NOT FOR PUBLICATION FILED

DEC 6 2024

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUSTIN BAKER, No. 23-4364 D.C. No. Plaintiff - Appellant, 2:21-cv-00162-TOR v.

MEMORANDUM*

UNITED PARCEL SERVICE, INC.,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, District Judge, Presiding

Submitted December 2, 2024** San Francisco, California

Before: BENNETT, BRESS, and FORREST, Circuit Judges.

Justin Baker appeals the district court’s grant of summary judgment in favor

of his employer, United Parcel Service, Inc. (UPS), on his claims of retaliation in

violation of the Uniformed Services Employment and Reemployment Rights Act

(USERRA), 38 U.S.C. § 4301 et seq., and the Washington Law Against

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Discrimination (WLAD), Wash. Rev. Code § 49.60.210. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

We review de novo the district court’s grant of summary judgment, viewing

the evidence in the light most favorable to Baker, to determine whether there are

genuine issues of material fact. See 3500 Sepulveda, LLC v. Macy’s W. Stores,

Inc., 980 F.3d 1317, 1321 (9th Cir. 2020).

1. We analyze Baker’s USERRA § 4311 retaliation claim under the burden

shifting framework set out in NLRB v. Transportation Management Corp., 462

U.S. 393 (1983). See Wallace v. City of San Diego, 479 F.3d 616, 624 (9th Cir.

2007). First, an employee must show his military service or protected action under

the statute was a “motivating factor” in the adverse employment action. Leisek v.

Brightwood Corp., 278 F.3d 895, 899 (9th Cir. 2002) (quoting 42 U.S.C.

§ 4311(c)(1)). An employee’s military status need not be the “sole motivation” for

the adverse decision; the military service need only be “a substantial or motivating

factor.” Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001) (quoting

NLRB, 462 U.S. at 400–01). If the employee makes this showing, the burden shifts

to the employer who “may then avoid liability only by showing, as an affirmative

defense, that the employer would have taken the same action without regard to the

employee’s protected status.” Leisek, 278 F.3d at 899.

2 23-4364 Baker alleged USERRA retaliation claims based on the following: (1) after

suffering an injury at work, Baker was initially assigned Temporary Alternative

Work (TAW), but he was later denied that work, which resulted in diminished

wages; and (2) after Baker was rehabilitated, he was twice not allowed to return to

work for a total of two weeks, resulting in additional wage loss. We assume that

Baker engaged in statutorily protected activity in filing his underlying class action

suit against UPS, and that the wage losses were adverse employment actions under

USERRA. But we agree with the district court that Baker has failed to meet his

burden of showing that his USERRA protected activity was a “motivating factor”

for UPS’s adverse employment decisions.

Baker failed to present any direct evidence of retaliatory motivation.

Baker’s managers all testified that when Baker was removed from TAW, they were

unaware of his class action lawsuit. At the time of the two-week denial of his

return to work, Baker’s manager Robert Fisher was aware of Baker’s suit.

But notwithstanding Baker’s conclusory testimony, it was not Fisher, but

UPS’s Health and Safety Department, that made the decision to remove Baker

from TAW and to deny his return to work. See Nilsson v. City of Mesa, 503 F.3d

947, 952 n.2 (9th Cir. 2007) (quoting Fed. Trade Comm’n v. Publ’g Clearing

House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997), as amended) (“A conclusory,

self-serving affidavit, lacking detailed facts and any supporting evidence, is

3 23-4364 insufficient to create a genuine issue of material fact.”). And Baker has presented

no evidence that Curtis Wentler, the Health and Safety manager responsible for

these decisions, was aware of Baker’s suit.

Even if there were a genuine dispute of material fact as to whether Baker’s

lawsuit was a “motivating factor,” UPS has sufficiently shown that it “would have

taken the same action without regard to [Baker’s] protected status.” Leisek, 278

F.3d at 899. UPS policy permitted TAW assignments only if the alternative work

was both available and would not cause the employee to get hurt further. Baker

admitted that he told a supervisor his TAW assignment made him “a little sore.”

