Cheryl P. Francis v. BOOZ, ALLEN & HAMILTON, INCORPORATED, No. 05-1523 

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 CHERYL P. FRANCIS,
Plaintiff-Appellant,
v.
BOOZ, ALLEN & HAMILTON,
INCORPORATED, No. 05-1523 
Defendant-Appellee.
RESERVE OFFICERS ASSOCIATION,
Amicus Supporting Appellant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CA-04-669-1)
Argued: March 16, 2006
Decided: June 22, 2006
Before WILKINS, Chief Judge, and NIEMEYER and
DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion, in
which Chief Judge Wilkins and Judge Niemeyer joined.
COUNSEL
ARGUED: Adam Augustine Carter, NOTO & OSWALD, P.C.,
Washington, D.C., for Appellant. Stephen William Robinson,

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MCGUIREWOODS, L.L.P., McLean, Virginia, for Appellee. ON
BRIEF: R. Scott Oswald, THE EMPLOYMENT LAW GROUP,
P.L.L.C., Washington, D.C., for Appellant. David L. Greenspan,
MCGUIREWOODS, L.L.P., McLean, Virginia, for Appellee. Samuel
F. Wright, RESERVE OFFICERS ASSOCIATION, Washington,
D.C., for Amicus Supporting Appellant.
OPINION
DUNCAN, Circuit Judge:
This appeal requires us to consider the parameters of the Uni-
formed Services Employment and Reemployment Rights Act of 1994,
38 U.S.C.A. §§ 4301-4333 (West 2002 & Supp. 2005) ("USERRA"),
enacted by Congress to protect the employment and reemployment
rights of veterans. Cheryl Francis brought suit against her former
employer, Booz, Allen & Hamilton, Inc. ("BAH"), alleging discrimi-
nation, wrongful termination, and retaliation in violation of USERRA.
The parties filed cross-motions for summary judgment. On April 22,
2005, the district court granted summary judgment to BAH on all
counts, denying Francis’ motion and dismissing her complaint with
prejudice. Francis timely appeals. For the reasons that follow, we
affirm.
I.
Given the procedural posture of this case, we summarize the facts
in the light most favorable to Francis. Evans v. Techs. Applications
& Serv. Co., 80 F.3d 954, 958 (4th Cir. 1996). Francis began working
for BAH in Crystal City, Virginia in 1996 and was promoted to a
position as a Level II Senior Consultant in 2000. Until March 2003,
Francis worked as a computer technician pursuant to a contract with
one of BAH’s clients, the Office of Solid Waste and Emergency
Response ("OSWER") of the Environmental Protection Agency
("EPA"). Francis performed a variety of functions as required by
OSWER, categorized by BAH as Tier I (low-level call center work),
Tier II (face-to-face work and higher-level problem solving), or Tier
III (networking assistance). Because of the nature of the work, Francis
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performed most Tier I tasks at her desk and most Tier II and III
assignments elsewhere. Her usual workday was from 8:00 A.M. until
4:30 P.M., though she would, depending on OSWER’s needs, some-
times work the late shift from 10:00 A.M. to 6:30 P.M. During the
performance of these duties, Francis engaged in some conduct that
BAH found unprofessional and for which Francis was formally repri-
manded several times in 2002.
During the time of her employment with BAH, Francis was also a
petty officer in the United States Naval Reserves. As part of her mili-
tary obligation, she was deployed on full-time active duty beginning
March 16, 2003. Following her discharge from active duty, Francis
resumed her duties at BAH on August 11, 2003. It is undisputed that
Francis retained the same title, salary, consulting engagement, and
work location upon her return.
There were, however, certain changes in Francis’ responsibilities
and work schedule following her return from deployment. First,
although Francis continued to perform a mix of Tier I and Tier II
work, she performed almost no Tier III work. This change resulted
from EPA’s decision to consolidate its network operations and trans-
fer the maintenance and administration of OSWER’s network to
another vendor. By the time Francis returned from deployment, this
consolidation was nearly complete, and no one at BAH performed
substantial Tier III work on the OSWER contract.
