencing “a lot of military duty” was enough to create a genuine dispute and, in context, constituted direct evidence of discriminatory motivation. The statement was not a “stray remark” because it responded directly to “why” he was passed over—supplying the necessary nexus to the challenged decisions.
• Step two: The district court erred by requiring Porter to prove “pretext.” Under USERRA, the employer bears both production and persuasion to prove the same decision would have occurred absent military status. TSH’s limited record (mainly a declaration and a single “ALPA hothead” email) did not establish, as a matter of uncontroverted fact, that it would have denied promotions anyway.
• Summary-judgment discipline: Even if Porter’s summary-judgment response failed to properly controvert a fact under Rule 56, the record still showed a genuine dispute on that point; courts must ensure the movant has carried its burden and cannot treat a “fact” as undisputed when the movant’s own submission is contradicted by competent record evidence.

3. Analysis

3.1 Precedents Cited

A. Summary judgment standards and appellate review

• GeoMetWatch Corp. v. Behunin — Cited for de novo review of summary judgment; the panel reaffirmed that it applies the same standard the district court should have applied.
• Dullmaier v. Xanterra Parks & Resorts and Anderson v. Liberty Lobby, Inc. — Used for the core Rule 56 proposition: summary judgment requires no genuine dispute of material fact; “material” means outcome-affecting; “genuine” means a reasonable jury could find for the nonmovant.
• Young v. Dillon Cos., Inc. — Reinforced the obligation to view evidence and draw reasonable inferences in favor of the nonmovant.

B. USERRA burden-shifting and “motivating factor” proof

• Greer v. City of Wichita — Provided the two-part USERRA inquiry: employee’s motivating-factor showing, then employer’s same-action proof.
• Lewis v. Rite of Passage, Inc. — Central to the panel’s correction of the district court: once the employee meets step one, USERRA shifts both the burden of production and persuasion to the employer. The panel repeatedly relied on Lewis to explain that the employer must establish, as a matter of uncontroverted fact, it would have acted the same way absent military status.
• Sheehan — Cited for the proposition that discriminatory motivation can be shown by direct or circumstantial evidence, and that hostility plus knowledge may support an inference.

C. Direct evidence vs. circumstantial evidence

• Fassbender v. Correct Care Sols., LLC — Supplied the definition of direct evidence: evidence that “demonstrates on its face” the decision was for discriminatory reasons, without inference or presumption.
• Adamson v. Multi Cmty. Diversified Servs., Inc. — Contrasted circumstantial evidence: facts from which discrimination may be reasonably inferred.
• Ramsey v. City & Cnty. of Denver — Used to emphasize that direct evidence tends to show an employer “acted on [its] discriminatory beliefs” when making the challenged decision.

D. “Stray remarks” doctrine and the nexus requirement

• Cone v. Longmont United Hosp. Ass'n — The key “stray remarks” anchor: isolated comments unrelated to the challenged action do not establish discriminatory animus. The panel extracted the controlling limit: remarks are “stray” when they lack a nexus to the challenged decision.
• Starr v. QuikTrip Corp. — Reinforced that isolated remarks “unrelated to the disputed employment action” are insufficient; the panel treated this as consistent with a nexus-based approach rather than a categorical rule against single remarks.
• Sims v. KCA, Inc. (unpublished table) and Stone v. Autoliv ASP, Inc. — Cited for the proposition that where a nexus exists, a discriminatory statement can support an inference of discrimination.
• Danville v. Regional Lab Corp. and Tomsic v. State Farm Mutual Automobile Insurance Co. — The panel’s primary illustrations distinguishing “ambiguous/isolated” from “stray.”
  • Danville: a committee-member comment made in the candidate-selection meeting, directed to the plaintiff, had nexus and therefore probative value.
  • Tomsic: supervisor remarks directed at the plaintiffs and made to the decisionmaker were not “stray” and supported an inference of unlawful motivation.

