                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                      April 4, 2007
                               TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                      Clerk of Court

 U N ITED STA TES O F A M ER ICA,

             Plaintiff-Appellee,

 v.                                                    No. 06-3321
                                             (D.C. No. 06-CV-3123-W EB and
 RU BEN PARTIDA-CERV ANTES,                        04-CR-10029-W EB)
                                                        (D . Kan.)
             Defendant-Appellant.

                                    OR DER *

Before B RISC OE , M cKA Y, and M cCO NNELL, Circuit Judges.

      Defendant pleaded guilty to possession with intent to distribute in excess of

five kilograms of cocaine in violation of 21 U.S.C. § 841(a) and (b)(1)(A) and

was sentenced to the statutory minimum of 120 months’ imprisonment. On direct

appeal, a panel of this court granted the government’s motion to enforce

Defendant’s plea agreement and dismissed the appeal. United States v. Partida-

Cervantes, No. 04-3363 (10th Cir. Jul. 12, 2005) (unpublished).

      *
        After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not be of material assistance in
the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1(G ). The case is therefore ordered submitted without oral argument.
      This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Defendant then filed a § 2255 petition alleging involuntary and unknowing

waiver of appellate rights, ineffective assistance of counsel at sentencing, and

unconstitutional Booker error at sentencing. The district court rejected these

claims and denied Defendant’s request for a certificate of appealability (“COA”).

The district court revisited these claims following Defendant’s motion for

reconsideration, and after further analysis spurred by Defendant’s new arguments,

rejected Defendant’s motion and confirmed its denial of a COA.

      Defendant advances to this court the same arguments he made below in

addition to a claim that the district court erred in not granting an evidentiary

hearing regarding Defendant’s alleged failure to comprehend “safety valve”

relief. However, our consideration of these claims is predicated on our issuance

of a CO A. Defendant is entitled to a COA only if he makes a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do

so, Defendant must demonstrate “that reasonable jurists could debate w hether (or,

for that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (quotation

omitted). In other words, the applicant must show that the district court's

resolution of the constitutional claim was either “debatable or wrong.” Id.

      Between the district court’s original decision denying Defendant’s § 2255

petition and its subsequent decision denying Defendant’s motion to reconsider,

we believe the district court more than adequately addressed Defendant’s
arguments and see no reason to repeat that effort here. The district court’s

well-reasoned opinions concluded that Defendant waived by plea agreement his

right to collaterally challenge his sentence, received effective assistance of

counsel, and comprehended his plea agreement with the aid of counsel and an

interpreter.

      In addition, the district court analyzed, in the alternative, Defendant’s

claimed eligibility for “safety valve” relief and concluded that because his

underlying crime involved kidnapping by threats of violence, he could not satisfy

18 U.S.C. § 3553(f)(2). Given this result, as well as the district court’s correct

determination that Defendant received effective assistance of counsel regarding

this issue, we do not find that the district court abused its discretion by denying

Defendant an evidentiary hearing on this issue. See United States v. Harms, 371

F.3d 1208, 1210 (10th Cir. 2004); United States v. Cox, 83 F.3d 336, 341 (10th

Cir. 1996).

      Consequently, after having carefully reviewed Defendant’s brief, the

district court’s dispositions, and the record on appeal, we conclude that no

reasonably debatable issues are presented by Defendant’s appeal. Accordingly,

we D EN Y Defendant’s request for a certificate of appealability and DISM ISS the

appeal. W e do, however, GR A NT Defendant’s motion to proceed in forma

pauperis.

                                              Entered for the Court

                                              M onroe G. M cKay
                                              Circuit Judge


315 Pa. Superior Ct. 42 (1983)
461 A.2d 625
Selma ISAACSON and Theodore Isaacson
v.
MOBIL PROPANE CORPORATION, and Theodore Isaacson, Supreme Food Service Company, Lester Stark, City of Philadelphia, General Motors Corporation, Custom Sales and Service, Inc., Manchester Tank and Equipment Company of Georgia.
Appeal of MOBIL PROPANE CORPORATION.
Lester STARK
v.
MOBIL PROPANE CORPORATION, Selma Isaacson, Theodore Isaacson, Supreme Food Service Company, City of Philadelphia, General Motors Service, Inc., Manchester Tank and Equipment Company of Georgia.
Appeal of MOBIL PROPANE CORPORATION.
Supreme Court of Pennsylvania.
Argued September 29, 1982.
Filed June 3, 1983.
*44 Robert S. Forster, Jr., Philadelphia, for appellant.
Denise Rae Scott, Assistant City Solicitor, Philadelphia, for appellees.
Before SPAETH, WICKERSHAM and CIRILLO, JJ.
WICKERSHAM, Judge:
This is an appeal from summary judgment entered in a suit which arose out of an explosion at the place of business of Selma and Theodore Isaacson.
Theodore and Selma Isaacson ran a food service business in the City of Philadelphia. Their employees drove food trucks which made regular stops each day during breakfast and lunch hours. Each truck had a propane gas system which provided hot water for coffee. The Isaacsons operated their business out of a rented garage. On June 21, 1973, Lester Stark, who drove one of the Isaacsons' trucks, made his usual round selling food. At about 1:30 in the afternoon he had the propane tanks on the truck filled at Mobil Propane and returned to the garage. Before he left for the day, Stark turned on the propane pilot on his truck, to insure an adequate supply of hot water for making coffee the next day. As it happened, Lester Stark, the Isaacsons and their daughter Linda left the garage at the same time that day. There was an explosion, Theodore Isaacson was momentarily unconscious, Selma Isaacson was seriously injured by falling debris and Lester Stark was burned on the face and arms.
On November 12, 1974, the Isaacsons filed a complaint in trespass against Mobil Propane Corporation, appellant herein, alleging that Mobil Propane's negligence in filling the tank caused the explosion. An assumpsit suit against Mobil *45 Propane was brought by Lester Stark on August 28, 1975 to recover for injuries he suffered in the same explosion. These two cases were consolidated for the purpose of this appeal.
Mobil Propane joined the City of Philadelphia (hereinafter City) alleging that the City inspected, regulated or licensed or that the City had a duty to inspect, regulate or license the trucks and premises of the Isaacsons' business.
Discovery was conducted. The City thereafter filed a motion for summary judgment against plaintiffs, defendant and various co-defendants; Mobil Propane was the only party who opposed the motion. The Honorable Murray C. Goldman granted summary judgment in favor of the City against plaintiffs, defendant and co-defendants on December 16, 1980 and Mobil Propane's appeal timely followed.
Mobil Propane's first issue is:
Does a genuine issue of material fact exist as to whether or not appellee was obligated to inspect completely the trucks and garage and facilities of Plaintiffs, including the propane systems and the use and storage of propane?
Mobil Propane argues that the lower court incorrectly ruled that the City inspected the Isaacsons' trucks merely for the purpose of sanitation and that the City therefore had no duty to inspect the propane systems on the Isaacsons' trucks. "Appellant maintains that the inspections actually undertaken by [the City] were more extensive . . . and therefore, at least a question of material fact exists as to whether or not [the City] was obligated to inspect the propane system on the Isaacsons' trucks." Brief for Appellant at 14.
We are mindful that:
Ordinarily, summary judgment should only be entered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there exists no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Furthermore, summary *46 judgment is only proper in cases which are clear and free from doubt as to the existence of a disputed factual question. In ruling on a motion for summary judgment the court must accept as true all well-pleaded facts in the non-moving party's pleadings, as well as admissions on file, giving to them the benefit of all reasonable inferences to be drawn therefrom. The record as a whole should be examined in the light most favorable to the party opposing the motion and all doubts as to the existence of a genuine issue about a material fact must be resolved in that party's favor, that is, against the entry of summary judgment. In disposing of such a motion the court's function is not to decide issues of fact, but solely to determine whether there are material issues of fact to be decided.
Community Medical Services v. Local 2665, 292 Pa.Super. 238, 242, 437 A.2d 23, 25 (1981) (citations omitted). See also, Woytek v. Benjamin Coal Co., 300 Pa.Super. 397, 446 A.2d 914 (1982). In this case, however, we believe that summary judgment was correctly granted.
At a deposition Theodore Isaacson testified that the City inspected both the food trucks and the garage where they were housed. He stated that the City conducted unannounced spot checks of the trucks; as he put it "Well, they were interested in cleanliness, the temperature of the perishables, they made sure there was hot water." Reproduced Record at 115a. "Now, in the building itself, they were more particular. The floors had to be clean, trash receptacles had to have covers; toilet facilities, kitchen  sanitary conditions; the people handling the food  x-rays, hairnets etc., etc." Yet when Theodore Isaacson was asked whether any of the City's inspectors discussed the propane system on the trucks his reply was "No." Reproduced Record at 116a.
Mobil Propane argues that the extent of an inspection is a question of fact and that Theodore Isaacson's testimony raised a genuine issue of fact as to whether the City was obligated to inspect the propane systems. The lower court *47 correctly rejected this view, noting that "the uncontradicted depositions of the plaintiffs clearly showed that the City inspected the Isaacsons' trucks and facilities only for the limited purpose of checking sanitation." Lower ct. op. at 5.
The second Restatement of Torts summarizes the duty imposed upon one who renders a service:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking.
Restatement (Second) of Torts § 323.
In this case, the evidence relied upon by Mobil Propane shows that the service rendered by the City was conducting sanitary inspections of the Isaacsons' business. Yet this service was not undertaken for the Isaacsons nor was it necessary to protect the Isaacsons' business: the inspections were undertaken to insure the wholesomeness of food offered for sale to the public. The evidence clearly shows that the City did not inspect the propane system and that it had no duty to do so. On this issue, summary judgment in the City's favor was correctly granted in the Isaacson suit.
A similar analysis of the Restatement leads to the same conclusion in Stark's suit. Section 324A provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or