UPS’s Health and Safety Department then removed Baker from TAW because the

work was worsening his injury.

Following completion of his physical rehabilitation, Baker sought to return

to work on two occasions. He was first unable to return to work because his initial

medical release note permitted him to work only eight hours per day for two

weeks. It is UPS standard practice to permit an employee to return to work only if

the medical release note does not restrict the number of hours the employee can

work.

Baker then obtained a second release note removing the hours restriction,

but this second release note was written by a provider who was not his original

treatment provider. UPS policy requires employees to obtain a release note from

4 23-4364 the provider who initially assessed their restrictions or, if they changed providers,

to explain that there was such a change.

Once Baker provided evidence of the provider change, he was immediately

permitted to return to work. There is no dispute that these were UPS’s policies,

that these policies were not applied discriminatorily, and that the policies applied

to Baker’s circumstances. This met UPS’s burden, at summary judgment, to

demonstrate that there is no genuine dispute that UPS would have taken the same

action irrespective of Baker’s filing of his lawsuit.

2. Baker’s claims fare no better under a cat’s paw theory of liability. “When

the company official who makes the decision to take an adverse employment

action is personally acting out of hostility to the employee’s membership in or

obligation to a uniformed service, a motivating factor obviously exists.” Staub v.

Proctor Hosp., 562 U.S. 411, 417 (2011). Cat’s paw liability exists “when that

[decision-making] official has no discriminatory animus but is influenced by

previous company action that is the product of a like animus in someone else.” Id.

But if an employer takes an action “for reasons unrelated to the supervisor’s

original biased action,” as proven by the employer, “then the employer will not be

liable.” Id. at 421.

For Baker’s cat’s paw theory to work, we must assume that Wentler made

the adverse employment decisions. As discussed, Baker failed to present evidence

5 23-4364 that his managers—the predicate decisionmakers—were biased against him for

filing his suit. Even assuming Baker’s managers were biased, there is no evidence

that the information they gave Wentler was infected by that bias. Again, it is

undisputed that he told a supervisor that his TAW assignment was making him

“sore,” that his first medical release note had work hour restrictions, and that his

second release note was not from his original provider. There was therefore no

genuine dispute of material fact as to whether Wentler was influenced by an

allegedly biased employee. See Acosta v. Brain, 910 F.3d 502, 515 (9th Cir. 2018)

(noting for a cat’s paw theory of liability, the biased employee’s “influence with

the decisionmaker [must] be strong enough to actually [have] cause[d] the adverse

employment action” (quoting Zamora v. City of Houston, 798 F.3d 326, 332 (5th

Cir. 2015) (alterations in original))).

3. The district court also properly granted summary judgment to UPS on

Baker’s WLAD claims. The analysis of the WLAD claim is virtually identical to

the analysis of Baker’s USERRA claim. See Espinoza v. City of Seattle, 458 F.

Supp. 3d 1254, 1284–85 (W.D. Wash. 2020). Claims for adverse action under the

WLAD, like USERRA, proceed under a burden shifting framework. See Scrivener

v. Clark Coll., 334 P.3d 541, 546 (Wash. 2014). First, the plaintiff must establish a

prima facie case that “(1) the employee took a statutorily protected action, (2) the

employee suffered an adverse employment action, and (3) a causal link between

6 23-4364 the employee’s protected activity and the adverse employment action.” Cornwell

v. Microsoft Corp., 430 P.3d 229, 234 (Wash. 2018). Then the burden shifts to the

employer to “articulate a legitimate, nondiscriminatory reason for the adverse

employment action.” Scrivener, 334 P.3d at 546. If the employer meets this

burden, the plaintiff must provide evidence that the employer’s reason was

pretextual. Id.

As discussed, Baker has not made a showing that his supervisors or Wentler

had a retaliatory motivation in making the adverse employment decisions. And, as

discussed, there is no genuine dispute of material fact that UPS would have made

the same adverse decisions without regard to Baker’s protected activity.

AFFIRMED.

7 23-4364