A second change related to Francis’ work schedule. On August 28,
BAH informed her that she would be permanently assigned to the late
shift.1 Unbeknownst to BAH, this revision created a conflict with eve-
ning undergraduate classes in which Francis had enrolled on August
26, 2003. Francis, however, arranged for various supervisors and co-
workers to replace her when her work schedule conflicted with her
classes. Francis did not miss any classes as a result of her new sched-
ule. She did, however, inform BAH on August 29 that she believed
that her USERRA rights were being violated.
1From August 11, 2003, until August 28, 2003, Francis worked her
pre-deployment schedule from 8:00 A.M. until 4:30 P.M. with occa-
sional late-shift work on an as-needed basis.
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Upon her return, Francis engaged in certain behavior which BAH
found objectionable. For example, on various occasions, she left work
early without authorization. She was also absent from a team confer-
ence call. A manager claimed to observe her slamming down the
phone after exchanges with customers. Co-workers lodged various
complaints with the Department Project Manager regarding Francis’
behavioral and attendance issues. BAH believed that Francis’ actions
violated BAH’s "Core Values"—an employee conduct policy that
provides the framework of professional behavior for dealing with cli-
ents and colleagues at BAH. Consequently, on November 14, 2003,
BAH issued Francis a Notice of Probation, which warned Francis that
"failure to immediately address these issues would result in termina-
tion of . . . employment." J.A. at 276. BAH based this decision on
Francis’ conduct both pre-deployment and post-deployment. BAH
subsequently provided Francis with a plan for improvement wherein
Francis was put on notice that unless she displayed "immediate, sub-
stantial, and sustained progress . . . termination of employment
[would] occur." J.A. at 431.
Less than two weeks after receiving the Notice of Probation, Fran-
cis again left the office without authorization in order to attend to a
customer at an off-site location. On December 15, 2003, BAH termi-
nated Francis’ employment, and this action followed.
II.
A.
We review the district court’s grant of summary judgment de novo.
Evans, 80 F.3d at 958. We apply the same legal standards as the dis-
trict court and uphold the summary judgment only if the evidence,
viewed in the light most favorable to the non-moving party, entitles
the moving party to judgment as a matter of law. Id.
B.
Francis brings three claims under USERRA, which we will exam-
ine in turn. She first claims that BAH discriminated against her in vio-
lation of both §§ 4311(a) and 4312. Section 4311(a) provides that "[a]
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person [such as Francis] shall not be denied . . . any benefit of
employment by an employer on the basis of [her membership in the
armed services]." § 4311(a). Under § 4312(a), "any person whose
absence from a position of employment is necessitated by reason of
service in the uniformed services shall be entitled to the reemploy-
ment rights and benefits of [USERRA]." § 4312(a). Francis’ discrimi-
nation claim alleges that BAH denied her "reemployment rights" in
violation of § 4312 and "benefits of employment" in violation of
§ 4311.
Francis’ second claim alleges improper discharge in violation of
§ 4316(c) of USERRA, which states in relevant part that "[a] person
who is reemployed by an employer under [USERRA] shall not be dis-
charged from such employment, except for cause . . . ." § 4316(c).
Finally, Francis’ third claim alleges improper retaliation in viola-
tion of § 4311(b) of USERRA, which prohibits employers from "tak[-
ing] any adverse employment action against any person because such
person has taken an action to enforce a protection afforded any person
under [USERRA], . . . or has exercised a right provided for in
[USERRA]." § 4311(b) (internal numeration omitted). Specifically,
Francis’ third claim alleges that BAH dismissed her in violation of
this section because she indicated her desire to exercise her rights
under USERRA. For the reasons stated below, we hold that the dis-
trict court properly granted summary judgment to BAH on all three
claims.
C.
1. Claim One—Discrimination
Francis first argues that the district court erred in holding that BAH
did not discriminate against her in violation of USERRA with respect
to the changes in her work schedule and responsibilities. Although
Francis alleges discrimination under both §§ 4311 and 4312, the pro-
cedural requirements of the two provisions differ. An employee pro-
ceeding under § 4311 has the burden of proving that the employer
discriminated against him or her based on a status or activity pro-
tected by USERRA. 20 C.F.R. § 1002.22 (2006). Section 4312
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imposes no such burden. 20 C.F.R. § 1002.33 (2006). We consider
Francis’ claims under both provisions.2
We begin by noting that, "[b]ecause USERRA was enacted to pro-
tect the rights of veterans and members of the uniformed services, it
must be broadly construed in favor of its military beneficiaries." Hill
v. Michelin N. Am., Inc., 252 F.3d 307, 312-13 (4th Cir. 2001). In
addition, while USERRA is a relatively recent statutory scheme, we
can and should use relevant pre-USERRA case law as a guide toward
understanding USERRA: "[i]n enacting USERRA, Congress . . .
emphasized that Federal laws protecting veterans’ employment and
reemployment rights for the past fifty years had been successful and
that the large body of case law that had developed under those statutes
remained in full force and effect, to the extent it is consistent with
USERRA." 20 C.F.R. § 1002.2 (2006).