*48 (b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Restatement (Second) of Torts § 324A.
Again, the evidence cited by Mobil Propane shows that the City inspected the Isaacsons' truck and garage to check sanitation. There was no evidence to support Mobil Propane's contention that these sanitation inspections required the City to inspect propane systems. Thus summary judgment was also correctly granted in Stark's suit.
Mobil Propane's second issue is:
Does a genuine issue of material fact exist as to whether or not appellee properly discharged [its] duty to inspect completely the trucks and garage and facilities of Plaintiffs, including the propane systems and the use and storage of propane?
Mobil Propane "maintains that [the City] had assumed the duty of inspecting the propane systems and the use and storage of propane through its extensive inspection of the Isaacsons' trucks and facilities and its stated interest in the public health and safety." Brief for Appellant at 21. Its contention is not, however, supported by the record. Mobil Propane directs our attention to Theodore Isaacson's testimony about the City's sanitary inspections but does not direct us to any evidence of inspections of the propane system. This argument is without merit.
Mobil Propane's third, and final, argument is:
Does a genuine issue of material fact exist as to whether or not appellee's fire truck ran over Selma Isaacson?
Mobil Propane argues that there is a genuine issue of material fact as to whether a City fire truck ran over Selma Isaacson's legs after the explosion. In support of this argument Mobil Propane produced a hospital emergency room record of Selma Isaacson's admission. According to Mobil Propane this emergency room record states: *49 patient was in a garage when a propane gas tank exploded causing a cinderblock wall to fall on her lower back. While unconscious a fire truck ran over her, the tires running over her thighs. She was then brought to the ER with numerous fractures. . .
Brief for Appellant at 23.
The lower court granted summary judgment in the City's favor despite the existence of this history because the history "constitutes double hearsay (i.e. the original statement and its recordation in the history) that is irremediably inadmissible." Lower ct. op. at 13. Mobil Propane argues that the statement in the hospital record is admissible under the business records exception to the hearsay rule and Rule 803(6) of the Federal Rules of Evidence.
A medical report is admissible under the business records exception to the hearsay rule if the report: (1) was made contemporaneously with the events it purports to relate, (2) at the time the report was prepared, it was impossible to anticipate reasons which might arise in the future for making a false entry in the original, and (3) the person responsible for the statements contained in the report is known. See, e.g., Sauro v. Shea, 257 Pa.Super. 87, 99 n. 4, 390 A.2d 259, 265 n. 4 (1978). Mobil Propane argues that because the report in question was made shortly after the explosion by an emergency room physician who had no reason to falsify the report all of the requirements for admissibility are met.
On the other hand, the City contends that the record was not made contemporaneously with the events that took place after the explosion and that because of the delay in preparing the report it was possible to anticipate reasons why a false entry might be made. The City also argues that because the identity of the person responsible for making the recorded statement is unknown, the third element of the admissibility test is not satisfied.
To rebut the City's argument Mobil Propane cites Fauceglia v. Harry, 409 Pa. 155, 185 A.2d 598 (1962). The *50 plaintiff in Fauceglia, supra, sought recovery of damages for injuries to his back allegedly suffered in an automobile accident and denied having had back trouble during military service. In fact, records from a Veterans Administration hospital indicated that Fauceglia had complained of back pain. The Supreme Court of Pennsylvania held that the records were admissible even though the identity of the person making the record was not known.
Fauceglia, supra, is, however, inapposite.[1] In Fauceglia, supra, the identity of the serviceman who made the record was not known but the identity of the person supplying the information was known; Fauceglia himself was the source of the statements. In the case before us, Mobil Propane asserts that the identity of the physician who made the record is known. Nevertheless, the identity of the person supplying the information to the physician is not known. The Fauceglia court believed that since Fauceglia was supplying the information to military personnel under a duty to record such information the records were trustworthy. There is a complete absence of any such indicia of trustworthiness in this case for no one knows who supplied the information concerning the alleged incident to the treating physician. "The problem is, however, that no party to the action nor any other person responsible for the hospital entries in question is known to have given the information on which the histories were based. See Fauceglia v. Harry, 409 Pa. 155, 185 A.2d 598 (1962)." Incollingo v. Ewing, 444 Pa. 263, 279, 282 A.2d 206, 215 (1971).
Moreover, in Fauceglia, supra, the court noted that the records were only offered to prove that Fauceglia complained of back pain, not that Fauceglia actually suffered back pain. Fauceglia, supra 409 Pa. at 161, 185 A.2d at *51 602. Mobil Propane seeks to use the statement from the hospital record to show that there is a genuine issue of material fact, i.e., that a fire truck ran over Selma Isaacson's legs. Therefore, the lower court correctly decided that the statement was inadmissible.[2]
If the hospital report is excluded, nothing supports Mobil Propane's claim that there is a genuine issue of material fact as to whether Selma Isaacson was run over by a fire truck. The victim herself denied making a statement that she was run over by a truck. Both Theodore Isaacson and Lester Stark gave evidence that a fire truck could not have gotten near Selma Isaacson because of debris. The lower court did not abuse its discretion in granting summary judgment in favor of the City on this issue.
Orders affirmed.
SPAETH, J., did not participate in the decision or consideration of this case.
NOTES
[1]  Nor is the case of Myers v. Genis, 235 Pa.Super. 531, 344 A.2d 691 (1975) dispositive of this case. In Myers this court decided that medical records containing the opinions and diagnoses of a deceased physician were admissible; the identity of the person who supplied the information to the physician was also known. In the case at bar, however, no one states who told the emergency room physician that a fire truck ran over Selma Isaacson.
[2]  According to Mobil Propane the statement in the hospital record also qualifies for admission under Rule 803(6) of the Federal Rules of Evidence. The Federal Rule provides:

Rule 803. Hearsay exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule . . .
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
In the case at bar the requirements of the Federal Rule are not met. The identity of the individual who gave the emergency room physician the recorded information is not known, and thus there is no way to determine whether the report contains "information transmitted by, a person with knowledge," nor to determine the trustworthiness of the source of information. Federal Rule of Evidence 803(6) does not, therefore, make the hospital record admissible. In any event, we are not bound by Federal rules of evidence.


50 F.3d 3
U.S.v.Perez
NO. 94-1434
United States Court of Appeals,Second Circuit.
Feb 16, 1995
Appeal From:  S.D.N.Y. 92-cr-299

1
AFFIRMED.


12 F.Supp.2d 1105 (1998)
Mary LOBSTER, Plaintiff,
v.
SIERRA PACIFIC POWER COMPANY, and Does 1 through 10, inclusive, Defendants.
No. CV-N-96-025-ECR.
United States District Court, D. Nevada.
June 18, 1998.
*1106 *1107 Anne M. Vohl, Julia C. Vohl, of Vohl & Vohl, Reno, NV, for Plaintiff.
Patrick Hicks, Neil M. Alexander, Reno, NV, for Defendants.

ORDER
EDWARD C. REED, Jr., District Judge.
Before the Court is Defendant's motion (# 22) for summary judgment in this employment discrimination case. Plaintiff has opposed (# 24) and Defendant has replied (# 26). For the reasons outlined below, we GRANT this motion.

