SCOVT affirms summary judgment for employer in discrimination case.

Brown v. State, 2013 VT 119 (13-Dec-2013)

BURGESS, J. Plaintiff Daniel Brown appeals from a superior court decision granting summary judgment in favor of the State on plaintiff’s claim of employment discrimination in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4311. He contends that summary judgment was improper because genuine material issues of fact remained as to whether his membership in the Vermont National Guard was a motivating factor in the State’s decisions not to promote him, and ultimately to terminate him from his position. We affirm.

Plaintiff adduced no evidence to show that his non-promotion was motivated by his membership in the Vermont National Guard or his possible deployment. He did not show that his qualifications were similar, equal, or superior to those of the individuals selected for regular positions at Southern State. Certain stray remarks by supervisors, coupled with the fact that none of the soon-to-deployed applicants was promoted, was not sufficient to raise a genuine factual dispute as to discriminatory motive. There is no evidence that these supervisors played any role in the employment decisions at issue. The mere fact of non-promotion does not support an inference of discrimination.

ROBINSON, J., dissenting. The summary judgment analysis in a case like this, in which the critical disputed fact is the employer’s motives for failing to promote, and then for subsequently terminating plaintiff, is particularly challenging. On the one hand, a plaintiff must have some evidence of discrimination other than an adverse action and membership in the protected class in order to establish a legally sufficient case. On the other hand, circumstantial evidence will often be a factor in these cases, for discrimination is seldom open or notorious. The ultimate assessment of the inferences to be drawn from the facts is for the jury rather than the court, unless reasonable minds could not differ on the question of knowledge. Given the record before us, I conclude that reasonable minds could well differ on the question of whether plaintiff’s anticipated deployment was a substantial factor in Southern State’s decisions to: (1) not promote plaintiff and (2) subsequently terminate plaintiff’s employment.