"The first step in determining the meaning of a statute is to exam-
ine the statute’s plain language. In doing so, we look at ‘the language
itself, the specific context in which that language is used, and the
broader context of the statute as a whole.’" United States v. Andrews,
441 F.3d 220, 222 (4th Cir. 2006)(internal citation omitted) (quoting
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)). USERRA pro-
vides a multi-tiered and "comprehensive remedial scheme to ensure
the employment and reemployment rights of those called upon to
serve in the armed forces of the United States." Morris-Hayes v. Bd.
of Educ., 423 F.3d 153, 160 (2d Cir. 2005) (discussing USERRA in
the context of Section 1983 claims). We analyze this comprehensive
scheme holistically, careful to interpret each section in a manner that
does not render any other sections inconsistent or superfluous. See
Soliman v. Gonzales, 419 F.3d 276, 283 (4th Cir. 2005). With this
guidance in mind, we consider the relevant statutory sections.
2There is some dispute over whether Francis properly raised the appli-
cability of § 4312 in the district court. If she did not raise the issue in the
district court, then we cannot consider it here under the longstanding rule
that "issues raised for the first time on appeal generally will not be con-
sidered." Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993). After
reviewing the record of the proceedings below, we conclude that Francis
preserved her arguments under § 4312 and will, accordingly, fully con-
sider those arguments here.
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a. Section 4312
i.
In relevant part, § 4312 states that "any person whose absence from
a position of employment is necessitated by reason of service in the
uniformed services shall be entitled to the reemployment rights and
benefits of [USERRA]." § 4312(a). Francis argues that § 4312 pro-
tects her from discrimination with respect to the terms and conditions
of employment after she has been rehired. Conversely, BAH argues
that the "reemployment" rights protected by §§ 4312 and 4313 apply
only at the instant of reemployment, and that other sections of
USERRA operate to protect employees after they are properly reem-
ployed under §§ 4312 and 4313. We find BAH’s interpretation to be
more faithful to the statutory framework.
As noted above, § 4312 is part of a comprehensive statutory
scheme and must be read in context with the rest of USERRA—
specifically, for purposes of our analysis, §§ 4311 and 4316. "Section
4312 provides that any person whose absence from a position of
employment is necessitated by service in the uniformed services is
entitled to reemployment rights." Warren v. IBM, 358 F.Supp.2d 301,
310 (S.D.N.Y. 2005). Section 4311 prohibits discrimination with
respect to any benefit of employment against persons who serve in the
armed services after they return from a deployment and are reem-
ployed. See id. at 309-10. Finally, § 4316 converts the otherwise at-
will employment status of covered individuals to one in which they
are protected from dismissal except for cause for a period of time.
Id. at 310.
In short, § 4312 requires an employer to rehire covered employees;
§ 4311 then operates to prevent employers from treating those
employees differently after they are rehired; and § 4316 prevents
employers from summarily dismissing those employees for a limited
period after they are rehired. While combining to form comprehensive
protection from the point of rehire to untimely dismissal, each provi-
sion is nonetheless functionally discrete. As one court has noted,
Section 4312 serves only to guarantee service persons’
reemployment without question as to the employer’s intent.
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This interpretation is in keeping with congressional intent in
enacting the USERRA. Finding existing veteran’s right stat-
utes overly complex and ambiguous, leaving veterans and
employers confused as to their rights and responsibilities,
Congress acted "to clarify, simplify, and where necessary,
strengthen the existing veterans’ employment and reemploy-
ment rights provisions." Lapine v. Town of Wellesley, 970 F.
Supp. 55, 58, fn.2. (D. Mass. 1997). Section 4312 places
service people and employers on notice that, upon returning
from service, veterans are entitled to their previous positions
of employment. After being reemployed, the service person
is protected by §§ 4316(c) and 4311.
