Simmons
Simmons v. Herbalife International of America, Inc.
Opinion
Lead Opinion
MEMORANDUM **
Darryel D. Simmons appeals the district court’s summary judgment in favor of Herbalife International of America, Inc. in his action alleging wrongful termination in violation of the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4311 (c) (“USERRA”). We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review de novo, Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir.2002), and we reverse and remand.
Herbalife terminated Simmons from his position as the Director of Information Technology Operations, Network Services the day he returned to work from military duty with the United States Marine Corps Reserve. “A violation of USERRA occurs when a person’s membership, ... service, ... or obligation for" service 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, ... service, ... or obligation for service.” 38 U.S.C. § 4311 (c)(1) (emphasis added); see also Leisek, 278 F.3d at 898 (citing Sheehan v. Dep’t of the Navy, 240 F.3d 1009, 1012 (Fed.Cir.2001) (construing USERRA)).