E. Rule 56 responses and the court’s obligation even when facts are “unopposed”

• Reed v. Bennett — Critical procedural guardrail: even if the nonmovant fails to respond, a court cannot grant summary judgment without examining whether the movant’s submission shows no material factual issues.
• Jackson v. Fed. Express — Cited (from the Second Circuit) for the same principle: before granting summary judgment, the district court must ensure each asserted material fact is supported by record evidence sufficient to satisfy the movant’s burden, even if unopposed.

F. Employer’s “same-action” proof under USERRA

• Velazquez-Garcia v. Horizon Lines of P.R., Inc. — Cited for the employer’s burden to demonstrate by a preponderance that it would have acted regardless of military status.
• Savage v. Fed. Express Corp. — Offered as a comparator for adequate employer proof: evidence that similarly situated violators were terminated can satisfy the same-action showing.

G. Unpublished decisions and persuasive use

• United States v. B.N.M. — Cited for the Tenth Circuit’s practice: unpublished cases are used for persuasive value, not binding authority.

3.2 Legal Reasoning

A. The remark’s context converted it from “isolated” to “causally linked”

The district court treated Zehnder’s statement as “solitary” and “isolated,” emphasizing the personal conversational setting and Zehnder’s own military reserve background. The Tenth Circuit reframed the correct inquiry: not whether the comment was single or informal, but whether it had a nexus to the challenged action.

The panel found nexus because the statement was uttered in direct response to Porter’s question about the precise adverse action (“why” he was passed over for promotions), and “the context of the statement in the broader conversation implies that it was an explanation for Mr. Porter’s non-promotion.” Under that framing, the comment is not an abstract observation about military service; it is evidence of the employer’s reason for the decision.

B. Decisionmaker status was treated pragmatically, not formalistically

TSH argued the statement lacked causal weight because Zehnder was not shown to be “the decisionmaker.” The panel declined to make decisionmaker status dispositive at summary judgment. It pointed to (i) deposition testimony that Zehnder was believed to be “in charge of hiring” for Line Check Airman, and (ii) Zehnder’s presence on an email chain soliciting comments on Porter’s promotion. While “not robust,” that evidence was unrebutted.

Importantly, the court also reasoned that even if Zehnder were not the final decisionmaker, the record supported that he was “at least aware of TSH’s reasoning” for non-promotion, given his declaration about management’s perception. Either way, Zehnder’s statement remained probative of the employer’s motivation, sufficient to avoid summary judgment.

C. The panel characterized the remark as “direct evidence”

Treating the statement as direct evidence matters because it short-circuits attempts to demand elaborate inference chains at step one. The panel explained that, viewed favorably to Porter, the remark “appears to be an admission” that military service was a motivating factor; it therefore “does not require inference or presumption” (per Fassbender v. Correct Care Sols., LLC).

The practical doctrinal move is this: once a statement functions as an explanation for the challenged action (“you do a lot of military duty” as the “why”), it can be direct evidence, even if it is a single utterance and even if the speaker is not conclusively established as the final decisionmaker at the summary-judgment stage.

D. The central correction: USERRA is not a “pretext” regime at step two

The district court held that even if Porter met step one, TSH was entitled to summary judgment because it asserted legitimate reasons (bad attitude; poor leadership) and Porter did not show “pretext.” The Tenth Circuit identified this as a misallocation of burdens:

• In Title VII mixed-motive/pretext paradigms, employers often bear only a burden of production while the plaintiff retains persuasion.
• Under USERRA, once motivating factor is shown, “both the burden of production and the burden of persuasion shift to the employer” (per Lewis v. Rite of Passage, Inc. and Sheehan).

Therefore, to win at summary judgment, TSH needed to show “as a matter of uncontroverted fact” it would have denied promotions absent military status. The court found TSH’s proof thin: a declaration plus a single “ALPA hothead” email (which could suggest union animus rather than leadership concerns) did not establish same-action causation. The absence of corroborating documentation (e.g., disciplinary records) further undermined “uncontroverted” inevitability.