Jordan v. Air Prods. & Chems., Inc., 225 F.Supp.2d 1206, 1208 (C.D.
Cal. 2002). Put more simply, § 4312 "only entitles a service person
to immediate reemployment and does not prevent the employer from
terminating him the next day or even later the same day." Id. The
apparent harshness of this result is addressed by the fact that §§ 4311
and 4316 operate to protect the employee as soon as she is reem-
ployed.
Francis’ interpretation of § 4312 as requiring BAH to provide "all
of the rights and benefits afforded to her under USERRA" with no
temporal limitation (appellant’s Reply Brief at 15, emphasis in origi-
nal) would render §§ 4311 and 4316 superfluous. If § 4312 provided
ongoing protection after reemployment, it would subsume the specific
guarantees of §§ 4311 and 4316. "[W]e are ‘loath’ to read one statu-
tory provision so as to render another provision of the same statute
superfluous." Gonzales, 419 F.3d at 283 (quoting Cooper Indus. v.
Aviall Servs., Inc., 543 U.S. 157 (2004)). Congress carefully con-
structed USERRA to provide comprehensive protection to returning
veterans, while balancing the legitimate concerns of employers. We
will not upset that balance and render USERRA sections meaningless
by adopting the overly broad interpretation of § 4312 that Francis
seeks. We therefore hold that § 4312 applies to protect a covered indi-
vidual only as to the act of rehiring.
ii.
We now decide whether BAH violated § 4312 when it reemployed
Francis. Section 4312 states that BAH had to provide Francis with
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both "reemployment rights" and "employment benefits." Under its
terms, BAH must reemploy Francis in either "the position of employ-
ment in which [she] would have been employed if [her] continuous
employment . . . with [BAH] had not been interrupted by [military]
service, or a position of like seniority, status and pay, the duties of
which [Francis] is qualified to perform." § 4313(a)(2)(A) (defining
the rights provided by § 4312). In addition, BAH was required to
rehire Francis with her "employment benefits," which include, in rele-
vant part, "any advantage, profit, or privilege . . . that accrues by rea-
son of an employment contract or agreement . . . [including] . . . the
opportunity to select work hours or location of employment."
§ 4303(2). We conclude that BAH complied with both of these
requirements.
The undisputed evidence demonstrates that Francis was rehired
with the same title, salary, consulting engagement, and work location
upon returning. The actions Francis complained of occurred signifi-
cantly after her return to BAH in August of 2003. Accordingly, they
fall outside of § 4312’s scope. Specifically, Francis’ work hours were
not changed until several weeks after she was rehired. She further
admitted during her deposition that changes in her job responsibilities
occurred in late October, 2003.3 In view of Francis’ failure to present
3At her deposition, Francis noted that her pre-deployment job responsi-
bilities involved "setting up the user accounts administratively wise,
deletions, managing the disk space, performing upgrades, [and] desktop
upgrades." J.A. at 523. She later acknowledged that she had these same
responsibilities after returning from deployment:
Q. Now when you returned to work, when you returned after
deployment, were you doing the administrative deletions and
additions?
A. Yes, I was.
Q. Were you doing the user account work after you returned
from deployment?
A. Yes, I was.
Q. Were you doing the disk-based management when you
returned from deployment?
A. Yes, I was.
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any evidence that BAH improperly denied her either "reemployment
rights" or "employment benefits" at the time it rehired her, we hold
that § 4312 does not provide Francis with relief on her discrimination
claim.
b. Section 4311
i.
We now consider whether § 4311 provides Francis with any relief
on her discrimination claim. Section 4311(a) states that "a person
[such as Francis] shall not be denied . . . any benefit of employment
by an employer on the basis of [her membership in the armed ser-
vices]." § 4311(a). As noted above, USERRA defines "benefit of
employment" in relevant part as "any advantage, profit, [or] privilege
. . . that accrues by reason of an employment contract or agreement
. . . [including] . . . the opportunity to select work hours or location
of employment." 38 U.S.C. § 4303(2). Our analysis is guided by the
fact that an employer shall be considered to have engaged in prohib-
ited conduct under § 4311(a) only if the employee’s military status is
a "motivating factor." § 4311(c)(1).
ii.