BACKGROUND
Plaintiff Mary Lobster began working for Defendant Sierra Pacific in 1988 as a temporary employee. She changed jobs and transferred between departments several times, and in 1994 she was assigned to do clerical work at Sierra Pacific's Pinon Pine construction project in Tracy, Nevada. Throughout this period of her employment, she alleges, she was periodically subjected to various forms of discrimination based on race and sex.
In August 1995 one of her co-workers, claiming that Ms. Lobster threatened her, called the Storey County Sheriff, and two deputies entered onto Sierra Pacific's property *1108 and questioned Plaintiff. Plaintiff states that she had made no threat and that Sierra Pacific acted with racial and gender animus by permitting the deputies access to her at the workplace. About one month later Ms. Lobster filed an EEOC complaint, alleging race and sex discrimination and retaliation. In January 1996 she filed the present lawsuit and in February 1996 she went on medical leave.
After exhausting her medical benefits, she went on "Family and Medical Leave," and eventually received unemployment benefits while still technically employed by Sierra Pacific. When she was ready to return to work her job had been eliminated, Sierra Pacific having completed the relevant portion of the Pinon Pine project, and the only job Sierra Pacific offered her in exchange was at a lower paygrade. She refused the replacement job; Sierra Pacific terminated her in January 1997; and she filed another EEOC charge. She later amended her complaint to add claims arising from the events of 1996 and 1997. Defendant has moved (# 22) for summary judgment, which motion is now ripe.

DISCUSSION

I. Summary Judgment Standard
The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Northwest Motorcycle Ass'n v. U.S. Department of Agriculture, 18 F.3d 1468, 1471 (9th Cir.1994). The moving party is entitled to summary judgment where, viewing the evidence and the inferences arising therefrom in favor of the nonmovant, there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996). Judgment as a matter of law is appropriate where there is no legally sufficient evidentiary basis for a reasonable jury to find for the nonmoving party. Fed.R.Civ.P. 50(a). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, 516 U.S. 1171, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996).
The moving party bears the burden of informing the court of the basis for its motion, together with evidence demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the party opposing the motion may not rest upon the mere allegations or denials of his pleadings but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although the parties may submit evidence in an inadmissible form  namely, depositions, admissions, interrogatory answers, and affidavits  only evidence which might be admissible at trial may be considered by a trial court in ruling on a motion for summary judgment. Fed.R.Civ.P. 56(c); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550-51 (9th Cir. 1989); Beyene v. Coleman Security Services, Inc., 854 F.2d 1179, 1181 (9th Cir.1988); see United States v. Dibble, 429 F.2d 598, 603 (9th Cir.1970) (court may disregard inadmissible evidence sua sponte).
In evaluating the appropriateness of summary judgment, three steps are necessary: (1) determining whether a fact is material; (2) determining whether there is a genuine issue for the trier of fact, as determined by the documents submitted to the court; and (3) considering that evidence in light of the appropriate standard of proof. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. As to materiality, only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes which are irrelevant or unnecessary will not be considered. Id. Where there is a complete failure of proof concerning an essential element of the nonmoving party's case, all other facts are rendered immaterial, and the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Summary judgment is not a disfavored procedural shortcut, but an integral part of the federal rules as a whole. Id.

*1109 II. ERISA
Plaintiff's Eighth Claim for Relief avers that Defendant terminated her in retaliation for seeking benefits under her employee benefit plan, in violation of 29 U.S.C. § 1140. This claim suffers from a number of defects, not the least of which is that Plaintiff admitted in her deposition that she has no evidence supporting it. Lobster Dep. at 580 (# 22, Ex. 4). Moreover, Plaintiff points to no proof that her medical insurance fell under ERISA, or that Sierra Pacific is a proper ERISA defendant. She does assert that after her termination Sierra Pacific failed to properly offer her "COBRA" coverage, but this is not evidence that she was fired in retaliation for seeking ERISA benefits. Lobster Aff. at ¶ 128(# 22). Summary judgment is appropriate on this claim.

III. Family and Medical Leave Act
Plaintiff's Ninth Claim for Relief asserts a violation of 29 U.S.C. § 2601-54, the Family and Medical Leave Act of 1993, in that Defendant "den[ied] her appropriate employment at the end of her [medical] leave." Amended Compl. at 13(# 18). Plaintiff does offer evidence that the job Defendant offered her upon her return to work paid a lower salary, from which a reasonable juror could conclude that the two jobs were not "equivalent." 29 U.S.C. § 2614(a)(1)(B). However, Plaintiff does not even attempt to show that she is an "eligible employee" covered by the Act (29 U.S.C. § 2611(2)), or that she had a "serious health condition" entitling her to medical leave (29 U.S.C. § 2612(a)(1)(D)); in fact, she does not cite to any particular portion of the Act that Defendant allegedly violated. Summary judgment is appropriate on the Ninth Claim for Relief.

IV. Americans With Disabilities Act
Plaintiff's Fifth and Sixth Claims for Relief allege violations of the Americans With Disabilities Act. Defendant argues that Ms. Lobster has not made out a prima facie case of disability discrimination. Mot. at 10(# 22). To prevail on a disability discrimination claim, Plaintiff must show 1) that she is disabled within the meaning of the ADA, 2) that she is qualified  that is, with or without accommodation she is able to perform the essential functions of the job at issue, and 3) that she suffered an adverse employment action because of her disability. Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 271 (9th Cir.1996). Plaintiff bears the burden of showing that she is disabled and that she can perform the essential functions of the job with or without reasonable accommodation. Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir.1996). Although Plaintiff offers some evidence bearing on the first element, she makes no attempt at all to prove the second element. As she has not made out a prima facie case, summary judgment is appropriate.

V. Retaliation
Plaintiff's Fourth Claim for Relief avers that Sierra Pacific "retaliated against Plaintiff for complaining to top management about race discrimination, and for filing her E.E.O.C. charge." Amended Compl. at 10(# 18). A plaintiff makes out a prima facie case of retaliation if she shows: 1) she was engaged in an activity protected by Title VII or Section 1981, 2) she was subjected to an adverse employment action, and 3) the timing creates an inference of causation. Payne v. Norwest Corp., 113 F.3d 1079, 1080 (9th Cir.1997); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Plaintiff makes no explicit effort to fit the facts to the law but we have independently reviewed the evidence in the record. There is no evidence she suffered any adverse employment action as a result of complaints to her supervisors. As for the EEOC charge, Plaintiff asserts that "the Company sought to isolate me increasingly from other employees, and took away my telephone" as a result of the charge. Lobster Aff. at ¶ 79(# 24). Plaintiff does not indicate how she was isolated from other employees, when she was so isolated, when her telephone was removed, whether other employees had their telephones removed, or any other details surrounding this assertion.
The evidence is too conclusory; Plaintiff has not made out a prima facie case of retaliation. Lujan v. National Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (conclusory allegations in *1110 an affidavit insufficient to defeat summary judgment motion) Furthermore, there is no evidence Plaintiff complained about any form of discrimination after the filing of her original Complaint, nor is the nexus between her September 1995 EEOC charge or lawsuit, on the one hand, and her January 1997 termination, on the other hand, close enough for a reasonable juror to find that she was terminated in retaliation for complaining or taking legal or administrative action. This claim fails.

VI. Remaining Claims  Race and Gender Discrimination
We are left with Plaintiff's First and Second Claims for Relief, alleging disparate treatment based on race and gender, Third Claim for Relief, alleging a race-based and gender-based hostile work environment, and Seventh Claim for Relief, alleging race discrimination in violation of 42 U.S.C. § 1981. Amended Compl. at 8-13(# 18). Defendant argues that as to many of the alleged violations Plaintiff's administrative charge came too late, and therefore the statute of limitations has run. This is of course only true as to the Title VII claims. Mitchell v. Keith, 752 F.2d 385, 392 (9th Cir.1985) (no administrative exhaustion needed for Section 1981 claim). We assume, as Plaintiff urges, that the "continuing violations" doctrine waives the 180-day limitations period. The continuing violations doctrine permits a plaintiff to avoid the administrative exhaustion time limits under certain circumstances; in particular, if the doctrine applies then an action is always timely if filed by a present employee. Gutowsky v. County of Placer, 108 F.3d 256, 259 (9th Cir.1997). Given our assumption, since Plaintiff was employed by Sierra Pacific at the time she filed her EEOC charge, the charge was timely as to all alleged violations. Moreover, because the present lawsuit was filed before her termination, Plaintiff need not file another EEOC charge to be entitled to judicial relief on discrimination occurring after filing her first charge. See Greenlaw v. Garrett, 59 F.3d 994, 1000 (9th Cir.1995) (exhaustion not required as to post-charge conduct "like or reasonably related to" charged conduct).
We next hold that as a general matter the statistical evidence Plaintiff offers (# 24, Ex. A), which appears to be raw employment numbers for Sierra Pacific, broken down into various equal opportunity categories, is without probative value. Plaintiff makes no effort to demonstrate how this data proves the existence of intentional discrimination: we do not know how many women or African-Americans live in the Reno area, how many applied for jobs at Sierra Pacific, how many were hired, how many were fired, or any other "surrounding facts and circumstances." Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1075-76 (9th Cir.1986) (citing Int'l Brotherhood of Teamsters v. U.S., 431 U.S. 324, 340, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)); Shutt v. Sandoz Crop Protection Corp., 944 F.2d 1431, 1433-34 (9th Cir.1991). Nor is Lonnie Feemster's affidavit sufficiently specific to draw any conclusions from the data. Feemster Aff. at ¶ 4(# 24). In short, Plaintiff's statistical evidence is of no moment.