E. Inconsistency in the employer’s explanation created a triable issue

The panel highlighted a credibility and consistency problem: Zehnder’s alleged admission to Porter (“military duty”) conflicts with Zehnder’s declaration (attitude/demeanor; and “nobody” denied promotion because of military duty or made negative comments). That inconsistency itself supported a triable dispute about the true motive and reinforced the conclusion that TSH had not carried its step-two burden.

3.3 Impact

A. Strengthened path to trial in USERRA non-promotion cases

The opinion signals that a single, targeted explanation tying an adverse decision to military duty can be enough to defeat summary judgment—particularly when it is directly responsive to “why” and thus tightly connected to the decision. Employers in the Tenth Circuit should expect courts to scrutinize “stray remark” arguments for actual nexus rather than counting comments or focusing on informality.

B. Reaffirmation of USERRA’s employee-protective burden shift

The decision is a clear corrective to a common analytical drift: importing Title VII “pretext” reasoning into USERRA step two. The employer must prove same-action causation. Practically, this encourages employers to develop objective, well-documented records (consistent performance documentation, consistent application across employees, comparator evidence) to meet the “would have done it anyway” burden.

C. Summary-judgment practice: courts must verify the record even if facts are “admitted”

By invoking Reed v. Bennett and Jackson v. Fed. Express, the panel underscored a procedural discipline: a nonmovant’s imperfect Rule 56 response does not relieve the movant from demonstrating the absence of genuine disputes with record evidence. This reduces the tactical value of “gotcha” summary-judgment fact statements when the movant’s own record contains contradictions.

D. Litigation incentives and settlement posture

Because USERRA shifts persuasion to employers at step two, cases with even moderately strong motivating-factor evidence (especially an admission-like statement) may become harder to resolve on summary judgment. This can increase settlement value for plaintiffs and pressure employers to either (i) build robust same-action proof or (ii) narrow disputes through stipulations and targeted discovery.

4. Complex Concepts Simplified

“Motivating factor” (USERRA)

Under 38 U.S.C. § 4311, military service need not be the only reason for the decision. It is enough if the employer “relied on, took into account, considered, or conditioned its decision” on military status. If military duty played any real part, step one is satisfied.

Direct evidence vs. circumstantial evidence

• Direct evidence: a statement or document that, on its face, shows the decision was made for a prohibited reason (no inference needed).
• Circumstantial evidence: facts that suggest discrimination indirectly (timing, patterns, shifting explanations, comparators), requiring inference.

“Stray remark”

A biased comment is “stray” when it has no meaningful connection (“nexus”) to the adverse action—e.g., it is untethered in time, context, decision process, or speaker’s involvement. When a remark is made as an explanation for the challenged decision, it is typically not “stray.”

USERRA burden shift (why it matters)

Many employment statutes require the employee to prove the employer’s reason is “pretext.” USERRA is different after step one: the employer must prove it would have taken the same action anyway. At summary judgment, that means the employer must eliminate genuine disputes on that point.

Summary judgment and “undisputed facts”

Even if one party fails to properly dispute a fact, the judge must still confirm the moving party has evidence for it and that the evidence does not reveal a real factual conflict. Summary judgment is not a default penalty for imperfect briefing when the record itself shows a genuine dispute.

5. Conclusion

Porter v. Trans States Holdings reinforces three practical rules for USERRA litigation in the Tenth Circuit: (1) a supervisor’s “you do a lot of military duty” explanation for non-promotion, tied directly to the employee’s question about being passed over, is not a “stray remark” and can be direct evidence of discriminatory motivation; (2) once motivating factor is shown, USERRA requires the employer to prove same-action causation, and courts err by reverting to a plaintiff-focused “pretext” requirement; and (3) summary judgment demands record verification even when the nonmovant’s fact-by-fact response is procedurally deficient. The opinion’s significance lies less in creating a new test than in enforcing USERRA’s distinctive burden structure and the nexus-centered approach to workplace remarks—making it materially harder for employers to win USERRA cases on thin, largely testimonial justifications at the summary-judgment stage.