Francis first contends that, after being reemployed as a Level II
Senior Consultant, she was gradually given more Tier I work than she
had pre-deployment and was no longer given any Tier III work.
Therefore, Francis contends, even though her job title and salary
Q. Were you doing the computer and software upgrades when
you returned from deployment?
A. Yes, I was, initially.
Q. When did that stop, the upgrades?
A. Gradually my duties and responsibilities were further
reduced, and I was designated to just only do call center, answer-
ing the phone.
J.A. at 524-25.
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remained the same, she was effectively demoted. See generally Har-
ris v. City of Montgomery, 322 F.Supp. 2d 1319, 1323 (M.D. Ala.
2004) (noting that a significant change in job responsibilities, even
when pay and title remain the same, can create a jury question as to
whether a "benefit of employment" had been denied). The district
court responded to this argument, noting that
[Francis] offers no support, beyond her own conclusory
opinions, for the contention that her status and duties were
changed and that such changes constituted the denial of a
benefit of employment. . . . [Francis]’ own deposition testi-
mony reveals that she performed nearly identical duties
before and after her deployment, that is, providing both Tier
I and Tier II support (in the Call Center).
Francis v. Booz Allen Hamilton, Inc., 2005 U.S. Dist. LEXIS 8159 at
*8. We agree with the district court. The evidence viewed in the light
most favorable to Francis does indicate that the relative amount of
Tier I, II, and III work that Francis received post-deployment differed
from her pre-deployment workload. This difference, however, was
extremely slight and simply a continuation of her pre-deployment
work patterns—which always involved a mix of Tier I, II, and III
work depending on client needs, as did the responsibilities of other
employees.
Francis’ deposition testimony indicates that she performed Tier I
and Tier II duties both before and after deployment. J.A. 502-03, 515-
16 (noting that she performed Tier I duties both before and after
deployment); 518-20 (acknowledging that she performed Tier II
duties after returning from deployment). In addition, the reduction of
Tier III work began before Francis was deployed, was a direct result
of the change in the OSWER contract, and applied to all employees
in Francis’ position. In response to this evidence, Francis provides
naked speculation and open-ended rhetorical questions. See Appel-
lant’s Brief at 22 (noting that it is "hard to believe" that Tier III work
was not available anywhere within BAH); 25 n.5 (asking, but not
answering, "How many other jobs within BAH on other contracts or
locations required mainly Tier II type work?"). In short, the district
court correctly held that, viewing the evidence in the light most favor-
able to Francis, BAH did not deny Francis a benefit of employment
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by altering the relative amounts of Tier I, II, and III work that she had
after her return from deployment.4
iii.
Francis next contends that BAH denied her a benefit of employ-
ment by changing her work schedule, making it difficult for her to
attend evening classes. USERRA expressly states that "the opportu-
nity to select work hours" constitutes a protected benefit of employ-
ment. § 4303(2). In addition, we have held that a more favorable
working schedule "is, in and of itself, a benefit of employment." Hill,
252 F.3d at 313.
The district court dismissed Francis’ claim, holding that a two-hour
schedule change, which did not change the total number of hours
worked and which Francis had previously worked without objection,
was not significant enough to constitute the denial of a benefit of
employment. We need not decide whether the schedule adjustment,
on these facts, deprived Francis of a benefit of employment. Even if
we so assume, Francis is entitled to relief under USERRA only if she
can demonstrate that her military status was "a motivating factor" in
her schedule change. § 4311(c)(1). While issues of improper motiva-
tion generally involve factual determinations properly left for a jury,
"[m]ere conclusory allegations of motivation do not preclude sum-
4Francis cites several cases in support of the position that changed job
responsibilities can constitute a denial of a benefit of employment. These
cases, however, all involve situations in which the employee’s new job
responsibilities were drastically different from their old responsibilities.
See Harris, 322 F.Supp.2d at 1323 (reassignment from head coach to
assistant coach of the same team); Nichols v. Dep’t. of Veterans Affairs,
11 F.3d 160, 161-63 (Fed. Cir. 1993) (chaplain was reassigned to a posi-
tion in which his immediate supervisor was the person holding his old
job); Carlson v. N.H. Dep’t of Safety, 609 F.2d 1024, 1026 (1st Cir.