A. Gender Discrimination
Although Plaintiff asserts that the race and gender discrimination she allegedly suffered are "intertwined," we have scoured the record for evidence of gender discrimination and conclude that there is not enough to survive summary judgment. Opp'n at 19(# 24). The evidence consists of:
1. Sierra Pacific "used its discretion to promote men over women." Lobster Aff. at ¶ 35
2. The EEOC oversaw Sierra Pacific's compliance with Labor Department affirmative action guidelines regarding employment of women in construction projects. June 30, 1995 Letter (# 24, Ex. B).
3. Ronald Tillotson, Sierra Pacific's "diversity coordinator," received little support for his efforts from upper management. Tillotson Aff. (# 24).
Such evidence is too general and conclusory to support Plaintiff's gender-based disparate treatment and hostile work environment claims. Lujan, 497 U.S. at 888, 110 S.Ct. 3177.

*1111 B. Race Discrimination

1. The Evidence
We are thus left with Plaintiff's claims of race discrimination: disparate treatment in conditions of employment, discriminatory discharge, and hostile work environment, under Title VII and 42 U.S.C. § 1981. We first set forth the evidence in the record which colorably supports these claims:
1. At some unspecified time around 1990 Caucasians were trained in SAS, a computer programming language, but Plaintiff was not. Lobster Aff. at § 11(# 24).
2. In 1988 a Caucasian co-worker's job was reclassified, resulting in a pay raise, while Plaintiff's job (and that of another African-American co-worker, one Odessa Mack) was not, even though Plaintiff "was doing an outstanding job." Id. at 15-17.
3. Ms. Mack repeatedly accused Plaintiff of sabotaging her work, and Plaintiff complained about Ms. Mack's complaints; without investigating the circumstances, Plaintiff's supervisors advised her to transfer out of the union. Id. at 18-23. Plaintiff speculates that if she were Caucasian Sierra Pacific would have stopped Ms. Mack's harassment. Id.
4. Plaintiff took a non-union job in 1990, which resulted in steady pay increases but steadily decreasing responsibilities. Id. at 24-31. Plaintiff speculates that Sierra Pacific encouraged her to leave the union to 1) take her off the union pay scale (despite the pay increases) and to 2) make it easier to move her to departments lacking in African-Americans, so as to appease the EEOC. Id. Plaintiff nonetheless made less than Caucasians of the same status at all times after leaving the union. Id. at 129.
5. Apparently in 1990 Plaintiff "began to experience racial remarks and other forms of discrimination in the workplace." Id. at 31.
6. Sierra Pacific "promote[s] Caucasians over African Americans." Id. at 35.
7. Plaintiff complained about race discrimination, was denied a pay raise in 1993, was thereafter placed in the "Problem Resolution Program," apparently after complaining about the pay raise, and ultimately her Problem Resolution Program grievance was denied. Id. at 36-47. Plaintiff speculates that use of the Problem Resolution Program resulted in her being labelled a troublemaker, and that Sierra Pacific did not follow the Program's procedures. Id.
8. Plaintiff was then assigned to the Telecommunications Department, where her supervisor criticized her constantly. Id. at 48-52.
9. Plaintiff was then assigned, some time in 1994, to Sierra Pacific's Pinon Pine construction project, where her job duties were menial, working conditions were poor, and she was the only "minority person" working there. Id. at 53-59.
10. While working at Pinon Pine Plaintiff read mail regarding the EEOC's oversight of Sierra Pacific's "diversity compliance." Id. at 59.
11. A Caucasian subordinate, Sandi Martin, refused to take orders from Plaintiff and used unspecified derogatory racial remarks in her presence. Id. at 61-62. Plaintiff complained to her supervisor, but does not know what the supervisor did about it; in any event the remarks continued. Id. at 63. Plaintiff speculates that her race is the explanation for the subordinate's behavior and for management's failure to support Plaintiff. Id. at 61, 70.
12. Sierra Pacific paid for Caucasian employees' university courses, but refused to do so for Plaintiff for certain fall 1992 courses. Id. at 67. She speculates that the denial was racially motivated. Lobster Dep. at 230-31 (# 22, Ex. 4).
13. Plaintiff was required, from 1993 to 1996, to take orders from Caucasian workers who were not her supervisors and were at the same "level" as Plaintiff. Lobster Aff. at 71(# 24).
14. In August 1995 Sandi Martin falsely accused Plaintiff of threatening her, sheriff's deputies questioned Plaintiff at work, and Sierra Pacific suspended her. Id. at 72-75. Plaintiff speculates that Sierra Pacific did not in good faith believe that Plaintiff had made any threats. Id. at 75.
15. Plaintiff went on medical leave in February 1996, and Sierra Pacific replaced her with a Caucasian. Id. at 92.
*1112 16. By the time she was ready to return to Sierra Pacific, Plaintiff's job had been eliminated and she was offered a "low level clerical position at Level 3, [with] a lump sum to make up the difference [in salary]." Id. at 117, 123. This was a degrading demotion. Id. at 122.
17. In 1988, Plaintiff was refused service in a restaurant while travelling on business for Sierra Pacific. Mot. at 7(# 22). Plaintiff speculates that the refusal was racially motivated. Id.
18. Plaintiff was rated below expectations in her annual performance review in July 1991. Mot. at 8(# 22).
19. Plaintiff was denied a promotion in 1992 or 1993. Lobster Dep. at 213-14 (# 22, Ex. 4).
20. Plaintiff was denied training on an unspecified topic at an unspecified time. Id. at 218.
21. Plaintiff was overpaid at Sierra Pacific. Id. at 314.

2. Hostile Work Environment
We assume for the moment that the "continuing violations" doctrine applies to Plaintiff's hostile work environment claim. We further assume that such a claim is cognizable under 42 U.S.C. § 1981.
Proof that the workplace environment is actionably hostile has two components: it must be objectively hostile as measured from the perspective of a reasonable person with the same fundamental characteristics as the plaintiff, and the plaintiff must sincerely, though subjectively, perceive it as hostile. Fuller v. City of Oakland, California, 47 F.3d 1522, 1527 (9th Cir.1995). Hostility is measured based on the totality of the circumstances; occasional annoying or "merely offensive" comments do not constitute harassment, but legal protection comes into play before the harassing conduct leads to a "nervous breakdown." Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir.1994). Under this standard, Plaintiff's conclusory and non-specific evidence is inadequate  because we do not know what racially derogatory remarks were actually made (see items (5) and (11) above), we are unable to determine if the "objective" prong is satisfied. It is possible that the working conditions mentioned in item (9) above were objectively hostile, but we cannot tell from Plaintiff's affidavit and in any event we have no reason to believe that the conditions were hostile to African-Americans and not to others. Item (14), the trigger for Plaintiff's first EEOC charge, does not appear to have anything to do with race; granted, Sandi Martin may have been motivated by racial animus, but this does not prove that Sierra Pacific was. Finally, although there is corroboration for Plaintiff's assertions that she heard racially offensive comments, the corroboration is itself too conclusory and non-specific to meet the first prong of the hostile work environment test. Feemster Aff. at 9(# 24); Mosely Aff. at 10(# 24); Lujan, 497 U.S. at 888, 110 S.Ct. 3177.

