PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
            _________________

                  No. 16-2492
               _________________

            ANTHONY J. CARROLL

                        v.

    DELAWARE RIVER PORT AUTHORITY,

                            Appellant
               _________________

  On Appeal from the United States District Court
          for the District of New Jersey
            (D.C. No. 1:13-cv-02833)
      District Judge: Hon. Noel L. Hillman
               _________________

   Submitted Under Third Circuit L.A.R. 34.1(a)
              November 18, 2016

Before: AMBRO, SHWARTZ, and FUENTES, Circuit
                  Judges

           (Filed: December 12, 2016)
Marisa J. Hermanovich, Esq.
Matthew S. Wolf, Esq.
Matthew S. Wolf
1236 Brace Road, 2nd Floor
Cherry Hill, NJ 08034

      Attorneys for Appellee

Rufus A. Jennings, Esq.
Carla P. Maresca, Esq.
Deasey Mahoney & Valentini
1601 Market Street, Suite 3400
Philadelphia, PA 19103

      Attorneys for Appellant

                    _________________

                OPINION OF THE COURT
                   _________________


FUENTES, Circuit Judge.

          After the District Court denied Plaintiff Anthony J.
Carroll’s motion for partial summary judgment and
Defendant Delaware River Port Authority’s motion for
summary judgment, it certified the following legal question
for our review: in a failure-to-promote discrimination suit
under the Uniformed Services Employment and
Reemployment Rights Act (“USERRA,” 38 U.S.C. § 4301, et
seq.), must a plaintiff plead and prove that he or she was



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objectively qualified for the position sought? We now answer
that question in the negative. In our view, plaintiffs need not
plead or prove that they are objectively qualified in order to
meet their initial burden under USERRA; instead, employers
may raise a plaintiff’s lack of qualifications as a non-
discriminatory justification for declining to promote the
plaintiff, notwithstanding his or her military service.

                               I.

          This case centers on Carroll’s employment at the
Port Authority. Carroll was first hired by the Port Authority
in 1989 as a police officer. Between 1989 and 2009, he was a
member of the uniformed services in various capacities,
including six years as a corpsman in the United States Navy
and ten years as a member of the Pennsylvania National
Guard. When not on active duty in the military, Carroll
maintained his employment with the Port Authority,
ascending to the rank of corporal in the Port Authority Police
in 2004.

            Carroll was again ordered to active duty in late
2008 and deployed to Iraq in early 2009, where he sustained
injuries leading to such conditions as cervical spondylosis,
degenerative disk disease, bilateral torn rotator cuffs, brain
injury, and high-frequency hearing loss. Carroll returned to
the United States in late 2009 and was in rehabilitation for his
injuries until his honorable discharge in late 2013. Carroll
has not worked for the Port Authority since he was deployed
to Iraq in early 2009.

        In October 2010 and October 2012, while on active
duty but in rehabilitation, Carroll applied to the Port



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Authority for a promotion to the rank of sergeant. Although
he was interviewed in both 2010 and 2012, he was not
promoted on either occasion.

           Carroll then sued the Port Authority under
USERRA, alleging that he was not promoted to sergeant in
2010 or 2012 due to unlawful discrimination on the basis of
his military service. After motion practice and discovery in
the District Court, Carroll filed a motion for partial summary
judgment—related to the 2012 promotion—and the Port
Authority filed a motion for summary judgment on all claims.
In so moving, the Port Authority argued that, to survive
summary judgment, Carroll must raise a triable issue of fact
on the question of whether he was objectively qualified for a
promotion to sergeant. The District Court denied both
motions for summary judgment and Carroll’s subsequent
motion for reconsideration. The Port Authority then moved
the District Court for an interlocutory appeal on the question
of whether Carroll must plead and prove that he was
objectively qualified for a promotion to sergeant in order to
sustain his discrimination suit under USERRA. The Court
granted the Port Authority’s motion and certified that
question for appeal.