1979) (state trooper assigned to new troop that had no overlapping
responsibilities with his original troop); Duarte v. Agilent Techs., Inc.,
366 F.Supp.2d 1039, 1043-46 (D. Col. 2005) (employee given a "signifi-
cantly different" job in which he was transferred from a lead design con-
sultant position to an assistant design consultant position). Francis cites
no cases in which an employee whose job responsibilities changed as lit-
tle as hers was found to have been denied a benefit of employment.
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mary judgment." Yarnevic v. Brink’s, Inc., 102 F.3d 753, 757-58 (4th
Cir. 1996). Francis simply presents no evidence, direct or circumstan-
tial, through which a rational trier of fact could find that BAH was
motivated to change her schedule because of her military service. In
addition, the slight nature of the change and the fact that Francis rou-
tinely worked a similar schedule in the past provides circumstantial
evidence for a conclusion that BAH’s actions were not motivated by
Francis’ military status.5
Accordingly, we affirm the district court’s grant of summary judg-
ment on Francis’ discrimination claim.
2. Claim Two—Improper Discharge
Francis next argues that the district court erred in granting sum-
mary judgment to BAH on her claim of improper discharge. Specifi-
cally, she contends that she presented evidence sufficient to create a
dispute over whether BAH discharged her in violation of § 4316(c).
For the reasons discussed below, we hold that the district court did
not err in deciding this claim on summary judgment.
Section 4316(c) temporarily changes the at-will employment status
of returning veterans. For a certain period of time (dependant on the
5Francis argues as well that BAH denied her a benefit of employment
by changing her physical job location. She bases this contention on the
fact that, upon her rehire, she was allegedly tied to a call center desk per-
forming Tier I tasks instead of being allowed to move around and leave
the workplace. BAH argues that Francis waived this argument by not
raising it in the district court. Francis counters that "at the very least,"
BAH and the district court "could have been put on notice" by her mate-
rials that she was raising the claim. Appellant’s Reply Brief at 5.
In any event, this claim, to the extent that it is properly before us, fails.
Francis acknowledges that her job location argument is "inherent in her
changed responsibilities argument," i.e., that it is intertwined with the
difference between Tier I (which requires the employee to remain at the
call center desk) and Tier II work (which allows employees some free-
dom of location in performing the job). Appellant’s Reply Brief at 5. We
agree with her assessment that this is no more than a restatement of the
work responsibilities argument that we have previously rejected.
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veteran’s length of military service), an employer cannot discharge
the returning veteran "except for cause." § 4316(c). "In a discharge
action based on conduct, the employer bears the burden of proving
that it is reasonable to discharge the employee for the conduct in
question, and that he or she had notice, which was express or can be
fairly implied, that the conduct would constitute cause for discharge."
20 C.F.R. § 1002.248(a) (2006). Because employers have the burden
of proving that the discharge was reasonable, it is difficult for
employers to achieve summary judgment on claims under § 4316(c).
See Alan’s of Atlanta, Inc. v. Minolta Corp., 903 F.2d 1414, 1425
(11th Cir. 1990) ("As is well established, in a summary judgment pro-
ceeding the party against whom the burden of proof falls at trial faces
a challenge more difficult than otherwise."). As in all summary judg-
ments, however, the non-moving party must still provide evidence
sufficient to create an issue for trial. Mere unsupported speculation is
not sufficient to defeat a summary judgment motion if the undisputed
evidence indicates that the other party should win as a matter of law.
See Felty v. Graves-Humphrys Co., 818 F.2d 1126, 1128 (4th Cir.
1987).
In this case, the evidence of Francis’ misconduct at BAH is over-
whelming and largely uncontroverted. She arrived late for work and
left early without permission. She missed scheduled conference calls.
She acted inappropriately to customers and co-workers—engendering
complaints about her behavior and professional attitude from several
of the latter. She left her work station without permission. Supervisors
found her to be evasive, non-responsive, and uncommunicative.
