Submitted: November 14, 2019
from United States District Court for the District of
Nebraska - Lincoln.
GRUENDER, KELLY, and ERICKSON, Circuit Judges.
Gruender, Circuit Judge.
McConnell appeals the district court's 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.
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
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.
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."
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.
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.
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).
"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. § 4311(b),
however, USERRA does not "provide a remedy for trivial