3. Discriminatory Discharge
Section 1981 claims are analyzed under the same burden-shifting framework as Title VII claims. Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989); Sengupta, 804 F.2d at 1074. We assume that Section 1981 reaches all conduct prohibited by Title VII, as the Supreme Court has suggested. Rivers v. Roadway Express, 511 U.S. 298, 303, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994); see Schwapp v. Town of Avon, 118 F.3d 106, 112 (2d Cir.1997) (same).
Plaintiff makes out a prima facie case of discriminatory discharge if she shows she was: (1) a member of a protected class, (2) performing her job in a satisfactory manner, (3) discharged, and (4) replaced by an employee outside her protected class with equal or inferior qualifications. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir.1996). However, because Plaintiff was in effect laid off, rather than simply fired, the fourth element need not be strictly satisfied. Id. When a plaintiff establishes a prima facie case, the burden of production shifts to the defendant to articulate a legitimate reason for its employment decision. Payne v. Norwest Corp., 113 F.3d 1079, 1080 (9th Cir.1997). Once the defendant responds to the plaintiff's prima facie case, the plaintiff must demonstrate that the employer's stated reason is merely a pretext. Id. "It is not *1113 enough ... to disbelieve the employer;" if there are no genuinely disputed facts material to the issue of the employer's discriminatory intent, then "disbelief of the reasons put forward by the defendant" is impossible and summary judgment for the employer is appropriate. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 519, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (emphasis omitted). A plaintiff must produce "specific, substantial evidence of pretext" and may "no longer rely on his prima facie case." Payne, 113 F.3d at 1080. In particular, a plaintiff must produce enough evidence to allow a reasonable factfinder to conclude either 1) that the employer's explanation is false, or 2) that the true reason for the employment action was a discriminatory one. Nidds, 113 F.3d at 918 n. 2.
It appears Plaintiff has made out a prima facie case, and Sierra Pacific asserts a legitimate reason for the elimination of her job  the Pinon Pine project was complete. Accordingly, Plaintiff must produce evidence that Sierra Pacific's explanation of her termination is false or that the true explanation is race discrimination. This she has failed to do. Indeed, it appears from her affidavit that instead of race discrimination she asserts 1) disability discrimination and 2) retaliation for seeking ERISA benefits as the true reasons for her termination. In any event there is no evidence of pretext in the record. To the contrary, Plaintiff admits that when she was ready to return to work she was offered a new job, albeit a lower paying one. This is insufficient to survive summary judgment.

4. Terms and Conditions of Employment
Without identifying those terms and conditions of employment as to which she claims disparate treatment, or distinguishing between Title VII and Section 1981, Plaintiff asserts that she was treated disparately. Amended Compl. at 8-12(# 18). Omitting those assertions which are conclusory, speculative, or do not pertain to any adverse employment action, Lujan, 497 U.S. at 888, 110 S.Ct. 3177, it appears that four of the abovelisted items form the basis of this claim:
(1) Plaintiff was not trained in SAS.
(2) Plaintiff was denied a pay raise in 1988.
(7) Plaintiff was denied a pay raise in 1993.
(12) Plaintiff's college courses were not reimbursed.
As to these four items Plaintiff's affidavit provides some factual basis for believing that race factored into Sierra Pacific's decision making.
We have assumed so far that the 21 items listed above meet the "continuing violations" standard; we now face it head-on. Plaintiff must satisfy this doctrine to prevail under either Title VII or Section 1981, since the the most recent adverse employment actions, the 1993 pay raise denial and the 1992 course non-reimbursement, occurred more than two years before the filing of the original Complaint; that is, the statute of limitations ran before filing the original Complaint. Goodman v. Lukens Steel, 482 U.S. 656, 661-62, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987) (statute of limitations for Section 1981 is state personal injury statute of limitations).
A present employee, as Plaintiff was at the time she filed her Complaint, may invoke the continuing violations doctrine by showing a series of related discriminatory acts, or a policy or practice of systematic discrimination. Gutowsky, 108 F.3d at 259. Even considering evidence in the record other than the four items above, such as Sandi Martin's racially hostile language, we think no reasonable juror could find a policy or practice of systematic discrimination. As for "a series of related discriminatory acts," Green v. Los Angeles Cty. Sup't of Schools, 883 F.2d 1472, 1480 (9th Cir.1989) provides guidance. Green reveals that if separate instances of discrimination are of a "separate form"  e.g., harassment versus discriminatory discharge, or failure to train versus dissemination of poor references  then they are not related. Id. at 1481. In Plaintiff's case, she alleges one instance of failure to train, one instance of failure to reimburse for college courses, and two instances (separated by five years) of denial of a pay raise.
Taken together, no reasonable juror could find from this evidence such a series of related discriminatory acts. True, the two pay raise denials are "related," but they occurred too far apart in time to be considered part of *1114 a "series." Moreover, to the extent Plaintiff seeks relief for discriminatory terms and conditions of employment under 42 U.S.C. § 1981, the 1988 pay raise denial and the denial of SAS training are not cognizable because they occurred before the 1991 amendments to Section 1981. Rivers, 511 U.S. at 303, 114 S.Ct. 1510. Consequently, only the 1992 reimbursement denial and the 1993 pay raise denial support invocation of the continuing violations doctrine under Section 1981, and these two items together are inadequate. In sum, Plaintiff filed her original Complaint more than two years after allegedly experiencing the discriminatory terms and conditions of employment listed above, and she is therefore not entitled to relief.

CONCLUSION
Plaintiff has offered insufficient evidence to make out a prima facie case for any form of discrimination except disparate treatment on the basis of race. As to that claim, she has offered no evidence of pretext on her discriminatory discharge claim, and her remaining disparate treatment claims occurred beyond the limitations period. Summary judgment for the defense is therefore in order.
IT IS, THEREFORE, HEREBY ORDERED that Defendant's motion (# 22) for summary judgment is GRANTED. The Clerk shall enter judgment accordingly.


694 F.Supp.2d 782 (2010)
Dan MULLINS, Plaintiff,
v.
GOODMAN DISTRIBUTION, INC., Defendant.
Case No. 3:08cv363.
United States District Court, S.D. Ohio, Western Division.
February 12, 2010.
*783 Christopher Lee Beck, Donald Francis Brezine, Brezine Law Offices, Fairborn, OH, for Plaintiff.
Michael Wesley Hawkins, Trevor Edward Gillette, Dinsmore & Shohl, Cincinnati, OH, for Defendant.