                             II.1

           The question presented is straightforward: in a
failure-to-promote discrimination suit under USERRA, must
a plaintiff plead and prove that he or she was objectively


1
 The District Court had jurisdiction under 28 U.S.C. § 1331.
We have appellate jurisdiction under 28 U.S.C. § 1292(b).




                              4
qualified for the position sought? The answer, we find, is
equally straightforward: no.
           Congress enacted USERRA in 1994 to, inter alia,
“encourage noncareer service in the uniformed services by
eliminating or minimizing the disadvantages to civilian
careers and employment which can result from such
service.”2 To this end, USERRA prohibits the “deni[al] [of]
initial employment, reemployment, retention in employment,
promotion, or any benefit of employment by an employer on
the basis of [a person’s] membership, application for
membership, performance of service, application for service,
or obligation [in a uniformed service].” 3 When plaintiffs
allege discrimination in violation of USERRA, courts apply a
two-step burden shifting framework adapted from NLRB v.
Transportation Management Corp.:4

                [A]n employee making a
                USERRA        claim    of
                discrimination [] bear[s]
                the initial burden of
                showing        by       a

2
    38 U.S.C. § 4301(a)(1).
3
    38 U.S.C. § 4311(a).
4
  

(1983), abrogated by Dir., Office of Workers’
Comp. Programs, Dep’t of Labor v. Greenwich Collieries,

(1994). In Transportation Management, the
Supreme Court applied a two-step burden shifting framework
in the context of the National Labor Relations Act, which
prohibits the discharge of a worker based on his or her union
activity. 

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              preponderance      of    the
              evidence       that      the
              employee’s          military
              service was “a substantial
              or motivating factor” in the
              adverse         employment
              action. If this requirement
              is met, the employer then
              has the opportunity to
              come       forward     with
              evidence to show, by a
              preponderance      of    the
              evidence, that the employer
              would have taken the
              adverse action anyway, for
              a valid reason.5

           The Port Authority seeks to alter this framework by
importing an additional requirement from other anti-
discrimination statutes. According to the Port Authority,
USERRA plaintiffs must sustain their initial burden by
demonstrating two facts by a preponderance of the evidence:
(1) that they were objectively qualified for the position
sought, and (2) that their military service was “a substantial or
motivating factor” in the adverse employment action. In this
case, for example, the Port Authority claims that Carroll was
physically incapable of performing a sergeant’s duties due to
his injuries and was therefore unqualified for the position.
Under the Port Authority’s proposed framework, Carroll

5
  Sheehan v. Dep’t of Navy, 

, 1013 (Fed. Cir.
2001) (utilizing the Transportation Management framework
to analyze USERRA claims).




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could not meet his initial burden under USERRA—even if he
could show that his military service was “a substantial or
motivating factor”—because he could not demonstrate that he
was objectively qualified for the promotion to sergeant.
           Carroll, on the other hand, contends that a
plaintiff’s objective qualifications are only relevant to the
USERRA analysis after a plaintiff meets his or her initial
burden. Once a plaintiff has shown that his or her military
service was “a substantial or motivating factor” in the adverse
employment action, Carroll argues, the employer may then
advance non-discriminatory reasons—which may include a
lack of qualifications—to show that the employer would have
taken the adverse action anyway. In other words, Carroll
asserts that a plaintiff’s objective qualifications are certainly
relevant, but they are an affirmative defense to be advanced
by the employer, not an additional hurdle to be cleared by
USERRA plaintiffs.

           We find Carroll’s reading more persuasive. The
statute is clear that an employer violates USERRA if a
plaintiff’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.” 6 All courts of appeals
interpreting USERRA have recognized this unambiguous
language and held that a plaintiff meets his or her initial
burden simply by showing that military service was “a
substantial or motivating factor” in the adverse employment




6
    38 U.S.C. § 4311(c)(1).