Francis does submit an affidavit in the record in which she indi-
cates that she believed that she was acting professionally and in
accordance with the Core Values during her time at BAH. J.A. at
1044-45. Even viewing this affidavit in the light most favorable to
Francis, however, it does not create a dispute of material fact suffi-
cient to survive summary judgment. The operative legal question is
not whether Francis believed that her dismissal was reasonable or that
she was acting professionally. The operative question is whether,
based on the undisputed evidence in the record, it was objectively rea-
sonable for BAH to dismiss Francis. In this case, the undisputed evi-
dence indicates an extensive pattern of unprofessional misconduct
taking place over the course of years, well documented by BAH, and
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reported to BAH management from a wide variety of co-workers and
other sources. This pattern of misconduct provides a sufficient legal
basis to justify Francis’ dismissal—despite Francis’ subjective views
of her actions. See generally Goldberg v. B. Green & Co., Inc., 836
F.2d 845, 848 (4th Cir. 1988) (noting that opinions and conclusory
assertions are not sufficient to survive summary judgment).6
It is also undisputed that Francis had notice that her misconduct
was cause for discharge. Francis’ Notice of Probation expressly indi-
cated that "this matter is to be taken with extreme seriousness and you
should understand fully that your failure to immediately address these
issues would result in termination of your employment." J.A. at 429.
The Notice of Probation detailed specific instances of misconduct to
be corrected: failing to display a positive demeanor and respond to
simple courtesies by her co-workers, failing to utilize the established
process for late arrivals or absences, repeatedly refusing to do work
assigned by her managers, storming out of the office after meetings,
slamming down the phone on customers, and refusing to let co-
workers know, as required by BAH policy, when she was going to be
away from her desk. J.A. at 429-30. Finally, the Notice indicated what
remedial actions Francis could take in order to avoid dismissal. This
detailed statement, which Francis acknowledges receiving, constitutes
notice sufficient to meet BAH’s burden under § 4316(c).
In short, the evidence of record reflects a systematic history of pro-
fessional misconduct and a refusal to correct that misconduct when
BAH brought it to Francis’ attention. BAH, therefore, had cause to
terminate Francis pursuant to § 4316(c), and we hold that the district
court did not err in granting summary judgment to BAH on this claim.
3. Claim Three—Retaliation
Finally, Francis argues that BAH retaliated against her in violation
of § 4311(b) by terminating her after she informed BAH on August,
29, 2003, that she believed that her USERRA rights were being vio-
6Though Francis’ opinion on the matter is not dispositive, we note that
Francis herself, at deposition, acknowledged the reasonableness of the
expectations that BAH had concerning her conduct and its relation to the
Core Values. J.A. at 544-46.
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lated. In order to succeed on this claim, Francis must demonstrate that
her exercise of her USERRA rights was "a motivating factor in
[BAH’s] action, unless [BAH] can prove that the action would have
been taken in the absence of" Francis’ USERRA complaints.
§ 4311(c)(2).
Francis relies exclusively on the "temporal proximity" between her
August 28 complaint and November Notice of Probation to prove that
her exercise of USERRA rights was a motivating factor in the deci-
sion to terminate her. While temporal proximity between a complaint
and an adverse employment action can, in some cases, be used to sur-
vive summary judgment, it does not suffice here. See Sheehan v.
Dep’t of the Navy, 240 F.3d 1009, 1014 (Fed. Cir. 2001) (noting that
temporal proximity is one of a "variety of factors" that courts can use
to determine improper motivation under USERRA). The actions that
led to Francis’ probation and termination began before her protected
activity, belying the conclusion that a reasonable factfinder might find
that BAH’s activity was motivated by Francis’ USERRA complaints.
"Where timing is the only basis for a claim of retaliation, and gradual
adverse job actions began well before the plaintiff had ever engaged
in any protected activity, an inference of retaliation does not arise."
Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir.
2001); see also Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 67
(1st Cir. 2002) (noting that conduct that occurs both before and after
the event leading to the alleged retaliation cannot form the basis of
a Title IX retaliation claim).
In short, no reasonable factfinder could conclude, based solely on
the evidence in the record, that BAH’s actions against Francis were
taken in retaliation for the exercise of her rights under USERRA.
Accordingly, we affirm the district court’s grant of summary judg-
ment to BAH on the retaliation count.
III.
In conclusion, we hold that the district court did not err in granting
summary judgment to BAH on all three of Francis’ claims. The undis-
puted evidence demonstrates that BAH did not improperly deny Fran-
cis reemployment rights or a benefit of employment. In addition,
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BAH dismissed Francis for cause, and did not retaliate against Francis
in violation of USERRA. The judgment of the district court is
AFFIRMED.
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