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. #17)
WALTER HERBERT RICE, District Judge.
Plaintiff Dan Mullins ("Plaintiff" or "Mullins") was formerly employed by Defendant Goodman Distribution, Inc. ("Defendant" or "Goodman").[1] Plaintiff alleges *784 in his Complaint (Doc. #1) that the Defendant violated the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301, et seq., by refusing to promote him, by denying him raises and bonuses and by firing him.[2]
In January, 2003, Mullins was hired by Goodman as a customer service representative, to work in its Dayton branch.[3] Before he was hired, Mullins had served in the U.S. Army, a fact which was included on the resumé he submitted to Defendant when he applied for a job. In March, 2005, while employed by the Defendant, Plaintiff enlisted in the Ohio National Guard. In September, 2005, Plaintiff received orders that his Ohio National Guard unit would be deployed to Iraq the following month. He informed Defendant of that fact. While he was deployed in Iraq, Plaintiff injured his back and neck. During the period of his deployment, Plaintiff was not given raises or bonuses by the Defendant.
In December, 2006, Mullins returned to work with the Defendant in the position he had occupied before his National Guard unit had deployed. In January, 2007, Defendant's then Branch Manager, Derrick Card, resigned his position. Defendant posted the opening internally and externally and accepted applications to fill that position from interested individuals who were its current employees, as well as individuals who were not. Plaintiff applied for the position, and was interviewed by Dave Spitz ("Spitz"), Vice President of Defendant's Northeast Division, which includes Dayton. Mullins was not selected; rather, Rod Neal ("Neal"), a veteran of the Air Force, was selected as Branch Manager for the Dayton branch. After interviewing Mullins, Spitz told the Plaintiff that he would have been given the Branch Manager's position, if he had not been gone for such a long time, referring to his deployment in Iraq.[4]
On July 11, 2007, Neal gave Plaintiff a written disciplinary warning, for violating the Defendant's cash handling policy. Neal charged Plaintiff with having left his money bag, unsecured, on the top of a counter during business hours and having left his cash drawer unlocked the night before, even though customers' checks were inside the drawer. This written warning also contained notice that any similar infractions in the future would result in further progressive discipline, up and including termination of his employment.
On January 23, 2008, Neal gave Plaintiff a final disciplinary warning, which resulted from his alleged violation of the Defendant's policies concerning its Furnace Replacement Program.[5] Under that program, the purchaser of new furnace manufactured by Goodman could receive a discount, if he was purchasing a furnace to replace a qualifying older-model manufactured by Defendant. In late 2007, Spitz and Neal learned that a customer was taking advantage of the program, by *785 presenting fraudulent proof that the furnace being replaced was a qualifying one. Consequently, in December, 2007, the program was modified to require that customers seeking to participate physically return the old furnace, without any parts removed, to the Dayton branch. In particular, Defendant wanted to ensure that the customer's old furnace had its original nameplate on it, indicating that Goodman had been its manufacturer. On January 23, 2008, Plaintiff, as part of the program, accepted a furnace from a customer from which the original nameplate had been removed. As a consequence, he was given the final warning.[6]
On February 28, 2008, Goodman terminated Plaintiff's employment, because he violated one of the Defendant's policies while on final warning. In this instance, Mullins failed to have a customer sign the correct packing list for an order that had been picked up, despite the fact that Defendant's policy required that the customer inspect the order and sign such a list.
This case in now before the Court on the Defendant's Motion for Summary Judgment (Doc. #17). As a means of analysis, the Court will initially set forth the procedural standards it must apply whenever ruling on a motion seeking summary judgment, following which it will turn to the parties' arguments in support of and in opposition to the instant such motion.
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Of course, the moving party:
always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Id. at 323, 106 S.Ct. 2548. See also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial.") (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987)). The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir.1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law. Fed.R.Civ.P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989).
*786 Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). See also Michigan Protection and Advocacy Service, Inc. v. Babin, 18 F.3d 337, 341 (6th Cir.1994) ("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff."). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment shall be denied "[i]f there are . . . `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir.1992) (citation omitted). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in the favor of that party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (emphasis added). If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties' affiants are more credible; rather, credibility determinations must be left to the fact-finder. 10A Wright, Miller & Kane, Federal Practice and Procedure, § 2726. In ruling on a motion for summary judgment (in other words, in determining whether there is a genuine issue of material fact), "[a] district court is not . . . obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989), cert. denied, 494 U.S. 1091, 110 S.Ct. 1839, 108 L.Ed.2d 967 (1990). See also L.S. Heath & Son, Inc. v. AT & T Information Systems, Inc., 9 F.3d 561 (7th Cir.1993); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir.), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992) ("Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment...."). Thus, a court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, only upon those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties.
With its motion, Goodman seeks summary judgment on all of Plaintiff's claims under the USERRA, i.e., that Defendant violated that statute by failing to promote him, by denying him raises and bonuses while he was deployed in Iraq and by terminating his employment. As a means of analysis, the Court will discuss the parties' arguments concerning those three claims in the above order. However, before engaging in the analysis, the Court will review the provisions of the USERRA which apply to all of Plaintiff's claims.
The provision of the USERRA which prohibits discrimination in employment is 38 U.S.C. § 4311, which provides:
(a) A person who is a member of, applies to be a member of, performs, has *787 performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.
* * *
(c) An employer shall be considered to have engaged in actions prohibited
(1) under subsection (a), if the person's membership, application for membership, service, application for 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, application for membership, service, application for service, or obligation for service.. . .
In accordance with that statutory language, the plaintiff bears the initial burden of demonstrating that his military service was a motivating factor for the employer's action. Hance v. Norfolk Southern Ry. Co., 571 F.3d 511, 518 (6th Cir.2009). If the plaintiff discharges his initial burden, "`the employer then has the opportunity to come forward with evidence to show, by a preponderance of the evidence, that the employer would have taken the adverse action anyway, for a valid reason.'" Id. (quoting Sheehan v. Dept. of Navy, 240 F.3d 1009, 1013 (Fed.Cir.2001)).
A plaintiff may meet his burden with either direct or circumstantial evidence. Id. With respect to circumstantial evidence, the Sixth Circuit explained in Hance:
Discriminatory motivation under the USERRA may be reasonably inferred from a variety of factors, including proximity in time between the employee's military activity and the adverse employment action, inconsistencies between the proffered reason and other actions of the employer, an employer's expressed hostility towards members protected by the statute together with knowledge of the employee's military activity, and disparate treatment of certain employees compared to other employees with similar work records or offenses.
Id. (quoting Sheehan, 240 F.3d at 1014). "`Military status is a motivating factor if the defendant relied on, took into account, considered or conditioned its decision on that consideration.'" Petty v. Metropolitan Government of Nashville-Davidson County, 538 F.3d 431, 446 (6th Cir.2008) (quoting Coffman v. Chugach Support Servs., 411 F.3d 1231, 1238 (11th Cir.2005)). Accord Martin v. AutoZone, Inc., 411 F.Supp.2d 872, 880 (S.D.Ohio 2005); Steenken v. Campbell County, 2007 WL 837173 at *4 (E.D.Ky.2007); Fink v. City of New York, 129 F.Supp.2d 511, 520 (E.D.N.Y.2001); Robinson v. Morris Moore Chevrolet-Buick, Inc., 974 F.Supp. 571, 576 (E.D.Tx.1997).

I. Denial of the Promotion to Branch Manager (First Claim for Relief in Plaintiff's Complaint)
In seeking summary judgment on Plaintiff's claim that Goodman violated the USERRA by failing to promote him to the position of Branch Manager, the Defendant initially argues that the evidence fails to raise a genuine issue of material fact on the question of whether Mullins' military service was a motivating factor in its decision to promote Neal, rather than Plaintiff, to that position.
Construing the evidence in the manner most favorable to the Plaintiff, the party against whom summary judgment has been sought, this Court is unable to agree. *788 In ¶ 20 of his Affidavit,[7] Plaintiff states that after interviewing him, Spitz told him that he (Spitz) would have given him (Plaintiff) the position of Branch Manager if he had not been gone so long, which was a reference to Mullins' military service. The statement of Spitz, the employee of Defendant who decided to promote Neal rather than Mullins, that the reason Mullins was not promoted was because he was gone so long, referring to his service in Iraq, is sufficient to demonstrate the existence of a genuine issue of material fact on the question of whether Plaintiff's military service was a motivating factor in Defendant's promotion decision.
Nevertheless, Defendant argues that Neal's status as an Air Force veteran demonstrates that it does not have an anti-military bias and, thus, shows that the evidence fails to raise a genuine issue of material fact on the question of whether Mullins' military service was a motivating factor in its decision to promote Neal rather than the Plaintiff. Given that the individual who made the decision to promote Neal told Plaintiff, in essence, that he would have been promoted if his Ohio National Guard unit had not been deployed to Iraq, this Court is unable to agree.[8]
In addition, Defendant contends that Plaintiff's deposition testimony that he may have told Rita Sampson that it was going to take him a while to get back into all of the procedures at work, after he had returned from Iraq, demonstrates the absence of a genuine issue of material fact concerning the question of whether Mullins' military service was a motivating factor for Defendant's decision to select Neal for the position of Branch Manager. This Court cannot agree, since Plaintiff's deposition testimony does not indicate that Spitz's statement, although seemingly evidencing an anti-military service animus, was not really so.[9]
*789 Alternatively, Goodman argues that it is entitled to summary judgment on this claim, because the evidence fails to raise a genuine issue of material fact on the question of whether it would have selected Neal for non-discriminatory reasons. Given that the Defendant will have the burden of persuasion on that question at trial, "`it must show [at the summary judgment stage] that the record contains evidence satisfying the burden of persuasion and that the evidence is so powerful that no reasonable jury would be free to disbelieve it.'" Arnett v. Myers, 281 F.3d 552, 561 (6th Cir.2002) (quoting 11 James William Moore et al., Moore's Federal Practice § 56.13[1], at 56-138 (3d ed. 2000)). According to Defendant, the position of Branch Manager for the Dayton branch involved managerial and supervisory responsibilities and Plaintiff lacked experience in both of those areas. Defendant also indicates that Neal was the most qualified applicant. Goodman has supported those assertions with Spitz's Affidavit.[10] However, given the evidence that Spitz made a statement to Plaintiff, demonstrating that he had an anti-military animus, this Court concludes that the record does not contain evidence, so powerful that no reasonable jury would be free to disbelieve it, satisfying its (Defendant's) burden of persuasion that it would have selected Neal for the position of Branch Manager anyway, for a nondiscriminatory reason.
Based upon the foregoing, the Court overrules the Defendant Motion for Summary Judgment (Doc. #17), as it relates to Plaintiff's claim that the Defendant violated the USERRA by failing to promote him to the position of Branch Manager.

