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McConnell v. Anixter, Inc.

United States Court of Appeals, Eighth Circuit

December 13, 2019

David McConnell Plaintiff- Appellant
Anixter, Inc. Defendant-Appellee

          Submitted: November 14, 2019

          Appeal from United States District Court for the District of Nebraska - Lincoln.

          Before GRUENDER, KELLY, and ERICKSON, Circuit Judges.

          Gruender, Circuit Judge.

         David McConnell appeals the district court's[1] grant of summary judgment in favor of Anixter, Inc. on his claims that Anixter violated the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301 et seq., by discriminating and retaliating against him on the basis of his prior service in the military and exercise of rights protected under the statute. We affirm.


         McConnell served on active duty in the United States Army from 1999 to 2008. During this time, he suffered two long-term disabilities: (1) a back injury restricting him from lifting more than forty pounds, and (2) post-traumatic stress disorder ("PTSD"). He retired from the Army in 2008.

         In November 2012, Anixter hired McConnell to be the service center manager in its Grand Island, Nebraska facility. During the interview process, McConnell's hiring supervisor told him that Anixter viewed his military experience positively because it meant he had some of the skills needed for the position. Also at this time, McConnell informed Anixter of his service-related disabilities, and Anixter assured him that accommodating these disabilities would not be a problem.

         As service center manager, McConnell directly supervised a number of Anixter employees. In May 2013, McConnell had an altercation with one of his subordinates, ultimately telling her "to get the fuck out of my facility." Subsequently, McConnell's supervisor orally warned him not to use such language. Then in August 2013, McConnell had another altercation with a different subordinate, during which McConnell admitted to raising his voice at her. After this incident, McConnell's supervisor issued him a written warning, notifying him that if he did not "clean up [his] language" and "control [his] temper" moving forward, "further disciplinary action may be necessary up to and including termination."

         During a phone conversation in December 2014, McConnell and his supervisor disagreed about changes the supervisor wanted made to McConnell's supervisees' work schedules. The parties dispute both the tenor and substance of the conversation, but it is undisputed that by the end of the call McConnell was "frustrated" enough that he requested a break to manage his PTSD. His supervisor instead sent him home. Four days later, Anixter fired McConnell.

         In January 2017, McConnell sued Anixter in federal district court. In his two-page complaint, McConnell alleged that he was protected under USERRA and that Anixter violated his rights under the statute. The district court first dismissed the complaint in part and later granted Anixter summary judgment on the remaining counts. McConnell appeals, arguing that the district court erroneously granted Anixter's motion for summary judgment.


         We review a district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. DeLuna v. Mower Cty., 936 F.3d 711, 716 (8th Cir. 2019). We will affirm if there is no genuine dispute of any material fact and the movant is entitled to judgment as a matter of law. Id. "To show a genuine dispute of material fact, a party must provide more than conjecture and speculation." Zayed v. Associated Bank, N.A., 913 F.3d 709, 720 (8th Cir. 2019). Rather, the nonmovant "has an affirmative burden to designate specific facts creating a triable controversy." Crossley v. Ga.-Pac. Corp., 355 F.3d 1112, 1113 (8th Cir. 2004) (internal quotation marks omitted).

         USERRA "prohibit[s] discrimination against persons because of their service in the uniformed services." 38 U.S.C. § 4301(a)(3). As relevant here, USERRA prevents employers from denying former service members "retention in employment . . . or any benefit of employment . . . on the basis" of the individual's status as a former service member and from taking "any adverse employment action against any person because such person . . . exercised a right provided" under USERRA. Id. § 4311(a)-(b). An employer violates USERRA if the individual's military status or exercise of rights protected under USERRA is a "motivating factor" in an employer's actions against the employee. Id. § 4311(c)(1)-(2). In protecting employees from "any adverse employment action," id. ยง 4311(b), however, USERRA does not "provide a remedy for trivial ...

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