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action. 7 Indeed, this Court has so held on more than one
occasion, albeit in non-precedential opinions. 8 The clear
implication of these uniform holdings is that plaintiffs need
not plead or prove that they are objectively qualified in order
to meet their initial burden under USERRA. Instead, it is
incumbent on employers to raise a plaintiff’s lack of
qualifications at the second step of our USERRA framework:
an employer may argue, for example, that it would have taken
the same employment actions absent a plaintiff’s military
service because he or she lacked the necessary qualifications
for the position in question. 9 This construction not only
comports with the plain text of USERRA and holdings of

7
  Angiuoni v. Town of Billerica, 

, 39 (1st Cir.
2016); Bradberry v. Jefferson Cty., Tex., 

, 547
(5th Cir. 2013); Bobo v. United Parcel Serv., Inc., 

, 755 (6th Cir. 2012); Madden v. Rolls Royce Corp., 

, 638 (7th Cir. 2009); Wallace v. City of San Diego,

, 624 (9th Cir. 2006); Maxfield v. Cintas Corp.
No. 2, 

, 551 (8th Cir. 2005); Coffman v.
Chugach Support Servs., Inc., 

, 1239 (11th Cir.
2005); Hill v. Michelin N. Am., Inc., 

, 312 (4th
Cir. 2001); 

; Gummo v. Vill. of
Depew, N.Y., 

, 106 (2d Cir. 1996).
8
  See, e.g., Murphy v. Radnor Twp., 542 F. App’x 173, 177
(3d Cir. 2013) (not precedential); Hart v. Twp. of Hillside,
228 F. App’x 159, 162 (3d Cir. 2007) (not precedential).
9
  See 

(considering the
employee’s lack of qualifications as part of the employer’s
evidence at the second step of the USERRA analysis, not as
part of the employee’s initial burden).




                              8
courts of appeals, but also effects Congress’s intent to
“clarify, simplify, and, where necessary, strengthen the
[previous] veterans’ employment and reemployment rights
provisions.”10
          The Port Authority’s reliance on other anti-
discrimination statutes does not alter our conclusion. For
example, the Port Authority places much weight on the
uncontroversial proposition that Title VII of the Civil Rights
Act, the Americans with Disabilities Act (“ADA”), and the
Age Discrimination in Employment Act (“ADEA”) have all
been interpreted, under the McDonnell Douglas framework,
to require an initial showing that the plaintiff is objectively




10
   

(quoting H.R. Rep. No. 65, 103d
Cong., 2d Sess. 18 (1994)). As courts have explained,
USERRA was enacted in 1994 to more broadly protect
uniformed service members from discrimination.            Id.;

. For example, the Supreme
Court held in Monroe v. Standard Oil Co., 

(1981), that liability for violations of the Vietnam Era
Veterans’ Readjustment Assistance Act (USERRA’s
predecessor) was unfounded unless the employee’s reserve
status was the sole motivation for the discriminatory conduct.
In response, Congress passed USERRA and made clear “that
a violation occurs when a person’s military service is a
‘motivating factor’ in the discriminatory action, even if not
the sole factor.” 

(citing 38 U.S.C.
§ 4311(c)(1)); see also 

. Our
interpretation of USERRA today embraces this congressional
objective.




                              9
qualified for the position sought. 11 But the Transportation
Management framework set forth above, 12 rather than the
McDonnell Douglas framework, has been consistently
applied to analyze USERRA claims. 13 The Port Authority
has not identified any case in which a plaintiff failed to meet
his or her initial burden under the Transportation
Management framework by failing to plead and prove
objective qualifications.

                             IV.

           For the foregoing reasons, we conclude that Carroll
need not plead and prove that he was objectively qualified for
the 2010 and 2012 promotions to sustain his USERRA
discrimination suit. The case will be remanded to the District
Court for further proceedings consistent with this Opinion.




11
  See Burton v. Teleflex Inc., 

, 426 (3d Cir.
2013) (using the McDonnell Douglas framework to analyze
Title VII and ADEA claims, including the requirement that a
plaintiff show he or she was qualified for the position in
question); Williams v. Phila. Hous. Auth. Police Dep’t, 

, 759 n.3, 761 (3d Cir. 2004) (using the McDonnell
Douglas framework to analyze ADA claims, including the
requirement that a plaintiff show he or she was “otherwise
qualified to perform the essential functions of the job”).
12
     See supra note 5.
13
     See supra note 7.




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