II. Denial of Raises and Bonuses (Second Claim for Relief in Plaintiff's Complaint)
With his Second Claim for Relief, Plaintiff alleges that, while he was on active duty with the Ohio National Guard, Defendant denied him "bonuses and raises that he would have received had he maintained his employment." Doc. #1 at ¶ 56.[11] Plaintiff contends that, as a result, Defendant has violated the USERRA. Defendant argues this it is entitled to summary judgment on this claim, because Plaintiff's claim is premised on a faulty understanding of the USERRA and its compensation system. The Plaintiff has not responded to this branch of Defendant's Motion for Summary Judgment (Doc. #17). For reasons which follow, this Court concludes that the Defendant is entitled to summary judgment on this claim. The Court initially sets forth its reasons for concluding that the Defendant *790 is entitled to summary judgment on the aspect of this claim relating to raises, following which it will turn to the aspect of this claim pertaining to bonuses.
The USERRA provides, in pertinent part:
(b)(1) Subject to paragraphs (2) through (6), a person who is absent from a position of employment by reason of service in the uniformed services shall be
(A) deemed to be on furlough or leave of absence while performing such service; and
(B) entitled to such other rights and benefits not determined by seniority as are generally provided by the employer of the person to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect at the commencement of such service or established while such person performs such service.
38 U.S.C. § 4316(b)(1).[12] Thus, courts have held that an employer does not violate the USERRA, by treating a employee on leave while serving in the military no differently than it would treat any other employee on leave for another reason. See e.g., Rogers v. City of San Antonio, 392 F.3d 758, 764 (5th Cir.2004); Fannin v. United Space Alliance, LLC, 2009 WL 139878 (M.D.Fla.2009). Herein, Spitz has indicated in ¶ 18 of his Affidavit that Goodman employees on leave for extended periods of time, for any reason, have not received merit increases during their absences. In the absence of any evidence or even argument from the Plaintiff that Goodman has given raises to employees who were on leave for reasons other than their service in the military, this Court is compelled to conclude that the Defendant did not violate the USERRA by not giving the Plaintiff a raise while he was on active duty with the Ohio National Guard.
Defendant argues that it is entitled to summary judgment on the aspect of the Second Claim for Relief in Plaintiff's Complaint, arising out of the non-payment of bonuses, because an employee on leave while in the military service is not entitled to receive compensation for the work he has missed while on leave. The Court cannot disagree with that statement of legal principle. For instance, in Koehler v. PepsiAmericas, Inc., 268 Fed.Appx. 396 (6th Cir.2008), the Sixth Circuit noted that "[t]he USERRA exempts employers from an obligation to pay benefits that are `wages or salary for work performed.'" Id. at 404 (quoting 38 U.S.C. § 4303(2)) (emphasis added by the Sixth Circuit). Moreover, the Plaintiff has not presented any evidence tending to demonstrate that the bonus or bonuses he was not paid were not "wages or salary for work performed." Therefore, the Court concludes that the Defendant is entitled to summary judgment on the aspect of the Second Claim for Relief in Plaintiff's Complaint arising out of bonuses.
Accordingly, the Court sustains Defendant's Motion for Summary Judgment (Doc. #17), as it relates to Plaintiff's claim that he was denied raises and bonuses in violation of the USERRA.

III. Termination (Third Claim for Relief in Plaintiff's Complaint)
In the Third Claim for Relief in his Complaint, Plaintiff alleges that the Defendant violated the USERRA by terminating him, because he was gone from his employment with Defendant while serving with the Ohio National Guard in Iraq. The Defendant argues that it is entitled to summary judgment on this claim, because *791 the evidence fails to raise a genuine issue of material fact on the question of whether a motivating factor in the Defendant's decision to terminate his employment was his service with the Ohio National Guard. Alternatively, Defendant argues that, even if the evidence raises a genuine issue of material fact on the question of whether Mullins' service in the Ohio National Guard was a motivating factor is its decision to terminate his employment, it has demonstrated that it would have discharged him in any event, for non-discriminatory reasons, to wit: he committed a third disciplinary infraction after having been given his final warning. Plaintiff contests both of those arguments. As a means of analysis, the Court will initially decide whether the evidence raises a genuine issue of material fact concerning the question of whether Plaintiff's service in the Ohio National Guard was motivating factor for his discharge. If the Court concludes that the evidence raises such a genuine issue of material fact, it will turn to the Defendant's alternative argument.
Plaintiff initially asserts that the evidence raises a genuine issue of material fact concerning the question of whether his military service was a motivating factor in Defendant's decision to discharge him, because Neal did not like him. That reason fails to convince this Court that Defendant "relied on, took into account, considered or conditioned its decision on [Plaintiff's military status when terminating the Plaintiff's employment]." Petty, 538 F.3d at 446.
Plaintiff states in ¶ 54 of his Affidavit that, during the summer of 2007, sometime after Neal had disciplined him the first time, Neal told him that he (Plaintiff) "was out of there" because Neal did not like his attitude. According to Plaintiff, Neal explained that he (Plaintiff) was nice to co-workers and customers but not to him and, further, Plaintiff stood up to him. In that paragraph of his Affidavit, Mullins also states that Neal called his supervisor, Matt Lis ("Lis"), into the meeting. Lis also stated that he believed that Plaintiff was more friendly with customers and co-workers than he was to Neal and himself. While this evidence is sufficient to raise a genuine issue of material fact that Neal disliked or was prejudiced against Mullins, it does not raise such an issue of fact on the pertinent question of whether Neal's prejudice against the Plaintiff was predicated upon his military service. It would be unreasonable to infer that Neal acted with an anti-military bias merely because he disliked Plaintiff who had served in the military. It bears emphasis that Neal himself was an Air Force veteran. Similarly, the fact that Lis believed that the Plaintiff treated co-workers and customers better than he treated Neal and himself does not raise an inference that a motivating factor in Defendant's decision to discharge Plaintiff was his military service.
Above, this Court has noted the Sixth Circuit has indicated that the following considerations are pertinent to the issue of whether an employee's military service was a motivating factor of the employer's adverse employment action, to wit: 1) the proximity in time between the employee's military activity and the adverse employment action; 2) inconsistencies between the proffered reason and other actions of the employer; 3) an employer's expressed hostility towards employees protected by the USERRA, together with knowledge of the plaintiff's military activity; and 4) the disparate treatment of certain employees compared to similarly situated employees, with similar work records or offenses. Hance, 571 F.3d at 518.
Herein, the Court need only consider the first two factors, since there is no evidence that Neal, who decided to impose the discipline on Plaintiff which led to the *792 termination of his employment, had expressed any hostility towards employees protected by the USERRA or that Defendant treated similarly situated employees differently. As a means of analysis, the Court will initially discuss the temporal proximity between Mullins' service in Iraq and the termination of his employment, following which it will turn to question of whether there were inconsistencies between the Defendant's proffered reasons for disciplining the Plaintiff and its other actions.
In December, 2006, Plaintiff resumed his employment with Defendant, after his deployment in Iraq. The Defendant fired him on February 28, 2008, about fourteen months later. Moreover, Neal initially imposed discipline on Plaintiff about seven months after he had returned to work. Fourteen months, and even seven, are too long periods of time to raise an inference of a causal connection between protected activity and an adverse employment action in a case alleging retaliation under a statute prohibiting employment discrimination. See e.g., Hamilton v. Starcom Mediavest Group, Inc., 522 F.3d 623, 629 (6th Cir.2008) (noting that "there is a consensus that proximity alone generally will not suffice where the adverse action occurs more than a few months . . . after the protected conduct"); Hafford v. Seidner, 183 F.3d 506, 515 (6th Cir.1999) (noting that "[a]bsent additional evidence, this loose temporal proximity" of "disciplinary actions occur[ing] two to five months after Hafford filed charges" is "insufficient to create a triable issue"); Cooper v. City of N. Olmsted, 795 F.2d 1265, 1272 (6th Cir.1986) (holding that "[t]he mere fact that Cooper was discharged four months after filing a discrimination claim is insufficient to support an interference [sic] of retaliation"). There is simply no reason why the same standards should not apply to resolving the issue of whether the temporal proximity of the adverse employment action to the protected activity is sufficient to raise an inference of discrimination in a case under the USERRA. Based upon the above cited authority, this Court concludes that Plaintiff's protected activity, his deployment in Iraq, is not close enough in time to his discharge or even the first discipline that was imposed on him (seven months) to raise an inference that his deployment in Iraq was a motivating factor for either.
Turning to the second factor set forth in Hance, the Plaintiff does not argue that there are inconsistencies between the proffered reason and other actions of the employer. Rather, he contends that Neal disciplined him for specious reasons, which demonstrates that the evidence raises a genuine issue of material fact concerning the existence of such a motivating factor. In particular, Plaintiff contends that Neal did not have a basis for imposing discipline on him. Plaintiff contends that it is for the jury to determine whether his evidence establishes that the discipline imposed upon him was a pretext for discriminating against him on basis of his military service. To support this argument, Plaintiff has cited Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078 (6th Cir.1994), wherein the Sixth Circuit explained the methods of establishing pretext.
Assuming for sake of argument that inconsistencies between the proffered reason and other actions of the employer is the same as pretext, the Court does not agree with Plaintiff that the evidence raises a genuine issue of material fact that the stated reasons for disciplining Plaintiff was a pretext for discriminating against him on the basis of his service with the Ohio National Guard.
In Manzer, the Sixth Circuit discussed the methods by which a plaintiff can establish pretext:
To make a submissible case on the credibility of his employer's explanation, *793 the plaintiff is "required to show by a preponderance of the evidence either (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate his discharge, or (3) that they were insufficient to motivate discharge." McNabola v. Chicago Transit Authority, 10 F.3d 501, 513 (7th Cir.1993) (emphasis added and quotation marks omitted). The first type of showing is easily recognizable and consists of evidence that the proffered bases for the plaintiff's discharge never happened, i.e., that they are "factually false." [Anderson v.] Baxter Healthcare, 13 F.3d [1120, 1123-24 (7th Cir.1994)]. The third showing is also easily recognizable and, ordinarily, consists of evidence that other employees, particularly employees not in the protected class, were not fired even though they engaged in substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff. These two types of rebuttals are direct attacks on the credibility of the employer's proffered motivation for firing plaintiff and, if shown, provide an evidentiary basis for what the Supreme Court has termed "a suspicion of mendacity." [St. Mary's Honor Center v.] Hicks, 509 U.S. [502] at [511], 113 S.Ct. [2742] at 2749 [125 L.Ed.2d 407 (1993)]. As Hicks teaches, such a showing permits, but does not require, the factfinder to infer illegal discrimination from the plaintiff's prima facie case.
The second showing, however, is of an entirely different ilk. There, the plaintiff admits the factual basis underlying the employer's proffered explanation and further admits that such conduct could motivate dismissal. The plaintiff's attack on the credibility of the proffered explanation is, instead, an indirect one. In such cases, the plaintiff attempts to indict the credibility of his employer's explanation by showing circumstances which tend to prove that an illegal motivation was more likely than that offered by the defendant. In other words, the plaintiff argues that the sheer weight of the circumstantial evidence of discrimination makes it "more likely than not" that the employer's explanation is a pretext or coverup.
29 F.3d at 1084 (emphasis in the original). Accord Anthony v. BTR Automotive Sealing Systems, Inc., 339 F.3d 506 (6th Cir.2003); Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir.2000); Kline v. Tennessee Valley Authority, 128 F.3d 337, 346-47 (6th Cir.1997).
The Plaintiff has not presented evidence that he was treated differently than other Defendant's employees, nor has he presented circumstantial evidence, the sheer weight of which makes it more likely than not that the Defendant's explanation for disciplining him is a pretext for discriminating against him because of his military service. Therefore, the second and third means of establishing pretext are not applicable herein. Accordingly, the Court turns to the question of whether the reasons for disciplining and ultimately firing Plaintiff were factually false, i.e., they did not happen.
Although the Plaintiff argues that the discipline imposed upon him was specious and has explanations why he should not have been disciplined, he has not submitted evidence demonstrating that the stated reasons for disciplining him were factually false. For instance, with respect to the second incident of discipline, Plaintiff's failure to follow Defendant's policies concerning its Furnace Replacement Program, it is not controverted that the Defendant permitted a customer to participate in the program without physically returning the old furnace, without any parts removed, to the Dayton branch. Plaintiff does provide evidence, in the form of his affidavit, which *794 could challenge the wisdom of Defendant's modification to the program; however, the point remains uncontroverted that he violated the policy.[13] Similarly, with the first and third incidents of discipline, while the Plaintiff has presented evidence which raises a genuine issue of material fact on whether he deserved the discipline imposed upon him, he has not submitted evidence that casts doubt on the facts that his cash bag was left unattended, outside the cash drawer, and that he failed to have a customer sign the correct packing list for an order that had been picked up.
In sum, the fact that Neal may have imposed discipline on the Plaintiff which he did not deserve, in and of itself, does not raise a genuine issue of material fact on the issue of pretext. It bears emphasis that the USERRA does not prohibit veterans from being discharged. It merely prohibits employers from discriminating against individuals because of their military service. The Plaintiff has pointed to no evidence in the record which would support a finding that Neal had an anti-veteran or anti-military bias. Indeed, the uncontroverted evidence is that Neal is a veteran of the Air Force.[14]
Accordingly, the Court concludes that the evidence fails to raise a genuine issue of material fact on the question of whether Mullins' military service was a motivating factor in the decision to terminate the Plaintiff's employment. Therefore, it sustains the Defendant's Motion for Summary Judgment (Doc. #17), as it relates to Plaintiff's claim that the Defendant discharged him in violation of the USERRA.
Based upon the foregoing, the Court sustains in part and overrules in part Defendant's Motion for Summary Judgment (Doc. #17). That motion is overruled as it relates to Plaintiff's claim that Defendant failed to promote him in violation of the USERRA, and is otherwise overruled.
NOTES
[1]  Goodman is a manufacturer and distributor of residential air conditioning and heating products.
[2]  In his Complaint, Plaintiff has also set forth a claim under the common law of Ohio for discharge in violation of the public policy set forth in the USERRA. Subsequently, he voluntarily dismissed that claim. See Doc. #8.
[3]  Given that this litigation comes before the Court on the Defendant's Motion for Summary Judgment (Doc. #17), the Court sets forth the facts and circumstances giving rise to this litigation in the manner most favorable to the Plaintiff, the party against whom summary judgment has been sought.
[4]  Neal subsequently told the Plaintiff that he (Neal) was aware that Plaintiff had applied for the Branch Manager position, but had not been selected for it because of his overseas service with the Ohio National Guard.
[5]  The Furnace Replacement Program has also been referred to as the Tubular Upgrade Program.
[6]  The final warning, like the previous written warning Mullins had been given, contained the notice that any similar infractions in the future would result in further progressive discipline, up and including termination of his employment.
[7]  Plaintiff's Affidavit is attached to his memorandum filed in opposition to Defendant's Motion for Summary Judgment (Doc. #17). See Doc. #19.
[8]  In support of this argument, the Defendant has submitted two unreported, Appellate Court decisions as supplemental authority, to wit: Loperena v. Scott, 356 Fed.Appx. 240 (11th Cir.2009) and Mumme v. Dept. of Veterans Affairs, 356 Fed.Appx. 391 (Fed.Cir.2009). See Doc. #29. In Loperena, the plaintiff was denied employment as a bailiff by the defendant, because he was suffering from post traumatic stress disorder as a result of having served in Iraq. The plaintiff brought suit alleging, inter alia, that the decision not to hire him violated the USERRA. The Eleventh Circuit affirmed the grant of summary judgment in favor of the defendant for the reasons set forth by the District Court in its decision. In that decision, the District Court had concluded that the plaintiff had failed to show that his military service was a motivating factor, given that the defendant routinely hired military veterans as bailiffs. In Mumme, the plaintiff, a veteran of the Marine Corps, brought a proceeding against the Department of Veterans Affairs, alleging it had violated the USERRA by failing to appoint him to the positions of safety engineer and registered nurse. In affirming the decision of the Merit Systems Protection Board denying plaintiff's challenge to his non-selection, the Federal Circuit noted, with respect the registered nurse position, "Mumme does not dispute that one of the selected candidates was himself a military veteran, a fact that tends to refute the notion that the agency was biased against Mumme's military status." Decidedly missing from both of those decisions is an indication that the decision maker made a statement similar to Spitz's. Therefore, those cases are distinguishable from the present dispute.
[9]  In support of this argument, Defendant has placed primary reliance on Clune v. Desmond's Formal Wear, Inc., 2003 WL 21796388 (N.D.Ind.2003). Therein, the plaintiff, who had been employed by defendant as a part-time employee, brought suit alleging that the defendant had violated the USERRA, by reducing his hours and subsequently terminating his employment. The District Court entered summary judgment in favor of defendant on both aspects of plaintiff's claim under the USERRA. With respect to plaintiff's assertion that the defendant had violated the USERRA by reducing his hours, the District Court concluded that a genuine issue of material fact, on the issue of whether plaintiff's military service was a motivating factor in the decision to reduce his hours, had not been created by the statement of the manager of the store at which plaintiff had worked to the effect that he would have been able to work more hours if he had not been gone so often. Any similarity between the manager's statement in Clune and that attributed to Spitz herein is destroyed by the plaintiff's deposition testimony, in that litigation, that the manager was merely referring to the hours plaintiff had lost during the 15 days he had recently spent on active duty with his army reserve unit. Herein, in contrast, Mullins did not testify during his deposition that there was a non-discriminatory reason for Spitz's statement.
[10]  Spitz's Affidavit is attached to Defendant's Motion for Summary Judgment (Doc. #17).
[11]  Although Plaintiff alleges in his Complaint that the Defendant denied him bonuses and raises, he alleges only that, in March, 2006, while serving in Iraq, Defendant did not give him an annual raise. Doc. #1 at ¶ 18. Plaintiff has not otherwise identified in his Complaint or memorandum opposing Defendant's request for summary judgment any particular raise or bonus he was not given.
[12]  Paragraphs 2 through 6 of § 4316(b) are not applicable to the present dispute.
[13]  It is axiomatic that it is not the task of federal courts to review the policy decisions made by employers.
[14]  The Plaintiff argues that Neal possesses two character traits not normally associated with veterans, slickness and fussiness. Even if this Court were to presume for present purposes that Neal is slick and/or fussy and that those character traits are not normally possessed by veterans, Plaintiff has failed to explain how that raises a genuine issue of material fact on the question of whether Neal was motivated by Plaintiff's service in the Ohio National Guard and deployment in Iraq to discipline and ultimately to discharge him.